HASMUKHRAY N DESAI Vs. DEEPCHAND WAGHJI

JUDGEMENT

(1.) The petitioner is a practising Advocate and he has filed this petition challenging the Order dated November 25, 1976, passed by the learned Judge of the Small Causes Court, Bombay, refusing to permit the petitioner to appear is Summary Suit No. 1141 of 1976 on behalf of the defendants for his failure to file Vakalatnama.

(2.) The respondent No. 1 filed a summary suit for recovery of Rs. 750/- in the Court of Small Causes at Bombay. After the service of the writ of summons on respondents Nos. 2 and 3 who were defendants in the suit the respondent No. 1 took out a Summons for Judgement against respondents Nos. 2 and 3. At the hearing of the Summons for judgment the respondent No. 1 plaintiff engaged the services of the petitioner as their Advocate and the petitioner filed his Memo of appearance as provided under Order III, Rule 5 of the Code of Civil Procedure. It appears that the learned trial Judge called upon the petitioner to file Vakalatnama and on his refusal to do so, passed an order holding that the petitioner has no right to address the Court in absence of his Vakalatnama.

(3.) In our judgment, the order passed by the learned trial Judge appears to be incorrect. The provisions of Order III, Rule 4(1) of the Code of Civil Procedure provide 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 recognized agent or by some other person duly authorized. Under sub-rule (5) of Rule 4 of Order III, no pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance signed by himself and stating (a) the names of the parties to the suit, (b) the name of the party for whom he appears, and (c) the name of the person by whom he is authorized to appear.