Kodanda Ramaswami Vari Devastanam and Others vs D. Seshayya and Others

Bhimasankaram, J.—These matters have been directed to be posted before a Bench by our learned brother Umamaheswa--ram, J. U.S.R. No. 2829 of 1955 relates to unstamped Memoranda of appearance in the place of the usual Vakalats filed by tho learned advocate for the Respondents in a batch of Civil Revision Petitions. tf.S.R. No. 7274 of 1955 is concerned with a similar unstamped Memorandum of appearance filed by tho advocate concerned in a Second Appeal presented to this Court.: ''

The office returned the papers in both die cases objecting, that fresh Appellate Side vakalats duly stamped should be filed and that the Memoranda of appearance would not suffice. In each case, the learned advocates contended diat as they had filed vakalats in the proceedings in the lower court out of which the Civil Revision Petitions and the Second Appeal arose, the vakalats so filed would enure) for all further proceedings, Revisions or Appeals arising out of diem, tinder Order III Rule 4 Sub-rules (2) and (3) of the Code of Civil Procedure. As the olfice was not satisfied jwith that contention, the matter was posted in thy first instance before our learned brother for orders.

IB is to be observed'' at the outset that the procedure in. this High Court on its Appellate Side is governed by ''''the Rules of the High Court, Madras, Appellate Side''" by virtue of Section 32 of the Andhra State Act, to which a more detailed reference will be made later. Rule 21 of these rules, so far as it is material, is as follows:

No advocate or attorney of die High Court shall be entitled to act in any civil ease unless he files vakalatnama in the form appended hereto. The vakalatnama shall authorise the advocate or attorney to appear in tho appeal, petition or other proceedings including all Interlocutory or miscellaneous proceedings connected with or arising out of the same matter and also in appeal under Clause 15 of the Letters Patent and in applications for review and for leave to appeal to His Majesty in Council.

The form appended to the rule provides that the vakalat should authorise an advocate or an attorney to appear for the executant in the appeal or petition as the case may be and to conduct and prosecute (or defend) die same and all proceedings that may be taken in respect of any application connected with the same or any decree or order passed therein, including all applications for return of documents or tho receipt of any monies that may be payable in the said appeal or petition and also in applications for review in appeals under Clause 15 of the Letters Patent and in applications for leave to appeal to His Majesty in Council (now the Supreme Court).

It is admitted that die vakalats filed in the lower courts in tiiese matters, before us are not in conformity with the form prescribed by this rule: We.may note here that the form of vakalat in the subordinate courts is governed by Rule 19 of the Civil Rules of Practice which is in the following terms:

Every vakalat shall, unless otherwise ordered by the court, be in form No. 12 and shall authorise the pleader to appear in all executions and miscellaneous proceedings in the suit or matter subsequent to the final decree or order passed therein."

This form No. 12 is substantially different! from the form of vakalat to be filed in the High Court. A vakalat in., tills form authorises a pleader retained by the client to conduct and prosecute (or. defend) the suit, original or miscellaneous petition as the case may, be arid all proceedings that may be taken in respect of any application for execution of any decree or order passed therein.

It: also empowers him to appear in all miscellaneous proceedings in the suit or matter till ail derive; or orders are lully satisfied or adjusted and to obtain the return ot dooiimrii1''; and diaw any monies that may be payable to die client ia the said suit or matter. It. iur''hcr authorises liim to accept on behalf of Ills client, service of notice of all or any appeals or petit ions liled in any court of appeal, relerciice or revision with regard to the said suit or mailer before the-, disposal of the Same in the court in which the vakalat is liled.

While it is admitted that the vakalats are not in the terms required by rule 1 of the Appellate Side ibile it is ovgod that this into must yield to the provisions in the CPC above referred to. Bel ore we deal will: ibis contention, it would be useful to consider the exact scope and effect of rule ''I of Order S.

What is relevant in Order b Rule 4 for the present purposes is as follows:

"4. (1) No pleader shall act for any person in any court unless he has been appointed tor the 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 oilier person duly authorised by or under a power of attorney to Ae HI eh appointment.

(2) i''lvcry such appointment shall be filed in court and shall be deemed to ho in. force until determined with the leave oi the. cwiv; by a document subscribe;! with his signature in his own hand by the client or the ph adcr, as die case may be and filed in court, or until the client or the pleader dies, or until ail proceedings in the '' suit are ended so far as regards the client.

