A.K. Sikri, J.

Let the application be numbered.

This application is filed by the defendant under Section 151 of the Code of Civil Procedure, inter alia, praying that Mr. S.K. Puri, Senior Advocate, should be debarred from examining and cross-examining the witnesses on the ground that a Senior Advocate cannot undertake this work in view of the provisions of Section 16 of the Advocates Act. The gravamen of the charge is that Section 16 of the Advocates Act read with Order 4 Sub-rule (2) of the Supreme Court Rules, 1966 confers special status on Senior Advocate and along with this there are certain restrictions attached to the designation of Senior Advocate conferred upon a Counsel. It is submitted that a Senior Advocate can only plead and he cannot act on behalf of litigating party. It is also stated that since Senior Advocate is specifically precluded from drafting pleadings or affidavits and giving advice on evidence to the parties, it would necessarily follow that he cannot undertake examination of the witnesses inasmuch as for conducting the examination/cross-examination, it would necessarily involve direct interaction with the client and also giving advice on evidence. Reference is also made to the provisions of Section 119 of the CPC which, inter alia, reads as under:

119. Unauthorised persons not to address Court. Nothing in this Code shall be deemed to authorise any person on behalf of another to address the Court in the exercise of its original civil jurisdiction, or to examine witnesses, except where the Court shall have in the exercise of the power conferred by its charter authorized him so to do, or to interfere with the power of the High Court to make rules concerning Advocates, Vakils and Attorneys.

2. Submission of the learned Counsel, however, is that an Advocate who is not authorised by a party to the suit can address the Court or examine witnesses, except where the Court shall have in exercise of the powers conferred by its charter authorised him to do so and since party to litigation cannot give Vakalatnama to the Senior Advocate and consequently authorise Senior Advocate to appear on his behalf, it would necessarily follow that a Senior Advocate has no right to examine witnesses. For distinction between acting on behalf of a client and pleading on his behalf, learned Counsel has referred to a Single Judge judgment of Orissa High Court in D. Adinarayana Subudhi v. D. Surya Prakash Rao, AIR 1980 Orissa 110. Specific emphasis was laid on the following observations in this case:

6. ......It is clear that `act and `plead found in Sub-rules (1) and (5) respectively stand on different footings. An Advocate can plead by filing a memorandum of appearance, but no Advocate is allowed to act without filing a Vakalatnama. The interpretation of the words `acting and `pleading has been the subject-matter of judicial decisions under Order 3, CPC. `Pleading has been interpreted to mean addressing the Court. `Acting means doing of something as the agent of the principal party, which shall be recognised or taken notice of by the Court as the act of the principal. The undertakings given by Mr. C.V. Murty on behalf of the respondent are, in my opinion, covered by the words `acting.

7. When a pleader gives an undertaking, he acts as the agent of the client and as representing him. He derives his authority from the client that is why he is required to file a Vakalatnama duly signed by the client as required under Order 3, Rule 4, CPC. He is prohibited from acting without a Vakalatnama. A Senior Advocate is debarred from filing a Vakalatnama, taking instructions from the client and from doing any act other than pleading required or authorised by law to be done by a party. An Advocate, who appears on behalf of another Advocate engaged by a party can only plead but he has no power to act on behalf of a party without a document in writing in his favour. It is the agency created by a client in favour of his Advocate which clothes the latter with the power to act on behalf of the former and it is by virtue of the Vakalatnama that the client becomes bound by the actions of his Advocate within the limits of authority. In the absence of a Vakalatnama executed by the client and duly accepted by the Advocate and filed in Court, no agency at all is created and no undertaking so as to bind the client can be given.

3. He also referred to a Division Bench judgment of Karnataka High Court in Kota Co-operative Agricultural Bank Ltd. v. The State of Karnataka and Anr. etc., AIR 2003 Karnataka 30, which is to the same effect.

4. Learned Counsel also emphasised that the position of Senior Advocate is equivalent to what is known as Queens Counsel in England and other Commonwealth countries and submission made was that even in England Queens Counsel is not authorised to undertake this job.

5. Learned Counsel for the plaintiff, on the other hand, drew my attention to a Division Bench judgment of this Court in the case of Smt. Saraswati v. Tulsi Ram Seth & Ors., 6 (1970) DLT 583 (DB)=AIR 1971 Delhi 110, and submitted that issue raised by the defendant was no more res integra as it is covered by the aforesaid judgment.

