Girhar Narain Tussuduq Hosain And … vs Girhar Narain And Ors. on 23 May, 1887

Calcutta High Court
Girhar Narain Tussuduq Hosain And … vs Girhar Narain And Ors. on 23 May, 1887
Equivalent citations: (1887) ILR 14 Cal 556
Author: Norris
Bench: Mitter, Prinsep, Wilson, Tottenham, Norris


Norris, J.

1. On 2nd October, 1885, certain certificated mukbtears presented a petition to the District Judge of Patna, complaining that many unauthorised persons were, contrary to law, acting in Court as certificated mukhtears. The District Judge caused the persons complained against be served with notice to show cause why they should not be punished under Section 32, Act XVIII of 1879. On the 6th October 1885, Girhar Narain, one of the persons complained against, appeared by pleaders to show cause. The District Judge first heard what Girhar Narain’s pleaders had to say on his behalf, and then, apparently without any objection on his part, put some questions to him.

2. The statement of the pleaders and the examination of Girhar Narain are thus recorded by the District Judge . “It is admitted by his pleaders that Girhar Narain, a certificated revenue agent, appoints pleaders and that he instructs there, in the Civil Courts; but they say that he only does so on account of certain persons who are his masters, and who pay him a regular monthly salary for so doing.” In answer to the Court Girhar Narain states: “My masters are Tundon Singh of Gya, Babu Fatteh Bahadur of Gya, Suni Lal of Kachna in Patna, Chumari Singh of Panka, Mussummat Wajihun of the city, Mussummat Inderjit Koer of Subulpur, Babu Sadir Narain Singh of Bazonna, Babu Ram Sarun Singh of Eajabag, Babu Gajadhur Pershad of Barhonna, Babu Collector Mahto of Jaipur, Gunpat Mahto of Kundar, and I cannot remember the others, but there are several, perhaps some ten in number. I receive a letter from the mofussil from a person and act for him, he sending the vakalatnama with his letter. I receive monthly wages from each of the persons who employ me. Bach of the temployers I have mentioned belongs to a distinct family and lives in a separate village. I sometimes get paid by the year and sometimes by the month. Collector Mahto pays me Rs. 10 a year ; he pays me that every Assin, and has done so every year for 12 years. The business I have referred to, and the names I have given as those of my employers, refer only to those who employ me in Civil Courts. I cannot remember the names of the other ten or so who employ me in the Civil Courts, but they pay me a yearly retainer. Mussummat Gujibun gives me, for what I do for her in connection with the Civil Courts, Rs. 25 per mensem. She pays me more than any one else. Tundon Singh gives me Rs. 80 a year.” Upon this admission and statement the District Judge passed judgment as follows:

I am of opinion that the action admitted by Girhar Narain far exceeds action as a private servant. In India pleaders and mukhtears seldom get cases out of the circle of their own recognised clients ; they each have clients who habitually employ them. That is precisely the nature of the employment admitted by Girhar Narain, but he says he receives remuneration by the month or year instead of for the act. He may do this in some cases, but I doubt his doing so in all; if he does, his memory is marvellously short in not being able to mention their names, and I do not think the method of remuneration makes any real difference. When a man is so little of a private servant that he admittedly acts for at least twenty different families in different parts of this and other districts, be seems to me to be practising generally and professionally, earning a greater part of his livelihood thus as a mukhtear. This is a sample ease, and I inflict the nominal fine of Rs. 5 under Section 32 of Act XVIII of 1879, my object being not so much to punish what has already been done as to prevent similar conduct for the future.

3. On the 5th January, 1886, Girhar Narain moved before Mitter and Agnew, JJ., for a rule calling upon the certificated mukhtears to show cause why the order of the District Judge should not be sat aside on the following grounds, viz. : First, that it was made without jurisdiction ; second, that Sections 10 and 32 of the Legal Practitioners Act, 1879, did not apply to the case; third, that the District Judge ought, upon the materials before him, to have held that the nature of the petitioner’s work was not in contravention of any law or of any rule of the High Court, and as such he was guilty of no offence against the provisions of the Legal Practitioners Act; fourth, that the District Judge had misunderstood and misconceived the law in determining the case. The learned Judges granted a rule, which, on 8th December, 1886, came on for hearing before Mitter and Macpherson, JJ., who made the following order, viz. : “Having regard to the general importance of the question raised in this rule we refer it to a Full Bench ; the question for decision which we refer is whether, upon the facts admitted by the petitioner, he is liable to be punished under the Provisions of Section 32 of the Legal Practitioners Act.”

