Karnataka High Court
Kota Co-Operative Agricultural Bank ... vs State Of Karnataka And Others on 25 July, 2000
Equivalent citations: AIR2001KANT36, ILR2000KAR3063, 2001(2)KARLJ188, AIR 2001 KARNATAKA 36, 2001 AIR - KANT. H. C. R. 1, (2000) ILR (KANT) 3063, (2001) 2 KANT LJ 188
ORDER Chidananda Ullal, J.
1. In the above writ petitions and series of other writ petitions, the Co-operative Banks and Societies have challenged Section 57(2-a) and Section 29-G(6) of the Co-operative Societies Act on the ground that the same were arbitrary, illegal and unconstitutional.
2. When the matter was resting at that, there arose a controversy before me when the Counsel for the petitioner on record Sri K.M. Nataraj had orally sought for permission to engage the services of another Advocate, Sri A.G. Holla (as he then was) to argue the matter on his behalf. Such a situation in fact arose before me time and again in some other matters too and as I was of the considered view that such a permission were to be granted only in the event a case is made out within the meaning of Rule 3 of Karnataka High Court Rules, 1959 (henceforth referred to as the 'High Court Rules') and further that in the absence of that, an Advocate not on record would be acting as a Senior Advocate designated by this Court in exercise of the powers conferred on it under Section 16(2) of the Advocates Act, 1961.
3. This is how a sub-issue had cropped up before me in the above writ petitions. I do understand the stand I have taken might have embarrassed some of the learned Advocates who were appearing before this Court. But I could not help myself, than to invite an argument on the issue in view of the above stand I have taken and, it is thereupon, the learned Counsel for the petitioners on record Sri K.M. Nataraj in the above writ petitions had filed a memo on 7-7-1999 to the effect that, he having filed Vakalath for the petitioners in the above writ petitions had engaged Sri A.G. Holla, the Advocate (as he then was) to argue on his behalf under Rule 3(2) of Chapter V of the High Court of Karnataka Rules read with Order 3, Rule 4(6) proviso of Civil Procedure Code (Karnataka Amendment) for arguing the case before this Court.
4. On 7-7-1999, I also directed the Registry to issue notices to the Karnataka State Bar Council as the said stand taken by me affected certain class of Advocates practising before this Court and upon service of notice to the Bar Council as directed, the learned Counsel Sri S.R. Venkatesh Murthy had filed power for the Karnataka State Bar Council and he being on record, Sri B.V. Acharya, the Senior Advocate had argued the matter on behalf of the Karnataka State Bar Council; besides, Sri S.P. Shankar, an Advocate of good standings practising before this Court had also wanted to assist the Court on behalf of the younger members of the Bar as Amicus Curiae and accordingly on 21-7-1999, the learned Advocate Sri S.P. Shankar was permitted to enter appearance and address his side of the argument. He had since filed a Memo of Appearance before Court.
5. It is thus, I heard the learned Advocate Sri A.G. Holla for and on behalf of the petitioners in the above writ petitions, the learned Senior Advocate Sri B.V. Acharya appearing for the State Bar Council and the learned Advocate Sri S.P. Shankar appearing as Amicus Curiae before the Court.
6. The learned Advocate Sri A.G. Holla (as he then was) had led the argument. The proposition made by him is as hereunder:
'An Advocate who had filed Vakalat in a case in the High Court can engage any other Advocate to argue the case on his behalf without permission of the Court. In any event, Court cannot refuse permission if permission is sought for orally under such circumstances'.
7. At the outset, Sri A.G. Holla had argued that right to practice as an Advocate is a statutory right guaranteed under Article 19(1)(g) of the Constitution. He had also taken me through the provision under Sections 29 and 30 of the Advocates Act, 1961 (henceforth in brief referred to as the 'Advocates Act') and further Section 14 of the Indian Bar Council Act, 1926 (henceforth in brief referred to as the 'Bar Council Act'). In doing that, Sri A.G. Holla had also submitted that Section 14 of the Bar Council Act is on similar lines as in Section 30 of the Advocates Act. According to Sri Holla, if this Court were not to permit the Counsel on record to engage the services of yet another Advocate for the limited purpose of pleading the case as provided for under sub-rule (2) of Rule 2 of the High Court Rules, it would tantamount to taking away the precious fundamental right to practice of the Advocates on roll and with vehemence, he argued that this Court cannot do that at all in the scheme of the things.
8. In support of his argument, Sri Holla had also cited before me the reported decision of the Apex Court in the case of H.S. Srinivasa Raghavachar and Others v State of Karnataka and Others. In para 9 thereof, the Supreme Court with reference to Section 48(8) of the Karnataka Land Reforms Act (wherein there was prohibition for the Advocates to appear for the parties before the Land Tribunal) held that it was repugnant to Section 30 of the Advocates Act and Section 14 of the Bar Council Act and that the State Legislature was not competent to make a law repugnant to laws made by the Parliament pursuant to entries in 77 and 78 of List I of 7th Schedule of the Constitution. Sri Holla had also placed reliance on yet other decisions of the Supreme Court in the cases of Sodan Singh v New Delhi Municipal Committee and Another, Smt. Jaswant Kaur and Another v State of Haryana and Another and O.N. Mohindroo v Bar Council of Delhi and Others , on the similar points.
