1. When this case first came on for hearing the defendant was represented by Mr. M.K Ramaswami Iyer, Attorney-at-Law, and the plaintiff by Mr. Venkatasubba Row, vakil. Mr. M.K Ramaswami Iyer applied for an adjournment and on this being opposed, he claimed the right, as an Attorney-at-Law, to conduct his client's case in the suit and to have a right of audience. Mr. Venkatasubba Row opposed this and maintained that an Attorney-at-Law has no right of andience in the trial of a suit on the original side. To this, Mr. M.K Ramaswami Iyer replied that he was prepared to show not only that he himself as an Attorney-at-Law had a right of audience but that Mr. Venkatasubba Row, a vakil, had none. I was informed that the question was one which had arisen in this Court before; but as the parties informed me that it was desired be make this a test case to go before the ultimate tribunal and as I was quite ignorant of what had been said or decided when it was discussed before, I thought it better that notice should go to the Barristers', Attorneys' and Vakils' Association respectively that I would hear their representatives if they desired to be heard as amici curiae. Ultimately, the matter was argued on 20th and 21st instant, when Mr. Nugent Grant, Barrister-at-Law, appeared for the Barristers, Dr. Pandalai, Barrister-at-Law for the Attorneys and Mr. C.P Ramaswami Iyer for the Vakils. Having heard these gentlemen as well in Mr. M.K Ramaswami Iyer and Mr. Venkatasubba Row who originally raised the question, I reserved judgment. The precise form which the matter takes is the question as to whether R. 533, of the Original Side Rules of the Madras High Court of 1902 is or is not intra vires. If it is, it is conceded that it disposes of the matter adversely to both of Mr. M.K Ramaswami Iyer's contentions; for its terms are perfectly clear and it runs as follows:

“An advocate may appear and plead upon all proceedings in Court or in Chambers provided that the taxing officer shall not, between party and party allow any fee in respect of his attendance at Chambers or at the first hearing of a suit unless the Judge certifies that the case is a proper one for the attendance of an advocate. An attorney may appear, plead and act upon all proceedings; provided that no shall not be allowed to appear or plead upon a hearing in Court. A vakil may appear, plead and act upon all proceedings, whether in Court or in Chambers.”

2. I have come to the conclusion that the clearest way of dealing with the subject is the chronological one. In order to understand the bearing and effect of the various statutes and rules and decisions, one must see what the position was, before the passing of 13 Geo. 3, Ch. 63. Under the Company's rule, civil justice was administered in local Courts, known as Zillah Courts. These had existed throughout India for a period going back centuries beyond the existence of Company. In them the litigants were represented by a body of persons called vakils, a Hindustani word meaning “Agents”; and from time immemorial, the vakil was paid by a percentage of the amount in suit. The Court or the native administration concerned determine who should be allowed to appear as vakils in a given Zillah Court. When the Company organised the system of Justice within India, they preserved the Zillah Courts, retaining in their own hands the appointment of the Judges in those Courts and the licensing of Vakils to plead; and the appeal system having developed, there grew up, at large centres of population, Courts of Appeal known as Sudder or “Superior” Courts presided over by the Chief Judicial Officers of the Company. These Courts, in each presidency, had a complete appellate jurisdiction over all inferior Courts of the Presidency and Vakils appearing in them for the parties were remunerated on the traditional system of a percentage of the amount in suit. No special Tribunal existed either for the presidency towns or for any special class of the population outside the Company's system of Zillah and Sudder Courts. The Sudder Courts were divided into two great branches, the Dewany Adawlut trying revenue matters and civil cases and Sudder Nizamut Adawlut or Fowjdari Adawlut which dealt with criminal matters. In 1774, steps were taken to permit of the establishment, for the Presidency of Bengal, by Charter or Letters Patent of a Supreme Court. The jurisdiction was to be over all British subjects in the Presidency subject to an appeal to His Majesty in Council. We need not further pursue the history of the matter in Bengal, since in 1800, similar steps were taken with regard to the Madras Presidency, by the Charter Act of that year. Following on this came the Letters Patent of 26th December 1800, establishing the Supreme Court of Fort St. George. The jurisdiction of that Court was over British subjects throughout the Presidency and over all persons within the Municipal limits of what would now be called the Presidency Town of Madras; and it was provided that the Court should have a jurisdiction similar to that of the Court of King's Bench in England. The Court was further,

