In Re: The Powers of the newly Enrolled Statutory Advocates under the Indian Bar Councils Act

Murray Coutts Trotter, Kt., C.J.—I have had the advantage of reading the judgment about to be delivered by my brother Kumaraswami

Sastri and I entirely agree with it. It is clear that the object of the Act must be taken to have been to put all classes of practitioners on the same

footing and if the Insolvency Jurisdiction of the Original Side were to be held to be on a different footing as regards the right of audience from the

rest of its jurisdiction, it would obviously have been an anomaly left outstanding by the Act per incuriam. I confess that such a result would not have

surprised me in so ill-considered and ill-drafted a measure as the Bar Councils Act. Moreover, with the mass of evidence collected by the Bar

Committee in 1923-24, it is remarkable that those responsible for the Bar Councils Act made no attempt whatever to provide for the peculiar state

of things obtaining in the Madras High Court which has no parallel in any other High Court in India. But I agree with my leaned brother that we are

not driven to hold that this anomaly still persists and I therefore concur in his judgment.

Kumaraswami Sastri, J.—The question for determination is whether Advocates enrolled under the Indian Bar Councils Act of 1926 are

entitled to act in the Insolvency Jurisdiction of the High Court. Under the rules as they now stand, they are only entitled to plead.

The contention of the Advocates is that having regard to Sections 8 and 14 and the definition of Advocates in Section 2(a), they are, as a matter

of right, entitled to practise in the High Court, that the word ''practise'' in its ordinary meaning carries with it the right to appear, act and plead and

that there being no differentiation of jurisdiction so far as the Bar Councils Act is concerned and no limitation placed on the word ''practise'' in the

Act, the rules hitherto in force which prevent Advocates from acting in the Insolvency Jurisdiction can no longer prevent them from acting after the

Act has come into force.

For the Attorneys it is argued that the1 Insolvency Jurisdiction of the High Court is a separate jurisdiction which had its inception in the Indian

Insolvency Act, 11 and 12 Vict. Clause 21, which was repealed by the Presidency Towns Insolvency Act of 1909, which transferred the

jurisdiction to the High Court, that under the Indian Insolvency Act, Advocates were only entitled to plead and Attorneys were only entitled to act

in the Insolvency Jurisdiction, that Section 121 of the Presidency Towns Insolvency Act expressly reserves to Advocates and Attorneys the rights

they had under the Indian Insolvency Act and that the Bar Councils Act, which does not purport to deal with Insolvency Jurisdiction, cannot be

invoked to give Advocates a large right of audience than that which existed at the date of the passing of the Act, and that the Indian Insolvency Act

and the Presidency Towns Insolvency Act being special enactments dealing with special jurisdiction, they cannot be controlled or affected by the

Bar Councils Act which is a general enactment. It is also argued that even if the Bar Councils Act should apply, Section 19(4) saves all rules in

force which are not inconsistent with the Act, and that the rules framed by the High Court under the Letters Patent which confine the Advocates to

plead only in the Insolvency Court are not inconsistent with the Act and cannot, therefore, be said to be impliedly repealed.

Before dealing with these contentions it is necessary to refer to the rules and orders which were in force at the date when the Bar Councils Act

came into force in so far as they relate to the Insolvency Jurisdiction of the High Court.

The history of the legislation as regards the rights of Advocates, Attorneys and Vakils in so far as it relates to the Original Side of the High Court

has been traced with great clearness in Namberumal Chetti v. Narasimhachari (1916) 31 M.L.R. 698 where the question as to the rights of Vakils

and Attorneys were raised. So far as Advocates and Attorneys are concerned, the rules framed by the High Court as regards the Original Civil

Jurisdiction are the same as those framed as regards the Insolvency Jurisdiction. The power of the High Court to frame rules in respect of the

Insolvency Jurisdiction is derived from the Charter Act and the Letters Patent constituting the Madras High Court.

Section 17 of the Charter Act of 1800 empowered the Supreme Court

to approve, admit and enrol such and so many of the persons being bona fide practitioners of the Law in the said Court of the Recorder of Madras

of having been admitted Barristers in England or Ireland or having been admitted attorneys or solicitors in one of our Courts at Westminster or

being otherwise capable according to such rules and qualifications as the said Court shall, for that purpose, make and declare, to act as well in the

character of Advocates as of Attorneys in the said Court, which persons so approved, admitted and enrolled as aforesaid, shall be and are hereby

authorised to appear and plead and act for the suitors in the said Court.

