Authored By : Mitter, D.C. Patterson

Mitter, J.

1. In this appeal, Mr. Ramdayal De, advocate, applies toplead for the Plaintiffs Respondents without putting in a vakalatnama for hisappearance. He wants only to plead on behalf of the Plaintiffs and he contendsthat, under Act XXII of 1926, by which the provisions of the Code of CivilProcedure Code, 1908, have been amended, he is entitled to plead, provided heputs in a memorandum of appearance in the form provided for by Order III, Rule4 of the Code of Civil Procedure. He has put in such a memorandum without anycourt-fees on it. Since the amendment of the Code in 1926, that this is thefirst application of this kind will appear from the report of the office, whichwe called for, and as it raises a very important question of procedure, we haveheard not only Mr. Ramdayal De but also the Bar Association of the High Court,which has been represented before us by Mr. Atulchandra Gupta. The BarAssociation support Mr. Ramdayal De and contend that, under the amendedprovisions of the Code of Civil Procedure Code, an advocate not entitled topractise on the Original Side of the High Court is entitled to plead, providedhe puts in a memorandum of appearance under Order III, Rule 4, Clause (5).

2. In order to consider whether the view maintained by theBar Association is right, it is necessary to consider carefully the provisionsof Order III of the Code.

3. Order III, Rule 1, suggests that any appearance,application or act in or to any court, required or authorised to be done by aparty in such court, may...be done by the party in person or by his recognisedagent or by a pleader appearing, applying or acting on his behalf.

4. Order III, Rule 2, enacts who the recognised agents are.

5. Order III, Rule 4, deals with the manner in which a pleader,who is appointed to act, is to be engaged.

6. And Order III, Rule 4, Clause (5), states that a pleadercan be engaged for the purpose of pleading if he puts in a memorandum ofappearance signed by himself, 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 bywhom he is authorised to appear. The proviso to Rule 5 states that it wont benecessary to file this memorandum of appearance by the pleader engaged to pleadif he has been engaged to plead by any other pleader who has been engaged toact in court on behalf of such a party.

7. The whole scheme of this Order seems to suggest that apleader can be engaged to plead only under Rule 4 (5) of Order III without adocument in writing signed by the party provided there is either an appearancein the suit or appeal either by the party in person or an appearance by apleader appointed to act. The proviso meets the case, where the pleaderappointed to act has engaged the pleader engaged to plead only. It is difficultto understand that it could have been intended that a pleader can be engaged toplead only under Rule 4 (5), where there has been no appearance either by theparty which includes his recognised agent or by a pleader appointed to act. Thememorandum of appearance contemplated by Rule 4, Clause (5), is dispensed withif the pleader appointed to act has engaged the pleader engaged to plead. Inevery suit or appeal, apart from pleading, certain acts have to be done. Rule 1of Order III clearly suggests that there must be appearance either by the partyor his pleader for the purposes of appearance, application or act. This wouldseem to be the intention of the legislature. But, I am free to confess that adifficulty arises from the wide language of Order III, Rule 4, Clause (5) andit may be contended, on the plain reading of the language, that a person may beengaged to plead by putting in a memorandum of appearance, even if there is noappearance at previous stages, either by the party in person or by a pleaderappointed to act. And it may be said that we are to construe the statute notfrom what might have been the intention but what appears to be the intentionfrom the language used. We would, therefore, rest our decision on this thatthis Rule of the Code is inconsistent with the rules of the High Court framedunder Section 37 of the Letters Patent of 1865, and as these rules of the Codeof Civil Procedure are contrary to the rules of the High Court made underSection 37 of the Letters Patent, the latter must prevail. Taking the presentappeal, for instance, the rules of the High Court require that a deposit of Rs.7-8 has to be made by every Respondent appearing: see Rule 29 (a) of the newrules. This can be done either by the party appearing in person or by somepleader appointed to act for him. In this case, up to the present moment, therehas been no appearance of the parties either in person or through an advocateappointed to act for those for whom the memorandum of appearance has been putin by Mr. De. The rules of the High Court are framed under Section 37 of theLetters Patent and they are to be, as far as possible, consistent with theprovisions of the Code of Civil Procedure of 1859, which was in force at thedate when the Letters Patent were issued or with the provisions of thesubsequent Code of Civil Procedure Codes replacing the Act of 1859. Rule 29(a), to which reference has been made, makes it obligatory on the Respondent topay the sum of Rs. 7-8 into Court. Who is to make this payment Either theparty who has appeared in person or some pleader who has been appointed to actcan deposit the sum. Rule 55, chapter IX, of the Appellate Side Rules lays downthis "In case of the "Appellant failing to make the necessary deposit"under Rule 29 (2), Chapter V, of this Chapter, the ""DeputyRegistrar shall lay the matter before Registrar who may at once cause theappeal to be "set down before the Division Court to which "itbelongs; and if the Appellant does not satisfy the "Court as to his delay,his appeal may be dismissed "for want of prosecution, or the Court maypass "such other order as it may deem proper."