9. Sri Holla had also placed reliance on Virupaxappa v Revanappa Siddappa Ganigar and Others, where the Civil Court declined to entertain the request of a proxy Counsel to adjourn a case for and on behalf of the Counsel on record by grant of time to file the objection statement as against an Interlocutory Application under Order 39 of the CPC, that it is well-settled practice of the Court that the Counsels are permitted to be represented proxy by their Counsel and any representation made by them must be taken to be the representation of the Counsel on record, unless it is shown to be otherwise and the Court held in the circumstances that the Civil Court was clearly in error in rejecting the request on the ground that the Counsel appearing proxy had not filed vakalath for the defendants.
10. Sri Holla then turned to provision in Rule 3 in Chapter V of the High Court Rules under the heading, 'Practitioners of the Court', in the matter of giving permission to an Advocate not on record to argue the case of an Advocate who had filed vakalatnama. With specific reference to sub-rule (2) of Rule 3 referred to above, it was argued by Sri Holla that it is always available for an Advocate not on record to appear and argue for and on behalf of an Advocate who had filed vakalatnama on behalf of his clients and that the words 'may permit' occurred in the above sub-rule (2) of Rule 3 in the High Court Rules have to be construed as, 'shall permit'. He further submitted, that the High Court in the matter of granting permission under the above sub-rule (2) of Rule 3 is as if a direction to permit without there being any discretion to be exercised by the Court. He qualified that argument on the ground that right of an Advocate to practice is affected and in such circumstances, a duty is cast on the Court to effectuate the legal right of practice of an Advocate or Advocates vis-a-vis the obligation on the part of the Court to hear them for and on behalf of the litigant party or litigants parties. It was also argued by him that the provision in Rule 3 of the High Court Rules referred to above have to be harmoniously interpreted to do justice in the case and in this regard he had also cited the following further decisions:
1. State of Uttar Pradesh v Jogendra Singh;
2. Sub-Committee of Judicial Accountability v Union of India and Others;
3. Sultana Begum v Prem Chand Jain.
11. In Jogendra Singh's case, supra, at para 8, the Supreme Court held as hereunder:
"The question for our decision is whether like the word "may in Rule 4(1) which confers the discretion on the Governor, the word "may" in sub-rule (2) confers the discretion on him, or does the word "may" in sub-rule (2) really mean "shall" or "must"? There is no doubt that the word "may" generally does not mean "must" or "shall". But it is well-settled that the word "may" is capable of meaning "must" or "shall" in the light of the context. It is also clear that where a discretion is conferred upon a public authority coupled with an obligation, the word "may" which denotes discretion should be construed to mean a command. Sometimes, the Legislature uses the word "may" out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed. In the present case, it is the context which is decisive. The whole purpose of Rule 4(2) would be frustrated if the word "may" in the said rule receives the same construction as in sub-rule (1). It is because in regard to Gazetted Government servants the discretion had already been given to the Governor to refer their cases to the Tribunal that the rule making authority wanted to make a special provision in respect of them as distinguished from the Government servants falling under Rule 4(1) and Rule 4(2) has been prescribed, otherwise, Rule 4(2) would be wholly redundant. In other words, the plain and unambiguous object of enacting Rule 4(2) is to provide an option to the Gazetted Government servants to request the Governor that their cases should be tried by a Tribunal and not otherwise. The rule making authority presumably thought that having regard to the status of the Gazetted Government servants, it would be legitimate to give such an option to them. Therefore, we feel no difficulty in accepting the view taken by the High Court that Rule 4(2) imposes an obligation on the Governor to grant a request made by the Gazetted Government servant that his case should be referred to the Tribunal under the Rules".
12. In Sub-Committee of Judicial Accountability's case, supra, at paras 46 and 47 the Supreme Court held as hereunder:
"46. Use of the word 'may' in clause (5) indicates that for the 'procedure for presentation of address' it is an enabling provision and in the absence of the law the general procedure or that resolved by the House may apply but the 'investigation and proof is to be governed by the enacted law. The word 'may' in clause (5) is no impediment to this view.
47. On the other hand, if the word 'shall' was used in place of 'may' in clause (5) it would have indicated that it was incumbent on the Parliament to regulate even the procedure for presentation of an address by enacting such a law leaving it no option even in the matter of its procedure after the misbehaviour or incapacity had been investigated and found true. 'Sometimes, the legislature uses the word "may" out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed'. See Jogendra Singh's case, supra. Indeed, when a provision is intended to effectuate a constitutional protection to the Judges under Article 124(4) - even a provision as in Article 124(5) which may otherwise seem merely enabling, becomes mandatory. The exercise of the powers is rendered obligatory. In Frederic Guilder Julius v The Right Rev. the Lord Bishop of Oxford; the Rev. Thomas Tellusson Carter, at page 244, Lord Blackburn said:
"..... The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right.