4. The case was argued before us on the 15th April, when Baboo Saligram Singh was heard in support of the rule, and Mr. Woodroffe and Mr. O’Kinealy appeared to show cause. At the conclusion of the arguments we took time to consider our judgment. The first argument urged by the learned vakeel for the petitioner was that, assuming that Girhar Narain had practised as a mukhtear without being duly authorized so to do, yet he was not liable to punishment under the provisions of Section 32 of Act XVIII of 1879, as that Act applied only to mukhtears who had passed the required examination, received a certificate and had practised, after neglecting to renew the certificate, or during suspension, or after dismissal. In support of his first argument the learned vakeel referred to the preamble of the Act, and pointed out that it was an Act “to consolidate and amend the law relating to Legal Practitioners;” to the definition of “Legal Practitioners” as given in Section 3 of the Act; to the power conferred upon the High Court by Section 6, ” to make rules as to the qualifications, admission and certificates of proper persons to be mukhtears ; “to the provisions of Section 7 as to the granting and renewing of certificates; and to the provisions of Sections 10 and 11, and from the language used in these sections, he argued that the Act was not applicable to a person in the position of his client, but only to “Legal Practitioners” as defined by the Act. The learned vakeel also laid much stress on the words of Section 32. That section enacts “that any person who practises in any Court in contravention of Section 10 shall be liable, by the order of such Court, to a fine not exceeding ten times the amount of the stamp required by this Act for a certificate authorizing him so to practise in such Court.” The words “the amount of the stamp required by this Act for a certificate authorizing him so to practice,” it was urged, pointed clearly to the case of a person who had passed the necessary examination for a mukhtear and was practising without a certificate, and not to an entirely unauthorized person such as the petitioner.

