IN RE KODANDA RAMASWAMI VARI DEVASTANAM Vs. STATE

JUDGEMENT

(1.) These matters have bee directed to be posted before -a Bech by our leared brother Umamaheswaram, J. U. S. R. No. 2829 of 1955 relates to ustamped memorada of appearace i the place of the usual vakalats filed by the leared Advocate for the respodets i a batch of civil revisio petitios. U. S. R. No. 7274 of 1955 is cocered with a similar ustamped memoradum of appearace filed by the advocate cocered i a, secod appeal preseted to this Court. The Office retured the papers i both the cases objectig that fresh appellate side vakalats duly stamped should be filed ad that the memorada of appearace would ot suffice. I each case, the leared advocates coteded that as they had filed vakalats i the proceedigs i the lower court out of which the civil revisio petitios ad the secod appeal arose, the vakalats so filed would eure for all further proceedigs, revisios or appeals arisig out of them uder Order III Rule 4 sub-rules (2) ad (3) of the Code of Civil Procedure. As the office was ot satisfied with that cotetio, the matter was posted i the first istace before our leared brother for orders.

(2.) It is to be observed at the outset that the procedure i this High Court o its appellate side is govered by the Rules of the High Court, Madras, appellate side by virtue of Sec. 32 of the Adhra State Act, to which a more detailed referece will be made later. Rule 21 of these rules, so far as it is material, is as follows:"no advocate or attorey of the High Court shall be etitled to act i ay civil case uless he filed vakalatamah the form appeded here to. The vakalatamah shall authorise the advocate or attorey to appear i the appeal, petitio or other proceedigs icludig all iterlocutory or miscellaeous proceedigs coected with or arisig out of the same matter ad also i appeals uder clause 15 of the Letters Patet and in applicatios for review ad for leave to appeal to His Majesty i Coucil. "the form appeded to the rule provides that the vakalat should authorise a advocate or a attorey to appear for the executa't i the appeal or petitio as the case may be ad to coduct ad prosecute (or defed) the same ad all proceedigs that may be take i respect of ay applicatio coected with the same or ay decree or order passed therei, including all applicatios for retur of documets or the receipt of ay moeys that may be payable i the said appeal or petitio ad also i applicatios for review i appeals uder clause 15 of the Letters Patet ad i applicatios for leave to appeal to His Majesty i Coucil (ow the Supreme Court). It is admitted that the vakalats filed i the lower courts i these matters before us are ot coformity with the form prescribed by this rule. We may ote here that the form of vakalat i the subordiate courts is govered by rule 19 of the civil Rules of Practice which is i the followig terms :"every vakalat shall, uless otherwise ordered by the Court, be i Form No. is ad shall authorise, the pleader to appear i all executio ad miscellaeous proceedigs in the suit or matter subsequet to the fial decree or order passed therei. "this form No. 12 is substatially differet from the form of vakalat to be filed i the High Court. A vakalat i this form authorises a pleader retaied by the cliet to coduct ad prosecute (or defed) the suit, origial or miscellaeous petitio as the case may be ad all proceedigs that may be take in respect of ay applicatio for executio of ay decree or order passed therein. It also empowers him to appear i all miscellaeous proceedigs in the suit or matter till all decrees or orders are fully satisfied or adjusted ad to obtai the retur of documets ad draw ay moeys that may be payable to the cliet in the said suit or matter. It further authorises him to accept oh behalf of his cliet, service of otice of all or ay appeals or petitios filed in ay court of Appeal, Referece or Revisio with regard to the said suit or matter before the disposal of the same i the court in which the vakalat is filed. While it is admitted that these vakalats are not in the terms required by Rule 21 of the Appellate Side Rules, it is urged that this rule must yield to the provisios i the Civil Procedure Code above referred to. Before we deal with this cotetio, it would be useful to cosider the exact scope ad effect of Rule 4 of Order 3. What is relevat