1952 (10) TMI 32 - SC - Indian Laws

Whether the petitioner No. 1 who is an Advocate of the Supreme Court can in addition to exercising his right of pleading the Original Side of the Calcutta High Court which is not challenged by anybody claim by virtue of the provision of section 2 of Act XVIII of 1951 the right to act the Original Side of that Court although according to the rules framed under the Letters Patent an Advocate of the Calcutta High Court may not appear in the Original Side unless instructed by an Attorney - Held that - Petition dismissed.

Issues Involved:
1. Whether the petitioner, an Advocate of the Supreme Court, is entitled to act as well as to plead in the Original Side of the Calcutta High Court.
2. The interpretation of the term "to practise" as used in Section 2 of the Supreme Court Advocates (Practice in High Courts) Act, 1951.
3. The impact of the non-obstante clause in Section 2 of the Act.
4. The applicability of the rules of the High Courts to Supreme Court Advocates.
5. The relevance of legislative history and extrinsic aids in interpreting the statute.

Issue-wise Detailed Analysis:

1. Entitlement to Act and Plead:
The primary issue is whether the petitioner, an Advocate of the Supreme Court, is entitled to act as well as to plead in the Original Side of the Calcutta High Court. The petitioner argued that Section 2 of the Supreme Court Advocates (Practice in High Courts) Act, 1951, entitled him to act and plead in any High Court, including the Original Side of the Calcutta High Court. The respondents contended that the term "to practise" should be interpreted in light of the existing rules of the Calcutta High Court, which differentiate between acting and pleading. The Court concluded that the petitioner, as an Advocate of the Supreme Court, is entitled to appear and plead but not to act in the Original Side of the Calcutta High Court.

2. Interpretation of "To Practise":
The term "to practise" was extensively debated. The petitioner argued that it should include both acting and pleading. The respondents and the High Court held that the term should be interpreted in the context of the rules of the High Court where the advocate seeks to practise. The Court agreed with the respondents, stating that the term "to practise" should be understood in the context of the general constitution of the Bar in India, which typically involves both acting and pleading, except in the Original Side of the Calcutta and Bombay High Courts where historical reasons have led to a bifurcation of these functions.

3. Impact of the Non-obstante Clause:
The non-obstante clause in Section 2 of the Act was scrutinized to determine its scope. The clause states, "Notwithstanding anything contained in the Indian Bar Councils Act, 1926, or in any other law regulating the conditions subject to which a person not entered in the roll of Advocates of a High Court may be permitted to practise in that High Court." The Court interpreted this clause to mean that the Act supersedes only those provisions that prevent Supreme Court Advocates from practising in High Courts where they are not enrolled. It does not affect the rules that govern the practice of advocates already enrolled in those High Courts.

4. Applicability of High Court Rules:
The applicability of the rules of the High Courts to Supreme Court Advocates was another critical issue. The Court held that Supreme Court Advocates must adhere to the rules of the High Court in which they seek to practise. This means that while Supreme Court Advocates can appear and plead in any High Court, they must do so in accordance with the rules and regulations of that High Court, including the requirement of being instructed by an attorney in the Original Side of the Calcutta and Bombay High Courts.

5. Legislative History and Extrinsic Aids:
The relevance of legislative history and extrinsic aids, such as the statement of objects and reasons, was discussed. The Court noted that while these aids could provide some context, they could not override the clear meaning of the statute. The Court emphasized that the primary source for interpreting the statute should be the text of the statute itself, and extrinsic aids should only be used when there is ambiguity in the statutory language.

Conclusion:
The Supreme Court allowed the appeal, holding that the petitioner, as an Advocate of the Supreme Court, is entitled to appear and plead but not to act in the Original Side of the Calcutta High Court. The term "to practise" was interpreted to mean exercising the profession of an advocate in accordance with the rules of the High Court in which the advocate seeks to practise. The non-obstante clause in Section 2 of the Act was found to supersede only those provisions that prevent Supreme Court Advocates from practising in High Courts where they are not enrolled, without affecting the existing rules governing the practice of advocates already enrolled in those High Courts.

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