Andhra HC (Pre-Telangana)
Hari Om Rajender Kumar And Others vs Chief Rationing Officer Of Civil ... on 16 February, 1990
Equivalent citations: AIR1990AP340, AIR 1990 ANDHRA PRADESH 340
ORDER
1. There are 8 persons shown in this writ petition as petitioners and are represented by their General Power of Attorney Holder, Sri Kamal Mittal. They seek the issue of writ of mandamus declaring that the action of the respondent (Chief Rationing Officer, Hyderabad) deducting the value, at the rate of Rs. 81.17ps. per quintal/bag for 2310 bags of Channadal seized on 29-11-80 from Kachigua Railway Station belonging to the petitioner firm is illegal and arbitrary and also for directing the respondent to pay the amount of Rs. l,87,502.70ps. with interest at 18% p.a. as per Section 6-C(II) of the Essential Commodifies Act and also for payment of compensation.
2. At the time of admission of the writ petition, the petitioners filed WPMP No. 15954/89 for allowing the G.P.A. to appear as party in person "to plead" the case. The application w^s ordered by the learned single Judge and then the writ petition was admitted on the same day. The respondent did not, however, have the opportunity of opposing the said application. Subsequently, when the matter came up before me, a doubt arose in my mind as to the competency of the G.P.A. to plead the case of the petitioners who are all Dall Mill owners residing in various parts of North India. The same G.P.A. has been appearing frequently in certain other cases on behalf of various parties and pleading their cases. He was therefore directed to submit to the Court the reasons as to why he contends that he should be permitted to plead for the principals. Thereafter, he produced certain letters from the principals treating the Power of Attorney executed in 1987 as still holding good and stating that the principals had also passed resolutions not to appoint any advocate in future in the aforesaid cases or any other litigation arising out of the same. He has filed a xerox copy of the power of attorney issued by one of the principals and the relevant portion reads thus:--
"(3) Sri Kamal Mittal... Secunderabad is to act and manage all the litigations of my firm pending in various courts and any legal disputes arising out of regular business transactions of my firm and for the purpose of the aforesaid I hereby confer upon the said Attorney the following power and authorities :--
(1) to appear on behalf of us and represent interesl of my firm before any Central or State Government authorities, quasi-Government authorities and local authorities or before any Courts including High Courts and Supreme Court or any Tribunal or any arbitrator in connection with the firms 'interest'.
We further authorise our said Attorney to make applications ... verify plaints present affidavits... to prefer appeals and revisions... to engage any advocate or advocates."
3. The G.P.A. filed a clarification petition dated 14-12-1989 that in certain earlier cases, senior counsel of this Court were appointed as advocates for the principals and in spite of that, the principals could not obtain necessary reliefs and this resulted in great hardship to them. It is stated that, therefore, the principals have decided "not to appoint any other counsel for the further proceedings of the case". It is stated that, some cases in which the present G.P.A. has appeared, have gone in favour of the principals. The details of various writ petitions, suits, C.C.C.As. and L.P.S. in which the G.P.A. is appearing have been mentioned. Reliance is placed upon Sec. 119, C.P.C. As also O. 4, R. 5, C.P.C. and Rule 32 of the Civil Rules of Practice. It was, however, pointed out to the G.P.A. that S. 32 of the Advocates Act, 1961 requires permission to be sought by any person other than the party or the advocate for appearing and pleading before the Court and that permission is given according to accepted and well-settled principles and not as of right. During the course of arguments in the case, the G.P.A. has mainly submitted that the principals have no confidence whatsoever that any advocate in the bar will be able to obtain relief for them in the courts and that they have confidence only in the G.P.A. Reliance for this purpose is placed upon the various resolutions passed by the principals as also the terms of the power of attorney. As already stated, the principals are mainly Da! Mill owners residing in various parts in North India.