“authorised and empowered to approve, admit and enrol such and so many of the persons, being bona fide practitioners of the law in the said Court of Recorder of Madras (this was the Royal Court which preceded the Supreme Court established by Charter) or having been admitted Barristers in England or Ireland or having been admitted Attorneys or Solicitors in one of our Courts at Westminster or being otherwise capable according to such rules and qualifications as the said Court shall, for that purpose, make and declare to act as well in the character of Advocates as of Attorneys in the said Court which persons so approved admitted and enrolled as aforesaid shall be and are hereby authorised to appear and plead and act for the suitors in the said Court and we do declare that no other persons whatsoever shall be allowed to appear and plead or act in the said Supreme Court of Judicature at Madras for and on behalf of such suitors or any of them.”

3. Another clause of the Charter of 1800 runs as follows:

“We do hereby further authorise and empower the said Supreme Court of Judicature at Madras, to settle a table of fees, to be allowed to such Sheriff, Attorneys and all others, the clerks and other officers aforesaid, for all and every part of the business to be done by them respectively, which fees, when approved by the Governor of Port St. George-in-Council (to whom we hereby give authority to review the same) the said Sheriff, Attorneys, clerks and other officers, shall and may lawfully demand and receive.”

4. The clear effect of the first of these clauses was to confine the right of acting in the character of Advocates and attorneys respectively in the Supreme Court to such persons as should be appointed and enrolled as such Advocates or Attorneys by the Court; and it is clear that Under that Charter, the Court could have no jurisdiction to give the right of audience in the Supreme Court to any one who had not been enrolled as an Advocate or the right of acting for a party to any one who had not been enrolled as an Attorney. The Letters Patent of Bombay, some twenty years later, confined the right of appearing in the Supreme Court to Barristers and of acting to Solicitors and it was held by the Privy Council in Morgan v. Leech(1) that the Supreme Court had no power to admit as an Attorney anyone who did not possess the qualifications indicated by the Letters Patent. Applying the principle of this decision, it is clear that under the Letters Patent of 1800, the Supreme Court at Madras could have no power to allow the right of audience or of acting in the Supreme Court to any person not duly enrolled as an Advocate or Attorney of that Court, as the case might be. It is pointed out that under the Letters Patent, the only legal practitioners for whom a table of fees is to be drawn up are Attorneys. A Barrister or an Advocate has no legal right to his fees which, in contemplation of law, are a mere gratuitous honorarium. In practice, of course, they are always charged at a more or less definite rate. But they are paid by the Solicitor or Attorney and figure in his bill delivered to his client and there is no contractual relation between the Barrister and the lay client. A vakil, on the other hand, can sue for his fees and can recover them directly from the lay client, just as a solicitor can sue for his professional costs. It is clear therefore that the only advoctes whose remuneration the Letters Patent of 1800 contemplated being provided for are the Barristers or Advocates retained and paid through Solicitors or Attorneys. There was no place in those Letters Petent for a vakil. While the right of audience was thug restricted in the Supreme Court, Barristers, Advocates and Attorneys were admitted to practice in the Company's Courts; but, in so far as they did so, they appeared practically on the same footing as vakils; their fees were taxed on the ad valorem scale in force in these Courts, and they were allowed to have direct relations with the lay client. In this state of things was passed the High Courts Act of 1861, 24 and 25 Vict., Ch. 104.