6. In Smt. Saraswati v. Tulsi Ram (supra), the Division Bench had the occasion to deal with precisely the same issue, namely, whether a Senior Advocate can be allowed to cross-examine witnesses of the other side. The Court had taken into consideration provisions of Section 16 of the Advocates Act as well as Order 4 Rule 2(a) of the Supreme Court Rules, 1966. Provisions of Section 119 of the CPC were also specifically noted and discussed. Therefore, it may be mentioned at the outset that the arguments advanced by learned Counsel for the defendant were raised in the said case as well and specifically dealt with by the Division Bench in the said judgment.

7. Reading of the judgment would make it abundantly clear that the Division Bench drew distinction between the words act and pleading, which expressions occur in Rules 4(1) and 4(5) of Order 3 of the CPC as well. After taking note of certain judgments whereby the two expressions were discussed, the Court summed up the position in law in paras 22 and 23 in the following words:

22. All these cases which define the expression `act have so far carried it to mean presentation of application, etc. but all at a stage prior to the startnesses (of course it would still be `acting of the trial, i.e. examination of the witness if an application is put in during or after the examination of witnesses. The substance is that examination of the witnesses is treated as distinct from filing an application, etc. which is covered by the word `acting). No case other than the case decided by Teja Singh, J. (The Governor-General in Councils case AIR 1948 EP 61 and Jagat Narayan, J. Govind Narains case AIR 1966 Raj. 170 [LQ/RajHC/1965/144] has been brought to our notice where the expression `acting has been held to include examination of the witnesses. In the case reported as Governor-General in Council, there is no discussion as to how the expression `act is deemed to include the examination of witnesses. In Govind Narains case, it has been observed in support of the finding that the expression `act includes examination of witnesses the fact that no pleader is allowed to examine or cross-examine the witnesses unless he files a Vakalatnama and, therefore, it should be assumed that examination of witnesses is covered by the expression `acting. With great respect, no rule is pointed out which specifically requires the filing of a power of attorney by an Advocate for the purposes of examination of witnesses. The fact that the practice may be that the Advocate files power of attorney for examination of witnesses does not answer the question that we are to decide the present reference. It may be that the power of attorney is filed on the assumption that examination of witnesses is covered by the expression `acting and, therefore, as required by Order 3 Rule 4(1), Civil P.C. a power of attorney is necessary. It is, therefore, not, with respect, right in basing a decision on this practice which assumes that the expression `acting covers the examination of witnesses.

23. One of the reasons also mentioned in Govind Narains case (supra) to hold that the expression acting includes examination of witnesses is by reference to Section 119 of the Code of Civil Procedure. It is suggested that Section 119 of the Code of Civil Procedure makes a distinction between addressing the Court and examining witnesses and, therefore, it means that the expression pleading does not cover both arguing and examination of witnesses. With respect again this conclusion does not necessarily follow. Simply because the Legislature has used the word addressing the Court and examination of witnesses, it is not determinative of the fact whether the word pleading cover both the eventualities. In any case the controversy is about the expression acting and whether it includes examination of witnesses. If examination of witnesses is not covered by the word acting it does not really matter whether the word pleading should be restricted to argument only or also to examination of witnesses. Moreover it is not to be seen that Section 119 of the Code is only confined to the High Court and obviously any reference to it would not be of any help in the matter before the subordinate Courts.

8. Thereafter the Court considered the argument advanced by the other side, placing reliance on Rule (c) of Chapter I of Part VI of the Rules governing Advocates, which prohibits a Senior Advocate from giving advice on evidence. Specifically rejecting the argument that the expression giving advice on evidence/acting covers the examination of witnesses, the Court in para 24 observed as under:

24. .....In our view this contention is without any merit. On the other hand the expression `advice on evidence is an expression which is used for a stage prior to the start of the trial. In all litigations after the pleadings have been settled and issues struck an interval is provided to determine what evidence should be laid at the trial. It is this work which is called `advice on evidence and which is not to be performed by the Senior Advocate. Odgers `Principles of Pleading and Practice, 14th Edition, deals with `advice on evidence in Chapter 19, page 256. It is stated therein

As soon as discovery is completed, or in urgent cases even sooner, the papers are laid before Counsel for his advice on evidence. This should be done by both sides, even in cases apparently simple, otherwise the action may be lost for want of some certificate or other formal piece of proof.