4. As the matter was of some importance, I have issued notice to the learned Advocate-General on whose behalf Smt. Vinnetha Reddy appeared and referred to decisions of various Courts and the Supreme Court. She pointed out that if absence of confidence in the legal profession as a whole is the sole reason for appointing the G.P.A., such a reason should not be countenanced by this Court while exercising discretion under S. 32 of the Advocates Act. It is pointed out further that the principals are Dal Mill owners and it is not as if they are not able to secure the services of lawyers of their choice anywhere in the country. Admittedly the G.P.A. is not a law graduate.
5. Both American and Emglish Courts have adopted the doctrine that a non-lawyer may not appear in Court to represent another person. Outside the court-house, non-lawyers in earlier periods of Armerican history freely performed tasks that today would be called the unathorised practice of law. That general pattern still obtains in England and other countries in Europe where there has been never a prohibition against non-lawyers performing such legal functions as giving legal advice or preparing some kinds of legal documents. (1) Modern Legal Ethics Charles W. Wolfrom, 1985 -- p. 825 quoting M. Zander, Lawyers and the Public Interest 174 (1968); Q. John Stone and D. Hopson Lawyers and their work 486-89 (1967).
6. After the First World War, particularly after the beginning of the Depression, Bar Associations waged a campaign to eradicate unauthorised practice. The American Bar Association formed a Committee in 1930 for this purpose and these committees were holding unauthorised practitioners. About the same time, the Courts began to announce sweeping common law doctrines of exclusive lawyer competence and this helped the Bar's newly kindled concern for protecting potential clients against incompetence and 'unscrupulous charlatans', (2) ibid p. 825-26 quoting W. Hurst, the Growth of American Law 323 (1950). The basis for restriction on unauthorised appearances, practice and pleading in Courts appeared to be based upon various principles viz., to avoid harm to the client in the hands of non-lawyers who are not legally qualified, preventing harm to the legal system as a whole, and for assuring a basis for professional discipline and for protecting lawyers against competition.
7. It must be borne in mind that Parliament in its wisdom has introduced Sec. 33 in the Advocates Act permitting Advocates alone to practice. That section reads as follows:--
"S. 33:-- Except as otherwise provided in this Act or 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."
8. One of the exceptions to the abovesaid -provision is contained in Sec. 32 which gives power to the Court to permit appearances in particular cases by persons who are not advocates. That section reads as follows:--
"S. 32:-- Notwithstanding anything contained in this Chapter, any Court, authority or person may permit any person not enrolled as an advocate under this Act to appear before it or him in any particular case."
9. Section 2(1) of the Act defines advocate as a person whose name as advocate is entered in any roll under the provisions of the abovesaid Act. Chapter II of the Act deals with the constitution of Bar Council and its functions. Chapter III deals with admissions and enrolment of advocates by the various Bar Councils. Section 24 which is in that Chapter says that a person shall be qualified to be admitted as an advocate if he is a citizen of India has completed 21 years, and has obtained a degree in law, certain other conditions are also specified in the section. Under S.24-A a person is disqualified for enrolment if he is convicted of an offence involving moral turpitude or of an offence under the provisions of the Untouchability (Offences) Act. Chapter IV deals with the right to practice the profession of law. Section 30 says that every advocate whose name is entered in the State-roll shall be entitled as of right, to practice throughout the territory to which the Act extends viz., in all Courts including the Supreme Court, before any Tribunal or person legally authorised to take the evidence and before any other authority or person before whom such advocate is by or under any law for the time being in force, entitled to practice. Chapter V deals with conduct of advocates and disciplinary action to be taken against them by the Disciplinary Committees and the Appellate Authority constituted therefor and refers to the final appeals to the Supreme Court. Chapter VI contains Sec. 45 which provides for penalty of imprisonment for a term which may extend to six months if any person practises in any Court or before any authority or person, in or before whom he is not entitled to practice under the provisions of the Act.