5. The Act enabled Her Majesty by Letters Patent to establish High Courts at Calcutta, Bombay and Madras; and S. 8 provides, with regard to Madras, that upon the establishment of such High Court in the Presidency of Madras, the Supreme Court and the Court of Sadar Adawlut and Fowjdari Adawlut in the same Presidency shall be abolished. S. 11 provides that upon the establishment of the High Court, all provisions then in force in India, of Acts of Parliament or of any order of Her Majesty-in-Council or Charters or of any Acts of the Legislature of India applicable to the Supreme Courts shall be taken to be applicable to the High Courts so far as may be consistent with the provisions of this Act and the Letters Patent to be issued in pursuance thereof, subject to the legislative powers of the Governor-General of India in Council. S. 15 provides that such High Court shall have superintendence over all Courts subject to its appellate jurisdiction and is to have power to settle tables of fees to be allowed to the attorneys, no mention being made of fees allowable to advocates on the one hand or vakils on the other. Summing up the effect of the statute as bearing upon the matters, I have to decide, it seems to me that the following points emerge: (1) the new High Court is a substitution for the Supreme Court and the Sadar Courts, and on its establishment, they cease, as such, to exist. Whatever historical analogies may exist, it is, I think, legally quite inaccurate to say that the Original Side of the High Court is the old Supreme Court or that the appellate side of the High Court is the old Sadar Court or Courts; (2) the existing provisions applicable to the Supreme Court are to apply to the High Court in so far as they are consistent with the act and with the new Letters Patent to be framed thereunder; and (3) the only legal practioners to whom tables of fees can be made applicable are attorneys. I now pass to the Letters Patent of 26th June 1862. Cls. 7 to 10 deal with the powers of the High Court in admitting Advocates, Vakils and Attorneys to practice. These are their terms. Cl. 7:

“We do hereby authorize and empower the said High Court of Judicature at Madras to approve, admit and enrol such and so many advocates as to the said High Court shall seem meet, who shall be and are hereby authorized to appear and plead for the suitors of the said High Court, subject to the rules and directions of such Court.’”

6. Clause 8:

“We do, further, authorize and empower the said High Court of Judicature at Madras to approve, admit and enrol such and so many vakils as to the said High Court shall seem meet, who shall be and are hereby authorized to appear, plead and act for the suitors of the said High Court subject to the rules and directions of such Court.”

7. Clause 9.

“We do, further, authorize and empower the said High Court of Judicature at Madras to approve admit and enrol such and so many Attorneys-at-Law as to the said High Court shall seem meet, who shall be and are hereby authorised to appear and act for the suitors of the said High Court subject to the rules and directions of such Court. Cl. 10. We do hereby ordain that the said High Court shall have power to make rules for the qualification and admission of proper persons to be advocates, vakils and attorneys-at-law of the said High Court and shall be empowered to remove, on reasonable cause, the said advocates, vakils and attorneys-at-law and no person whatsoever but such advocates or vakils shall be allowed to plead for, or on behalf of any suitor in the said High Court; and no person or persons whatsoever but such vakils or attorneys at law shall be allowed to act for any suitor in the said High Court.”

8. Clauses 11 to 27 deal with the jurisdiction of the High Court and establish a distinction in civil and criminal matters respectively between the original and appellate jurisdiction of the High Court, though the expression “Original and Appellate Side” of the High Court is not used. By Cl. 44 it is enacted that so much of the Letters Patent of 1800 as is inconsistent with 24 and 25 Vict. Ch. 104, and the present Letters Patent shall cease and determine and be utterly void. Under the authority of the Letters Patent of 1862 rules were passed by the High Court of Madras of which the material ones are as follows: By R. 4, advocates and attorneys of the Supreme Court who, at the time of its abolition, had been permitted to practise as pleaders in the Sudder Court were empowered to apply to be enrolled as vakils of the High Court, but as such vakils they were forbidden to appear, plead or act in matters of Extraordinary Original Civil Jurisdiction. By Rr. 7 and 8, vakils were forbidden to appear, plead or act is any matter of ordinary Original Jurisdiction of the High Court, Civil or Criminal. The position defined by these rules is quite unmistakable. The person who is to appear before the High Court in its appellate jurisdiction is the vakil with the traditional remuneration ad valorem. Barristers and attorneys have a right of audience in the appellate business and for purposes of that business only may enrol themselves as vakils. I am not quite clear as to whether the idea was that they must necessarily enrol themselves as vakils, if they wished to appear on the Appellate Side; and I do not feel sure that an advocate could not have appeared, instructed by an attorney, and claimed to be heard as an advocate and not as a vakil. This, however, is quite certain that the only remuneration that could have been claimed either from the client or from the other party, would have been the single ad valorem fee. The client could only with his consent have been charged with the ordinary bill of costs including separate items of remuneration to the attorney and the advocate. On 1st October 1863 the High Court issued two sets of new rules, the first being headed:

“Rules providing for the qualification and admission of advocates, vakils and attorneys of the High Court.”

