@JUDGMENTTAG-ORDER
R. M. Lodha, J.@mdashBoth these writ petitions arise out of order passed by Civil Judge, Senior Division, Pune on 12-8-1996.
2. Heard Mr. C. R. Dalvi, the learned counsel for petitioner in both the writ petitions.
3. Mr. Dalvi has raised two fold contentions :-- (i) that since Shri J. M. Chitale, Advocate, was appearing on behalf of the plaintiff to argue application Exhibit-5 having been engaged by Shri M. M. Mokashi, Advocate, who was duly appointed to act in the Court on behalf of the plaintiff and therefore no Vakalatnama or memo of appearance or authority was required to be filed by Shri J. M. Chitale, Advocate, and (ii) that there was no justification by the Court below in directing Shri Chitale, Advocate, to produce his sanad since the same lawyer has been appearing in the Court in Pune for more than 25 years.
4. I have considered the contentions raised by Mr. Dalvi and also perused the order dated 12-8-96 passed by the Civil Judge, Senior Division, Pune along with other material placed on record and provisions of O. 3, R. 4(5) of the CPC and the relevant rules framed by the Bombay High Court in that connection.
5. Coming to the second contention raised by the learned counsel first, it may be observed that a person who has obtained the requisite legal qualification is not entitled to audience in Courts on that count alone. He must be admitted to the Bar before he could practice. Admission to the Bar is regulated by statute and presently by the Advocates Act and the Rules framed thereunder. The right of petitioner Mr. Jayant Madhav Chitale to practice, is therefore what is conferred on him by way of Sanad by the Bar Council concerned. In law, the direction given by the Civil Judge, Senior Division, Pune, asking Shri J. M. Chitale, Advocate, to produce Sanad therefore cannot be faulted if he wanted to verify whether Shri J. M. Chitale is duly enrolled with the Bar Council or not. The direction given by the said Court to Shri J. M. Chitale to produce the Sand could have been avoided being unnecessary but if the trial Court wanted to verify whether Shri J. M. Chitale, Advocate, was duly enrolled with the Bar Council or not, such direction cannot be interfered with in extraordinary jurisdiction.
6. Order 3 of the CPC deals with recognised agents and pleaders. Rule 4 of Order 3 as amended by Bombay High Court w.e.f. 11-10-83 which deals with appointment of pleader reads thus :
"4. Appointment of Pleader -- (i) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorised by or under a power-of-attorney to make such appointment.
(2) Every such appointment shall be filed, in Court and shall, for the purpose of sub-rule (i), be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client.
Explanation.- For the purposes of this sub-rule, the following shall be deemed to be proceedings in the suit,--
(a) an application for the review of decree or order in the suit.
(b) an application under S. 144 or under S. 152 of this Code, in relation to any decree or order made in the suit.
(c) an appeal from any decree or order in the suit, and
(d) any application or act for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or of obtaining refund of moneys paid into the Court in connection with the suit.
(3) For the purposes of sub-rule (2) above, (i) an application or a proceeding of transfer under Ss. 23, 24 or 25 of this Code, (ii) an application under R. 9 or R. 13 of O. 9 of this code, (iii) an application under R. 4 of O. 38 of this Code, (iv) an application for review of judgment, (v) an application under S. 152 of this Code, (vi) a reference arising from or out of the suit, (vii) an application for amendment of the decree or order or the record in the suit, (viii) an application for the execution of any decree or order in the suit, (ix) an application under S. 144 of this Code, (x) any appeal (including an appeal under Letters Patent of the High Court) or revision or a reference arising from or out of the suit, (xi) any application relating to or incidental to or arising in or out of such appeal or revision or a reference arising from or out of the suit (including an application for leave to appeal under Letters Patent of the High Court or for leave to appeal to the Supreme court), (xii) any application or proceeding for sanctioning prosecution under Chapter 35 of the Code of Criminal Procedure, 1898, relating to the suit or any of the proceedings mentioned hereinabove, or any appeal or revision arising from and out of any order passed in such application or proceeding, (xiii) any application or act for the purposes of obtaining copies of documents or the return of documents produced or filed in the suit or in any of the proceedings mentioned, hereinbefore, (xiv) any application for the withdrawal or for obtaining the refund or payment of or out of moneys paid or deposited into the Court in connection with the suit or any of the proceedings mentioned hereinbefore (including withdrawal, refund or payment of or out of the moneys deposited as security for costs or for covering the costs of the preparation, printing and transmission of the Transcript Record of the appeal to the Supreme Court), (xv) any application for expunging any remarks or observations on the record of or made in the judgment in the suit or any appeal, revision, reference or review from or out of the suit, (xvi) any application for certificate in regard to the substitution of heirs in appeal to the Supreme Court arising from the suit and (xvii) any application under R. 15 of O. XLV of this Code, shall be deemed to be proceedings in the suit;
Provided that where the venue of the suit or the proceeding shifts from one Court (sub-ordinate or otherwise) to another the pleader filing the appointment referred to in sub-rule (2) in the former Court shall not be bound to appear, act or plead in the latter Court unless he files or he has already filed a memorandum signed by him that he has instructions from his client to appear, act and plead in that Court.
(4) The High Court may, by general order, direct that, where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the order.
(5) No pleader 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 names 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."
7. The relevant provision for the present purpose is sub-rule (5) of R. 4 of O. 3. According to it no pleader who has been engaged for the purpose of pleading only is permitted to plead on behalf of any party unless he has filed in Court a memo of appearance signed by him and stating the names of the parties to the suit, the name of the party for whom he appears, and the name of the person by whom he is authorized to appear. The proviso to this provision carves out an exception. If a party appoints a pleader to act on his behalf in the Court and such duly appointed pleader engages another pleader to plead on behalf of that party then another pleader is not required to file memo of appearance as contemplated in the main provision of sub-rule (4) of R. 5 of the O. 3. In other words, whenever a pleader who has been duly appointed to act in Court on behalf of a party engages any other pleader to plead on behalf of such party, such other pleader is not required to file memo of appearance. The Court in such circumstances cannot insist the other pleader to file memo of appearance. An authority given by advocate who is duly appointed by a party to act and plead on his behalf to another advocate to plead on behalf of such party does not need memo of appearance to be filed by another advocate. It was expected of the trial Court to have kept the said provision in mind.
8. In the present case, however, this controversy is not required to be gone into because upon insistence by the Court, Shri M. M. Mokashi filed purshis before the said Court stating that Shri J. M. Chitale, Advocate, has been authorized to argue the matter.
9. With the aforesaid observations, both the writ petitions are disposed of.
Order accordingly.