(o) L''or the purposes of sub-rule, (2) a application for review ol judgment, an application u/s 144 or Section 152 oi tin; Code, any appeal from any decree or order in foe suit and any application or act for the purpose of obtaining copies of documents or return of documents produced or filed in the suit- or of obtaining refund of - monies paid into the court in connection with the suit shall be deemed to be proceedings in the suit.

In Veerappa Chettiar and Others Vs. P.G. Sundaresa Sastrigal, at p. 1202) (A), a Bench of the Madras High Court discussed I Vie scope of Order Rule 4. The following passage from it may be uselully extracted:

"Order III, Rule 4 does not give an absolute right to a pleader to appear in a court till the termination of the proceedings but only provides in what manner should a pleader be appointed and. till what time the appointment will be in force. It assumes that a pleader is competent to appear, plead and act m the court in which he wishes to plead and act.

If he is not competent to appear, plead and act in any court under tire rules governing the procedure in that court, he cannot claim right of audience by virtue of Order III, Rule 4. It is open to a second-grade pleader to claim a right of audience in the District Courts by filing a vakalat or for a first-grade pleader to claim a right of audience in the High Court by filing a vakalat in court for a (c)arty.

The District Court and the High Court will refuse to receive the vakalat of a pleader not entitled to appear before them *and will refuse to allow luw lo ad in that court by reason of the rules governing their procedure................................

''It lie does not conform to the rules governing tho procedure, he cannot claim a right of audience in thai court.................

Supposing a pleader is debarred or .struck ell the rolls, can he insist upon his right to appear iu a court in which he had liled his vakalat. before he was debarred or struck off the ro''.ls by reason of Order 111 Rule 4. Rule 4 is,only an enabling provision by which a pleader when he accepts an engagement, and files his vakalat in court is entitled to conduct the proceedings lill he or his client dies or the termination of the proceedings.

But these rules do not override the rules governing the qualifications of various classes of pleader''s or the rules governing the rocedure of the courts."

We think, with great respect, that this inter-] prctation is right. It appears to us further that the! rule, iu so far as it governs tho continuance of a vakalat, is primarily concerned not so much with the right of an advocate as with the right of the court lo consider that the client, who appears by a pleader in any proceedings continues to be represented by him until the appointment which is filed in court is determined in the manner specified in'' the rule.

The words "shall be deemed to be in force until determined with tlie leave of the Court'''' seem to us to point to this conclusion. Though the vakalat constitutes an agreement between the client and tho pleader, it cannot be put an end to, so far as the Court is concerned, solely by their own agreement. It seems to us that the object of the rule in insisting upon prior leave of the Court before tho engagement could be terminated, vis-a-vis the Court is to ensure that the work of the Court is not-dislocated by a sudden cancellation of a vakalat by a client or withdrawal from a case by an advocate during the course of the proceedings.

It would be intolerable if the continuity of judicial proceedings should be affected by anything done without reference to the Court. Parties so tho litigation might, well abuse such a situation and make it a ruse for obtaining adjournments that might otherwise be refused.

Even assuming that the rule confers such an absolute right, we shall consider whether there is any eonJlict between that right and the requirement of Rule 21 of the appellate side rules as to the form of the vakalat to be presented in the High Court. Order 3, Rule 4 itself does not provide for the form of appointment of a pleader.

Under Section 122 of tire CPC , the. High Court may make rules regulating its own'' procedure and the procedure of the Civil Courts subject to its superintendence and may further by such rules annul, alter or add to all or any of the rules in the first schedule to the Code. Section 128, Sub-section (2) Clause (j) enacts that such rules may provide for "all forms......which may be necessary or desirable for the transaction of the business of Civil Courts."

It is in exercise of this power that Rule 19 of the Civil Rules of Practice lias been passed which proscribes the form for a vakalat to be liled in subordinate Courts. Similarly, Rule 21 of the. Appellate Side Rules prescribing the form of a vakalat to be filed in the High Court may also be attributed to this rule-making power. The rules having been made iu exercise of Statutory authority coulcrred under the Code are as valid as any of the provisions enacted either in the body of the Code or in the schedule.

It is as if these forms of vakalat were prescribed by the CPC itself. Order 3 Rule 4 requires the filing of the appointment in Court and prescribes its duration while 11. 19 of the Civil Rules of Practice and 11. 21 of the Appellate Side Rules prescribe the form of appointment to be filed. These rules deal with distinct subjects and there can therefore be no conflict between them. Even if there be such, il. 21 prescribing a particular form of vakalat for the High Court must be deemed to have; altered or modified the right that is claimed to have been conferred under Order 3, Code of Civil Procedure.