9. They laid down certain qualifications with which we are not now concerned. But in R. 7 one qualification is that of having studied for six months with

“a vakil entitled as such to practise on both the Original and Appellate Sides of the High Court.”

10. This, so far as I know, is the first mention of a vakil entitled to practise on the Original Side. I do not think it is of much importance to enquire whether, on that date, any vakil did or did not practise on the Original Side. At any rate no one had been able to point out any rule which empowered him to do so, and by the rules of 28th August 1862 he was clearly prohibited from so doing. I think it more probable that the rule had reference to the future, for, on the same day, 1st October 1863, it is clearly contemplated that vakils shall practise on the Original Side, because there is an elaborate series of provisions regarding vakils' fees on the Original Side, though nowhere, in terms, is it directly said that he shall have a right of audience. On the one side it is contended that the rules of 1862, on the other that the rules of 1863, were ultra vires the Charter, and, of course, a third view is possible and that both were intra vires and that it was at the option of the High Court as to whether or no it should give a right of audience to vakils, an option which if exercised in one way on the earlier date and in another on the later. But it is not necessary to go into that matter, because, within three years, the Letters Patent of 1862 were superseded by the Letters Patent of 28th December 1865. The only clauses that I need refer to are 9 and 10 (relating to the admission of Advocates, Vakils and Attorneys), 37 and 44. Cls. 9 and 10 are so important that they must be set out in full.

11. Clause 9:

“We do hereby authorise and empower the said High Court to approve, admit and enrol such and so many Advocates, Vakils and Attorneys, as to the said High Court shall seem meet; and the said Advocates, Vakils and Attorneys shall be and are hereby authorised to appear for the suitors of the said High Court and to plead and act for the said suitors according as the High Court may, by its rules and directions, determine and subject to such rules and directions.”

12. Clause 10:

“We do hereby ordain that the said High Court shall have power to make rules for the qualification and admission of proper persons ta be Advocates, Vakils and Attorneys-at-Law, of the said High Court, and shall be empowered to remove or suspend, on reasonable cause, the said Advocates, Vakils or Attorneys-at-Law and no person whatsoever but such Advocates, Vakils or Attorneys shall be allowed to act or plead for or on behalf of, any suitor in the said High Court.”

13. Clause 37 makes it lawful for the High Court, from time to time, to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court; and in doing so, is to be guided, as far as possible, by the provisions of the Code of Civil Procedure; Cl. 44, makes all the provisions of the Letters Patent subject to the powers of the Indian Legislature which is empowered to amend and alter them. On 5th July 1866 new rules were passed by the High Court relating to Advocates, Vakils and Attorneys and by the fifth of those rules, vakils admitted under the rules of 1st October 1863 may appear plead and act and Attorneys may appear and act for the suitors in all matters over which the Court has any jurisdiction. It is clear and it is not contested that by that rule the High. Court definitely purported to give a right of audience to vakils on the Original Side of the High Court, and the right conferred by that rule was no less explicit and no more restricted than the right conveyed by the Rules of 1902 now in force.

14. In this state of things in 1875 the matter was brought before the Full Bench of four Judges, Sir W. Morgan, C.J, Innes, Kernan and Kindersley, JJ., on a petition by the Attorneys to have it declared that Rule 5 of 1866 was ultra vires and that Court has no power to authorise vakils to appear on the final hearing of a case on the Original Side. A good many arguments ab in convenient were addressed to the Court with which however relevant they might be on the hearing of a petition (thought as a matter of fact, the Court decided that they were act relevant), I clearly have no concern. The legal arguments were much the same as those addressed to me and I may say at once that, whatever my own view might be, I must clearly hold myself bound by that Full Bench decision, and I am of opinion that decision precludes me finally from holding that so such of Rule 533 of 1902 as gives a right of audience to vakils on the Original Side is ultra vires the Letters Patent. For the sake of clearness, I will just re-state what the chief contention was. It was based on S. 9 of 24 and 25 Vict., Ch. 104 which, in its concluding words, says: The High Court to be established in each Presidency shall have and exercise all jurisdiction and every power and authority vested in any of the Courts in the same Presidency abolished under this Act at the time of the abolition of the last mentioned Courts. The argument is that there has been vested in the High Court, only such power regulating the admission of the various classes of legal practitioners as were vested in the abolished Courts, and that those powers did not include the power to extend or contract the right of audience theretofore existing, but only to determine what qualifications should enable a person to be an advocate or a vakil, as the case might be. The High Court can say, for instance, that a person with a decree of Master of Laws of an Indian University should be entitled to be enrolled as an advocate or that a person with a degree of Bachelor of Laws should be entitled to be enrolled as a vakil; but it had no power to extend the functions and the right of audience of an advocate or a vakil beyond the powers enjoyed by the abolished Courts.