....".
In Punjab Sikh Regular Motor Service, Moudhapara, Raipur v Regional Transport Authority, Raipur, the Court referring to the word 'may' in Rule 63(a) in Central Provinces and Berar Motor Vehicles Rules, 1940, observed (at page 1321 of AIR):
". . . .On behalf of the appellant attention was drawn to the expression 'may' in Rule 63. But in the context and the language of the rule the word 'may' though permissive in form, must be held to be obligatory. Under Rule 63 the power to grant renewal of the counter-signature on the permit in the present case is conferred on the Regional Transport Authority, Bilaspur. The exercise on such power of renewal depends not upon the discretion of the authority but upon the proof of the particular cases out of which such power arises. 'Enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right'. (See Frederic Guilder Julius case, supra). . . .".
If the word 'may' in Article 124(5) is given any other meaning that sub-article would render itself to be treated by the Parliament, as superfluous, redundant and otiose. The power to prescribe a procedure for the exercise of power under Article 124(4) could otherwise also be available to the House. The law envisages under Article 124(5) is not such a law; but one which would effectuate the constitutional policy and philosophy of the machinery for removal of Judges.
The use of the word 'may' does not, therefore, necessarily indicate that the whole of clause (5) is an enabling provision leaving it to the Parliament to decide whether to enact a law even for the investigation and proof of the misbehaviour or incapacity or not.
The mere fact that clause (5) does not form a part of clause (4) itself, as appears to have been considered at one stage when the Constitution was being drafted, does not reduce the significance or content of clause (5). It is likely that the framers of the Constitution thought of clearly demarcating the boundaries and, therefore, indicated that up to the stage of proof of misbehaviour or incapacity the field is covered by a law enacted by the Parliament, the first part being covered by clause (5) and the latter by clause (4) with the only difference that the Parliament was given the option to regulate even the procedure for the presentation of an address after the misbehaviour or incapacity had been proved by enacting a law for the purpose to make it more definite and consistent".
13. In Sultana Begum's case, supra, under the heading 'Interpretation of Statutes -- Harmonious construction', the Supreme Court held as hereunder:
"Interpretation of Statutes -- Harmonious construction.--When there are two conflicting provisions in an Act, which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. This is the essence of the rule of "harmonious construction". The Courts have also to keep in mind that an interpretation which reduces one of the provisions as a "dead letter" or "useless lumber" is not harmonious construction. To harmonise is not to destroy any statutory provision or to render it construction. (para 12)".
14. In substance the argument of Sri Holla in this regard was that in proper interpretation of sub-rule (2) of Rule 3 of the High Court Rules quoted above in the matter of grant of permission to an Advocate not on record to argue the case for and on behalf of an Advocate on record who had engaged him has got no discretion, but to grant the permission to argue the case, argument being only a pleading and not acting for and on behalf of a party.
15. Sri Holla had also placed reliance on the decision in Harischandra Jha and Others v Dinesh Narain Jha and Others, wherein in para 13 thereof, the Patna High Court had discussed what is acting and what is pleading. According to that Court, pleading means only submission made to Court.
16. He had also relied upon Sakrappa Neelappa Asundi v Shidramappa Gangoppa Katti and Others, wherein this Court held that pleading includes argument.
17. With reference to Section 16 of the Advocates Act, in the matter of designation of Advocates as Senior Advocates, Sri Holla argued that there is no difference as such between the Advocate on the roll and the designated Senior Advocate. He had also argued that the latter is only an honour conferred as a Senior Advocate either by the Supreme Court or by the High Court by virtue of his ability, standing at the Bar or special knowledge or experience in law he had acquired and that conferment was also with certain restrictions for him as the Bar Council of India might have in the interest of the legal profession prescribed. With reference to Section 29 of the said Act, it was also argued by him that the Advocates on roll are the class of persons entitled to practice law and such a practice by them is subject to the provisions of the Advocates Act and any rules made thereunder and that the Advocates are a class whose names have been entered in the roll of the State Bar Council and are entitled as a matter of right to practice throughout the territory of India. It was also his submission that sub-rule (2) of Rule 3 was applicable to both the designated Senior Advocate inasmuch as the Advocates on the roll of the State Bar Council.
18. Lastly, Sri Holla had also tried to place reliance on proviso below sub-rule (6) of Rule 4 of Order 3 as amended in Karnataka and Rule 3 of the High Court Rules in the matter of pleading by an Advocate not on record for and on behalf of an Advocate on record appearing for a party in a case. To quote the said proviso sub-rule (6) of Rule 4 of Order 3 as amended, the same reads as hereunder:
"(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".
