Skip to content


In Re: Khoda Bux Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1888)ILR15Cal639
AppellantIn Re: Khoda Bux Khan and ors.
Excerpt:
pleaders - pleader's taids--mukhtear--legal practitioners' act (xviii of 1879)--ministerial duties of pleaders, delegation of to their bona fide clerks. - .....limited his remarks and the orders he has made to persons who are the actual and bona fide taids of pleaders. so that the only question which arises before us now is really the question whether the judge had any right, or any legal power, to define certain acts, which he has here defined as acts, which must be done by the pleaders themselves and which they cannot employ their clerks to do for them.6. it appears that from the earliest times, so far as we have been able to ascertain from the history of litigation in this country, a class of persons now known as pleaders has existed, and that these pleaders have conducted the litigation of the country for the litigants, and, in doing so, have done the administrative work, arising out of such litigation in the offices of the courts,.....
Judgment:
ORDER

W. Comer Petheram, C.J.

1. This is a rule which has been obtained by the learned Advocate-General for the purpose of setting aside certain orders which have been made by Mr. Kirkwood, the District Judge of Patna. We have heard in opposition to the rule Mr. Evans as amicus curia. He appears in that character at the request of the mukhtears practising at Patna, I suppose, or for the mukhtears generally, and we have been very glad to hear him, because it is very desirable in a case of this kind that the Court should have all the assistance possible to enable us to understand what the facts of the case are and what the law in this country is with reference to these matters so that we may be able to come to a proper decision.

2. The orders referred to in the rule were as follows (here followed the orders as set out above).

3. It will be noticed on reading these orders that the learned Judge assumes to have the right to do two things. He assumes to have the right to regulate the transactions which a pleader must do himself and the transactions which he must do through his clerk, and he also assumes to have the right to regulate the number of persons who should be admitted to the Court premises.

4. I think it will be well to deal with the second, which is the smaller question, first. There cannot be the slightest doubt that a Judge has a general power over his own Court in the sense that he has a right to see chat order is maintained, that the Court room is not encumbered by persons loitering about there to the detriment of the business of the Court, and that the public are not allowed to enter those portions of the Court house which are not intended for their use. But as a matter of fact the Court house is a public place, and is a place to which the public has a right to resort so long as they behave properly and do not make a disturbance and do not crowd the Court in such a way as to interfere with the disposal of business; and as long as persons behave themselves properly in a Court house there is no authority vested in any one to turn it into a private place ; and although undoubtedly this learned Judge has a perfect right to control the way in which the Court room is to be used by particular persons--that is to say, to arrange the seats in such a way as he finds most convenient, allotting to the pleaders one place, to the parties another, and to the public a third--I do not think he is right or that he is justified in making any general order by which he excludes any portion of the community, as a general body, from his Court; and though I expressly wish to be understood as not interfering in any way with the right of the Judge to control his Court premises in such a way as is most convenient to the public and to persons working there, still I think that this very general order is objectionable, because it is directed against a particular class of persons, and because it is so mixed up with the rest of his order that it is objectionable on that ground too.

5. Then I proceed to deal with the other part of the order by which the learned Judge limits and defines the professional acts which he considers the pleaders must do individually and those which their clerks may do for them, and with reference to what I have to say now I would specially call attention to the learned Judge's remarks which show that, though they are directed to the actual taids of the pleaders, he does not go into the question whether these persons are bona fide taids or not. He does not deal with it by saying that in his opinion these persons who are called taids are not taids at all, but are unauthorized mukhtears and touts and persons who for that reason ought not to be there; he deals with them as actual taids, and, therefore, [644] in what I have to say in this case, I wish to be particularly understood as directing my remarks to persons who are bona fide taids or clerks of pleaders. If it were shown that the persons against whom the order is directed were not taids, but persons carrying on an independent profession and acting in individual cases and being remunerated by some arrangement for fees at a certain percentage or otherwise, a totally different set of considerations would arise; but, as I said before, the Judge has specially limited his remarks and the orders he has made to persons who are the actual and bona fide taids of pleaders. So that the only question which arises before us now is really the question whether the Judge had any right, or any legal power, to define certain acts, which he has here defined as acts, which must be done by the pleaders themselves and which they cannot employ their clerks to do for them.

