JUDGMENT
1. The legal issue involved herein is of great relevance for day-to-day functioning of our judicial system and the right of the Advocates to plead and argue the cases coming before the Courts. Because of certain controversy before the learned Single Judge as to whether an Advocate who has not filed vakalatnama for a party in a case can appear, plead and argue for him without presenting a memo of appearance and obtaining express permission from the Court in terms of Rule 3 of Chapter V of the High Court of Karnataka Rules, 1959 (in short, the ‘HC Rules’).
2. The learned Single Judge by his impugned order has taken the view that “when an Advocate who had filed vakalatnama engaged the services of another Advocate to plead and argue his clients’ case has to obtain the permission of the Court as contemplated under Rule 3(1) and (2) of Chapter V of the HC Rules and unless and until such a permission had been obtained, he, as a matter of right cannot engage the services of another Advocate to appear and argue for and on his behalf. That again he has to do by making out a reasonable cause thereto as contemplated under Rule 3(1) of the said Rules”.
3. In order to set-out the backdrop for resolving the controversy, it may be appropriate to notice that the impugned order has been passed by the learned Single Judge in a set of writ petitions wherein Co-operative Banks and Societies had challenged the validity of Sections 57(2-A) and 29-G(6) of the Co-operative Societies Act on the ground of certain constitutional infirmities. When the case was called out, Sri KM. Nataraj, learned Advocate, who had filed vakalatnama on behalf of the petitioners, sought permission to engage the services of another Advocate Sri A.G. Holla, who by that time had not been designated as Senior Advocate to argue the matter on his behalf. Learned Single Judge felt that such a permission cannot be accorded to an Advocate who has not filed vakalatnama unless Advocate filing vakalatnama (in short, “Advocate on record”) makes out a reasonable cause for the same in terms of Rule 3(1) of Chapter V of the Rules, i.e., the Advocate on record is prevented by sickness or engaged in another Court or by other reasonable cause from appearing and conducting the case of his client. According to the learned Single Judge, this requirement is not required to be fulfilled, if the Advocate on record instructs “Senior Advocate” for pleading and arguing a case of his client.
4. The present writ appeals have been preferred by the writ petitioners as well as the Karnataka State Bar Council. According to them, the view taken by the learned Single Judge strikes at the fundamental right of the Advocates to practice their profession as guaranteed under Article 19(l)(g) of the Constitution of India. Their contention is that such a constitutional right cannot be made dependent on the discretion of the Court and therefore, the concerned statutory provisions should be construed and interpreted in a manner which completely dilutes the discretion of the Court conferred under the HC Rules.
5. Answer to the controversy raised herein depends on careful and harmonious reading and construction of Section 16 of the Advocates Act (in short, the ‘Act’). Chapter I of Part VI of the Bar Council of India Rules (in short, the “BCI Rules”), Rules contained in Chapter III of the HC Rules, Section 119 and Order 3, Rule 4 of the Code of Civil Procedure, 1908 (in short, “CPC”). Interpretation in a case of any ambiguity or inconsistency in application of these provisions has to be resolved by keeping in view Clauses (1)(g) and (6) of Article 19 of the Constitution of India.
5-A. Article 19(l){g) of the Constitution of India declares that all citizens shall have the right to practice any profession or carry on occupation, trade or business. Anyhow, this fundamental right is circumscribed by Clause (6) of Article 19 of the Constitution which reads as under.–
“Article 19. Protection of certain rights regarding freedom of speech etc.–(1) All citizens shall have the right–
(a) to (f) xxx xxx xxx xxx
(g) to practice any profession, or to carry on any occupation, trade or business.
(2)to(5)xxx xxx xxx xxx
(6) Nothing in sub-Clause (g) of the said clause shall affect the operation of any existing law insofar as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law insofar as it relates to, or prevent the State from making any law relating to.–
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise”.
6. From the above it is clear that the competent legislature can enact laws regulating the right to practice any profession which will certainly include legal profession as well. The legislative subject “legal, medical and other profession” is found in Entry 26 of List III (Concurrent List) of 7th Schedule to the Constitution which means that both the Parliament as well as the State Legislature are competent to make laws for practising of these professions subject to the provisions contained in Article 254 thereof.
7. Accordingly, the Parliament as a measure of amending and consolidating the law relating to legal practitioners and to provide for the constitution of Bar Councils and an All India Bar enacted the Advocates Act, 1961. Sections 16(3), 29, 33 and 34 are relevant for ascertaining the right of Advocates to appear and practice before the High Courts and Courts subordinate thereto. These provisions to the extent relevant for the present purposes reads as under.–
“Section 16. Senior and other Advocates.–(1) There shall be two classes of Advocates, namely, Senior Advocates and other Advocates.
(2) An Advocate may, with his consent, be designated as Senior Advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability, standing at the Bar or special knowledge or experience in law he is deserving of such distinction.
(3) Senior Advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interest of the legal profession, prescribe”.