And it declares

that no other person whatsoever shall be allowed to appear and plead or act in the said Supreme Court of Judicature at Madras for and on behalf

of such suitors or any of them.

Under the Charter Act, it is therefore clear that the Supreme Court had power to enrol Advocates who could be authorised by the rules both to

act and plead in the Supreme Court, though as a matter of fact no such rules were made, and so far as the Supreme Court was concerned, the

Advocates were only empowered to plead and not to act.

The Letters Patent constituting the High Court at Madras abolished the Supreme Court and transferred its jurisdiction to the High Court. The

Advocates and Attorneys who were enrolled by the Supreme Court were enrolled as Advocates of the High Court.

Clause 9 of the Letters Patent gave the High Court power to approve, admit and enrol such and so many Advocates, Vakils and Attorneys as

to the said High Court shall seem meet; and such Advocates, Vakils and Attorneys shall be and are hereby authorised to appear for the suitors of

the said High Court, and to plead or to act or to plead and act for the said suitors, according as the said High Court may by its rules and directions

determine, and subject to such rules and directions.

Clause 10 gives the High Court power to frame rules for the qualification and admission of proper persons to be Advocates, Vakils and

Attorneys-at-Law.

As regards Insolvency Jurisdiction, Clause 18 directs that the Court for the relief of insolvent-debtors shall be held before one of the Judges of

the said High Court of Judicature at Madras and the said High Court, and any such Judges thereof, shall have and exercise, within the Presidency

of Madras, such powers and authorities with respect to original and appellate jurisdiction and otherwise as are constituted by the laws, relating to

insolvent-debtors in India.

So far as the power to make rules empowering vakils to appear, act and plead on the Original Side of the High Court it has been held that

such power was within the competence of the High Court by a Full Bench as early as 1875 in In the matter of the Petition of the Attorneys ILR

(1875) M. 24. The question was again raised but the rules were held to have been validly framed. See Namberumal Chetty v. Narasimhaichari

(1916) 31 M.L.R. 698.

As regards the Insolvency Court, however, the rules framed by the Madras High Court did not authorise vakils to appear in the Insolvency

Court or Advocates to act.

Rules 128 and 129 of the Insolvency Rules run as follows:

Rule 128. - ""An Advocate may appear and plead upon any hearing in Court or in, Chambers: provided that the taxing officer shall not, as between

party and party, allow any fee in respect of his attendance at Chambers, unless the Judge certifies that the case is a proper one for the attendance

of an Advocate.

Rule 129. - An Attorney may appear, plead and act upon all proceedings : provided that he shall not be allowed to appear or plead upon a hearing

in Court.

So far as the Bombay High Court is concerned, Rule 36 states that Advocates may appear and plead for suitors on any side of this Court and

in the Insolvent Court but not (except for an insolvent in the Insolvent Court or for a prisoner in the Criminal Court) unless instructed by an

Attorney, or in the Appellate Side of the Court, by a pleader.

In Calcutta only Barristers enrolled as Advocates instructed by Attorneys could appear in the Insolvency Jurisdiction. After the passing of the

Presidency Towns Insolvency Act, the question as to the right of Vakils to practise in the Insolvency Side was raised, but a Full Bench of this

Court negatived the right. See Krishnaswami Aiyar v. Swaminatha Aiyar ILR (1924) M. 331 : 1924 48 M.L.J. 36.

Having regard to the provisions of the Charter Act and the Letters Patent which I have already referred to, it seems to me that the High Court

had power to frame rules allowing Advocates to act in the Insolvency Jurisdiction, though it did not do so. The Legislature has power to legislate

on the matter without any necessity to repeal any enactment relating to insolvency.

I am unable to agree with the contention of Mr. Srinivasa Aiyangar that there is anything in the Indian Insolvency Act (11 and 12 Vict. Clause

21) which curtails the power of the High Court conferred on it by the Charter Act and the Letters Patent to entitle Advocates to act as well as to

plead in the Insolvent Court.