5. In the case of Kali Kumar Roy v. Nobin Chunder Chuckerbutty 6 C. 685 which was a case under Act XX of 1865, which is repealed by Act XVIII of 1879, it seems to have occurred to Mitter J., that Section 13 of Act XX of 1865, which corresponds to Section 32 of Act XVIII of 1879, “applied only to such persons as were qualified and enrolled as mukhtears, but who had practised as mukhtears without obtaining their certificates.” This view does not seem to have been shared by White, J., for he makes no reference to it in his judgment; and Garth, C.J., says: “The language of Section 13 does certainly seem to afford some ground for this view ; and yet it would seem an absurdity that a man who is duly qualified and enrolled as a mukhtear, and who has only neglected to take out his certificate, should be subject to penalties and disabled under that section from suing for his fees, whilst a man who is neither qualified nor enrolled as a mukhtear, nor certificated, should be enabled to recover his fees, and be subject to no penalties ; it is difficult to conceive that this could have been the intention of the Legislature.” Whatever may be the proper construction to be put under Section 13 of Act XX of 1865, upon which I express no opinion, I feel no difficulty in holding that the construction sought to be put on Section 32 of Act XVIII of 1879 is not the true one. Section 32 in distinct terms imposes a penalty on “any person” who practises in any Court in contravention of the provisions of Section 10, “which enacts that no person shall practise as a mukhtear in any Court not established by Royal Charter, unless he holds a certificate issued under Section 7 and has been enrolled in such Court, or in some Court to which it is subordinate.” I am altogether unable to give the words “any person” in Section 32 the narrow construction sought to be placed upon them. They seem to me to embrace pure outsiders like the petitioner, as well as duly qualified and enrolled mukhtears who have failed to take out their certificates. The words in Section 32 “to a fine not exceeding ten times the amount of the stamp required by this Act for a certificate authorising him so to practice in such Court” are, I think, equivalent (in this particular case, having regard to the Court in which the petitioner practised) to the words “to a fine not exceeding Rs. 250.” It is to be observed that, where the Legislature wishes to deal with the duly qualified and enrolled mukhtear, it does so in precise terms-see Sections 33 and 34 and Clause (c) of Section 36. The second argument of the learned vakeel was that the petitioner had not practised as a mukhtear. In support of the argument reliance was placed on the case of In re Gujraj Singh 10 W.R. 355 decided by L.S. Jackson, J., on In re Kali Chum Charn 9 B.L.R. Ap. 18; on In re Fuzzle Ali 19 W.R. Cr. 8; and on the before mentioned case of Kali Kumar Roy v. Nobin Chunder Chuckerbutty 6 C. 585. Ali these cases were cases under the old Act of 1865, which conferred no power on the High Court “to make rules declaring what shall be deemed to be the functions, powers and duties of mukhtears,”–such powers were first given by Section 11 of Act XXIII of 1879. In the case of In re Gujraj Singh, L.S. Jackson, J., says: “The Court has had frequent difficulties in answering enquiries as to what the Legislature appeared to contemplate as the functions or privileges of mukhtears under the Pleaders and Mukhtears Act,” and then goes on to decide that “there is nothing in the provisions of that Act which restrains any person from coming into the presence of the Judge and supplying information to the vakeels.” In In re Kali Churn Chand 9 B.L.R. Ap. 18 Kemp and Glover, JJ., held that the mere writing out of a petition for a party who himself presented it in Court was not an “acting” as a mukhtear within the meaning of Section 11 of Act XX of 1865. In In re Fuzzle Ali 19 W.R. Cr. 8 Phear and Ainsley, JJ., held that “acting as a mukhtear” within the meaning of Section 5 of Act XX of 1865 meant “the doing something as the agent of the principal party which shall be recognized or taken notice of by the Court as the act of that principal, such, for instance, as filing a document.” In Kali Kumar Roy v. Nobin Chunder Chuckerbutty 6 C. 585 White, J., speaking for himself and Mitter, J., said: “The question then resolves itself into this, whether the looking after a regular appeal and the giving instructions to pleaders in connection with it are practising as a mukhtear within the meaning of the section. There is no definition in the Act of what the Legislature meant by practising as a mukhtear, but I think the meaning may be gathered from Section 11 of the Act, which enaots that ‘mukhtears duly admitted and enrolled may be subject to the conditions of their certificates as to the class of Courts in which they are authorised to practise, appear and act’ (in the report the word ‘plead’ is evidently by mistake used for ‘act’) in any Civil Court, and may appear, plead and act in any Criminal Court within the same limits. It may fairly be concluded from this that by practising as a mukhtear in a Court, the Legislature meant, in the case of a Civil Court, appearing or acting in that Court, in the case of a Criminal Court, appearing, pleading or acting in that Court. Did the plaintiff then appear or act in Court? I think not. These words have a well-defined and well-known meaning. To appear for a client in Court is to be present and to represent him in various stages of the litigation at which it is necessary that the client should be present in Court by himself or some representative. To act for a client in Court is to take on his behalf in the Court, or in the offices of the Court, the necessary steps that must be taken in the course of the litigation in order that his case may be properly laid before the Court. What the plaintiff is found to have done in the present case was not appearing or acting for the defendant in the sense in which, I think, the words must be understood, nor involved any such appearance or acting.”

6. The Act of 1879 is, as was pointed out by Prinsep, J., in the course of the argument, an “amending” as well as a “consolidating” Act: and one of the respects in which it amended the old law was the conferring upon the High Court power “to make rules declaring what shall be deemed to be the functions, powers and duties of the mukhtears practising in the Subordinate Courts,” thus obviating the difficulty which had been felt by the learned Judges in the cases above cited. The High Court has accordingly framed a rule prescribing the functions, powers and duties of mukhtears practising in the Subordinate Courts, and I am clearly of opinion that, if any person other than a duly certificated and enrolled mukhtear constantly, and as a means of livelihood, performs any of the functions or powers which the rule says are the functions or powers of a mukhtear, he practises as a mukhtear and is liable to a penalty under Section 32. One of the functions or powers of a mukhtear practising in the Subordinate Courts is that of “appointing and instructing pleaders.” This the petitioner admits he does, and that not for one person only, but for twenty; he has therefore practiced as a mukhtear.

7. It was also argued that the petitioner was the private servant or recognized agent of his various employers, and therefore outside the provisions of the Act. No doubt Under Section13 a pleader may take instructions from the private servant of a party or the recognized agent of such party within the meaning of the Civil Procedure Code, but there is no provision authorizing a mukhtear to take such instructions, and if there were, I do not think the petitioner is the private servant of any of his employers or the recognized agent of any of them within the meaning of Section 37 of the Civil Procedure Code.

8. I would answer the question referred to us in the affirmative.

9. The result will, be that the rule will be discharged with costs.

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