10. The Rules made by the Bar Council of India under S.49(1)(c) of the Act refer in Part VI, (Chapter-II) to the standards of professional conduct and etiquette. Section I thereof relates to the duties of the Advocates to the Court, while Sec. 11 refers to the duties towards the client, Sec. III refers to the duties to the opponents, Sec. IV the duties to the colleagues. Section VI contains R. 46 which imposes a duty on every advocate to render legal aid while Sec. VII deals with the restrictions on other employment.
11. From the aforesaid provisions, it is clear that the 'practice' before the Courts, Tribunals and Authorities can be only by advocates and not by other persons unless specially authorised by the Courts in that behalf. It has to be noticed that Sec. 33 of the Act uses the word 'practice' while Sec. 32 uses the word 'to appear' in the Courts etc. The words 'practice' or 'appear' have not been defined in the Act. The special significance of the above words can be understood if one refers to the provisions of O. 3, Rr. 1 and 2, C.P.C. Order 3, Rule 1 says that any appearance, application or act in any Court required or authorised by law to be made or done by a party in such Court may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party-in-person or by his recognised agent or by a pleader appearing, applying or acting, as the case may be, on his behalf provided that any such appearance shall, if the Courts so directs be made by the party in person. Order 3, Rule 2, C.P.C. refers to the class of persons who could be treated as recognised agents of parties by whom such appearances, applications and acts may be made or done and includes persons holding powers of attorney. It is, therefore, clear that the provisions of 0. 3, R. 1 which permit appearance, applications or acting in any Court are subject to any other law and this includes the provisions of the Advocates Act, 1961 and in particular, Ss.32 and 33. It if further clear that so far as the signing or verifying or doing other acts are concerned, these could be done by the Power of Attorney duly authorised therefor but so far as appearing or practising in Court are concerned, they are subject to the provisions of Ss. 32 and 33 of the Advocates Act. The right to appear in Court and plead for a principal as also the right to practice in Courts have to be distinguished from the other acts, which a power of attorney can perform under 0.3, R. 1, C.P.C. So far as the right to appear and plead for a principal in Court as also the right to practice are concerned, these are governed by Ss. 32 and 33 of the Advocates Act.
12. The words 'appear', 'plead', 'act' and 'practice' came up for consideration before a Full Bench of the Madras High Court in Thaamammal v. Kuppuswami Naidu, AIR 1937 Mad 937. In that case, a lady by name Krisbnammal who was not able to stay in Madras for conducting a case on the original side of the High Court, appointed a power of attorney agent to do several things on her behalf including 'appearing' and 'pleading' in Court. The agent claimed a right to 'plead' in Court just as an advocate. Beasley, C.J. referred to an earlier unreported judgment of Benson and Sundara Ayyar, JJ. wherein it was held that a right to 'appear' in Court for principal under 0.3, Rr. 1, 2, C.P.C., did not include a right to 'plead' and that it meant only a power to take 'proceedings to submit oneself to jurisdiction'. It was further held that clauses 9, 10 of the Letters Patent (Madras), and Ss. 119 and 122, C.P.C., Sec. 8 of the Bar Councils Act and Sec. 10 of Legal Practitioners Act permit making provisions as to who shall 'plead' in the High Court on the original and appellate side as well as in the lower Courts and that agents appointed have no right to 'plead'. In fact, S. 119, C.P.C. was relied upon by the Full Bench as a provision not conferring a 'right of audience'. Clause !0 of the Letters Patent provided that no person whatsoever but such Advocates, Vakeels or Attorneys shall be allowed to 'act' or 'plead' for or on behalf of any suitor in the High Court excepi that any suitor shall be allowed to 'appear', 'plead' or 'act' on his own behalf or on behalf of a co-suitor. Attorney here means attorneys at law practising in the High Court and not power-of-attorney holders (D. Sornam v. State of Madras, 1969 (1) MLJ 207 (at p. 210). Again Sec. 10 of the Legal Practitioners Act stated that except as provided by the Act or any other enactment for the time being in force, no person shall 'Practice' as a pleader or Mukhtear in any Court not established by the Royal Charter unless he held a certificate under S. 7 and has been enrolled in such Court. Section 8 of the Indian Bar Councils Act provided that no person shall be entitled as of right to 'Practice' in any High Court unless his name is entered in the rolls of Advocates.
