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Smart Summary

Factual and Procedural Background

These two references were made by the District Judges of Anantapur and South Kanara concerning the entitlement of advocates enrolled by the Bombay High Court to practise in the Courts of the Anantapur and South Kanara districts respectively. The first reference questioned whether an advocate enrolled by the Bombay High Court in 1937, who had never practised in that Court or its subordinate Courts but only in the Anantapur district Courts, was entitled to practise there. The second reference involved three respondents, also enrolled by the Bombay High Court after the Indian Bar Councils Act, 1926 came into force, who had been practising in the South Kanara district Courts. These references arose due to the interpretation of section 4 of the Legal Practitioners Act and whether it permitted such practice.

Legal Issues Presented

  1. Whether an advocate enrolled by the Bombay High Court but not practising in that Court or its subordinate Courts is entitled to practise in subordinate Courts of other districts such as Anantapur and South Kanara.
  2. How the amendments introduced by the Indian Bar Councils Act, 1926, particularly to section 38 of the Legal Practitioners Act, affect the entitlement of such advocates to practise in subordinate Courts outside the High Court jurisdiction where they are enrolled.
  3. Whether section 4 of the Legal Practitioners Act applies to advocates enrolled under the Indian Bar Councils Act, and the consequent impact on their right to practise in subordinate Courts in other provinces.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court examined the wording of section 4 of the Legal Practitioners Act, which, if taken alone, would raise a difficult question because it requires that an advocate ordinarily practises in the Court on whose roll he is entered or a subordinate Court to be entitled to practise in other Courts in British India. The respondents had not practised in the Bombay High Court or its subordinate Courts but only in Courts in other districts. However, the Court noted that an amendment to section 38 of the Legal Practitioners Act, introduced by the Indian Bar Councils Act, 1926, excludes advocates enrolled under the Indian Bar Councils Act from the application of section 4. Section 14(1) of the Indian Bar Councils Act grants advocates the right to practise as of right in the High Court where they are enrolled and, subject to other laws, in subordinate Courts of the province. Since section 4 does not apply to advocates enrolled under the Indian Bar Councils Act, there is no legal prohibition against their practising in subordinate Courts of the province where they are not enrolled. Consequently, the respondents are entitled to practise in the subordinate Courts of Anantapur and South Kanara districts.

Holding and Implications

The references are answered in favor of the respondents, confirming their entitlement to practise in the subordinate Courts of the respective districts despite not having practised in the Bombay High Court or its subordinate Courts.

The direct effect of this decision is to clarify that advocates enrolled under the Indian Bar Councils Act, 1926, are not restricted by section 4 of the Legal Practitioners Act in practising in subordinate Courts outside the High Court where they are enrolled. No new precedent beyond this clarification was established.

    District Judge Of Anantapur v. K.V. Vema Reddi

    (Sir Lionel Leach, C.J)—These two references have been heard together and can conveniently be dealt with in one judgment. The first reference has been made by the District Judge of Anantapur and the question raised is whether the respondent, who is an advocate of the Bombay High Court, having been enrolled by that Court on the 13th September 1937, is entitled to practise in the Courts of the Anantapur district. Although he was enrolled by the Bombay High Court he has never practised in that Court or in any Court subordinate thereto. He has confined his practice entirely to the Courts of the Anantapur district. The second reference has been made by the District Judge of South Kanara. There are here three respondents and all of them were enrolled by the Bombay High Court after the Indian Bar Councils Act, 1926, came into force in that Province, as was the case in the first reference and they have since been practising in the Courts of the South Kanara district. These references have been made in consequence of the wording of section 4 of the Legal Practitioners Act. We shall refer to the section in a moment, but in passing we may say that if it stood alone a very difficult question would arise. The attention of the learned District Judges who have made these references has unfortunately not been drawn to an amendment to Section 38 of the Legal Practitioners Act which was made by the Indian Bar Councils Act and when section 38, as amended, is taken into consideration it is quite clear that these advocates are entitled to practise in the courts subordinate to this Court.

    Sub-section (1) of section 14 of the Indian Bar Councils Act says: —

    “An advocate shall be entitled as of right to practise: —

    (a) subject to the provision of sub-section (4) of section 9, in the High Court of which he is an advocate; and

    (b) save as otherwise provided by sub-section (2) or by or under any other law for the time being in force in any other Court in British India and before any other Tribunal or person legally authorized to take evidence; and

    (c) before any other authority or person before whom such Advocate is by or under the law for the time being in force entitled to practise.”

    We are not concerned here with sub-section (2) which only refers to practice in High Courts. Therefore, an advocate enrolled by any High Court is entitled by virtue of sub-section (1) to practise in subordinate Courts of this province provided that there is no other law which prohibits him doing so.

    Section 4 of the Legal Practitioners Act reads as follows: —

    “Every person now or hereafter entered as an advocate or vakil on the roll of any High Court under the Letters Patent constituting such court or under section 41 of this Act or enrolled as a pleader in the Chief Court of the Punjab under section 8 of this Act, shall be entitled to practise in all the Courts subordinate to the Court on the roll of which he is entered, and in all revenue offices situate within the local limits of the appellate jurisdiction of such Court, subject, nevertheless, to the rules in force relating to the language in which the Court or office is to be addressed by pleaders or revenue-agents; and any person so entered who ordinarily practises in the Court on the roll of which he is entered or some Court subordinate thereto shall, notwithstanding anything herein contained be entitled as such to practise in any Court in British India other than a High Court on whose roll he is not entered, or, with the permission of the Court or in the case of a High Court in respect of which the Indian Bar Councils Act, 1926, is in force, subject to rules made under that Act in any High Court on whose roll he is not entered, and in any revenue office.”

    These references have been made by reason of the words “and any person so entered who ordinarily practises in the Court on the roll of which he is entered or some Court sub-ordinate thereto shall, notwithstanding anything herein contained, be entitled as such to practise in any Court in British India other than a High Court on whose roll he is not entered.” The respondents have not ordinarily practised in the Bombay High Court or in Courts subordinate thereto and if the section stood alone, it would be doubtful whether they would be entitled to practise in Courts subordinate to this Court. Section 38 of the Legal Practitioners Act makes it quite clear, however, that section 4 does not apply to advocates who have been enrolled under the Indian Bar Councils Act. The words “and except as provided by section 36, nothing in this Act applies to persons enrolled as advocates of any High Court under the Indian Bar Councils Act, 1926” were added to section 38 by section 19 of the Indian Bar Councils Act. Consequently section 4 has no application to advocates enrolled under the Indian Bar Councils Act by any High Court. That being the position, section 4 must be ignored, which means that so far as the respondents are concerned there is no other law for the time being in force which prohibits them practising in the subordinate Courts of this Province.

    The references will be answered accordingly.

    N.T.R

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    District Judge Of Anantapur v. K.V. Vema Reddi
    (Jan 8, 1945)