i Order 3 Rule 4 for the preset purposes is as follows :" 4. (i) No pleader shall act for ay perso i ay Court, uless he has bee appoited for the purpose by such perso by a documet subscribed with his sigature i his ow had ad such perso or by his recogized aget or by some other perso duly authorised by or uder a power-of-attorey to make such appoitmet. (2) Every such appoitmet shall be filed i Court ad shall be deemed to be i force util determied with the leave of the Court by a documet subscribed with his sigature in his ow had by the cliet or the pleader, as the case may be, ad filed i Court, or util the cliet or the pleader dies, or util all proceedigs i the suit are eded so far as regards the cliet. (3) For the purposes of sub-rule (a) a applicatio for review of judgmet, a application under Sectio 144 or Sectio 152 of this Code, 'any appeal from ay decree or order in the suit ad ay applicatio or act for the purpose of obtaiig copies of documets or return of documets produced or filed i the suit or of obtaiig refud of moies paid ito the Court i coectio with the suit shall be deemed to be proceedigs the suit. "in Veerappa Chettiar v. Sudaresa Sastrigal ', a Bech of the Madras High court discussed the scope of Order 3 rule 4. The followig passage from it may be usefully extracted. " Order III, Rule 4, does ot give a absolute right to a pleader to appear i a Court till the termiatio of the proceedigs, but only provides in what maer should a pleader be appoited ad till what time the appoitmet will be i force. It assumes that a pleader is competet to appear, plead ad act i the Court in which he wishes to plead ad act. If he is ot competet to appear, plead ad act in any Court uder the rules goverig the procedure i that Court, he caot claim right of audiece by virtue of Order III Rule 4. Is it open to a secod-grade Pleader to claim a right of audiece in the District Court by filig a vakalat or for a first grade pleader to claim a right of audiece in the High court by filig a vakalat in Court for a party The district Court ad the High Court will refuse to receive the vakalat of a pleader ot etitled to appear before them ad will refuse to allow him to act in that Court by reaso of the rules goverig their procedure. . . . . . . . . . . . . . If he does ot coform to the rules goverig the procedure, he caot "claim a right of audiece in that court. . . . . . . . . . . . . . Supposig a pleader is disbarred or struck off the rolls, ca he isist upo his right to appear i a court i which he had filed his vakalat before he was disbarred or struck off the rolls by reaso of Order III, Rule 4. Rule 4 is oly a eablig provisio by which a pleader whe he accepts a egagemet ad files his vakalat i Court is etitled to coduct the proceedigs till he or his cliet dies or the termiatio of the proceedigs. But this rule does ot over-ride the rules goverig the qualificatios of various classes of pleaders or the rules goverig the procedure of the Courts. "

(3.) We thik, with great respect, that this iterpretatio is right. It appears to us further that the rule, i so far as it govers the cotiuace of a vakalat, is primarily cocered ot so much with the right of a advocate as with the right of the court to cosider that the cliet, who appears by a pleader in in Re KODANDA RAMASWAMi VARI dbvasthanam (Bhimasankaram, J 355 any proceedigs cotiues to be represeted by him util the appoitmet which is filed in court is determied in the maer specified in the rule. The words "shall be deemed to be in force util determied with the leave of the court" seem to us to poit to this coclusion. Though the vakalat costitutes a agreemet betwee the cliet ad the pleader, it caot be put a ed to, so far as the court is cocered, solely by their ow agreemet. It seems to us that the object of the rule in insisting upo prior leave of the court before the egagemet could be termiated, vis-a-vis the court, is to esure that the work of the court is ot dislocated by a sudde cacellatio of a vakalat by a cliet or withdrawal from a case by a advocate durig the course of the proceedigs. It would be itolerable if the cotiuity of judicial proceedigs should be affected by aythig doe without referece to the court. Parties to the litigatio might well abuse such a situatio ad make it a ruse for obtaiig adjourmets that might otherwise be refused.