The material portion of Section 3 of the Indian Insolvency Act is as follows:

And every Advocate and Attorney of the said Supreme Courts at Calcutta, Madras and Bombay, respectively, shall be entitled to practise in the

way of his profession in the Court for the relief of insolvent-debtors of that Presidency and no other persons shall practise as Advocates or

Attorneys in the said Courts for the relief of insolvent-debtors.

It is no doubt true that when the Act was passed it was only the Attorneys that were entitled to act in Court and Advocates were only entitled

to plead. It should be remembered that when this Act was passed, the Supreme Court, which was constituted under the Charter Act of 1800 had,

u/s 17, power to enrol Advocates with powers to appear, act and plead. The Supreme Court Charter was repealed by the Letters Patent which,

as I pointed out before, empowers the High Court to frame rules, and the High Court as the successor of the Supreme Court and the possessor of

the powers conferred on it by the Letters Patent was in my opinion competent to enrol Advocates who could act as well as plead.

The power of the High Court as regards vakils was affirmed in the cases reported in In the matter of the petition of Attorneys ILR (1875) M.

24 and T. Namberumal Chetty Vs. M.P. Narasimhachari, already referred to, and unless it can be shown that there is anything in the Indian

Insolvency Act (11 and 12 Vict. Clause 21) which curtails the power to frame rules permitting Advocates to act and plead on the Insolvency Side,

the same reasoning would apply to the rules framed tinder the Insolvency Act. The words ""shall be entitled to practise in the way of his profession

in Section 3 of the Indian Insolvency Act simply means shall be entitled to practise as Advocate or Attorney as he was doing before and does not

amount to a statutory bar to Advocates acting in the Court constituted by the Act nor does it override the powers given to the High Court under

the Charter Act and the Letters Patent.

Section 121 of the Presidency Towns Insolvency Act confers no fresh right. It runs as follows:

Nothing in this Act, or in any transfer of jurisdiction effected thereby, shall take away or affect any right of audience that any person may have had

immediately before the commencement of this Act, or shall be deemed to confer such right in insolvency matters on any person who had not a right

of audience before the Courts for the relief of insolvent-debtors.

All that this section says is that no fresh rights are conferred on any person by reason of the transfer of jurisdiction, and it cannot be said that

this Act curtailed the powers of the High Court to frame rules defining the functions of Advocates, if it was authorised to do so under the Letters

Patent.

In my view, at the date of the passing of the Bar Councils Act, the High Court had power to frame rules enabling Advocates to act and plead

in the Insolvency Jurisdiction though it did not exercise that power.

There being no statutory bar to Advocates acting and pleading in the Insolvency Jurisdiction, I think there is no necessity for the amendment or

repeal of Section 3 of the Indian Insolvency Act or Section 121 of the Presidency Towns Insolvency Act before Advocates can be allowed to act.

It was within the competence of the High Court to give the power by rules and it follows that the Legislature can do so by an Act without the

necessity of repealing anything in any previous enactment or any special reference to the Insolvency Jurisdiction.

In the view I take, it is unnecessary to consider the cases referred to by Mr. Srinivasa Aiyangar as regards general later Acts not controlling or

affecting earlier special enactments.

The next point for consideration is whether the Bar Councils Act confers the power to act and plead on Advocates in all the jurisdictions of the

High Court so far �s Madras is concerned and whether Rules 128 and 129 of the Insolvency Rules referred to must be taken to be no longer in

force as they have been superseded by the provisions of the Bar Councils Act.

Section 2(a) of the Bar Councils Act defines an Advocate as meaning an Advocate entered in the roll of Advocates of a High Court under the

provisions of the Act.

Section 8 runs as follows:

(1) No person shall be entitled as of right to practise in any High Court unless his name is entered in the roll of the Advocates of the High Court

maintained under this Act:

Provided that nothing in this sub-section shall apply to any Attorney of the High Court.

Then follow the provisions as to the persons who are to be enrolled.

Section 14 runs as follows:

(1) An Advocate shall be entitled as of right to practise:

(a) subject to the provisions of Sub-section (4) of Section 9 in the High Court of which he is an Advocate, and

(b) save as otherwise provided by Sub-Section (2) or by or under any other law for the time being in force, in any other Court in British India and

before any other tribunal or person legally authorised to take evidence, and

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

Section 14(3) gives the High Courts of Bombay and Calcutta a power to frame rules regulating the rights of Advocates on the Original Side.

