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TMI Blog2019 (4) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Rule 5 provides, inter alia, that an advocate shall not be entitled to appear and plead before a court unless he has filed a Vakalatnama or is instructed by an advocate who has filed a Vakalatnama. The rights granted under Order III Rule 1 is further clarified by sections 8 and 29 of The Advocates Act, 1961 which provide, inter alia, that no person shall be entitled as of right to practice in any High Court unless his name is entered in the Roll of advocates of the High Court (Section 8) and that there is only one class of persons entitled to practice of law namely, “advocates” (Section 29). Section 119 further prohibits unauthorized persons from addressing court and mentions examination of witnesses in particular. The courts have stressed on the distinction, namely, that acting and appearing for another will not include a right to plead or argue before a court of law - It is clear from the decisions as well as the relevant statutes and Rules, that a special class of persons, namely, Advocates enrolled under The Advocates Act, 1961, have been authorised to plead and argue before a court of law. It should further be noted that the “special reason” of permitting “any other pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uit and after examination of the plaintiffs first witness (Amiya Kanti Das), the claim of the plaintiffs was dismissed by a judgment dated 8th November, 2016. An appeal was preferred therefrom by the plaintiffs and by an order dated 26th April, 2017, the suit was remanded for adducing the evidence of Rabindralal Ghosh, the attesting witness to the Will, who the plaintiffs had intended to produce before the Trial Court. Both the plaintiffs and the caveatrix, namely, Shefalika Ash were represented by their advocates during these proceedings. The plaintiffs then applied for framing of additional issues before the learned Judge, who was hearing the suit. At this stage, Mr. Radha Nath Nandy (the applicant herein) expressed his intention to argue the matter on behalf of the defendant/caveatrix, Shefalika Ash. By an order dated 16th November, 2017, passed by the Hon ble Justice Sahidullah Munshi, such liberty was denied on the ground that Order III Rules 1 and 2 of The Civil Procedure Code, 1908 (CPC) does not give any scope to a party to represent a litigant if the concerned party is not an advocate. Mr. Radha Nath Nandy, was however, given leave to file an appropriate application for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... torney of the High Court. ( 2) The High Court shall prepare and maintain a roll of advocates of the High Court in which shall be entered the names of ( a) all persons who were, as advocates, vakils or pleaders, entitled as of right to practice in the High Court immediately before the date on which this section comes into force in respect thereof; and ( b) all other persons who have been admitted to be advocates of the High Court under this Act: Provided that such persons shall have paid in respect of enrolment the stamp- duty, if any, chargeable under the Indian Stamp Act, 1899 (2 of 1899), and a fee, payable to the Bar Council, which shall be ten rupees in the case of the persons referred to in clause (a), and in other cases such amount as may be prescribed............. and on Section 29 of the Advocates Act, 1961, which is; 29. Advocates to be the only recognized class of persons entitled to practice law.- subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practice the profession of law, namely, advocates. Based on the above, it is submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court to make rules concerning advocates, vakils and attorneys. The second issue considered by the court was whether a power of attorney holder stands in the same footing as that of an Advocate holding a Vakalat wherein upon examining Chapter I of the Original Side Rules, the court held that an agent under a power of attorney has no right of audience in a court of law. The next decision of Pannalal Vs. Deoji Dhanji reported in AIR 1955 Madhya Bharat 109 looked into the question whether a Mukhtyar (recognized agent) could be allowed to cross-examine a witness. Again, upon considering Order III Rule 1 of the CPC, the court held that a recognized agent cannot claim a right of audience and further that the distinction drawn in AIR 1948 EP 61 , between addressing a court and examining witnesses, was not supported by earlier decisions on the subject. The court held that the words used in Order III Rule 1, namely, appearance , application or acting does not include examination and crossexamination of witnesses which requires an audience before a court. In coming to the aforesaid conclusion, the court relied on Jivan Lal Vs. Ram Ratan reported in AIR 1936 Oudh 261, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom addressing court and mentions examination of witnesses in particular. 9. On a conjoint reading of the aforesaid provisions, three propositions emerge; first, Order III Rule 1 specifically excludes the expression plead from the purview of appearing or acting . The expression plead, on the other hand, arises from the definition of Pleader under section 2 (15) of the CPC. Second, advocates, vakils and attorneys of a High Court have been specifically included in the class of those who are entitled to plead for another before a court. Third, pleading as an exclusive domain has been formalized under Chapter I Rule 1 (i) (a) of the Original Side Rules which has specifically excluded pleading from acting . Rule 6 lays down the procedure by which a party can be entitled to act and plead for another. From the decisions cited on behalf of the plaintiffs, it is evident that the courts have stressed on the distinction, namely, that acting and appearing for another will not include a right to plead or argue before a court of law. The anomaly in AIR 1948 EP 61 was departed from in Pannalal and the court followed the decision of the Calcutta High Court in Harchand Ray ..... X X X X Extracts X X X X X X X X Extracts X X X X
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