SOMESWAR GOGOI Vs. STATE OF ASSAM

JUDGEMENT

(1.) A point of some importance regarding the practice prevalent in this Court relating to filing of petitions under Art. 226 of the Constitution has been raised in this application. The point for determination is whether an Advocate's clerk can swear an affidavit which is required to accompany a writ petition. In view of the importance of the matter, notices were issued to the President and the Secretary of the High Court Bar Association to hear them and other learned members of the Bar who wanted to intervene. Pursuant this notice, the President of the Bar Association, Shri A.R. Barooah, appeared and so too some other members. The President and Secretary of the Advocates' Clerks' Association also intervened and Shri B. K. Das addressed arguments on behalf of the Association.

(2.) Shri Barooah drew our attention to R.804(4) of the Civil Rules and Orders framed by this Court as per which provision a licensed clerk of a pleader or mukhtiar is allowed only to identify persons verifying affidavits before the Sheristedar. As to this provision, the submission of Shri Das was that as the procedure provided in the Civil P.C. has no applicability to any proceeding under Art.226 of the Constitution, vide Explanation to S. 141 of the Code, what has been provided in R.804(4) would not stand in the way of Advocate's clerk discharging the aforesaid duty in the High Court. We would accept this submission of Shri Das.

(3.) Shri Barooah then referred to R.3(1) finding place in Chap. XIV of the Rules framed by this Court which provision has defined "licensed clerk" to mean "a clerk, other than an articled clerk, who is employed by an advocate of the High Court in connection with his legal business". It was contended by Shri Uzir that swearing in of affidavits would not come within the purview of "legal business " of an Advocate. We would demur to accept this broad submission made by Shri Uzir inasmuch as filing of a proper petition sworn by proper person is definitely a part of 'legal business'of an advocate. If in discharge of this duty, the advocate seems satisfied that swearing of an affidavit by his clerk would meet the requirements of law, we think he can definitely call upon his clerk to swear the affidavit.