”Section 29. Advocates to be the only recognised class of persons entitled to practice law.–Subject to the provisions of this Act and any rule made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practice the profession of law, namely, Advocates”.
”Section 33. Advocates alone entitled to practice.–Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practice in any Court or before any authority or person unless he is enrolled as an Advocate under this Act”.
“Section 34. Power of High Courts to make rules.–(1) The High Court may make rules laying down the conditions subject to which an Advocate shall be permitted to practice in the High Court and the Courts subordinate thereto.
(1-A) to (2) xxs xxx xxx xxx”.
8. Reading of the above provisions makes it clear that the right of a person to practice in any Court or before any authority flows from Section 29 read with Section 33 of the Advocates Act and therefore is a statutory right which can be exercised only subject to the terms and conditions envisaged under the enabling provisions. It is also clear from the above provisions that once an Advocate is designated as Senior Advocate then his right to practice is to abide by the restrictions laid down by the Bar Council of India under the rules framed by it.
9. It is further to be taken note of that under Section 34 of the Advocates Act, the High Court has been empowered to make rules, laying down conditions subject to which an Advocate shall be permitted to practice in the High Court and the Courts subordinate thereto. A similar provision was made under Section 11 of the Legal Practitioners Act, 1879, which was one of the preceding legislations on the subject and was held to be constitutionally valid by the 5-Judges Bench of the Supreme Court in the case of Devata Prasad Singh Chaudhuri and Ors. v. Hon’ble Chief Justice and the Judges of the Patna High Court, .
10. At this stage, we find it advisable to refer to Section 119 of the CPC, which empowers the High Court to make rules concerning Advocates, Vakils and Attorneys. This section reads as under.–
“Section 119. Unauthorised persons not to address Court.–Nothing in this Code shall be deemed to authorize 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 authorized him so to do, or to interfere with the power of the High Court to make rules concerning Advocates, Vakils and Attorneys”.
11. Having so traced the power of the High Court to make rules concerning appearance of the Advocates to practice law in legal proceedings before the Court, now we can refer to Chapter V of the HC Rules, which is entitled as “Practitioners of the Court”. Rule 3 of the HC Rules only appears to be relevant for resolving controversy at hand. This rule reads as under.–
“Rule 3.–(1) When an Advocate retained to appear for any party on the vakalatnama in an appeal or other matter in the High Court is prevented by sickness or engagement in another Court or by other reasonable cause from appearing and conducting the case of his client, he may appoint another Advocate to appear for him. In such a case the Court if it sees no reason to the contrary, may permit the case to proceed in the absence of the Advocate originally engaged and permit his nominee to appear for him without a vakalatnama.
(2) Where an Advocate, who has filed a vakalatnama, engages another to appear and argue his client’s case but not to act for the client, the Court may permit such other Advocate to appear and argue, either without filing a vakalatnama or on filing a memorandum of appearance, instead of a vakalatnama”.
12. The High Court has framed another set of rules for regulating the proceedings under Articles 226 and 227 of the Constitution of India. These rules are known as Writ Proceedings Rules, 1977. Rule 39 of the Writ Proceedings Rules reads as under.–
“Rule 39. Application of the High Court of Karnataka Rules etc.–The provisions of the High Court of Karnataka Rules, 1959, the rules made by the High Court of Karnataka under the Karnataka Court Fees and Suits Valuation Act, 1958 and the provisions of the Code of Civil Procedure, 1908 shall apply as far as may be, to proceedings under Article 226 and/or Article 227 and writ appeals in respect of matters for which no specific provision is made in these rules”.
13. Careful reading of the two sub-rules of Rule 3 of Chapter V of the HC Rules reflect the situations under which these will operate. Sub-rule (1) Speaks about the situation when an Advocate who is retained by a party to appear for him by executing vakatatnama in his favour but is prevented to do so because of some exceptional situation constituted reasonable cause for him not to appear, then subject to the permission of the Court some other Counsel may appear for him without furnishing any vakalatnama. While examining this sub-rule, one has to bear in mind that this sub-rule merely authorises the instructed Advocate having no vakalatnama only to appear and not to do anything further in the case of substantial in nature, like acting, pleading or arguing. Such a situation very often arises when the cases are listed before the Court for some formal orders or where adjournments are required to be prayed for. But, certainly, under this rule a Counsel who does not hold vakalatnama for a party cannot claim as a matter of right to appear for the Advocate on record and this will be always subject to the permission accorded by the Court which is normally never refused unless there are good reasons for doing so. This power of the Court has to be preserved to avoid chances of fraud or even otherwise to protect the rights of litigants.