15. This argument also involves the contention that if the rule was in accordance with the Letters Patent the Letters Patent were void and ultra vires, in so far as they exceeded the powers conferred by the Act, 24 and 25 Vict., Ch. 104, under which the Letters Patent purported to be promulgated. That contention was rejected by the Full Bench and I only wish to add this to what was said by the Full Bench, that the argument involves yet another step, which, to say the least of it, is one of difficulty. The reasoning is apparently this: the old Supreme Court had no power to give a right of audience to vakils, though the old budder Court had and exercised the power to allow advocates and attorneys to appear before it as well as vakils; when it is dealing with Original Jurisdiction, the High Court is the inheritor only of the powers of the old Supreme Court, and, as such, has no jurisdiction to give a right of audience to any practitioner to whom the old Supreme Court could not have given such a right; as the inheritor of the powers of the Sudder Court, it can give the right of audience to vakils, but only in respect to the subject-matter with which the Sudder Court was concerned, namely, the appellate Jurisdiction of the High Court which it took over from the Sadder Court. It is a vary forcible argument and a very logical one and presents the view of the powers of the High Court in this matter which has dearly been adopted in Calcutta and Bombay. The difficulty of it is, as it seems to me that it preserves and continues into the constitution of the High Court the cleavage between what I may call its Supreme Court functions and its Sudder Court functions, which is not only not warranted by 24 and 25 Vict., Ch. 104, but is expressly forbidden by S. 8 of that Act.

16. The answer made, and the only answer that can be made is, of course, that the Act only abolished the Sudder Court and the Supreme Court as such and that there is nothing abnoxious to the provisions of the Act in supposing a cleavage to persist between the two kinds of jurisdiction exercised by the High Court typified by the separation and distinct distribution of its work between the Original and the Appellate Sides. I have thought it right to state the contention of the parties, as I understand it, on this subject, though, as I have said, for me the matter is concluded by authority. I now pass to another contention in which I am clearly not concluded by authority, I have already pointed out that Cl. 44 of the Letters Patent expressly preserves the right of the Indian Legislature to vary and override the provisions of the Letters Patent. It is contended that Act 18 of 1879 of the Indian Legislature, by necessary implication, takes away the right of audience of vakils on the Original Side even if they be deemed to have it under the Letters Patent. If this contention as to the effect of the Act of 1879 is sound it will do away with the authority of In the matter of the Petition of Attorneys(2), because it is obvious that if the Indian Act can vary the Letters Patent themselves, it can a fortiori overrule the authority of any case purporting to put a particular construction on the Letters Patent. The Act is entitled “The Legal Practitioners Act of 1879.” It did not, in its inception, apply to Madras but it was an adoptive Act and was extended to this Presidency, by adoption, by the Local Government in 1882. S. 4 of that Act provides that an

“Advocate or vakil on the roll of any High Court may practise in all the Courts subordinate to the Court on the roll of which he is entered or with the permission of the Court, in any High Court on whose roll he is not entered, provided that no such vakil shall be entitled to practise under this section before a Judge of the High Court, Division Court or High Court exercising Original Jurisdiction in a Presidency town.”

17. It is argued that this, by implication, prevents a vakil from appearing on the Original Side of a High Court. I think this argument in unsound because the governing words of the section appear to me to be the words “under this section.”