Mr. Sarma however argues thai, the Appellate Side; Rules purport to has been made not only in exercise of the powers vested in the High Court by the Code of CPC but ais.i in exercise of .the- powers vested in it by Sections 13, M, 21 and 25 Vie. C. .10! and by the Letters Paten! of the. High Court of Judicature at Madras, 1865.

He points out that Sections 13 and I '' of the Charter Act were replaced at first by Section 108 of the Govern-meiil of India Act, 1915 and later by Section 223 of the Government of India Act, 1935 and that ihe constitution of India has repealed the Coveriimeril: of India Act, 1935. So, the rule-making powers of the High Court, can no longer be referred directly to tlie Coveniineut of India Act, .19313.

Article 225 of the Constitution of India purports to save the rule-making powers of the High Courts under the enactments previously in force. Rut, it is expressly confined to "any existing High Court'''', i.e., a High Court in existence on the date when the Constitution cuirte into effect. The Andhra High Court was not one such. Nor does it. have Letters Patent of its own. Thus it has no rule-making power under tlie present Constitution or under the Government of India Act or under a Letters Patent of its own.

The learned Government Pleader relies on Section 32 of the Andhra State Act which is as follows:

"Subject to the provisions of this part, the law in force immediately before the prescribed day with respect to practice and procedure in the High Court at Madras shall, with the necessary modifications, apply in relation to the High Court of Andhra, and accordingly that High Court shall have all such powers to make rules and orders with respect to practice and procedure as are immediately before the prescribed day exercisable by the High Court at Madras:

Provided that any rules or orders which are in force immediately before the prescribed day with respect to practice and procedure in the High Court at Madras shall, until varied or revoked by rules or orders made by the High Court of Andhra, apply with the necessary modifications in relation to prac tice and procedure in tlie High Court of Andhra as if made by that Court.'''' (1.1) Hut, Mr. Sarma urges that the proviso re-luting to the continuance I ir\\t i''yrco of the rules of the Madras High Court in the High Court of Andhra makes them o ily as valid as if made by that Court and because, according to him, it has no power to make any such rales - if his argument above-stated were; accepted �- it follows that the rules of the Appellate Side, Madras High Court can have no greater validity dran the rules made by this High Court under its non-existing powers.

In view of what we have already pointed out, viz., that Rule 21 of the Appellate Side Rules could be attributed to the rule-making power which this Court has under the CPC - and it is not denied that this Court has power thereunder - it unnecessary for us to consider this argument at great length.

We shall therefore content ourselves by pointing out that the first part of Section 32 of the Andhra Stale Act above quoted confers on this High Court all the powers to make rules and orders with respect to practice and procedure as are immediately before the proscribed day exercisable by the High Com I Madras. The validity of this provision has'' not boon questioned before us. That being so, though Article 225 of the Constitution of India may not. apply, the same result is reached in the ease of this High Court, by the enactment of this provision, (l''i) A recent decision of a Full Bench of this High Court of which one of us was a member, has held in Putta Rangauayakulu v. Stale of Andhra, 1955 ALT (Cri) 335: ((S) AIR 1956 AP , that the rules made by the Madras High Court under its Letters Patent and under the old Charier Act continue to be in force, under Article 372 of the Constitution as also the powers whcieimder they were made, under Article 225.

In that ease the learned judges discussed the scope of CI, 38 of the Letters Patent of the Madras High Court and the validity of the rules made there under in relation to criminal matters. They held that such rules had the force of law and that the rules made there under by the Madras High Court before the Constitution iu exorcise of the powers conferred on it by Acts repealed or unrepeated continue to be effective and apply to this High Court also.

It is true that no point was made in that case that Article 225 related only to the High Courts in existence at the time when the Constitution of India came into force. Nor was any reference made to Section 32 of the Andhra State Act. But, with respect, we think that that decision reached the correct conclusion in regard to the applicability of the Madras High Court rules to this. High Court except in so far as they are modified or altered by this High . Court.

In the result, we hold that as the form of vakalatnamas filed in the lower Courts, which are * claimed to be in force even for the purposes of this Court, are not in conformity with that prescribed ; by Rule 21 of the Appellate Side Rules, fresh vakalats '' in that form must be filed. The papers in both these i matters will therefore, be returned to tlie respective advocates for compliance with this direction.