Amrita Misri & Ors. v. State Of J&K & Ors.

1. This application is filed by the applicant Mr. Yashpal Koushal seeking permission under the provisions of Order 3 Rule I of the Code of Civil Procedure and Section 32 of the Advocates Act, 1961 to appear and argue Writ Petition No. 418 of 1988 titled ( Amita Misri and three others Versus State of J&K and five others). The applicant seeks the permission on the strength of the special power of attorneys executed in his favour by the petitioners separately, which are not duly executed before any competent authority nor attested properly. Be that as it may, the only point agitated before us requiring determination pertains to the question: "

Whether an attorney holder be permitted to argue before this Court on the strength of power of attorney made in favour of a private individual, who is not a pleader or an Advocate duly enrolled entitled to practice in the Courts?

The answer to this question depends on variety of considerations. In answer to the application, objections have been filed by the learned Additional Advocate General opposing the prayer of the attorney to allow him to argue and plead on behalf of the petitioner. As projected in the objections, it has been high-lighted that the applicant Mr. Yashpal Koushal on the strength of power of attorney is trying to appear in several cases and has already put in his appearences in about nine case, of which the instances are given. It will be quite un-safe to allow him to argue and plead on behalf of the petitioners in the Courts as he does not possess the required registration under the Legal Practitioners Act or the Advocates Act entitling him to practice. It is also pointed out that his purport to practise in such a manner in the grab of obtaining some experience amounts to an offence punishable under Section 45 of the Advocates Act. In the similar application under Section 32 of the Advocates Act, an order passed by one of us constituting the Bench (Shah J ) in C.M P. No. 893 of 1987 on November 24, 1987 rejecting the application and refusing to allow the applicant Mr. Yashpal Koushal is also referred.

2. We have heard the applicant Mr. Yashpal Koushal and learned Additional Advocate General on the application. Mr. Koushal tried to emphasis that he has a fundamental right to acquire practical in the branch of law in litigation, which can help him to become an advocate and submitted that he is a student of law and has completed the L.L.B. Course and entitle to argue and plead on the basis of power of attorney. By referring to Section 32 of the Advocates Act. 1961, he submitted that with the permission of the Court even a private person is entitled to argue and he has argued his own cases in the High Court and the Supreme Court of India. Reliance is also placed in support of his contention to obtain permission on an authority of the Hon'ble Supreme Court of India reported in A.I.R 1978 S.C. 1019 (Harishanker Rastogi. Petitioner Vs. Girdhari Sharma and another, Respondents).

3. It is not disputed that the petitioner is not an Advocate or a Pleader enrolled, as such entitling him to practice as a professionalist. Although Mr. Koushal submitted with impunity that he is a law graduate, though he has not yet succeeded in getting the degree of law. It is also noticed that not only in this one, but he has tried to appear as attorney on the stren­gth of power of attorney in many other cases without getting enrolment as required under the provisions of the Legal Practitioners Act of the State or of the Advocates Act, 1961. Under Section 29 of the Advocates Act, only Advocates are recognised as a class of persons entitled to practice law. Section 30 of the said Act gives right to the Advocates to practice in Courts of law before any Tribunal or any authority enumerated in the said section. Section 31 specially provides recognition of certain attorneys as an exception to Sections 29 and 30 of the Act empowered to work as attorneys in the High Courts of Calcutta and Bombay and Section 32 gives the power to the Courts to permit any person, not enrolled as an advocate to appear before it or him in any particular case. It is thus clear that the intention of the legisla­ture is to regulate the provisions in order to maintain discipline and profess­ional entity. In Section 32, the words in any particular case are of great significance, which indicates that the legislature never intended to permit attorney-holders except otherwise provided under Section 31 to appear as such in cases. It is left entirely on the discretion of the Court to examine the feasibility of granting permission to any person not enrolled as an Advocate looking to the circumstances of the case and the person appearing to assist the Court in advancing the cause of justice. The provisions of order 3 Rule 1 of the Code of Civil Procedure are also not meant to allow such recognised agents holding powers of attorney for the purposes of appearances, applicat­ions and acts to allow them to argue and plead like a pleader or an Advocate. It is thus manifest that the import of Section 32 is not such, so as to enlarge it to such an extent as to allow in cases any such person like the one Mr. Yashpal Koushal, who is trying to enter into the field of practice by putting in appearances in number of cases on the basis of powers of attorney. Such a practice is deprecated, which is quite un-safe also to authorise such persons or permit them to put in their appearances in the Courts. In the instant case there is yet another hurdle that the application itself is not made by the petitioners showing circumstances to engage a private person in a particular case to invoke the aid of Section 32.

4. It has already been held in C.M.P. (Writ) No. 893 of 1987 by one of us (Shah J):-

"This is noticed by the Court as well that Mr. Koushal, who is not a law graduate, nor enrolled as an Advocate is trying to put in his appearence in other cases as well on the author­ity of the power of attorney. It thus clearly appears that without taking the degree recognised by law and getting the enrolment, he is coming up as professionalist, if permitted so to be allowed, it will defeat the provisions of sections 29 of the Advocates Act."

5. Adverting to the authority cited reported in A.I.R. 1978 S.C. 1019 (Supra) an order passed by Hon'ble Mr. Justice V.R. Krishna Iyer J. as he then was in Chambers. We have examined the said authority and find that His Lordship had also discussed the circumstances under which in a criminal case on the application of the party concerned, he was allowed to be respresented by a private person not an Advocate His Lordship has also laid down the guide-lines to exercise the power in permitting a private person in a particular case under section 32 of the Act. Several safe-guards are also provided therein paragraph 4 of the order, His Lordship held:

"Having regard to this conspectus of considerations I hold that a private person, who is not an advocate, has no right to barge into Court and claim to argue for a party. He must get the prior permission of the Court for which the motion must come from the party himself. It is open to the Court to grant or with-hold permission in its discretion. In fact the Court may, even after grant of permission, withdraw it halfway through if the representative proves himself reprehensible. The antecedents, the relationship, the reasons for requisition­ing the services of the private person and a variety of other circumstances must be gathered before grant or refusal of permission."

No motion in the instant case has come from the petitioners in the writ petition seeking permission of the court to allow the power of attorney holder to appear on their behalf. Even in the application filed by the applicant, the reasons for requisitioning his services to argue that the writ petition have not been spelt out. Thus, on the law laid down by their Lord­ships of the apex Court in A.I.R. 1978 S C. 1019 (Supra) the permission to the applicant cannot be granted.

6. Under the circumstances enumerated in the preceding paragraphs, we are of the opinion that it will be improper and unsafe to allow Mr. Yash-pal Koushal to argue and plead the case of the writ petitions on the basis of the power of attorney as be is not a Legal Practitioner and there are no special reasons to grant him such a permission in any particular case. Our answer to the question posed is therefore, in the negative. The application is thus rejected.