D. Chatterjee, J.
1. The whole trouble in this case is due to a misunderstanding and some uncertainty of practice in the acceptance of vakalatnama in the moffusil.
2. The facts are that the petitioner filed a suit in the Small Cause Court at Puri in charge of the Second Munsif and engaged three Pleaders, Babus Purna Chandra Addy, Raj Kishor Das and Jogendra Chandra Mitra. Babu Purna Chandra accepted the vakalatnama by endorsing his name on its back as usual. The two other Pleaders did not sign the vakalatnama. On the date of hearing Babu Jogendra Chandra signed the hajira of witnesses and Babu Raj Kishor attempted to conduct the case by offering to examine the witnesses. There is some difference between the petitioner and the learned Munsif as to what then took place. The learned Munsif says he asked Raj Kishor Babu to accept the vakalatnama on the record, the petitioner says Raj Kishore was asked to file a fresh vakalatnama. I take the facts as stated by the learned Munsif to be correct, especially as there is no affidavit by the Pleader and the karpardaz, who swears the affidavit, does not know English and could not have understood what was said. But I cannot conceive why Raj Kishor Babu should have allowed the case to be dismissed for default, unless he misunderstood the order of the Court and thought that he was required to file a fresh vakalatnama which he could not do as his client was absent. As it is, I think there was some such mistake and the case was dismissed for default and Babu Jogendra Nath who had filed the hajira without signing the vakalatnama was given a notice to show cause why he should not be proceeded against under the Legal Practitioners Act. There was then an application for re-hearing, but that also ultimately failed as on the date of hearing an application for postponement was made by the agent of the client acting under a special power-of-attorney which was not registered. There is no provision in the Registration Act which makes the registration of a special power-of-attorney compulsory, but the Court is not bound to presume its genuineness unless it is registered; see Section 85 of the Evidence Act, and the learned Munsif was within his rights in refusing to act upon the application of the agent. As regards the acceptance of vakalatnamas the practice in the High Court is that one or more Vakils endorse their acceptance on the vakalatnama before it is filed, and if any other Vakil named in the vakalatnama wants to accept it later, he makes his endorsement before the Deputy Registrar or his assistant and the endorsement is initialled by the said officers and dated. Vakils who are engaged later generally endorse their acceptance when the record is in the Bench, but many Vakils work without endorsing their acceptance unless the omission is brought to their notice.
3. Order III, Rule 4, of the Civil Procedure Code, does not expressly say that the acceptance of the vakalatnama should be in writing and it was held by Banerjee, J., in 1901 in the case of Shama Prosad Ghose v. Taki Mallik 5 C.W.N. 816, that under similar provisions of Section 39 of the old Code, no writing was necessary for the acceptance of a vakalatnama and it was sufficient if the Vakil acting was named as one of those authorised in the body of the vakalatnama. This matter came before the English Committee of this Court in April 1910 upon a reference from the District Judge of Khulna and the learned Judges (Sir Lawrence Jenkins, C.J., Harington, J., Brett, J., Mookerjee, J., and Carnduff, J.,) directed the Registrar to say that Order III, Rule 4, does not require the acceptance of a vakalatnama to be in writing. The matter came up again in 1914 upon a reference from the District Judge of Tipperah and the same answer was given. The letter of the Registrar in that case is printed in 19 C.W.N. xxvi. The file shows that Rule 45(e) of the High Court Rules and Circulars published in 1910 was referred to by the District' Judge. It appears, however, from enquiries made from the Registrar of the Appellate Side that the answer was given in accordance with the precedent in the Khulna case, without placing the matter before the English Committee again. The next reference was by the District Judge of Cuttack in 1915, made in consequence of a representation from the Puri Bar Association objecting to an order of the 2nd Munsif of Puri directing that every acceptance of vakalatnama must be in compliance with Rule 45(e), Chapter XI, page 301, Volume 1, General Rules and Circular Orders (Edition 1910), whether it is before or after the vakalatnama is filed, and the same answer was given directing that in case of a subsequent acceptance by a new Pleader of a vakalatnama previously filed by another Pleader, the date of the acceptance should be added. This answer was also given by the Registrar on the authority of the Khulna case without any fresh consideration by the English Committee. All these references, however, deal with the case of several acceptances of the same vakalatnama by several Pleaders at different times, and none of them deals with the case of a Pleader acting without accepting the vakalatnama in writing. I think that Order III, Rule 4, Civil Procedure Code, does not require that the acceptance of a vakalatnama should be in writing.
4. An appearance or act, therefore, by a Pleader named in the vakalatnama would, if allowed by the Court expressly or by implication, be valid and operative. The High Court Rule, however, was made to be followed and is a salutary rule prescribed for safeguarding the interests of litigants and should certainly be followed in the moffusil in the manner indicated by the construction placed on the same in the answers to the several references. It must be fully complied with by the Pleader who first accepts the vakalatnama and all subsequent acceptances must be made by endorsements made in the presence of the Court or the sheristadar or the Bench Officer and dated, provided, of course, all the Pleaders so accepting a vakalatnama are named in it. Courts in the moffusil must be specially careful in enforcing this rule in cases of compromise and withdrawal of cases and withdrawal of money and documents.
5. There was evidently a misconception in this case. Raj Kishor Babu retired as he probably thought he was required to file a fresh vakalatnama which he was not in a position to do and the learned Munsif held that 'Babu Jogendra Nath who had filed the hajira had no authority from the plaintiff to file the same.' As I have shown above Babu Jogendra Nath had been duly authorised by the vakalatnama to represent the plaintiff and had signified his acceptance of the same by acting as aforesaid and would presumably have put down his signature on the vakalatnama if the omission had been brought to his notice. I, therefore, make the Rule absolute and direct that the case be restored to the file and tried in due course of law.
