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TMI Blog1961 (8) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of the Chief Justice and Judges of the Patna High Court who were cited as respondents to the petition. The petitioners contend that certain rules of the Patna High Court made as far back as 1922 under s.11 of the Legal Practitioners Act, 1879 (Act XVIII of' 1879), hereinafter referred to as the Act, in respect of the functions., powers and duties of Mukhtars practicing in the subordinate courts are now invalid and void, because they contravene the fundamental right of the petitioners guaranteed under Art. 19(1)(g) of the Constitution of India and are not saved by cl. (6) thereof. The petitioners have, in particular, challenged the validity of r. 2 made by the said High Court under s. 11 of the Act and incorporated in Chapter III, Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an advocate, vakil or attorney-of any High Court, a pleader, Mukhtar or revenue-agent. Section 6 of the Act empowers the High Court to make from time to time rules consistent with the Act in respect of certain matters including inter alia the qualifications, admission and certificates of proper persons to be Mukhtars of the subordinate courts. It appears that by a rule made under s. 6 of the Act, the High Court of Patna laid down that any person who shall produce a certificate from a committee constituted by the High Court that he has passed an examination in the subjects prescribed from time to time by the High Court for the mukhtarship examination may be admitted. as a Mukhtar to practice in courts subordinate to the High Court. Rule 10 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is in these terms. Notwithstanding anything contained in the Code of civil Procedure, the High Court may, from time time, make rules declaring what shall be deemed to be the functions, powers and duties of Mukhtars practicing in the subordinate courts and, in the case of a High Court not established by Royal Charter, in such Court. The High Court of Patna made a number of rules defining the functions, powers and duties of Mukhtars practicing in the subordinate courts. One of these rules is r. 2 which is 'in these terms. Rule 2: A Mukhtar shall not be allowed to address any Civil Court except for the purpose of stating the nature, and. effect of his application or to offer any legal argument or to examine any witness with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision really is this: is the impugned rule in excess of the powers given to the High Court under s. 11 of the Act? If the rule is intra vires the Act, then clearly enough there has been no violation of any, fundamental right of the-petitioners. The right of the petitioners to practice in the subordinate court a was create d by the act. In the arguments before us there was no challenge to the constitutional validity of s. 11 of the Act as permitting. an unreasonable restriction of a guaranteed right, if on a proper construction that section enabled the High Court to regulate the right of practice of Mukhtars. The complaint before us was that the impugned r. 2 was not justified by s. 11 of the Act. Therefore, the only question which we need c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effectuate that right. That, we do not think, is a proper reading of the two sections. It is worthy of note that under S. 9 itself a distinction is made between the right of a Mukhtar to practice in civil courts and his right to appear, plead and act in any criminal. court. In express terms s. 9 gives every (1) [1953] S.C.R. 1. Mukhtar the right to appear, plead and act in any criminal court; it does not, however, give such an unlimited right in a civil court. On the contrary, it merely says that on enrolment a Mukhtar may practice in any civil court, but under s. 11 the High Court may make rules declaring what shall be deemed to be the functions, powers and duties of Mukhtars practicing in the subordinate courts. It is clear to us that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al agency on the Original Side was much more than a rule (1) [1933] S.C.R. 1 of practice and constituted a serious invasion of his statutory right to practice and the power of making such a rule, unless expressly reserved, was repugnant to the right conferred by s. 2 aforesaid The point to be noticed is that the majority held that unless the power was expressly reserved by the statute, a rule could not be made repugnant to the right conferred by s. 2 of the. Supreme Court Advocates (Practice in High Courts) Act, 1951. If it be held that ss. 9 and 1 1 of the Act must be read together and functions and powers mentioned in s.11 are not dissociated from the right to practice mentioned in a. 9, then it is clear enough that s. 1 1 expressly reser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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