19. In this context Sri Holla had also cited before me Smt. Saraswati v Tulsi Ram Seth and Others, wherein the term 'acting' in Rule (c) of Chapter I in Part IV of Bar Council of India Rules came to be interpreted and further where the distinction between 'act' and 'pleading' under Order 3, Rules 4(1) and 5 was drawn.
20. Yet another decision he had cited in this context in Harischandra Jha's case, supra, where again, 'acting' or 'pleading' under Order 3, Rule 4(2) and Rule 5 of the CPC vis-a-vis the High Court Rules and orders of the Patna High Court and further the term 'acting' or 'pleading' as it occurred in Section 14 of the Bar Council Act, 1926 came to be interpreted. In paras 12 and 13, the High Court held as hereunder:
"Where A, an Advocate, having a valid vakalatnama to act on behalf of the petitioners in a certain suit, is raised to the Bench on 11-12-1952 while the suit was pending but on 8-12-1952 an appearance slip was filed in the name of B, another Advocate, under the authority of A, authorising B to plead on behalf of the petitioners, and B after concluding a compromise on behalf of the petitioners gets the same orally recorded by the Court on 16-3-1953:
Held (i) that the vakalatnama already filed by A under Order 3, Rule 4 could be determined only if the client or the pleader had died. The word 'death' as used in that provision is physical death and not civil or constitutional death. Therefore, it has to be held that in the eye of law the vakalatnama given to A had not been determined up till the date of the consent order and, therefore, B, on the authority given to him under the appearance slip by A could validly represent the petitioners in the matter of pleading; (para 12)
(ii) that B had an implied authority to effect a valid agreement of compromise on behalf of his clients: Sourendra Nath Mitra v Tarubala Dasi and Sheonandan Prasad Singh and Others v Hakim Abdul Fateh Mohammad Reza and Another and Nilmoni Chaudhuri Kedar Nath Daga;
(iii) it is true that it is difficult to define very exactly as to where acting ends and pleading begins. But, broadly speaking, it cannot be denied that acting amounts to taking some substantial step by an Advocate on behalf of his client in the course of a proceeding pending in a Court while pleading means oral submissions made in the light of the instructions given and on the materials present on the record. On the principle stated above, B in effecting the compromise was only pleading and not acting. In that view in doing what he did, B did not stand in need of any vakalatnama. For that the appearance slip was sufficient in law: Amir Shah v Abdul Aziz, Sawarmal v Kunjilal and All India Barai Mahasabha through Kshetra Nath Sen v Pandit Jangi Lal Chaurasia and Girwar Narayan Mahton v Kamla Prasad.
Anno: AIR Com. Civil P.C., Order 3, Rule 4 N. 7, 9, 14, AIR Man. Bar Councils Act, Section 14 N. 1.
(c) Bar Councils Act (1926), Section 14 -- Advocate enrolled in Patna High Court -- Power to act without vakalatnama -- (High Court Rules and Orders -- Patna High Court Rules, Chapter 17, Rule 3).
Though the right given to an Advocate under Section 14 of the Bar Councils Act to practice as of right does generally include in it both the right to act and the right to plead that right is always subject to the rules framed by the High Court under the powers given to it by that Act or under other relevant provisions of law. That being so, it cannot be accepted that even without a vakalatnama, as contemplated by Rule 3 of Chapter XVII of the Patna High Court, it would be open to an Advocate not only to plead but also to act on behalf of a party. (para 13) Anno: AIR Man. Bar Councils Act, Section 14 N.1".
21. To sum up, Sri Holla had argued that if this Court were to rightly interpret Rule 3 of the High Court Rules, this Court has to permit as a matter of course and event, a Counsel not on record to plead or argue the case for and on behalf of an Advocate on record and refusal thereto is only to infringe the right of practice conferred on a class of citizens as Advocates on roll of the Bar Council conferred on them under Article 19(1)(g) of the Constitution of India. It was added in this context by him that unless that is done, the system as such cannot work and that would be in nobody's interest.
22. The learned Senior Advocate Sri B.V. Acharya representing the State Bar Council while arguing from his side at the outset, drew my attention to Rule 39 (in Part IV), the Writ Proceedings Rules, 1977 (henceforth referred to as 'Writ Rules, 1977') framed by this Court. In the said Rule it had been set out therein that for the purpose of application of the Writ Rules, 1977, the provisions of the High Court of Karnataka Rules, the rules made by the High Court of Karnataka under Karnataka Court Fees and Suits Valuation Act, 1958 and the provisions of the Code of Civil Procedure shall apply as far as may be to the proceedings under Articles 226 and 227 and the Writ Rules in respect of matter for which no specific provision is made in the said Rules. According to him, the provisions in the above Rule 4(6) of Order 3 as amended in Karnataka and the provisions in Rule 3, Chapter V of the High Court Rules, in the matter of appearance of an Advocate to plead or argue on behalf of the Advocate who had filed the vakalatnama for a party have to be harmoniously interpreted. He further submitted that the provision in Rule 4(6) of Order 3 of the CPC does not refer to any permission by the Court, for pleading or arguing by an Advocate who had filed the vakalatnama for a party, while Rule 3(1) and (2) in Chapter V of the High Court Rules speak about permission to do that. According to him, the above provision in the CPC on the one hand and the above rules of the High Court Rules have to be harmoniously interpreted and according to him, it is therefore just and proper for this Court to interpret the words, 'may permit' in sub-rules (1) and (2) of Rule 3 of Chapter V of the High Court Rules, 1959 as 'shall permit'. He further argued that unless such an interpretation is given, there would be anomaly in the said two provisions.
