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TMI Blog1991 (2) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to Section 35Q Order 3 Rule 5 of the Civil Procedure Code and the Supreme Court Rules and the Advocates Act. 3. Section 35Q provides for appearance by an authorised representative which reads as follows : 35Q - Any person who is entitled or required to appear before a Central Excise Officer or the Appellate Tribunal in connection with any proceedings under this Act, otherwise than when required under this Act to appear personally for examination on oath or affirmation, may, subject to the other provisions of this section appear by an authorised representative. (2) For the purposes of this section, authorised representative means a person authorised by the person referred to in sub-section (1) to appear on his behalf, being - (a) his relative or regular employee; or (b) any legal practitioner who is entitled to practice in any civil court in India; or (c) any person who has acquired such qualifications as the Central Government may prescribe for this purpose." 4. The qualifications for an authorised representative are as follows : For the purposes of Section 35Q, an authorised representative shall include a person who has acquired any of the following q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner, such documents of authorisation shall be a duly executed vakalatnama." 8. From a reading of Rule 13, it is clear that if a party is represented by an authorised representative, it is obligatory to append the documents authorising the authorised representative to the Memorandum of Appeal. It is also obligatory under the said rule to indicate the status of the person. In the case of a legal practitioner the documents authorising him is to be appended to the Memorandum of Appeal is Vakalatnama. Therefore, a distinction is drawn between a legal practitioner and other authorised representative in so far as the documents under which the authorisation is to be made. However, an authorised representative irrespective of category to which he belongs has to append the document under which he is authorised to appear to the Memorandum of Appeal. The expression used in the rule is Shall . Therefore, it is mandatory for the authorised representatives to append the documents under which they are authorised to the Memorandum of Appeal. 9. In the instant case, Shri Sooji has been authorised to appear by a power of attorney and the said power of attorney is appended to the Memorandum of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legally authorised to take evidence; and" 13. A reading of Section 2(i) and 2(a) with Sections 16, 29 and 30 makes it clear that a legal practitioner is an advocate and by virtue of Section 30(ii) they are entitled to practice before this Tribunal. The Advocates Act also classify the advocates into two categories. Senior Advocates and Junior Advocates. Section 16 categorically says that there shall be two classes of advocates, namely, Sr. Advocates, and other advocates. The scope of the Advocates Act is confined only to the advocates and the classification of advocates and their right to practice and other matters connected thereof. It does not provide for the manner in which they are expected to appear in a Tribunal. The reason is obvious as the advocates are entitled to practice in various institutions but it is for the institution whether it is a Court or a Tribunal to regulate the procedure or the manner in which the legal practitioners are to appear before it. Thus, the Supreme Court framed rules under Article 145 of the Constitution of India regulating the manner and procedure in which the advocates have to appear before them amongst other rules. The rules are also classif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder 3 Rule 5 of the Civil Procedure Code. The relevant rule reads as follows : Order III Rule 5 :- No person who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance signed by himself and stating - (a) the names of the parties to the suit, (b) the name of the party for whom he appears, and (c) the name of the person by whom he is authorised to appear : Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party." 20. From the above Shri Dave submitted that in case where a pleader engages to plead on behalf of any party by another pleader who has been duly appointed to act he need not file any vakalatnama. It is true that under Order III Rule 5 if an advocate engages another advocate to plead on behalf of a party another advocate need not file any Memo of appearance provided the advocate has already filed a Memo of appearance. 21. However, we have already pointed out that it is for the institution to regulate the procedure and the manner of ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aning of Section 16 of Advocates Act and Rule 2 of the Supreme Court Rules. We do not know whether Shri Dave is a Senior Advocate designated as such under Section 16 of the Advocates Act, 1961 or under Rule 2 of the Supreme Court Rules. If he is then he need not file any vakalatnama otherwise he has to file a vakalatnama. 24. The preliminary objection is disposed of in the above manner. Sd/- (S.V. Maruthi) Member (J) Dated 10-1-1992. 25. [Order per : Jyoti Balasundaram, Member (J)]. - While agreeing with the finding arrived at by my learned Sister, Ms. S.V. Maruthi, Judicial Member I wish to add the following: 26. There does not appear to be any case law on the exact issue before us. Judgments of various High Courts deal with Advocates privileges and rights and their duties towards clients in the context of Order III Rules 4 and 5 CPC. The Full Bench of the Kerala High Court dealt with an Advocate s authority to compromise suit or confess judgment in the case of Chengan Souri Nayakam v. A.N. Menon (AIR 1968 Kerala 213) and the majority view was that an Advocate in India has inherent authority to enter into a compromise on behalf of his client and the compromise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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