6. It appears that from the earliest times, so far as we have been able to ascertain from the history of litigation in this country, a class of persons now known as pleaders has existed, and that these pleaders have conducted the litigation of the country for the litigants, and, in doing so, have done the administrative work, arising out of such litigation in the offices of the Courts, themselves, and have appeared as advocates in the Courts as well; in other words, have combined, in their own persons, the two duties which are performed in England by attorneys and barristers. This has been the case apparently from the earliest times; and, so far as we can ascertain and so far as it has been shown to us to-day, down to comparatively recent times the only recognized legal practitioner in the mofussil Court has been the pleader or vakeel who combined both vocations in his own person. Now it is clear that, so far as the Courts are concerned, the legislature has to a great extent made these persons officers of the Court, and of course the object of doing that is that the Courts may have a control over them as their own officers, and may see that, in their dealings with the public, they were fit to be entrusted with the responsible duties which they had to perform. But it is equally clear that, although in their capacity of pleaders or vakeels, the Courts and the Legislature have a perfect right, and they would be wrong if they did not exercise that right, to insist that in their character as advocates they should do the work themselves, the conditions of an advocate being conditions which a man cannot sever from himself as an advocate, and it is in that capacity alone that he appears before the Court for his client and argues the client's case and advocates his cause; but it is not so with a man who combines the two offices in himself and gets up the case and does the ministerial work as well, for, as to that portion of his business, if he is to appear as an advocate as well, he must do a portion of it through other persons, and therefore he must have clerks to do it for him. But that does not do away with his responsibility to the Courts to see that the business of his office is conducted with due diligence and done properly and honestly; and the person whom the Courts would hold responsible, if anything wrong were to take place, would be, not the clerk or the taid of the pleader, but the pleader himself; and if they have the pleader himself upon their rolls, they have a man over whom they have a control, and that is all that is necessary in the interests of justice; and, so it seems to us, that the only thing necessary is that the Court should insist upon his duties as an advocate being performed by the pleader himself and the ministerial part of his office work, on his responsibility, by persons properly selected and paid by him.

7. But in addition to that there arises this other question--Supposing it to be necessary that the duties to be performed by the pleader himself, other than those which he performs in open Court, should be defined, and those to be performed by bis taid or clerk should be defined, that must be done by the body which has the superintending power over those persons and has the power to make rules, under the provisions of the Act, for their guidance as to the mode in which business is to be carried on, and that body is not the District Judge, but the High Court as established by Charter; and if any rules are to be framed, and if any regulations are to be made for the conduct of this part of their business, the proper and the only tribunal which has a legal right to make them is this Court and this Court alone, and to it the parties must apply if they wish any such rules to be passed.

8. That being so, it seems to us that the learned Judge, in making these orders by which he has defined the duties to be performed by the clerks of the pleaders as contrasted with the duties which might be performed by the pleaders themselves was acting outside his jurisdiction, and that would be a quite sufficient reason for us to make this rule absolute to set aside the whole order, the series of orders of which it is composed being so intimately connected with each other that, in our opinion, the order must stand as a whole or fall as a whole. But I think it right to add here that, so far as we can see, the duties thus defined being a portion of the original duties of pleaders which it is necessary, by the nature of things, should be performed by their clerks, there really was no reason for these orders unless the Judge were empowered and compelled to make them by reason of the rights which are supposed to have been conferred on these mukhtears by virtue of the provisions of Act XVIII of 1879.

9. With reference to the meaning of that Act, I think it will be well to say a few words as to what the history of mukhtears is. As I said just now, the only bady of recognized legal practitioners in this country which existed before this time, or in old times, apparently was the pleaders, who were persons who did all the work themselves as officers of the Court. But as time went on another body of men grew up, as it necessarily would grow up in a country where litigation is so rife. They were a body of men who carried on business as law agents and obtained the name of mukhtears. They seem to have been persons who had little knowledge, but they possessed great facilities for moving about the country; they communicated with the inhabitants in the district, they came up for them to the centres of litigation, and they communicated with the pleaders, and for doing that they got paid in some way, whether by the clients or the pleaders, in some cases by the client, in some cases by the pleaders, and in some cases by both. In that state of things it was found to be a scandal that these people should be allowed to do their work in this way without any check, and practise extortion if they thought fit. It was, therefore, found necessary that they should be brought under some sort of control, and accordingly the existence of mukhtears was recognized in an Act passed in 1865, which was subsequently repealed by Act XVIII of 1879, which is the Legal Practitioners Act now in force. The object of this Act was not to control the privileges which had always existed in the pleaders or to restrict in any way the powers which they had, but to control this unauthorized body of law agents or mukhtears for the purpose of bringing them under the control of the Court, so that they might be kept in order and might not be at liberty to go about oppressing people by extortion. But so far as this case is concerned, the rights of mukhtears have nothing whatever to do with it, because it seems to us that the rights of the mukhtears are absolutely independent of the rights of the pleaders, and the only thing that is said, so far as they are concerned, is, that persons who are not pleaders shall not do anything of that kind specified in this Act until they have obtained the sanction of the Court to do it.

10. In the result, and with these remarks as to the general position of the parties, we are of opinion that these orders of Mr. Kirkwood were beyond his powers, and therefore this rule must be made absolute to set them aside.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //