MANUEL Vs. THOMAS

JUDGEMENT

(1.) 2. When the matter was heard by me on 17 61977, I though it will be useful to have the vakkalath filed by the counsel in the court below sent for It was accordingly called forth and placed before me. I need only state here that there is no specific clause therein which directs the counsel to appear for the client in the appellate forum also. 3. R. 4 of Order III provides that no pleader shall act for any person in any court unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorised by or under a power of attorney to make such appointment. Every such appointment shall be filed in court and also shall deemed to be in force until determined with the leave of the court by a writing signed by the client or the pleader as the case may be, and filed in court or until the client or pleader dies, or until all proceedings in the suit are ended so far as regards the client. In the Explanation incorporated in the rule, by the Amendment Act, 1976, clause (c) of the same provides that any appeal from any decree or order in the suit, shall be deemed to be proceedings in the suit. This Rule, according to the counsel for the appellant, clearly indicates (and the doubts, if any in the matter wiped out by the Explanation (c) aforesaid pointed out) that the counsel appointed by the party in the court below, could continue to act for the party in the appellate court also on the basis of the appointment in the court below. Fresh vakkalath in the appellate court cannot be insisted upon. He also placed reliance on the well settled principle that the counsel shall have all the necessary implied powers consequent on his appointment as the party's counsel for the purpose of acting in a proper manner in the interest of his client. The absence of any specific mention of an authorisation to act for the party in the appellate court will not matter, especially because his appointment is to continue and shall be in force until all the proceedings in the suit are ended so far as regards the client unless the vakkalath is otherwise determined by revocation, resignation or death. 4. Reliance was placed by the counsel on the decision of the Patna High Court in Laurentius Ekka v. Dukhi Koeri (AIR. 1926 Patna 73), where it was pointed out that so far as the law and the rules are concerned there is nothing to prevent an advocate either in the High Court or in the subordinate courts, to present an application on behalf of his client without any power of appointment or vakkalathnama given to him in writing. (It might be pertinent to point out here that the learned judge there refers to clause (3)of R. 4 of Order III CPC. , dispensing with the appointment in writing in the case of an advocate of any High Court and an advocate is not required to present any document empowering him to act. Such a clause is not seen in the existing rule ). 5. Another decision relied on by the learned counsel for the appellant is Boora Mal v. Tulasi Ram (AIR. 1930 Lah. 68 ). In that case Jai lal, J. , held that where in a printed form of the power-of-attorney, the clause authorising an advocate to file an appeal has been struck off by the client, it does not mean that the said power has been taken away from him, if it otherwise existed. It only means that the power was not expressly given. The learned judge further pointed out that as under Order III R. 4 all appointments continue till all proceedings in a suit are ended and an appeal is a proceeding, an advocate appointed to conduct proceedings is evidently entitled to present appeal. 6. In another decision of the Lahore High Court, also pointed out by the counsel for the appellant in support of his contentions, justice Agha Haidar, observes- Rasul Shah v. Diwan Chand (AIR. 1936 Lah. 583)that 0. 3, R. 4 (2) CPC. , provides that every appointment of a Pleader shall be tiled is court and shall be deemed to be in force until all proceedings in the suit are ended so far as the client is concerned. So where a pleader validity represents a party in the trial court, he can present a memorandum of appeal on behalf of his client and prosecute the appeal in the appellate court. 7. Purria Chandra Dutta v. Sheikh Dhalu (AIR. 1930 Cal. 721), one of the decisions referred to by the learned counsel only states that the rule is that a vakkalathnama filed in a suit remains in force in all the different stages of the case And there can be no controversy that that is what order III, R. 4 states. 8. In considering the question the court shall hive to take due notice of the statutory provisions contained in the Code of Civil procedure and rules made thereunder which might vary to some extent, because of state (or previ-sly Provincial) amendments. The court will also have to take into account the provisions in the Advocates Act, 1961 which in Chapter IV of the same has made it explicit that Advocates are to be the only recognised class of persons entitled to practise the profession of law to practise is any court or before any authority or person (see S. 29, 30 and 33 of the said Act ). The same Act, by S. 34 enables the High Court to make rules laying down the conditions subject to which an advocate shall be permuted to practise in the high Court and the courts subordinate thereto. 