Saji vs Union of India

P.R. Ramachandra Menon

The petitioner is a Lawyer by profession; who is stated as aggrieved of Exhibit P1 notice issued by the third respondent, whereby it has been stipulated that in all cases, the litigants and their counsel have to appear before the third respondent for executing and attesting the vakalath and petitions for sanction to engage a lawyer. The above prescription is stated as in clear contravention of R.27 of the Civil Rules of Practice, R. 32 of the Criminal Rules of Practice and also R.5(1) of the Family Courts (Procedure) Rules, which hence is sought to be set aside by this Court.

Heard the learned Government Pleader appearing for the second and third respondents and the learned Assistant Solicitor General of India for the first respondent as well. The issue in volved being purely a ''question of law'', no ''question of fact'' is to be rebutted by filing any counter affidavit.

Learned counsel for the petitioner submits that the party concerned is at liberty to engage any lawyer of his/her choice, by executing a vakalath which has to be done under the Civil/Criminal Rules of Practice. It is also a settled position of law that the accepting lawyer'' is not supposed to attest the vakalath: which in turn has to be done by another lawyer, as held by this Court in Achuthan v. Family Court (2000 (3) KLT 951). Reliance is also sought to be placed on the decision rendered by this Court, in Moideen Bava Manchesra Banots Vs. Shahida, in support of the contentions raised with regard to the incidental aspects.

When the matter came up for consideration before this Court on 7.7.2011, the Registrar (Judicial) was directed to call for a Report from the Family Court, Emakulam, on the allegations. Pursuant to this, Report dated 13.7.2011 has been submitted by the learned Judge of the Family Court, along with a covering letter bearing No. 3016/2011 dated 13.7.2011. As per the said Report, the learned Judge has made it clear that direction or order for issuance of any such notice like Ext. P1 was ever issued and hence an explanation was called for from the third respondent/Sheristadar. The third respondent explained that, Ext. P1 notice was issued following the practice in similar Family Courts, insisting the parties to present the ''sanction petition'' (for engaging a Lawyer) in person, to make sure that the ''party in person'' was actually filing the petition. As per the practice, it is stated, that the parties are asked to subscribe their signature on the docket of the ''sanction petition'' in presence of the Sheristadar and that, this is only to ensure the genuineness of the request. It is also stated in the Report that, while issuing Exhibit P1 notice the word "vakalath" happened to be included by way of mistake, which actually was not intended, as clarified by third respondent, who submitted the explanation dated 12.7.2011 in this regard. A copy of the explanation submitted by the third respondent has also been forwarded by the learned Judge.

On going through the contents of the Report as aforesaid, it is seen that the learned Judge of the Family Court, on coming across the mistake, has already given a direction for removal of the notice and it has been removed accordingly. As it stands so, the petitioner need not feel aggrieved of any probable consequence forming the basis for the prayers 1 and 2 in the Writ Petition. But it is stated that Exhibit P1 notice happened to be issued as a matter of ''practice'' followed in other Family Courts as well. It is settled law that a wrong practice cannot set a good precedent, howsoever long it might be, especially when it is contrary to the statutory prescription.

Coming to the question of law raised in the Writ Petition, as to the manner of execution and authenticity of the Vakalath, reference is necessary to R. 27 of the Civil Rules of Practice, which is almost similarly worded as R.32 of the Criminal Rules of Practice, R.27 reads as follows:

Form and attestation of vakkalath.-- (1) Every vakkalath shall, unless otherwise permitted by the Court, be in Form No. 12 and may authorize the pleader to appear in all execution and miscellaneous proceedings in the suit or matter even subsequent to the decree or order passed therein. The name of the pleader or the pleaders if more than one pleader is appointed shall be inserted in the vakkalath before it is executed. It shall be dated at the time of its execution and of its acceptance. Its execution shall be attested by a judicial officer, a District Registrar, or a Sub Registrar, the chief ministerial officer of Civil or Criminal Court in the State of Kerala, a member of Parliament, or of the Legislature of any State in India, the Chairman, Executive Authority or member of any Municipal Council or Corporation, or other local authority in India, a Village Officer, a Gazetted Officer in the service of the Central Government or of any State in India, a Commissioned Officer in the Defence Forces of India, or an Ambassador or Envoy duly accredited by or to the Central Government, or a Header other than the pleader accepting the vakkalath:

Provided that any other person may attest, the vakkalath where the executant is personally known to the pleader in whose favour the vakkalath is executed and where the executant signs the same in the presence of the pleader and an endorsement is made by the pleader to the above effect.