23. To sum up, he further argued that the interpretation for the words 'may permit' in sub-rules (1) and (2) of Rule 3 of Chapter V of High Court Rules be interpreted as 'shall permit' so that there may not be conflicts in the said two provisions.
24. The learned Counsel Sri S.P. Shankar on the other hand argued that permission to an Advocate not on record to argue for and on behalf of an Advocate on record is beneficial to the institution in the judiciary and as such, the provision in sub-rules (1) and (2) of Rule 3 of Chapter V of High Court Rules, 1959 requires a liberal interpretation and that this Court should not apply the rule hard and fast to deny an Advocate not on record to argue or plead for and on behalf of an Advocate who is on record having filed vakalatnama of his party. He had also taken me through the provision in question in the High Court Rules yet again. Sri Shankar had also taken me through the provision in Order 3, Rule 4(5) of the CPC and further Rule 4(6) of Order 3 as amended in Karnataka. He further argued that under the said provisions in the CPC, an Advocate duly appointed by a party to act and plead on his behalf can authorise another Advocate to act and plead on behalf of such party and that such other Advocate so authorised and appointed need not file even a memo of appearance. To buttress that argument of his, Sri Shankar had also placed reliance on a reported decision of the Bombay High Court in Jayant Madhav Chitale v Garware Wall Ropes Limited and Others. In para 7 thereof, the Bombay High Court held as hereunder:
"In other words, whenever a pleader who has been duly appointed to act in Court on behalf of a party engages any other pleader to plead on behalf of such party, such other pleader is not required to file memo of appearance. The Court in such circumstances cannot insist the other pleader to file memo of appearance. An authority given by Advocate who is duly appointed by a party to act and plead on his behalf to another Advocate to plead on behalf of such party does not need memo of appearance to be filed by another Advocate. It was expected of the Trial Court to have kept the said provision in mind".
25. In the matter of interpretation of sub-rules (1) and (2) of Rule 3 in Chapter V of the High Court Rules, he had also submitted that the word, 'may permit' therein has to be interpreted as 'shall permit'; in a way, he had adopted the arguments of the learned Senior Advocate Sri Acharya referred to in paras 22 and 23 supra.
26. Sri Shankar had also cited before me yet another decision in Aswini Kumar Ghose and Another v Arabinda Bose and Another, wherein the words, 'entitled to practice as of right' in Section 2 of Supreme Court Advocates (practising in High Courts Act, 1951) came to be interpreted by the Apex Court. I have also gone through the said decision. However, right here, I have to point out that the said decision has got no bearing on the issue before me. He had also referred to page 234 of Book under the title 'Maxwell's Interpretation of Statutes', 12th Edition, by P.St.J. Langan, wherein the terms 'may' and 'must' were discussed in the matter of interpretation of statutes. He had also placed reliance on an unreported decision of the Division Bench of this Court in W.P. No. 1761 of 1967, DD: 26-10-1971 wherein the Division Bench had held that a pleader who appears for and on behalf of another pleader engaged 'by a party, can appear for the latter pleader only to plead on behalf of the party and has no power to act on his behalf without a document in writing in his favour executed in the manner prescribed by Order 3, Rule 4 of the CPC and further on an unreported decision dated 31-3-1999 in Civil Revision Petition No. 999 of 1999 of the learned Single Judge of this Court, wherein it was held that merely because a request in that regard was not made through a Counsel not holding Vakalat but representing the Counsel holding vakalat, it was not a ground to reject such a request. The learned Counsel in this regard had also placed a xerox copy of the orders that came to be passed in the above writ petition as well as in the civil revision petition. On going through the same, it appears to me that it is only a case wherein a request of a colleague-in-office to lead evidence was rejected by the Motor Accidents Claims Tribunal, Bangalore City for want of vakalatnama and nothing beyond.
27. Nextly, Sri Shankar had cited before me Shyam Kishori Devi v The Patna Municipal Corporation and Another. In the said decision, the Supreme Court held that it is well-known rule of construction that a Court must construe a section of an enactment unless it is impossible to do so, to make it workable rather than to make it unworkable and that the words of the statute never should in interpretation be added to or substituted from without almost a necessity. Sri Shankar had also relied upon Jogendra Singh's case, supra, one of the learned Advocate Sri A.G. Holla had also placed reliance.
