P. Thayarammal Petitioner v. Pitty Kuppuswamy Naidu

JUDGMENT

(Delivered by Sir Owen Beasley, Kt., C.J)

This matter has been referred to us by Gentle J. The following questions have been raised, viz.,:

1. Whether an agent with a power of attorney to appear and conduct judicial proceedings has the right of audience in Court;

2. Whether the agent is entitled to notice if his principal wants to appear and conduct the proceedings himself in person or appoints an Advocate to appear for him; and

3. Whether the power of attorney agent can carry on business as a solicitor or attorney, drafting, engrossing and filing plaint, Judge's summons, affidavits and generally issuing legal process and charge fees to the principal.

That all three questions stand to be answered in the negative seems to us to be clear; but as the respondent has definitely asserted a right to the notice specified in question No. 2 and certainly by strong implication if not by his conduct to the right of audience stated in question No. 1 and the matters in question No. 3 also arise both out of his conduct and claim, we consider that this matter which is of course of extreme importance to the legal profession should be fully discussed by us.

The matter arises in the following way. The respondent is the holder of a power of attorney given to him by one Krishnammal, a widow. Krishnammal had filed a suit in the Madras City Civil Court against her sister Thayarammal to get her half share in the assets of one Palla Kuppammal, deceased, and it was necessary to apply for a search and get copies of the records in O.P No. 58 of 1935 (T.O.S No. 7 of 1935) on the file of the High Court and to take further proceedings therein. Being unable to stay in Madras she appointed the respondent as agent “to search the records and apply for copies thereof in the above matter, to file into and receive from Court all papers relating thereto, to swear affidavits, to file necessary petitions and to verify and sign the same, to appear and plead in Court in person on my behalf, to engage Advocates if necessary and to sign in their vakalaths, to do all acts necessary in the conduct of the above proceedings and in furtherance thereof.” In the before-mentioned litigation (T.O.S No. 7 of 1935) a petition was posted on the 16th November, 1936, before the Master and on that date, when the petition was called on, Mr. T.R Srinivasa Iyengar appeared on behalf of Krishnammal having been given a vakalath by her. The petition was adjourned and the respondent filed an affidavit on the 26th November, 1936, stating that Krishnammal had neither orally nor in writing intimated to him that she did not wish him to appear in the litigation and without revoking his power of attorney (which he marked as an exhibit) had engaged Mr. T.R Srinivasa Iyengar and he further stated that Krishnammal did this in order to deprive him of the remuneration due to him payable by her; and he claimed that the power of attorney was of the same force and validity as that of a vakalath and that, unless it was revoked by formal proceedings through Court, no orders could be passed on the petition. Therefore, by reason of the authority given to him in the power of attorney he claimed the same right as a legal practitioner who has been given a vakalath; and since the power of attorney authorises him to plead in Court it follows that he claims that right; and indeed we are informed that either in these proceedings or in some other, Lakshmana Rao, J. allowed him to address the Court. In view of the claim put forward by the respondent, in the affidavit referred to, the Master posted the matter before Gentle, J. for orders and he has referred the matter to us and it has been fully argued here by the learned Counsel for the petitioner, Krishnammal, the Bar Council, the Advocates' Association and the Attorneys' Association; and we have also heard the respondent in person. We may say at once that there is an unreported Bench decision of this High Court directly in point on the first question in C.M.P No. 498 of 1911, where it was held by Benson and Sundara Ayyar, JJ. that a right to appear in Court for his principal given to a recognised agent by O. 3, Rr. 1 and 2, Civil Procedure Code, does not include a right to plead, that it means simply that one can take proceedings to submit oneself to jurisdiction, that the High Court has under the Letters Patent and the Legal Practitioners Act and under Ss. 119 and 122, Civil Procedure Code, power to make rules as to who shall plead for parties before the High Court in its original and appellate jurisdiction and in the lower Courts, that S. 10 of the Letters Patent makes provision with regard to who alone can plead before the High Court and that others such as recognised agents cannot have the right to plead. There are also two decisions of the Calcutta High Court upon this point, viz., Hurchand Ray Gobourdhon Das v. The Bengal Nagpur Railway Co.(1) and In re Eastern Tavoy Minerals Corporation, Ltd.(2). In the former, a recognised power of attorney agent claimed a right to plead in Court on behalf of his principal under O. 3, R. 1, Civil Procedure Code but it was held by Jenkins, C.J and Chatterjee, J. that he had no right of audience; and in the latter case, a director of a company holding a power of attorney authorising him to appear for and on behalf of the company, to conduct and represent the company in the proceedings, claimed the right of audience on behalf of the company and, applying the ruling in the former case, it was held that he had no right of audience. It is plain from these three cases that Rr. 1 and 2 of O. 3, Civil Procedure Code, do not give the recognised agent any right to plead in Court on behalf of his principal either in the appellate or original sides of the High Court and, even if it could be contended successfully that O. 3 gives a right to a recognised agent to plead in Court on the appellate side, it is clear that he can have no such right of audience on the original side because of S. 119 which provides that: “Nothing in this Code shall be deemed to authorise any person on behalf of another to address the Court in the exercise of its original civil jurisdiction, or to examine witnesses, except where the Court shall have in the exercise of the power conferred by its Charter authorised him so to do, or to interfere with the power of the High Court to make rules concerning advocates, vakils and attorneys.” The respondent certainly has not been authorised by the High Court to do so. In this connection Cls. 9 and 10 of the Letters Patent are important. Cl. 9 relates to the powers of the High Court as to the admission of advocates, vakils and attorneys; and such advocates, vakils and attorneys as have been approved, admitted and enrolled by the High Court are authorised to appear for suitors in the High Court and plead or act for them according as the High Court may by its rules and directions determine and subject to such rules and directions; and Cl. 10 gives the High Court power to make rules for the qualifications and admission of proper persons to be advocates, vakils and attorneys, and empowers the High Court to remove or suspend from practice on reasonable cause advocates, vakils or attorneys, and enacts thus:—

“No person whatsoever but such advocates, vakils or attorneys shall be allowed to act or to plead for, or on behalf of any suitor in the said High Court, except that any suitors shall be allowed to appear, plead or act on his own behalf or on behalf of a co-suitor.”