9. S. 122 of the Code of Civil Procedure also empowers the high Court to make rules from time to time after previous publication, for regulating their own procedure and the procedure of the Civil Courts subject to their superintendence. The High Court could by such rules annul, alter or add to all or any of the rules in the First Schedule to the C P C. The Kerala Civil rules of Practice are rules framed by this court by virtue of the powers conferred by S 122 C. P. C. R. 27 of the said Rules states that every vakkalath snail unless otherwise permuted by the court be in Form No. 12 and may authorise the pleader to appear in all execution and miscellaneous proceedings in the suit or matter even subsequent to the decree or order passed therein It might be noted here itself that by the definition of the term in the C P C. , a pleader means, any person entitled to appear and plead for another in court, and includes an advocate, a vakeel and an attorney of a High Court. The form of vakalath provided in the Civil Rules of Practice (Form No. 12) in empowering an advocate to appear for the executant in the suit (appeal or petition) and to conduct and prosecute (or defend) the same and all proceedings that may be taken in respect of any application for execution of any decree or order passed therein, also authorises the advocate to appear in all miscellaneous proceedings in the suit or matter till all decrees or orders are fully satisfied or adjusted etc It further empowers the Advocate to accept on his (the executant's) behalf service of notice of all or any appeals or petitions filed in any court of appeal, reference or revision with regard to the said suit or matter before the disposal of the same in the court where the vakkalth is filed. The wording in the vakkalath restricts the Advocate's right (as empowered in the vakkalath filed before the trial court) as regards the court of appeal, reference or revision to the receiving of notice of all or any appeals or petitions filed in higher court. The power does not seem to extend to the matter of presentation of appeal or appearance in further proceedings in the appellate court. As stated earlier the High Court by rules framed under S 122 C. P. C, can annul, alter or add to the rules in the First Schedule to C. P. C, and therefore to Order III, R. 4 Further it might be noted that Order HI, r. 4 (3) states that nothing in sub-rule (2), shall be construed as authorising service on the pleader of any notice or document issued by any court other than the court for which the pleader was engaged except where such service was expressly agreed to by the client in the document referred to in sub-rule (1), namely the document in writing appointing the pleader. This would certainly indicate that the appointment of the Pleader is rather confined to the court where the vakkalath is filed. This rules out any question of implied powers also as regards the right of the pleader to appear in the appellate court when h; has not filed a vakkalath in the appellate court. 10. R. 28 of the Civil Rules of Practice states that a pleader proposing to enter appearance in a suit or other proceeding for a party for whom there is already a pleader on record, may not do so unless he produces the written consent of such pleader, or where such pleader refuses his consent, he obtains the special permission of the court Acceptance of the contentions of the learned counsel for the appellant might create immense difficulties for the profession and the people, because before a counsel could file a vakkalath in the appellate court, written consent of the counsel appearing in the lower court will have to be taken. 11. In this connection we might also take due notice of the Rules of the High Court which are framed by virtue of the powers conferred by Art. 225 of the Constitution of India, S. 122 of the Code of Civil Procedure and all other powers enabling the High Court in that behalf. R. 17 of the same is as follows: "production, of Vakkalath No advocate shall be entitled to act id any proceeding, unless he files a vakkalath: provided that where an advocate already on record in any proceeding appoints another advocate to appear for him at the hearing of the case it shall not be necessary for the latter to file a vakalath: Provided further that an advocate appearing for an accused person in a criminal proceeding may, instead of filing a vakalath, file a memorandum of appearance containing a declaration that he has been duly instructed to appear by/or on behalf of the accused. (2) An advocate appearing on behalf of the Central or state government or on behalf of any public servant sued or suing in his official capacity shall be required to file only a memorandum of appearance. " Rule 19 provides that every vakalath shall, unless otherwise permitted by the court should be in Form No 1 of the said rules, with the wordings in the vakalath (in Form No. 1) and taking the above two rules, it is clear that for a counsel for appearance in the High Court, a separate vakalath than that filed in the lower court is necessary. 12. R. 59 of the High Court Rules further provides as follows: "service of notice on the Pleader in the subordinate court (1) In an appeal from a preliminary decree or in any appeal or other proceeding instituted in the High Court before the disposal of the main proceeding in the subordinate court, notice may be served on the pleader who represents the party in the proceeding in the subordinate court and such service shall be deemed to be sufficient service on the party who is represented by such pleader. Where a party is not represented by a pleader in the main proceeding, notice shall be served on the party direct. (2) Where the pleader on record for a party declines to receive such notice, the case shall be posted before court for orders. " We may also take notice here of R. 49 of the said rules which reads: "every proceeding instituted prior to the disposal of the main proceedings in a subordinate court shall mention, as far as possible, the names and addresses of the pleaders, if any, who represented the opposite parties in the subordinate court for effecting service under r. 59. " These further strengthen my view that a separate vakkalath in the High Court is necessary for the counsel who appears for the client in the lower court. In the circumstances and in the light of what I have stated above,1 direct the return of the papers, appeal memo and others, to the counsel who presented the same. He may re-present the same with a vakkalath duly stamped in his favour within a week. . .