27-A. Alas, all the more, it is not a case wherein a colleague-in-office of an Advocate taking on himself to argue a case before Court for and on behalf of his senior-in-office on instructions by him, no matter that he has got no vakalatnama, or making representations or submissions by an Advocate as a proxy Counsel for seeking adjournments or things like that, we come across day-in and day-out as a matter of routine to keep going the proceedings before Courts smooth whether there being let or hindrance.
28. Now in the light of the above argument advanced, the questions that arise for my consideration by way of Interlocutory Order on the memo filed are:
(1) Whether the term 'may permit' in sub-rules (1) and (2), Rule 3 of Chapter V of the High Court Rules, 1959 has to be interpreted as 'shall permit' as argued by the learned Counsel as above or not?
(2) Whether the memo filed by the Advocate who had filed the vakalatnama to engage another to appear and argue the case of the petitioner in the first set of writ petitions be allowed or not?
29. I now proceed to consider the above two questions here below:
Question No. 1:
It is pertinent to quote here the relevant provision in Chapter V under the head, 'practitioners of the Court' of High Court Rules. Rules 1 to 4 there below read as hereunder:
"1. Subject as hereinafter provided no Advocate or Practitioner shall be entitled to appear and act in any civil matter before the High Court unless he files into Court a vakalatnama in prescribed form duly executed by or on behalf of the party for whom he appears.
2. Any Advocate appearing on behalf of the Government or on behalf of any public servant sued in his official capacity shall not be required to file a vakalatnama but he shall file into Court a memorandum of appearance signed by him giving the number of cause, title of the matter, name of the party for whom he appears and the name of the person by whom he is authorised to appear.
3(1) When an Advocate retained to appear for any party on a 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 hut 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.
4. An Advocate proposing to file a vakalatnama or appearance in an appeal or other proceeding in which there is already an Advocate on record, shall not do so unless he produces a written consent of the Advocate on record or when such consent is refused, unless he obtains the special permission of the Court".
(The terms 'may permit' in sub-rules (1) and (2) of Rule 3 in Chapter V have been emphasised by me as above for the purpose of clarification as to how the said terms had occurred in the said Rules.
30. I also feel it appropriate to quote right here Order 3, Rule 1 of the CPC and Rule 4(3) to (7) of Order 3 as amended in Karnataka. The same read as hereunder:
"1. Appearances, etc., may be in person, by recognised agent or by pleader.--Any appearance, application or act in or to 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 Court so directs, be made by the party in person.
Order 3, Rule 4(3) to (7) as amended in Karnataka (3) For the purpose of sub-rule (2), proceedings in the suit shall mean all interlocutory and miscellaneous proceedings connected with the suit or any decree or order passed therein taken in the Court in which the suit has been instituted or by which the suit has been disposed of, and shall include applications for review of judgment, applications for amendment or correction of the decree, application for execution of the decree or any order in the suit or for restitution under Section 144 of the Code or otherwise, applications for leave to appeal against any decree or order passed in the suit, and applications or acts for the purpose of obtaining copies of documents or copies of judgments, decrees or orders, or for the return of documents produced or filed in the suit or for obtaining payment or refunds of monies paid into Court in connection with the suit or any decree or order therein.
(4)(a) In the case of applications for execution of a decree, applications for review of judgment and application for leave to appeal, a pleader whose appointment continues in force by virtue of sub-rule (2) of this rule and who has been served with the notice in any such application shall be at liberty to intimate to the Court in writing in the form of a memorandum filed into Court at or before the first hearing of any such application or appeal that he has not received instructions from his client and to retire from the case.
(b) Where, however the pleader does not so report the absence of instructions to the Court but proposes to continue to act on the strength of the original appointment he shall file into Court at or before the first hearing of such matter a formal memorandum stating that he will continue to appear and act for his client in the said application or appeal, as the case may be.
(c) If a pleader files the memorandum referred to in clause (a) or omits to file the memorandum referred to in clause (b) within the time prescribed therefor, the Court shall proceed in sub-rule (2) of Rule 5 of this Order.
(5) The High Court may by rule or general order direct that where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified in the rule or order.
(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.
(7) No Government Pleader or other pleader appearing on behalf of the Government or on behalf of any public servant sued in this official capacity shall be required to present any document empowering him to act, but such pleader shall file into Court a memorandum" of appearance signed by him and stating the particulars mentioned in sub-rule (6)".
31. Now let me co-ordinate Rule 3(i) and (ii) of Chapter V of the Karnataka High Court Rules, quoted at the first instance with Rule 4(6) of Order 3 (as amended in Karnataka) quoted at the second as above. As I see, if one reads closely the above two provisions, it is clear therefrom that in the proviso below Rule 4(6) of Order 3 as amended in Karnataka, there is no provision made with regard to the permission by the Court for an Advocate engaged by an Advocate on record who had filed vakalatnama to appear and argue the case of the former, for in the said proviso, it is stated that the sub-rule (6) of Rule 4 (as amended in Karnataka) 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; per contra, in sub-rule (1) of Rule 3 of Chapter V of High Court Rules, it is stated that, when an Advocate retained to appear for any party on a 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 and in such a case, the Court if it sees any 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 vakalatnama and in sub-rule (2) of the said Rule, it is further stated that in such an event, the Court may permit such other Advocate to appear and argue without filing vakalatnama or a memo of appearance in the place of vakalatnama.
