Calcutta High Court on whether only advocates are entitled to plead and argue before court of law

Please find below a short note in the case of Usha Kanta Das v. SM Sefalika Ash. The High Court of Calcutta on 21 February 2019 passed judgment in Usha Kanta Das v. SM Sefalika Ash dealing with the right to practice before a Court. The case arose from a dispute concerning two Wills, both allegedly executed by one person. At the stage of framing of additional issues, Mr. Radha Nath Nandy sought to argue the matter on behalf of the defendant/caveatrix, Shefalika Ash. However, he was denied the opportunity on the ground that Order III Rule 1 and 2 of the Civil Procedure Code, 1908 did not grant a party the right to represent a litigant, if the concerned party is not an advocate. The issue before the High Court of Calcutta was whether a constituted attorney of a party, authorised by the party to appear, act and argue on her behalf as a 'recognised agent', had a right of audience before the Court. The Respondent, Mr. Nandy, sought to argue that under Order III Rules 1 and 2 of the Civil Procedure Code, 1908, as a recognised agent, he was authorised to appear and act on behalf of the party, as the same was a power vested by the power of attorney in his favour. The Petitioners argued however, that Rule 2 of Order III of the Civil Procedure Code, 1908, restricted the power of 'recognised agents' to appearing and making applications, and generally acting as power of attorney holders, and did not include the right of audience or examination of witnesses. The Petitioners also argued that Section 8 of the Indian Bar Councils Act, 1926 restricted the right of persons to practice before any High Court, unless her name was entered into the roll of advocates maintained by the High Court. They also relied on Section 29 of the Advocates Act, 1961, which recognised only advocates as the persons entitled to practice the profession of law. The High Court examined the cases of P. Thayaranmal v. Pitty Kuppuswamy Naidu, whereby the Court held that recognised agents do not have a right to plead and that power of attorney holders had no right of audience before a Court, and of Pannalal v. Deoji Dhanji, whereby the Court held that the words 'appearance', 'application' or 'acting', in Order III Rule 1 of the Civil Procedure Code, 1908, did not include the right to examine or cross examine witnesses, which was a power granted only to those having a right of audience before the Court. The High Court then examined several provisions under the Civil Procedure Code, 1908. Section 2(15) states that only pleaders are entitled to appear and plead before a court, and this includes advocates, vakils and attorneys of a High Court. Chapter I, Rule 1 of the Original Side Rules (of the Calcutta High Court) states that 'acting' includes filing of applications or pleadings, affidavits or any act 'other than pleading'. Chapter I, Rule 5 of the Original Side Rules provides that an advocate is not entitled to appear and plead before a court unless he has filed a Vakalatnama. The High Court further relied on Section 8 and 29 of the Advocates Act, 1961, which provides that only persons with names entered in the Roll of advocates of the High Court are entitled to practice. Section 119 also prohibits unauthorised persons from addressing the court, and the restriction is particularly against examination of witnesses. The High Court ruled that the statutes and rules clarified that a only special class of persons, namely advocates, enrolled under the Advocates Act, 1961, are authorised to plead and argue before a court of law. Further, the 'special reason' of permitting 'any other person' under Chapter 1, Rule 5 of the Original Side Rules related only to appearance and not pleading, and the same must be read with Rule 1(i)(a) which specifically mentions the actions a recognised agent can perform, excludes pleading , by using the words 'other than pleading'. The application filed for permitting Mr. Nandy to appear and act on behalf of the defendant/caveatrix wDas accordingly dismissed by the Court. Download Pdf