(2) The authority attesting the vakkalath under sub-rule (1) shall certify that it has been duly executed in his presence and subscribe his signature over his name and designation. ''No vakkalath shall be attested unless the pleader''s name is inserted therein previous to its execution. When a vakkalath is executed by a party who appears to the person before whom it is executed to be illiterate, blind or unacquainted with the language in which the vakkalath is written, the person shall certify that the vakkalath was read, translated and explained in his presence to the executant, that he seemed to understand it and that he made his signature or thumb mark in his presence.

(3) The execution of a vakkalath by a person in custody may be authenticated by the Jailer, Station House Officer or other officer-in-charge.

(4) When the executant of Vakkalathnama is himself a Public Officer of whose signature a Court may take judicial notice, authentication of the Vakkalathnama is not necessary.

(5) Every vakalath shall contain an endorsement of the pleader in whose favour it is executed that it has been accepted by him. There shall also be endorsed on the vakkalath a statement of his address for service. If more pleaders than one are named in the vakkalath it shall be accepted by all such pleaders but the address for service may be of any one of them

Going by the rules extracted above, as to the execution of the vakalath, the rules of attestation and the dictum laid down by this Court in S. Balachandran Vs. N. Krishnamoorthy, , the Vakalath is valid and proper, if the same is executed and attested as per the Rules. As such, there is no authority for the third respondent or anybody else to insist the litigant to execute the vakalath in front of the third respondent. Vakalath executed by the litigant has to be accepted, if the same is in conformity with the statutory prescription, i.e., R.27 of the Civil Rules of Practice or R.32-of the Criminal Rules of Practice, as the case may be.

Remaining question is with regard to the necessity to file a ''Sanction Petition'' before the Family Court and the stipulation in Ext. P1, to have it executed in presence of the 3rd respondent. Though the idea behind Exhibit P1 may be with all good intention, the same cannot be accepted in law, if it is not supported by any legal provision or authority. Rule 5 of the Family Court (Procedure) Rules 1989, stipulating the proceedings and procecdure reads as follows:

Institution of proceedings.-- (i) Every case will be instituted in the Court of the Principal Judge, or the Court of such other Judge as may be designated by the Principal Judge (or by sending a plaint, petition or application by registered post acknowledgment due to such Judge).

(ii) The Court to which a case has been allocated will be indicated in the list to be displayed in the notice board of the Court where it was instituted. The list will indicate when the party instituting the case is required to appear before the Court to which the case is allocated to take further orders.

(iii) In all cases where a case has been commenced by filing a plaint, petition or application by registered post, intimation of the Court to which the case is allocated will be sent by registered post, intimation of the Court to which the case is allocated will be sent by registered post at the address given. If the party instituting a case does not appear on the first date of hearing before the Judge, he shall send a notice, both by post and in the ordinary way, to the party instituting the case intimating the next date of hearing

By virtue of the above rule, the litigant is at liberty to file application, petition or such other proceedings before the Family Court, even by sending the same by registered post. In other words, the personal presence of the litigant is not at all necessary in this regard, nor can it be insisted by the third respondent, even if it is to ensure authenticity in seeking for ''Sanction'' to engage a Lawyer; which on the other hand, has to be enquired/ascertained/ensured, by other means, if doubted or necessitated.

Yet another aspect-to be considered, is whether any ''Sanction'' to engage a Lawyer is necessary as on date. S.30 of the Advocates Act is relevant in this regard; which reads as follows:

Section 30. -- Right of Advocates to practiced:--

Subject to the provisions of this Act, every advocate whose name is entered in the (State roll) shall be entitled as of right to practise throughout the territories to which this Act, extends;

(i) in all courts including the Supreme Court;

(ii)'' before any tribunal or person legally authorised to take evidence; and

(iii) 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

It remains a fact that S.30 was never notified for 5 decades, after giving effect to the legislation in the year 1961.