32. Therefore, in my considered view, it is clear therefrom that the permission of the Court in the set of circumstances as set out in Rule 3(1) of Chapter V is not at all found in Rule 4(6) of Order 3 (as amended in Karnataka).
33. It was argued before me by the learned Advocate including the Senior Advocate appearing for the State Bar Council that the provision in the High Court Rules and the CPC aforementioned have to be harmoniously interpreted to interpret that the term 'may permit' as it occurred in Rule 3(1) and (2) of Chapter V of the High Court Rules as 'shall permit'. The argument addressed by the learned Senior Advocate had not appealed me for the reason that when in Section 34 of the Advocates Act, 1961 the Advocates have been entitled to practice in any Court or before any authority or person enrolled as an Advocate, under Section 34 thereof, the High Court had been empowered to make the rules laying down the conditions subject to which an Advocate shall be permitted to practice in the High Court and the Court subordinate to it.
34. To cull out Sections 33 and 34 of the Advocates Act, the same read as follows:
"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.
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".
35. Now let me see what is provided for in Rule 39 of Part W of the Writ Proceedings Rules, 1977 framed by this Court. The same reads as hereunder:
"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".
36. From the above provision in the Writ Proceedings Rules, 1977 it is made clear that the provisions of the High Court Rules, the rules made by the High Court under the Karnataka Court Fees and Suits Valuation Act, 1958 and the provisions of Civil Procedure Code shall apply to the proceedings under Articles 226 and 227 of the Constitution and the writ appeals in respect of matters for which no specific provision is made in the above Writ Petition Rules, 1977. Therefore it is obvious that the provision in Rules 1 to 4 of Chapter V of the High Court Rules, as well as the provision in Rule 4(6) of Order 3 (as amended in Karnataka) in the matter of engaging the services of an Advocate not on record by an Advocate on record to appear and argue the case of the clients of the latter are applicable to the writ proceedings as the one before me.
37. Now the point is, how the two sets of the proceedings, one in Rule 4(6) of Order 3 (as amended in Karnataka) in the CPC and the provision in Rule 3(1) and (2) of Chapter V of the High Court Rules, 1959 have to be harmoniously interpreted.
38. In the case in Shyam Kishori Devi, supra, it was held in the matter of rule of construction, the Court must construe a section unless it is impossible to do so to make it workable rather than make it unworkable. In yet another decision in Sultana Begum's case, supra, in the matter of interpretation of statutes in para 12 thereof, the Supreme Court held that, when there are two conflicting provisions, an act which cannot be reconciled with each other, they should be interpreted with if possible, to give effect to both and that is the essence of the rule of harmonious construction.
39. In the said decision, the Supreme Court held as under:
"Interpretation of statutes -- Harmonious construction:
When there are two conflicting provisions in an Act, which cannot be reconciled with each other, they should be so interpreted that, if possible effect should be given to both. That is the essence of the rule of "harmonious construction". The Courts have also to keep in mind that an interpretation which reduces one of the provisions as a "dead letter" or "useless lumber" is not harmonious construction. To harmonise is not to destroy any statutory provision or to render it construction. (para 12)".
40. In the instant case in hand there is no conflicting provisions in one and the same rules sought to be interpreted, for, as I have observed as above, the conflict is in the two sets of rules i.e., Rule 4(6) of Order 3 as amended in Karnataka and Rule 3 of the High Court Rules. In the matter of engaging the services of an Advocate not on record by another Advocate on record to argue without permission of the Court is not contemplated in the former, whereas it is contemplated so in the latter.
41. To follow the decision of the Supreme Court in Sultana Begum's case, supra, it appears to me that a duty is cast on this Court to harmoniously interpret and reconcile the two sets of provisions one in the CPC and the High Court Rules, 1959. If one closely and carefully reads Rule 4(6) of Order 3 of the CPC, as amended in Karnataka together with the proviso there below, there is no bar for any Pleader or an Advocate engaged to plead on behalf of any party by any other Pleader who himself has filed [power] on behalf of his party, argue or plead. That in fact is what was contemplated in Rule 3(1) and (2) to Chapter V of the High Court Rules, in the matter of pleading or arguing the case of a party for and on behalf of an Advocate on record and all that what had been contemplated additionally in Rule 3(1) and (2) is obtaining permission of the Court by an Advocate on record to engage the services of another Advocate and nothing beyond and by that small restraint, as against an Advocate not on record cannot in any way be pleaded as if a total restraint in violation of the fundamental right as enshrined in Article 19(1)(g) of the Constitution or in violation of Section 33 of the Advocates Act as it had been very vehemently argued by the learned Counsel for the petitioner Sri Holla in citing different authorities before me. As a matter of fact, such a situation did not arise before me at all in the instant case in hand.