6. The petitioner obtained this Rule mainly on the strength of allegations in the affidavit to the effect that the learned Munsif sitting as Judge of the Small Cause Court would not allow his Pleader Babu Raj Kishor Das to examine his witnesses, as the Pleader had not accepted the vakalatnama already filed, and directed the Pleader to file a fresh vakaltnama, which the Pleader was unable to do in the absence of the petitioner, in consequence of which the suit was dismissed for default, In support of the Rule it has been argued that Order III, Rule 4, of the Civil Procedure Code does not require the acceptance of the Pleader to be in writing. In addition to the opinion expressed by Banerjee, J., in Shama Prosad Ghose v. Taki Mallik 5 C.W.N. 816, to the effect that acceptance need not be in writing reliance was placed on an article in volume XIX of the Calcutta Weekly Notes, page xxvi, in which it was alleged, quoting the letter of the Registrar of the Appellate Side of this Court, that the High Court refused to accept a recommendation of the District Judge of Tipperah that all the Pleaders who wished to appear in a case must sign the vakalatnama before it is filed in Court. In fact it appears that the recommendation of the District Judge of Tipperah was not brought to the notice of the Judges but was dealt with by the Registrar on the precedent of an answer given to the District Judge of Khulna in 1910. On that occasion an enquiry by the District Judge was considered by the English Committee and an answer was sent based on the opinion expressed by Banerjee, J. It, does not appear, however, that any reference was made to Rule 45(e) in Chapter XI of the Court's General Rules and Circular Orders, a rule which had been made subsequently to the decision of Shama Prosad Ghose v. Taki Mallik 5 C.W.N. 816.
7. That rule requires that a Pleader accepting a vakalatnama shall note on it the name of the person from whom it has been received, with an endorsement to the effect that he is satisfied that the person from whom he received it is either the party himself or a certificated mukhtar or one who has been authorised by the party to deliver it to him, as the case may be. The learned Munsif appears to be of opinion that the introduction of this rule has had the effect of making acceptance in writing obligatory by a Pleader accepting a vakalatnama. I do not think that that is the effect of the rule. I am of opinion that there can still be an acceptance by the Pleader other than in writing. But if the Court has, in the exercise of its powers, framed certain rules which must be observed by Pleaders, a Pleader who does not conform to those rules ought not to be heard. Although there may be an acceptance, as between party and Pleader, other than in writing, if the rules require that a Pleader is to sign the vakalatnama or make any particular endorsement on it, the Court before which the Pleader practises ought to insist on the rule being observed, before it allows him to plead.
8. Coming to the facts of this particular case I am certainly not prepared to accept the allegation that the Munsif asked the Pleader to file a fresh vakalatnama. The learned Munsif has pent an account of what happened, viz., that he asked the Pleader if he had accepted the vakalatnama already filed, the Pleader replied that he had not the Munsif then told the Pleader that if he accepted it he might appear, otherwise not, and the Pleader did not accept the vakalatnama. I will assume in favour of the petitioner that when the Munsif speaks of acceptance he refers to the making of such endorsements as are required by Rule 45(e) already referred to.
9. The Munsif's account of what happened concludes the matter. But in any case even if the Munsif had not denied the allegation in the affidavit, there would be nothing before us to justify the view that the Munsif had asked for a fresh vakalatnama. The affidavit is sworn by a person who does not know English, while the conversation in Court took place in English, and the affidavit is in the qualified form 'the facts stated are true to the best of my knowledge,' without any information, as to the source of the knowledge. Affidavits thus qualified are constantly being made and it is as constantly pointed out that the qualification renders the affidavit useless as evidence of any particular fact.
10. Nor am I prepared to take the view that the Pleader misunderstood what the learned Munsif said. The Pleader himself does not say so. I know that there is a general objection among the members of the profession to swearing affidavits, an objection for which in many cases there is no justification. I can well understand a Pleader objecting to swear an affidavit if that involves his alleging facts which throw discredit on the conduct or work of a judicial officer in whose Court he has to practise, but I do not see what considerations can stand in the way of his saying, if true, that he was mistaken in what the judicial officer said. Now far from there being any misunderstanding in this case, there is every reason for thinking that the Munsif wanted the Pleader to make the endorsement required by Rule 45(e) and that the Pleader deliberately refused to make it.
11. It is clear from the papers before us that the Munsif has been trying to enforce the complete observance of the rule not only by the first Pleader accepting a vakalatnama, but by those appearing on the strength of the original vakalatnama at subsequent stages of the case, while the members of the Bar have maintained the position that after the first endorsement, a mere endorsement of acceptance is sufficient in the case of Pleaders subsequently appearing and there is no doubt that there was, for I understand that the learned Munsif has been transferred, considerable friction between him and the members of the Bar. It is not necessary, nor have we the materials, to attempt to apportion the blame for this state of affairs, but apparently both sides held their ground, and I believe the present incident was merely an outcome of this difference of opinion. Incidentally I may observe that this state of things led to a reference by the District Judge to this Court, which was unfortunately disposed of by the Registrar on the authority of the reply given to the District Judge of Khulna, though the point referred was an entirely new one.
12. It is not necessary in the present case to decide which of the two views of Rule 45(e) advanced is the correct one, though there is something to be said in favour of both.
13. What does concern us in the present case is whether we ought to interfere with the order dismissing the suit. It is true, no doubt, that we have on the one hand an affidavit giving a garbled account by a person who was not in a position to understand what actually took place perhaps he was misled. On the other hand it is hardly fair to make the litigant suffer for a difference of opinion between the Court and the Pleader as to the latter's duties.
14. I, therefore, agree to the order proposed by my learned brother.