These two clauses are sufficient to dispose of the respondent's claim and in addition S. 8 of the Indian Bar Councils Act is equally definite. It is as follows:—

“No person shall be entitled as of right to practise in any High Court, unless his name is entered in the roll of the advocates of the High Court maintained under this Act;

Provided that nothing in this sub-section shall apply to any attorney of the High Court.”

S. 9 empowers the Bar Council with the previous sanction of the High Court to make rules to regulate the admission of persons to be advocates of the High Court. It must be observed that S. 8 is not limited to the right to “plead” but to the right to “practise”. The Legal Practitioners Act is similarly decisive as regards the mofussil Courts. The answer to Question No. 1 is so clear that no further reference to statutes or decided cases is necessary and it must be in the negative.

The respondent's contention regarding Question No. 2 is based on the claim that because of his power-of-attorney he stands in the same position as that of an advocate holding a vakalath by reason of O. 39 of the Original Side Rules. R. 1 of that order prohibits a pleader from appearing, pleading or acting in any suit unless he has filed his vakalath in Court in accordance with the rules and his appointment continues under R. 2 until the death of his client or it is revoked under R. 3, which provides that the appointment may be revoked by an order upon a Master's Summons in Chambers. Under R. 2-A if there is already a pleader on record a pleader proposing to file an appointment in the suit may not do so unless he produces the written consent of the pleader on record or unless, where the consent of such pleader is refused, he obtains the special permission of the Court; and R. 5 prevents a party who has filed an appointment of a pleader from appearing before the Court except in the absence of his pleader or to make any application or do any act in person so long as the appointment is in force; and there are similar provisions in the Appellate Side Rules. By reason of these rules the respondent claims that as his power-of-attorney authorising him to appear in Court and plead on behalf of Krishnammal has not been revoked, she is not entitled to give an appointment to Mr. T.R Srinivasa Aiyangar to act for her. But as an agent under a power-of-attorney has no right of audience in Court, it follows that the power-of-attorney authorising him to plead is of no force whatsoever and upon that ground alone his contention must fail. But quite apart from that difficulty, there is no warrant whatever for putting a power-of-attorney given to a recognised agent to conduct proceedings in Court in the same category as a vakalath given to a legal practitioner, though probably the latter may also be described as a power-of-attorney. The very rules upon which the respondent relies show that such a power-of-attorney or appointment as it is called is confined only to pleaders, that is, those who have a right to plead in Courts; and Question No. 2 must, therefore, also be answered in the negative.

Question No. 3 raises some important points and, as it is drafted, does not present any difficulty. Obviously a power-of-attorney agent cannot carry on “Business” as a solicitor or attorney. To carry on business in such capacity is to practise. What exactly the word “practise” used in S. 8 of the Indian Bar Councils Act means is not defined in the Act but it certainly must be taken to mean and include everything that a legal practitioner does as such in the High Court such as Question No. 3 refers to, namely, drafting, engrossing and filing plaints, Judge's summons, affidavits and generally issuing legal process, and although it is not necessary to say what would constitute carrying on a “business”, and each case would depend upon its facts, a clear case of it would be where an agent has made a habit of doing so, though even one instance might be sufficient, or if an agent were to take business premises and to hold himself out as a law agent prepared to act in such matters for remuneration. Even one isolated act has, in England, been held to constitute “acting as a solicitor” rendering persons guilty of such conduct liable to be dealt with under S. 26 of the Solicitors Act of 1860 for contempt of Court. [Ainsworth, In re; The Law Society, Ex parte]. In that case, an unqualified person gave as agent for the defendant in an action the notice of appearance to the writ required by O. 12 R. 9, of the Supreme Court Rules, to be given by the defendant to the plaintiff or his solicitor and he was held to be acting in contravention of S. 2 of the Solicitors Act of 1843 which prohibits any unqualified person from “acting as a solicitor” or “carrying on any proceeding” in the superior Courts. There, the unqualified person does not appear to have done this for remuneration at all and there does not seem to be any reason why even one isolated instance here should not suffice to constitute carrying on business or practising. As it stands, therefore, Question No. 3 has clearly to be answered in the negative also. In conclusion, we would add the following general observations with regard to what the claim put forward by the respondent really amounts to. It is that he should be accorded all the rights and privileges which are enjoyed by members of the legal profession whose qualifications for admission to its ranks are laid down in the rules made by the Bar Council with the sanction of the High Court, and whose professional conduct thereafter is regulated by rules of practice and professional etiquette and who are subject to the disciplinary control of the High Court; whereas the respondent need possess no qualifications whatsoever as regards education and character and is not bound by any rules of professional conduct or etiquette and is not subject to the disciplinary control of the High Court or of any one: and there can be no better example than this case itself affords of the highly objectionable result such a claim may lead to and actually has led to here, because the respondent claims to be remunerated by his principal for his services in question and before us stated that the condition regulating his payment is that he is to receive it only if the result of the proceedings is successful but not otherwise. On his own admission, this is a transaction which, if entered upon by a legal practitioner, would at once render him liable to strong disciplinary action, for to engage in speculative litigation is a grave breach of professional conduct. Yet his claim is that he is free to undertake such business and this is only one example of probable resultant evils.

Questions answered in the negative.

N.R.R