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Lutfar Rahaman Laskar Haji Kabadali Naskar Vs. the State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 500 of 1953
Judge
Reported inAIR1954Cal455,58CWN48
ActsCode of Civil Procedure (CPC) , 1908 - Section 2(7) - Order 3, Rule 4 - Order 27, Rules 2 and 8
AppellantLutfar Rahaman Laskar Haji Kabadali Naskar
RespondentThe State of West Bengal and ors.
Appellant AdvocateNitya Ranjan Biswas, Adv.
Respondent AdvocateJajneswar Majumdar, Adv.
Excerpt:
- .....or specially for the purpose of this order :* * * * * (c) in relation to any suit by or against astate government or against a public officerin the service of a state, the state governmentand the government pleader as defined inclause (7) of section 2, or such other pleader as thestate government may appoint, whether generally or specially, for the purpose of thisorder.'the other relevant provision in the code of civil procedure to which reference need be made is the definition of government pleader as it appears in section 2(7) of the code :' 'government pleader' includes any officer appointed by the state government to perform all or any of the functions expressly imposed by this code on the government pleader and also any pleader acting under the directions of the government.....
Judgment:

R.P. Mookerjee, J.

1. In this matter two points have been raised before us for decision : (1) Whether the Government Pleader should be taken to have appeared for opposite parties nos. 2 and 3 who are officers of the Government; and (2) whether the counter affidavit prepared in the office of Sri Smriti Kumar Roy Choudhury, Advocate, may be received although he has not filed any power on behalf of any one of the three opposite parties.

2. The procedure to be followed for appearance on behalf of Government or public officers sued in their official capacity is contained in Order 27, Civil P. C. Under Rule 2 of the said Order persons being ex-officio or otherwise authorised to act for the Government in respect of any judicial proceeding shall be deemed to be recognised agents by whom appearances, acts and applications under this Code may be made or done on behalf of the Government. Rule 8 of the said Order lays down the procedure in suits against a public officer :

'(1) Where the Government undertakes the defence of a suit against a public officer, the Government Pleader upon being furnished with authority to appear and answer the plaint, shall apply to the Court, and upon such application the Court shall cause a note of his authority to be entered in the register of civil suits.

(2) Where no application under Sub-rule (1) is made by the Government pleader on or before the day fixed in the notice for the defendant to appear and answer, the case shall proceed as in a suit between private parties.'

3. Rule 8B of the said order defines a Government Pleader which means :

'(a) in relation to any suit by or against the Central Government, or against a public officer in the service of that Government, the Central Government and such pleader as that Government may appoint whether generally or specially for the purpose of this Order :

* * * * * (c) in relation to any suit by or against aState Government or against a public Officerin the service of a State, the State Governmentand the Government Pleader as defined inClause (7) of Section 2, or such other pleader as theState Government may appoint, whether generally or specially, for the purpose of thisOrder.'

The other relevant provision in the Code of Civil Procedure to which reference need be made is the definition of Government Pleader as it appears in Section 2(7) of the Code :

' 'Government Pleader' includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader.'

4. It is clear from the provisions referred to above that a Government Pleader need only intimate to the court, that he is representing the Government in the proceedings before the Court. No stamped power or Vakalatnama is required to be filed. This is a special provision which makes it possible for the State to appear through the Government pleader without the formality of filing a stamped vakalatnama.

5. The appearance, therefore, in the present proceedings by the Government Pleader on behalf of opposite party No. 1 -- the State of West Bengal -- must be accepted as an intimation, as stated above, was given by the Government Pleader to the Court on 11-5-1953.

6. The present Rule in which the points for decision have been raised was issued as against three parties, viz., (1) the State of West Bengal, (2) The Director of Procurement, and (3) The Assessor Inspector. Under Rule 8 of Order 27, Civil P. C. only if the Government undertakes the defence of a suit against a public officer, the Government Pleader upon being furnished with authority to appear is to apply to the Court and upon such application the Court is to cause a note of his authority to be entered in the Court records. In the present case all that the Government Pleader did was to add in the memorandum which was filed by him, intimating his appearance on behalf of the State of West Bengal, that he was also appearing for opposite parties Nos. 2 and 3. There was no indication that the Government had undertaken the defence on behalf of such officers, and there was no application either as required under the Rules. If no application is made within the date fixed in the notice for the opposite party to appear, Sub-rule (2) of Rule 8 provides that 'the case shall proceed as in a suit between private parties'.