Scope of S. 13 of the Family Courts Act, 1984 dealing with the right to legal representation (which speaks about, the necessity to file ''Sanction Petition'') has to be analyzed in the above background. The said provision reads as follows:

Section 13. Right to legal representation.- Notwithstanding anything contained in any law, no party to a suit or proceedings before a Family Court shall be entitled, as of right, to be represented by a legal practitioner:Provided that if the Family Court considers it necessary in the interest of justice, it is ay seek the assistance of a legal expert as amicus curiae

By virtue of the above provision, right of a litigant to be represented through a lawyer, before the Family Court is not automatic; but subject to the sanction to be obtained.

Non-issuance of notification giving effect to S.30 of the Advocates Act, 1961 was the subject matter of debate for many a decade. As a matter of fact, the Advocates Act 1961, received the assent of the President of India on 19th May, 1961. Sub-s. (3) of S. 1 of the Act provides that, it shall, in relation to the territories other than those referred to in sub-s. (4) come into force as such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of the Act. Chapters I, II and VII of the Act wore brought into force on 16.08.1961, Chapter II and S.50(2) on 1.12.1961. S.50(1) on 15.12.1961, Sections 51 and 52 on 24.1.1962, S.46 on 29.3.1962, S.32 and Chapter VI (except Ss. 46, 50 (I) and (2), 51 and 52 which had already come into force) on 4.1.1963, Chapter V on 1.9.1963 and Sections 29, 31, 33 and 34 of Chapter IV of the Act on 1.6.1969; while no notification was issued in respect of S.30 conferring the light to practise on every advocate before any court/Tribunal or such other authorities as specified therein.

Since the above provision was not notified even after a quarter of century, interference of the Court was sought for. The issue was brought up for consideration before the Apex Court in Aeltemesh Rein v. Union of India (1988 (2) KLT SN 29 (C. No. 46) SC : AIR 1908 SC 1768), wherein it was observed by the Court that, in view of the law declared by the Constitution Bench of the Supreme Court in A.K. Roy and Others Vs. Union of India (UOI) and Others, , no Writ of Mandamus could be issued to the Central Government to bring a statute or a provision in a statute into force in exercise of the powers conferred by the Parliament in that statute. However, after hearing the learned Attorney General and the learned Additional Solicitor General, it was observed that, there was no hurdle in directing the Central Government to consider whether the time for bringing S.30 of the Advocates Act 1961 into force had arrived or not. The Writ Petition Was accordingly disposed of, directing the Central Government by a Writ in the nature of Mandamus, to consider the said aspect within six months.

As observed by the Apex Court in Paragraph 4 of the decision cited supra, when, S.30, of the Advocates Act is brought into force, every Advocate whose name is entered in the State roll will be entitled as of right to practise throughout the territories to which be Act extends, before the Courts, Tribunals and other authorities or persons referred to therein. It is also observed in the very same paragraph that, there are various enactments in force in the country, which impose restrictions on the right of an Advocate to appear before certain Courts, Tribunals and authorities, like S.36(4) of the Industrial Disputes Act 1947, S. 13 of the Family Courts Act, 1984 (as involved herein) etc.

It took more than another quarter of a century for the Central Government to have awakened from the slumber and to have felt the necessity to notify the provision. It is brought to the notice of this Court that after much deliberations things have new taken a positive turn, when the Union Government thought it fit to have S.30 of the Advocates Act notified. Accordingly, the said provision was notified in the Gazette of India dated 9.6.2011 declaring that the Government appointed.'' 15.6.2011 as the date for giving effect to S.30 of the Advocates'' Act 1961. In view of the notification as aforesaid, S.30 of the Advocates Act, 1961 has been brought into force from 15.06.2011 and as it stands so, all the Lawyers have acquired a right to Practise before all Courts/ Tribunals and such other Forum in lndia as a matter of right which provision is having all the traits and effect of a subsequent legislation to override the restrictive covenants as contained in S. 13 of the Family Courts Act. This being the position; the stipulation contained in S. 13 of the Family Courts Act 1984, necessitating prior sanction of the said Court has virtually become redundant.

In the above circumstances, this Court declares that it is open for a litigant to pursue the cause of action before the Family Court, engaging any Lawyer his choice and such Lawyer is entitled to present the matter, on filing the Vakalath, matter of right. Exhibit P1 issued by the third respondent is set aside.

The Writ Petition is allowed. No cost. The Registry is directed to forward copy of this judgment to all the Family Courts in Kerala.