18. At the time when this Act was passed, vakils had no right of audience on the Original Side of the High Courts of Calcutta and Bombay and without the words, the section would authorise a Judge of the Bombay High Court to allow a vakil enrolled at Calcutta to appear on the Original Side of the High Court of Bombay and thus enjoy an privilege denied to all vakils enrolled in the Court of Bombay itself. A further argument was addressed to me on the construction of S. 27 of the Act which runs as follows: The High Court shall, from time time, fix and regulate the fees payable by any party in respect of the fees of his adversary's Advocate. Pleader, Vakil, Mukhtear or Attorney upon all proceedings (a) on Appellate Side of such Court; (b) in the case of a High Court not established by Royal Chatter, on its Original Side and (c) in Subordinate Courts. The argument is a subtle one and is to this effect: this section must be declaratory and exhaustively declaratory of the powers of the High Court to award fees of the nature of party and party costs, except in so far as there may be an express provision of the Letters Patent not directly in conflict with it. The Letters Patent contain a provision that the High Court shall regulate and make rules for the fees of attorneys. There is nothing in that inconsistent with the power of the High Court to make provision for the fees of Attorneys on the Original Side, because that is a matter left untouched by the section which only deals with Attorneys' fees on the Appellate Side.

19. But with regard to fees of vakils, the Letters Patent are silent. Accordingly, the only jurisdiction that the High Court can have to make provision for the fees of vakils as between party and party is contained in the Legal Practitioners Act, and S. 27 expressly confines the High Court's power to make such regulations to the Appellate Side of the High Court. It is urged that if vakils were to be supposed to have a right of audience on the Original Side, the absurd result will follow that the successful party cannot recover the fee he has paid to his vakils because the Court has no power to make any rule to fix what that fee may be. It is pointed out that the Indian Courts have no inherent powers in these matters but only such as they derive from Statutes or from the Letters Patent issued under statutory authority. I am not called upon to decide whether there is power for a successful party to recover his vakil's fees on the Original Side or not and I do not propose to do so. The argument advanced is that the absurdity of supposing that the legislature allowed a right of audience to exist without the right of recovering fees paid to the vakil as party and party costs, is so great that the legislature must be taken by necessary implication, to have denied the right of audience on the Original Side to vakils. I am bound by In the matter of the Petition of Attorneys to hold that at the date of the passing of this Act vakils had, under the Charter and under valid rules of this Court, a right of audience on the Original Side. I cannot construe an Act passed after she privilege has been enjoyed for 16 years as taking it away, unless it says so in plain terms or by an absolutely necessary implication. A mere anomaly or inconvenience created per incuriam or by bad draftsmanship is not, in my opinion, enough. I am not, of course, deciding whether or no the suggested anomaly does exist. But even if it did, it would not, in my opinion, be sufficient to allow me to read into the Act a deprivation of the right of audience which is not clearly to be found in it. I, therefore, come to the conclusion that I must hold that vakils have a right of audience on the Original Side of this Court. It remains for me to decide whether attorneys have such a right. My decision on the first point involves holding that the High Court is one and indivisible, that the old barriers between the Supreme Court and the Sudder Court are broken down and if an Advocate has the right of audience in one side of the High Court, he has necessarily on the other. I do not think that because the High Court is held to have the power to admit a practitioner to plead on both sides of the Court, it must necessarily, when it grants the right of audience on one side, be held to grant it, ipso facto, on the other. I have already said that I think it would be quite competent to this Court to follow the example of the High Courts of Bombay and Calcutta and exclude vakils from practising on its Original Side. Conversely, it may well be that the High Court would have been within its powers in admitting Attorneys to plead on the Original Side as well as the Appellate Side. From the fact that it may exclude Vakils, I have held that it does not follow that it must. Similarly, from the fact that it may include Attorneys, it does not follow that it must. What it has done by rules is to give the right of audience, on the Original Side, to Vakils and withhold it from Attorneys. I am not prepared to hold that the one is not as much within its powers as the other.

20. I have been much assisted in this case by the extremely able and learned argument of Mr. M.K Ramaswami Iyer, and I have to express my obligation also to Mr. Grant and Mr. C.P Ramaswami Iyer for their equally able and learned arguments and especially for their readiness, to assist the Court as amici curiae. I hold, in the result, that I can hear Mr. Venkatasubba Rao for the plaintiff and that I am precluded from hearing Mr. M.K Ramaswami Iyer for the defendant. The actual hearing of the suit has been postponed for a week in order to enable Mr. M.K Ramaswami Iyer to instruct counsel, which in obedience to my decision, he has expressed his readiness to do until a higher Court decides otherwise.

S.N/R.K

21. Order accordingly.