7. In the present case, therefore, the Court is to proceed on the footing that there has been no appearance by the Government Pleader on behalf of opposite parties nos. 2 and 3, as the procedure laid down had not been followed and the particulars which were required to be furnished had not been given. The intimation filed by the Government Pleader for appearance on behalf of opposite parties nos. 2 and 3 cannot be accepted.

8. We have to deal with the second point now Sri Smriti Kumar Roy Choudhury, Advocate, prepared in his office and filed a counter-affidavit on behalf of the opposite parties on 5-5-1953 before the Government Pleader had entered appearance on 11-5-1953.

9. Filing an affidavit in opposition to the petition on which the Rule has been issued is an acting on behalf of the party in the proceeding, which is pending before the Court.

10. Order 3 of the Code of Civil Procedure definitely lays down the conditions under which a party may be represented by an agent or by a lawyer. Sub-rule (1) of Rule 4 of Order 3, lays down:

'No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorised by or under a power of attorney to make such appointment.'

Sub-rule (2) of Rule 4 aforesaid requires such an appointment to be filed in Court and Sub-rule (5) particularises the details which are to appear in the memorandum of appearance on the strength of which a pleader is entitled to appear and act for a party.

11. It was contended by the Assistant Government Pleader that no separate power was required to be filed by Sri Roy Choudhury as under Clause (7) of Section 2, Civil P. C.

'any pleader acting under the directions of the Government Pleader'.

is to be deemed a Government Pleader, and as such, such a lawyer is entitled to act without the filing of the necessary power, as required under the provisions of Order 3, of the Code of Civil Procedure.

12. This contention is well founded, but to a limited extent and subject to certain conditions. An Advocate who would be appearing in the High Court purporting to be acting under the directions of the Government pleader must have that fact recorded in a proper and formal manner as he is not one appointed as a Government pleader under the provisions of the law and the Rules. An Advocate may be appointed as Government pleader, either by a general order, or for a particular case or group of cases, and the formalities required for the appointment of an Advocate-in that special category are always available to the Court. If an Advocate, not so specifically appointed as Govt. Pleader, acts on behalf of a party in the Court purporting to act under the directions of the Govt. Pleader, the procedure similar to the one which is now in vogue in this Court in the matter of preparation of paper books in cases in which the Government pleaders appear, but the paper books are prepared by Advocates authorised by the Government Pleader may be a convenient procedure to be adopted in these cases as well.

13. It has rightly been pointed out that in the records of the case maintained by the court there should be a specific reference to the fact that a particular Advocate is acting in that case under the direction of the Government pleader. This fact can be recorded only by a statement by the Government pleader authorising a particular Advocate to act under his direction in that particular case. Under similar circumstances, the Government Pleader files in each Appeal a petition stating that a particular Advocate is authorised by him to be in charge of the preparation of the paper book in that case.

14. Our attention has been drawn to other cases in which the State and Government officers had been made parties. In some of these cases formal Vakalatnamas signed by the officers concerned had been filed, some times by the Government Pleader, and, at least, in two other cases by Sri Smriti Kumar Roy Choudhury as representing those particular officers, after accepting the powers signed by them. If Vakalatnamas, as are required to be filed, are signed by the officers who are sued in their official capacity, there is no objection to the same and the provisions governing ordinary litigants will apply. If, however, representation on behalf of such Government officers is to be by the Government pleader then the undertaking of the defence by the Government is to be reported bo the Court as provided under Order 27 of the Code of Civil Procedure.

15. If any Advocate, other than the Government Pleader, is to act on behalf of the Government or on behalf of a public officer, who is represented by the Government Pleader, such Advocate can only act after the Court is informed by the Government Pleader that that particular Advocate is acting under his directions for that case.

16. It must, therefore, be held that the counter-affidavit which was filed on 5-5-1953 was not so done by, an Advocate who had authority to do so on that date.

Renupada Mukherjee, J.

17. I agree.


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