Section 9(1) empowers the Bar Council with the previous sanction of the High Court to make rules to regulate the admission of persons to be

Advocates of the High Court.

Section 9(4) saves the rule-making powers of the High Courts of Bombay and Calcutta as regards the practitioners on the Original Side.

Section 19(4) which is the saving clause as regards the rules in force runs as follows:

When this Act has come into force in respect of any High Court, any provision of any other enactment or any order, scheme, rule, form or bye-law

made thereunder which was before that date applicable to Advocates, Vakils or Pleaders entitled to practise in such High Court shall, unless such

a construction is repugnant to the context or to any provision made by or under this Act, be construed as applying to Advocates of the High Court

enrolled under this Act.

The Bar Councils Act by Section 19(2) repeals the Letters Patent in so far as it refers to the powers of the High Court to enrol Advocates and

Vakils. It seems to me to be clear from the provisions above referred to that the Bar Councils Act, so far as Madras is concerned, makes no

distinction as regards the different jurisdictions of the High Court, gives the High Court no power to frame rules so far as the Original and

Insolvency Sides are concerned to limit the functions of Advocates only to plead, and prevent them from acting, and keeps'' alive only such rules as

the Madras High Court has already framed if they are consistent with the provisions of the Act.

It is to be noted that while the rule-making powers of the Bombay and Calcutta High Courts, so fair as the Original Side is concerned, are

saved, no such saving clauses are enacted so far as the Madras High Court is concerned. It was evidently thought that as the Madras vakils were

authorised to appear, act and plead on the Original Side, the Madras High Court offered a fair field for trying the experiment of unifying the Bar

which was the policy underlying the Act.

The word ""practise"" ordinarily means, appear, act and plead, unless there is anything in the subject or context to limit its meaning. The word

''practise'' is used, in Section 4 of the Legal Practitioners Act of 1879 and it was held by Jwala Prasad, J., in Laurentius Ekka v. Dhuki Koeri ILR

(1925) Pat. 766 that the word ""practise"" includes the right to appear, plead and act. I may in this connection refer to Bakhtawar Singh v. Sant Lal

ILR (1887) A. 617 where it was held that Advocates can act and plead unless there is anything in the rules framed by the High Court restricting

their power.

I think that Sections 8 and 14 of the Bar Councils Act which entitle an Advocate as of right to practise in the High Court entitle an Advocate of

the Madras High Court to appear, act and plead in all the jurisdictions of the Madras High Court. If this view is correct, it follows that any rules

which cut down that right to plead alone would be repugnant to the provisions of Sections 8 and 14.

I do not think it makes any difference whether the Court for the relief of insolvent-debtors is a separate Court or is only a part of the High

Court''s Original Civil Jurisdiction. If the Court is a separate Court, it will be a Court falling under Clause (b) of Section 14. As appeals lie to the

High Court, it will be a Court subordinate to the High Court and Section 4 of the Legal Practitioners Act will also apply. If Insolvency Jurisdiction

is part of the High Court''s Original Side Jurisdiction Section 14, Clause (a) will apply.

I am unable to agree with the contention of Mr. Srinivasa Aiyangar that as an Advocate is allowed to practise in the High Court, even if he is

prevented from acting in the Insolvency Court, there is no repugnancy. I am of opinion that where an Act confers rights to a party in general terms

and entitles him to perform more than one function, the cutting down of those rights by a rule would make1 that rule repugnant to the provisions of

the Act. The following observations of Wills, J., in Reg v. Bird. Ex parte Needes (1898) 2 Q.B. 340 are in point:

I desire in my judgment to adopt a broad principle which is too clear to need cases to be cited for its justification - the principle that where a

power to make regulations is given to a public body by statute, no regulations made under it can abridge a right conferred by the statute itself.

I may also refer to the Municipal Corporation of the City of Toronto v. Virgo (1896) A.C. 88.

I am of opinion that Advocates enrolled in the Madras High Court under the provisions of the Bar Councils Act are entitled to act and plead in

the Insolvency Jurisdiction of the High Court.

Pakenham Walsh, J.

I agree and have nothing to add.