MOHESH CHANDRA ADDY Vs. PANCHU MUDALI

JUDGEMENT

(1.) The whole trouble in this case is due to a misunderstanding and some uncertainty of practice in the acceptance of vakalatnama in the moffusil.

(2.) The facts are that the petitioner filed a suit in the Small Cause Court at Puri in charge of the Second Munsif and engaged three Pleaders, Babus Purna Chandra Addy, Raj Kishor Das and Jogendra Chandra Mitra. Babu Purna Chandra accepted the vakalatnama by endorsing his name on its back as usual. The two other Pleaders did not sign the vakalatnama. On the date of hearing Babu Jogendra Chandra signed the hajira of witnesses and Babu Raj Kishor attempted to conduct the case by offering to examine the witnesses. There is some difference between the petitioner and the learned Munsif as to what then took place. The learned Munsif says he asked Raj Kishor Babu to accept the vakalatnama on the record, the petitioner says Raj Kishore was asked to file a fresh vakalatnama. I take the facts as stated by the learned Munsif to be correct, especially as there is no affidavit by the Pleader and the karpardaz, who swears the affidavit, does not know English and could not have understood what was said. But I cannot conceive why Raj Kishor Babu should have allowed the case to be dismissed for default, unless he misunderstood the order of the Court and thought that he was required to file a fresh vakalatnama which he could not do as his client was absent. As it is, I think there was some such mistake and the case was dismissed for default and Babu Jogendra Nath who had filed the hajira without signing the vakalatnama was given a notice to show cause why he should not be proceeded against under the Legal Practitioners Act. There was then an application for re-hearing, but that also ultimately failed as on the date of hearing an application for postponement was made by the agent of the client acting under a special power-of-attorney which was not registered. There is no provision in the Registration Act which makes the registration of a special power-of-attorney compulsory, but the Court is not bound to presume its genuineness unless it is registered; see Section 85 of the Evidence Act, and the learned Munsif was within his rights in refusing to act upon the application of the agent. As regards the acceptance of vakalatnamas the practice in the High Court is that one or more Vakils endorse their acceptance on the vakalatnama before it is filed, and if any other Vakil named in the vakalatnama wants to accept it later, he makes his endorsement before the Deputy Registrar or his assistant and the endorsement is initialled by the said officers and dated. Vakils who are engaged later generally endorse their acceptance when the record is in the Bench, but many Vakils work without endorsing their acceptance unless the omission is brought to their notice.

(3.) Order III, Rule 4, of the Civil Procedure Code, does not expressly say that the acceptance of the vakalatnama should be in writing and it was held by Banerjee, J., in 1901 in the case of Shama Prosad Ghose v. Taki Mallik 5 C.W.N. 816, that under similar provisions of Section 39 of the old Code, no writing was necessary for the acceptance of a vakalatnama and it was sufficient if the Vakil acting was named as one of those authorised in the body of the vakalatnama. This matter came before the English Committee of this Court in April 1910 upon a reference from the District Judge of Khulna and the learned Judges (Sir Lawrence Jenkins, C.J., Harington, J., Brett, J., Mookerjee, J., and Carnduff, J.,) directed the Registrar to say that Order III, Rule 4, does not require the acceptance of a vakalatnama to be in writing. The matter came up again in 1914 upon a reference from the District Judge of Tipperah and the same answer was given. The letter of the Registrar in that case is printed in 19 C.W.N. xxvi. The file shows that Rule 45(e) of the High Court Rules and Circulars published in 1910 was referred to by the District Judge. It appears, however, from enquiries made from the Registrar of the Appellate Side that the answer was given in accordance with the precedent in the Khulna case, without placing the matter before the English Committee again. The next reference was by the District Judge of Cuttack in 1915, made in consequence of a representation from the Puri Bar Association objecting to an order of the 2nd Munsif of Puri directing that every acceptance of vakalatnama must be in compliance with Rule 45(e), Chapter XI, page 301, Volume 1, General Rules and Circular Orders (Edition 1910), whether it is before or after the vakalatnama is filed, and the same answer was given directing that in case of a subsequent acceptance by a new Pleader of a vakalatnama previously filed by another Pleader, the date of the acceptance should be added. This answer was also given by the Registrar on the authority of the Khulna case without any fresh consideration by the English Committee. All these references, however, deal with the case of several acceptances of the same vakalatnama by several Pleaders at different times, and none of them deals with the case of a Pleader acting without accepting the vakalatnama in writing. I think that Order III, Rule 4, Civil Procedure Code, does not require that the acceptance of a vakalatnama should be in writing.