AMITA MISRI Vs. STATE OF J&K

JUDGEMENT

(1.) THIS application is filed by the applicant -Mr. Yashpal Koushal seeking permission under the provisions of Order 3 Rule 1 of the Code of Civil -procedure & section 32 of the Advocates Act, 1961 to appear & argue writ petition No : 418 of 1988 titled (Amita Misri & three others Versus State of J&K & five others). The applicant seeks the permission on the strength of the special power of attorneys executed in his favour by the petitioners separately, which are not duly executed before any competent authority nor attested properly. Be that as it may, the only point agitated before us requiring determination pertains to the question : - Whether an attorney -holder be permitted to argue before this Court on the strength of power of attorney made in favour of a private individual, who is not a pleader or an Advocate duly enrolled entitled to practice in the courts ? The answer to this question depends on variety of considerations. In answer to the application, objections have been filed by the learned Additional Advocate General opposing the prayer of the attorney to allow him to argue and plead on behalf of the petitioner. As projected in the objections, it has been high -lighted that the applicant Mr. Yashpal Koushal on the strength of power of attorney is trying to appear in several cases and has already put in his appearance in about nine cases of which the instances are given. It will be quite un -safe to allow him to argue & plead on behalf of the petitioners in the courts as he does not possess the required registration under the Legal practitioners Act or the Advocates Act .entitling him to practice. It is also, pointed out that his purport to practice in, such a manner in the grab of obtaining some experience amounts to an offence punishable under section 45 of the Advocates Act. In the similar application under section 32 of the Advocates Act. -An order passed by one of us constituting the Bench (Shah j.) in C. M. P. No: 893 of 1987 on November 24, 1987 rejecting the application and refusing to -allow the applicant Mr. Yashpal Koushal is also referred.

(2.) WE have heard the applicant -Mr. Yashpal Koushal and learned Additional Advocate General on the application. Mr. Koushal tried to emphasise that he has a fundamental right to acquire practical experience in the branch of law in litigation, which can help him to become an Advocate & submitted that he is a student of Law & has completed the LL. B. Course & entitled to argue & plead on the basis of power of attorney. By referring to section 32 of the Advocates Act. 1961, he submitted that with the permission of the court even a private person is entitled to argue & has argued his own cases in the High Court and the Supreme Court of India. Reliance is also placed in support of his contention to obtain permission on an authority of the Honble Supreme Court of India reported in A. I. R. 1978 S. C. 1010 (Harishanker Rastogi, petitioner Vs. Girdhari Sharma &: another, Respondents).

(3.) IT is not disputed that the petitioner is not Advocate or a pleader enrolled, as such entitling him to practice as a professionalist. Although Mr. Koushal submitted with impunity that he is a law graduate, though he has not yet succeeded in getting the degree of law.It is also noticed that not only in this one, but he has tried to appear as attorney on the strength of power of attorney in many other cases without getting enrolment as required under the provisions of the Legal practitioners Act of the State or of the Advocates Act, 1961. Under section 29 of the Advocates Act, only Advocates are recognised as a class of persons entitled to practice Law. Section 30 of the said Act gives right to the Advocates to practice in Court Law before any Tribunal or any authority enumerated in the said section. Section 31 specially provides recognition of certain attorneys as an exception to sections 29 & 30 of the Act empowered to work as attorneys in the High Courts of Calcutta & Bombay & section 32 gives the power to the court to permit any person, not enrolled as an Advocate to appear before it or him in any particular case. It is thus clear that the intention of the legislature is to regulate the provisions in order to maintain discipline & professional entity. In section 32, the word in any particular case are of great significance, which indicates that the, legislature never intended to permit attorney -holders except otherwise provided under Section 31 to appear as such in cases. It is left entirely on the discretion of the court to examine the feasibility of granting permission to any person not enrolled as an Advocate looking to the circumstances of the case & the person appearing to assist the court in advancing the cause of justice. The provisions of Order Rule 1 of the Code of Civil procedure are also not meant to allow such recognised agents holding powers of attorney for the purposes of appearances, applications & acts to allow them to argue and plead like a pleader or an Advocate. It is thus manifest that the import of section 32 is not such, so as to enlarge it to such an extent as to allow in cases any such person like the one Mr. Yashpal Koushal, who is trying to enter into the fiied of practice by putting in appearances in number of cases on the basis of powers of attorney. Such a practice is deprecated, which is quite un -safe also to authorise such persons or permit them to put in their appearances in the Courts In the instant case there is yet another hurdle that the application itself is not made by the petitioners showing circumstances to engage a private person in a pirticular case to invoke the aid of section 32.