13. Now, the Advocates Act, 1961, which is an Act to amend and consolidate the law, repeals the above provisions of the Letters Patent and parts of the Legal Practitioners Act. Section 32 of the Advocates Act uses the word 'appear' while Sees. 29 and 33 use the expression 'Practice'. The word 'Practice' includes both acting and pleading, and takes in all the normal activities of a legal practitioner. Though Sec. 33 of the Advocates Act uses the word 'Practice', we are here concerned with the word 'appear'used in S. 32. A non-Advocate, when he seeks permission to 'appear' cannot, in my view, be permitted to 'address' the Court on the strength of the power-of-attorney. In Sornam's case, while observing that he can 'appear' or 'act' Natesan, J. observed (p. 211).
"As a recognised agent, he can have appearance and he can act; now he wants also to plead the cause before the Court, that is factually to practice the profession of law."
14. Natesan, J, also stated that the Supreme Court in Aswini Kumar Ghosh v. Arabinda Bose, , approved the meaning given to the word 'practice' by Kumaraswami Sastry, J. in the Full Bench case in Re-Powers-of-Advocates, (1929) ILR 52 Mad 92 : 55 MLJ 551 : (AIR 1928 Mad 1182), to the following effect :--
"the word 'Practice' means appear, act, and plead, unless there is anything in the subject or context to limit its meaning."
15. Therefore the word 'appear' is only one aspect and does not take in the concept of 'pleading' without which; it cannot be equated to 'practising'. In ThayarammaPs case, AIR 1937 Mad 937, also it was stated that 'Practice' means drafting, engrossing, filing plaints, Judge's summons, affidavits and generally issuing legal process, and all that a legal practitioner does. 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 Sec. 26 of the Solicitors Act, I860 for contempt of Court (In Re Ainsworth, Ex parte Incoporated Law Society, 1905 KB 103). In that case, an unqualified person gave, as agent for the defendant in an action, 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 Sec. 2, Solicitors Act, 1843 which prohibited any unqualified person from 'acting as a solicitor' or 'carrying on any proceeding* in the Supreme Court, even though the person did not issue the notice for any remuneration. Our Supreme Court in Harishankar v. Gir-dhari, , had also occasion to deal with S. 32 and it has also taken serious view of non-advocates filing cases indiscriminately.
16. What the power-of-attorney agent in his case seeks to do is the same as in Tayarammal and Sornam cases -- He wants to be placed in the same position as an advocate; in respect of not merely drafting and filing cases but pleading and arguing in Court not only in one case but in all cases that may be filed by these principals AT ANY TIME IN FUTURE and that on the ground that the principals have 'no confidence in the members of the legal profession as a whole'. The agent who appeared before me stated that by now, he had filed 40 or 50 cases in various Courts in India for various principals on the basis of powers-of-attorney. It is clear therefore, that his acts amount to 'practising' the profession of law. In fact, the power-of- attorney is executed in 1987 permitting the agent to file, plead and argue all cases of the principals in future and the deed is not confined to this or any particular case. Though this Court has power fo grant permission for non-lawyers to plead/argue cases in certain special circumstances, the present case is obvipusly not one such. Under the guise of seeking permission in each case, the petitioner is continuously pleading and arguing every case for the principals who are Dal Mill owners^ and in a routine fashion, on the sole ground that the principals have decided never to engage any lawyers before any Court or tribunal. The parties are not seeking permission on any special grounds applicable to this case alone. They obviously want to engage the agent in all cases where normally lawyers should have been engaged. That clearly is hit by S. 33 of the Advocates Act. No special grounds warranting grant of permission under S. 32 have been pleaded or urged. The W.P.M.P., is therefore liable to be dismissed and is accordingly dismissed.
17. The principals are however given two months' time to appoint an advocate for. conducting this case.
18. Petition dismissed.