8. It would seem from this Rule of the appellate side that,where there is no appearance for the Respondent and no deposit of the sum ofRs. 7-8, the matter is to be dealt with as an ex parte matter. From this, aninference may be legitimately drawn that it was not intended by the Rule that aRespondent would be heard unless he has made the necessary deposit and thisdeposit can only be made by a person who is entitled to act, i.e., either bythe Respondent in person or by a pleader appointed to act for him.

9. Take, for instance, the case of first appeals, wherethere are elaborate provisions regarding the filing of the list, the deposit ofpaper-book costs, the preparation of paper-book by the advocates appointed bythe parties. It can hardly be argued that, in the absence of either the partyappearing in person or through a pleader appointed to act, these acts could bedone. These are stages of the appeal prior to the stage when the question ofpleading arises.

10. Mr. Atulchandra Gupta, appearing for the BarAssociation, has cited a case from the Bengal Law Reports to the effect that abarrister, who is entitled only to plead, was heard for the Respondent withoutthere being a pleader to instruct him. See Gobindo Chunder Butt v. Hendry(1875) 14 B.L.R. App. 12. An examination of that case shows that the party hadappeared in person and it was in that state of facts that the barrister wasallowed to plead for the Respondent. Mr. Gupta pointed out that the practice isstill followed, for this case is referred to in Mr. Hechles rules of theOriginal Side. It is doubtful if there are any other cases of this kind sincethe case in the Bengal Law Reports. But the case is obviously distinguishable,as there the party-has appeared in person. We sent for the records of S.A. 1952of 1874 Gobindo Chunder Butt v. Hendry (1876) 14 B.L.R. App. 12. and we findthat the Respondent had paid the paper-book costs which, under the rulesprevalent in the appellate side in 1870, amounted to Rs. 5 and the Respondentwas given that sum in the decree. The Respondent appeared in person anddeposited the sum of Rs. 5 as will appear from some endorsement on the back ofthe memorandum of appeal. Conceding, therefore, that, on the language of OrderIII, Rule 4, Clause (5) it may apply to a case where there is no appearance forthe Respondent, this Rule is inconsistent with the rules of the Appellate Sideframed under Section 37 of the Letters Patent, under which, unless the depositof Rs. 7-8 is made by the Respondent, the matter would be treated as ex parte.

11. After all, as has been pointed out by a recent decisionof the Madras High Court, Order III, Rule 4, does not lay down an absoluterule, but it is subject to the rules of the High Court regulating procedure[see Veerappa Chettiar v. Sundaresa Sastrigal (1925) I.L.R. 48 Mad. 676.].

12. In this view, we are of opinion that a pleader, whichunder the definition given in Section 2(15) of the Code of Civil Procedure,includes an advocate of the High Court, cannot plead in The High Court bymerely putting in memorandum of appearance, unless there has been an appearanceby the party in person or by a pleader appointed to act for him. In the lattercase, if the pleader appointed to act for a party has engaged the pleadermerely to plead for the said party, then this memorandum of appearance need notbe filed.

13. The rules of the Appellate Side provide for appearanceof a party in person and when that is done he can appoint a pleader to plead.

14. It is not necessary to decide the question whether amemorandum of appearance should bear a court-fee stamp of Rs. 2 as it containsan authority to plead although the authority is filed by the pleader himself[see Abdul Ghaffur v. Downing (1925) I. L. R. 5 Pat. 255.]. It may be aquestion whether the memorandum of appearance is a vakalatnama within themeaning of Article 10, Schedule II. The question has not been debated before usand we express no opinion. We may point out, however, that in Madras, amemorandum of appearance, which is the nature of a document showing that thepleader has been retained for a party, has to bear a court-fee stamp as avakalatnama by reason of the amendment of the Court-fees Act (Article 10) byMadras Act v. of 1922.

15. The application of Mr. Ramdayal De must be rejected andthe case proceeded with as if there had been no appearance for the PlaintiffsRespondents. His clients did not comply with the rules of the Appellate Side ofthe High Court regarding the necessity of the deposit of Rs. 7-8 by everyRespondent before the appeal can be regarded as a contested one. The case wouldproceed as if Mr. Des clients had not appeared.

D.C. Patterson, J.

16. I agree.

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Rajkumar Pal vs.Janabali Mia (26.05.1931 - CALHC)