42. If we turn to Section 34 of the Advocates Act, 1961, it is clear therefrom that High Court may make rules laying down conditions subject to which an Advocate shall be permitted to practice in the High Court and the Courts subordinate to it. Therefore, it is obvious that the right given to Advocates entitling them to practice under Section 33 of the Advocates Act is subject to certain conditions as may be imposed by the High Court by making necessary rules thereto as contemplated under Section 34 of the Advocates Act. That in fact what had occasioned in the case in hand.
43. In the light of the above discussions, I am of the considered view that there is no conflict whatsoever between the two provisions in Rule 4(6) of Order 3 of the CPC as amended in Karnataka and the provision in sub-rules (1) and (2) of Rule 3 of Chapter V of the High Court Rules, both of which were made applicable under Rule 39 of the Writ Proceedings Rules, 1977.
44. It was argued with all force by the learned Senior Advocate Sri Acharya, the learned Advocate Sri Holla (as he then was) appearing for the Advocate for the petitioner Sri K.M. Nataraj and Sri S.P. Shanker appearing as an Amicus Curiae that the word 'may permit' occurred in sub-rules (1) and (2) of Rule 3 of Chapter of the High Court Rules have to be interpreted as 'shall permit'. I do not think such an interpretation be justified in view of the provision in Rule 1 thereof that no Advocate or practitioner shall be entitled to appear and act in any civil matter before the High Court, unless he filed a vakalatnama in prescribed form duly executed by or on behalf of a party for whom he appears. The said rule is made subject to the further rules framed thereunder in sub-rules (1) and (2) of Rule 3 therein in the matter of obtaining permission of the Court by an Advocate to engage the services of another Advocate to appear and argue on behalf of client's case of the former. Therefore, it appears to me that when an Advocate who has filed vakalatnama engages the services of another Advocate to plead and argue his client's case has to obtain the permission of the Court as contemplated under Rule 3(1) and (2) of Chapter V of the High Court 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 a reasonable cause thereto as contemplated under Rule 3(1) of the said Rules.
45. Therefore, while rejecting the argument in that regard advanced by all the learned Counsels before me, I hold that the term 'may be' in Rule 3(1) and (2) of Chapter V of High Court Rules is a discretionary power vested in this Court and it has to be interpreted only as such and not as 'shall permit'. I do not contribute that view.
46. Question No. 2:
The learned Counsel for the petitioner Sri K.M. Nataraj appearing for the petitioners in the first set of petitions had filed power for the petitioners in filing the writ petitions. However, he had filed a memo stating that he has engaged Sri A.G. Holla, Advocate under Rule 3(2) of Chapter V of the High Court Rules read with Rule 4(6) proviso of the CPC Karnataka Amendment for arguing the case on his behalf before this Court. To place on record the memo dated 7-7-1999 filed by Sri K.M. Nataraj, the same reads as hereunder:
"MEMO The undersigned has filed vakalat for the petitioners in the above writ petition and he has engaged Sri A.G. Holla, Advocate under Rule 3(2) of Chapter V of the High Court of Karnataka Rules read with Order 3, Rule 4(6) proviso of Civil Procedure Code (Karnataka Amendment) for arguing the case before this Hon'ble Court.
Sd/-
Bangalore (K.M. Nataraj) Dt. 7-7-1999 Advocate for petitioners".
47. On a careful reading of the above memo, it appears to me that the memo has been filed as if a right is available to him to engage the services of another Advocate to argue his clients case on his behalf. I do not think it is available for him to do so, for, in my considered view, he has to make out a ground as set out in sub-rule (1) of Rule 3 of Chapter V of the High Court Rules and as long as that had not been done by him, I do not think he can resort to such a memo before this Court as a matter of course and event. It appears to me, in this context, that if I were to entertain the said memo, I would be doing that only in violation to Rule 3 of the High Court Rules which I cannot afford of doing. I add in this context that I am zealous to follow the same, I being one of the President Judges of this Court.
48. Now the question is whether the memo can be rejected by me for engaging the services of A.G. Holla. With the change of circumstances that Sri A.G. Holla had since been designated as a Senior Advocate under Section 16(2) of the Advocates Act, 1961 by a notification in No. RPS/69/99, dated 25-10-1999, I do not think that course is available to this Court to do. Therefore, I just place the memo on record without there being any considered order thereon. Such an order in my considered view is redundant as Sri A.G. Holla has since been designated as a Senior Advocate and has a right to appear and even plead and act on behalf of the petitioners in the first set of petitions for whom the learned Counsel Sri K.M. Nataraj is on record. I have since taken judicial note of the designation of Sri A.G. Holla as Senior Advocate by the above notification of the High Court.
49. With the above finding on the two questions I have formulated, the file in the above set of writ petitions returned to the Registry to place the matter before the proper Bench for the purpose of hearing the main matter.