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Advising on evidence is, perhaps, the most important piece of work which a junior barrister has to do; success at the trial so much depends on the care with which the case is got up beforehand and the solicitor, who may have had but little experience in litigious work, will look to Counsel for advice on every necessary detail.

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It may be necessary to apply to postpone the trial, i.e., to secure the attendance of witnesses who are ill or absent abroad.

9. The Court, thus, was of the opinion that the expression advice on evidence would not include the examination of witnesses and rather suggested the importance of examination of witnesses which could be undertaken by the Senior Advocate. The position is thereafter summed up in para 27 of the judgment, which makes the following reading:

27. Even from the point of view of practical working it seems to us that if the expression `acting was to include the examination of witnesses it will virtually debar the Senior Advocates from all original work. It is not usual for Courts to hear arguments immediately on the conclusion of evidence and if it was to be held that Senior Advocates cannot examine witnesses they would obviously not be in a position to argue the matter if the arguments were to be heard immediately after the evidence of the witness was concluded. We do not think that it was meant to place such serious restrictions on the rights of Senior Advocates. It should also be appreciated that examination of witnesses is really presenting and pleading the case of the parties though through the mouths of the witnesses....

10. Learned Counsel for the defendant submitted that in the aforesaid case the Division Bench was concerned with the examination of witnesses conducted by the Senior Advocate in subordinate Court and not in the High Court and there was a specific bar under Section 119 of the CPC insofar as examination of witnesses in the High Court is concerned. No doubt, that is also one of the reasons given by the Division Bench to hold that the provisions of Section 119 were not applicable in the said case. However, that is only an additional reason. Primary reason in rejecting the argument was that examination of witnesses is not covered by the expression acting. It may also be noted that Section 119 appears in Chapter 9 of the CPC with the caption special provisions relating to the High Courts not being the Court of a Judicial Commission. Sections 116 to 120 are contained in this Chapter. Provisions of Section 120 came up for consideration before a Division Bench of this Court in State Bank of India v. Himalayan Exporters, Suit No. 51/1968, decided on 20th November, 1970, and the Court opined that these provisions have application only in respect of High Courts of Bombay, Calcutta and Madras and not other High Courts. This judgment is followed by a Single Judge of this Court in State Bank of India v. O.P. Gupta & Ors., AIR 1979 Delhi 201, holding as under:

6. ...The Division Bench of this Court in Suit No. 51 of 1968 in Re. State Bank of India v. Himalayan Exporters by judgment dated 20th November, 1970 has held that Section 120 of the Code cannot be read to exclude the applicability of Sections 16, 17 and 20 of the Code of this Court in exercise of its original civil jurisdiction. It was observed that amendment introduced in the heading of Part IX and Section 116 of the Code by Section 14 of the Civil. P.C. Amendment Act 2 of 1951 has the result of excluding the applicable of Sections 16, 17 and 20 of the Code to the three High Courts at Calcutta, Madras and Bombay which were the only High Courts at that time (1951) exercising ordinary original civil jurisdiction. The amendment was never contemplated to cover the case of future High Courts. This High Court was established by the Delhi High Court Act 25 of 1968. Sections 16, 17 and 20 of the Civil P.C. in view of this Division Bench judgment are applicable to this Court in the exercise of its ordinary original civil jurisdiction. I, therefore, hold that this Court has no jurisdiction to entertain the present suit under Section 16 of the Civil P.C. Accordingly, I direct the plaint be returned to the plaintiff for presentation to the Court having jurisdiction in the matter. There will be no orders as to costs.

11. Provisions of Section 119 of the CPC, therefore, shall not be applicable even on this ground.

12. I am bound by the decision of the Division Bench of this Court and the issue is exclusively determined against the defendant in the case of Smt. Saraswati v. Tulsi Ram (supra). Two judgments of Orissa High Court and Karnataka High Court referred to by the learned Counsel for the applicant, therefore, would be of no avail. Moreover, those judgments were given in a different fact situation. I have no option but to dismiss this application. It is ordered accordingly.

CSs (OS) No. 2642/99 and 867/2002

(Common order)

Parties shall now appear before the Joint Registrar for cross-examination of the plaintiffs witnesses on 27th July, 2006 and the trial shall go on day-to-day basis.