14. So far as sub-rule (2) of Rule 3 of the HC Rules is concerned, it makes a provision for permitting an Advocate other than Advocate on record to appear and argue in a case. But, according to this sub-rule, this right of Advocate is again subject to the condition that a memorandum of appearance instead of vakalatnama is filed by the Advocate on record stating that he has engaged the named Advocate to appear and argue his client’s case. If so construed, one can hardly find any unreasonableness in this provision. Such a provision cannot be said to restrict or curtail in any way right of an Advocate to appear and argue on behalf of a party. On the other hand, this should be taken as salutary provision because if any dispute arises as to whether the Advocate who had appeared and argued the case had the authority to do so, there will be documentary evidence available on record to resolve any such controversy forthwith. This legal procedural requirement can hardly be said to be leading to any inconvenience because an Advocate not having filed vakalatnama can be engaged for appearance and argument only by the Advocate on record. The memorandum of appearance in the form of a written document will merely be subscribed to such an arrangement between the two Advocates.
15. Coming to the Rules framed by the Bar Council of India under Section 49 of the Act, Clauses (a) and (b) of Chapter I of Part VI thereof, which are relevant for the present purpose read as under.–
“(a) A Senior Advocate shall not file a vakalatnama or act in any Court or Tribunal, or before any person or other authority mentioned in Section 30 of the Act.
Explanation.–“To act” means to file an appearance or any pleading or application in any Court, or Tribunal or before any person or other authority mentioned in Section 30 of the Act, or to do any act other than pleading required or authorised by law to be done by a party in such Court, or Tribunal, or before any person or other authority mentioned in the said section either in person or by his recognised agent or by an Advocate or an Attorney on his behalf.
(b) (i) A Senior Advocate shall not appear without an Advocate on record in the Supreme Court or without an Advocate in Part II of the State Roll in any Court, or Tribunal, or before any person or other authorities mentioned in Section 30 of the Act;
(ii) Where a Senior Advocate has been engaged prior to the coming into force of the rules in this Chapter, he shall not continue thereafter, unless an Advocate in Part II of the State Roll is engaged along with him. Provided that a Senior Advocate may continue to appear without an Advocate in Part II of the State Roll in cases in which he had been briefed to appear for the prosecution or the defence in a criminal case, if he was so briefed before he is designated as a Senior Advocate or before coming into operation of the rules in this Chapter as the case may be”.
16. Clauses (a) and (b) of Chapter I of Part VI of the Bar Council of India Rules state that Senior Advocate shall not file vakalatnama or act in any Court or Tribunal or before any person or other authority mentioned in Section 30 of the Act and further that he shall not appear without an Advocate on record. These clauses per se cannot be said to be in conflict with the HC Rules to the extent it provides for filing of memorandum of appearance. Therefore, according to us, for appearance and argument even a Senior Advocate is required to file memorandum of appearance which will show that he has been engaged and instructed for the purpose by the Advocate on record.
17. Now we come to Rule 4 of Order 3 of the CPC which provides for appointment of Pleader. Pleader has been defined in Clause (xv) of Section 2 of the CPC to mean any person entitled to appear and plead for another in Court and includes an Advocate, Vakil and Attorney of a High Court. This rule has been substituted by Karnataka Amendment with effect from 30-3-1967. Rule 4(1) inter alia provides that no Pleader shall act for any person in any Court unless he has been appointed for that purpose by such person by a document subscribed with his signature in his own hand by such person or by his recognised agent or by some other person duly authorised by or under a power of Attorney to make such appointment and the appointment has been accepted in writing by the Pleader. Sub-rule (6) of Rule 4 of Order 3 has material bearing on the aspects which are under controversy. This sub-rule reads as under.–
"ORDER 3 Recognised Agents and Pleaders Rules 1 to 3 xxxx xxxx xxxx xxxx Rule 4. Appointment of Pleader.-- (1) to (5) xxx xxx xxx xxx
(6) No Pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party unless he has filed into Court a memorandum of appearance signed by himself and stating (a) the names of the parties to the suit; (b) name of the party for whom he appears; and (c) the name of the person by whom he is authorised to appear:
Provided that nothing in this sub-rule shall apply to any Pleader engaged to plead on behalf of any party by any other Pleader who has himself been duly appointed to act in Court on behalf of such party”
18. From the proviso to sub-rule (6) of Rule 4 of Order 3 of the CPC, it appears that if a Pleader is engaged to plead i.e., argue on behalf of a party by Advocate on record of such party, then the pleading Advocate is not required to file memorandum of appearance. This may be the consequence of the above proviso. But, still Rule 3(2) of the HC Rules requires an Advocate on record engaging another Advocate to argue for his client to file memorandum of appearance. Therefore, construing the two provisions in a harmonious way, it follows that in case an Advocate is engaged for pleading i.e., appearing and arguing the case of a party on the instructions of an Advocate on record, then he can do so only if Advocate on record files a memorandum of appearance evidencing the fact that he has engaged the other Counsel for the purpose of pleading i.e., to appear and argue his client’s case. Such a construction will be in consonance with the avowed object that the records always will bear evidence that Counsel appearing and arguing had due authority for doing so.
19. For the aforesaid reasons and subject to the observations made above, we find no ground to interfere with the order passed by the learned Single Judge. The writ appeals are accordingly dismissed.
