- (1.) It appears that the Writ Petition No. 7937 of 1985 (Ram Sagar Shukla v. U. P. Textile Printing Corporation Ltd. Khalilabad, Basti & others was dismissed in default on 16-7-2003 and restoration application has been filed by Sri K. P. Agrawal designated Senior Advocate on 14-8-2003 and this Court has passed the order dated 18-8-2003 whieh reads as below : "List this case before me on 21-8-2003. A notice has to be issued to Sri K. P. Agrawal, Senior Advocate to indicate under what circumstance he has filed this application, being a Senior Advocate he is not supposed to file any application and he is not supposed to file Vakalatnama by his signature as the Full Court of Allahabad High Court has designated him as Senior Advocate. If satisfactory explanation is not given by him the case shall be referred to Honble The Chief Justice for consideration for removal of his senior counsels designation and the matter shall be sent to Bar Council of U. P. and Registrar General shall intimate to Sri K. P. Agrawal about this order with an intimation to this Court." (1) The affidavit enclosed with the restoration application was sworn by Sri Nazme Hasan claims to be the registered Clerk of Sri K. P. Agrawal, Senior Advocate. It has been contended in paragraph 3 that when the case was listed on 16-7-1993 at serial No. 4 at page 121 the name of Sri K. P. Agrawal, Sri B. C. Tripathi and Sri Hari Om Khare were shown as counsel for the petitioner. Since the name of other than Sri K. P. Agrawal was shown it was presumed that the petitioner had engaged the other two counsel and he was not present when the case was called out, however it was not noted in the office of Sri K. P. Agrawal, Senior Advocate and Sri K. P. Agrawal has no knowledge that the case was listed otherwise he certainly might have appeared before the Court and might have argued the case. As contended in the affidavit that at the time of filing the writ petition No. 7937 of 1985 in the name and signature of Sri K. P. Agrawal, he was not a designated Senior Advocate. It has further been contended in paragraph 4 of affidavit that it was not on account of any negligence but for bona fide reasons the case was dismissed in default. No satisfactory explanation however has been given in this application besides the important aspect that despite designated as Senior Advocate Sri K. P. Agrawal has filed the application in derogation to the applicable provisions after being designated as Senior Advocate he could not be engaged as counsel for any party on Vakalatnama."
(2.) Now in the present facts and circumstances, the following questions arise : (i) Whether Senior Advocate could be engaged by client on Vakalatnama ? (ii) Whether a Senior Advocate could directly receive instruction from the client/ party? (iii) Whether in the present application of restoration could be filed for and on behalf of Senior Advocate and on the signature of Senior Advocate?
(3.) For dealing these aspects it is necessary to deal the relevant provisions of the Advocates Act and the Bar Council of India Rules and other different provisions applicable in the present case. Under Section 2(1) (a) of the Advocates Act, 1961 (hereinafter called as Act") the word advocate has been described as below: 2. Definitions (1) In this Act, unless the context otherwise requires, (a) "advocate" means an advocate entered in any roll under the provisions of this Act: Chapter III of "Act" deals with admission and enrolment of Advocates which is given below : "16: Senior and other advocates. (1) There shall be two classes of advocates, namely, senior advocates and other advocates. (2) An advocate may, with his consent, be designated as senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability (standing at the Bar or special knowledge or experience in law) he is deserving of such distinction, (3) Senior advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interest of the legal profession, prescribe. (4) xxxxxxxxxxxxxxxxxxxxx" 17. State Bar Councils to maintain roll of advocates. (1) Every State Bar Council shall prepare and maintain a roll of advocates in which shall be entered the names and addresses of (a) to(b) xxxxxxxxxxxxxxxxx (2)-(3) xxxxxxxxxxxxxxxxxx (a)-(b) xxxxxxxxxxxxxxxxxx (****) (d)-(e) xxxxxxxxxxxxxxxxxx (4) xxxxxxxxxxxxxxxxxxxxx "19. State Bar Councils to send copies of rolls of advocates to the Bar Council of India. Every State Bar Council shall send to the Bar Council of India an authenticated copy of the roll of advocates prepared by it for the first time under this Act and shall thereafter communicate to the Bar Council of India all alterations in, the addition to, any such roll, as soon as the same have been made." "22. Certificate of enrolment. (1) There shall be issued a certificate of enrolment in the prescribed form by the State Bar Council to every person whose name is entered in the roll of advocates maintained by it under this Act. (2) Every person whose name is so entered in the State roll shall notify any change in the place of his permanent residence to the State Bar Council concerned within ninety days of such change". "23. Right of pre-audience. (1) The Attorney General of India shall have preaudience over all other advocates. (2) Subject to the provisions of sub-section (1), the Solicitor General of India shall have pre-audience over all other advocates. (3) Subject to the provisions of sub-sections (1) and (2), the Additional Solicitor- General of India shall have pre-audience over all other advocates. (3A) Subject to the provisions of sub-sections (1), (2) and (3), the second Additional Solicitor General of India shall have pre-audience over all other advocates.) (4) Subject to the provisions of sub-sections (1), (2), (3) and (3A) the Advocate-General of any State shall have pre-audience over all other advocates, and the right of preaudience among Advocates-General inter se shall be determined by their respective seniority. (5) Subject as aforesaid (i) senior advocates shall have pre-audience over other advocates; and (ii) the right of pre-audience of senior advocates inter se shall be determined by their respective seniority. Chapter IV of "Act" deals with Right to Practise. "29. Advocates to be the only recognised class of persons entitled to practise 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 practise the profession of law, namely,, advocates." "30. Right of advocates to practise. Subject to provisions of this Act, every advocate whose name is entered in the [State roll] shall be entitled as of right to practise throughout the territories to which this Act extends, (i) in all courts including the Supreme Court; (ii) before any tribunal or person legally authorised to take evidence; and (iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise." 31. x xxxxxxxx xxx x xx xx x x xx 32. Power of Court to permit appearances in particular cases . Notwithstanding anything contained in this Chapter, any Court, authority, or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case." 33. Advocates alone entitled to practise. Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practise in any Court or before any authority or person unless he is enrolled as an advocate under this Act. 34. Power of High Courts to make rules. (i) The High Court may make rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the courts subordinate thereto. [(1A) The High Court shall make rules for fixing and regulating by taxation or otherwise the fees payable as costs by any party in respect of the fees of his adversarys advocate upon all proceedings in the High Court or in any Court subordinate thereto.] [(2) Without prejudice to the provisions contained in sub-section (1), the High Court at Calcutta may make rules providing for the holding of the Intermediate and the Final examinations for articled clerks to be passed by the persons referred to in section 58AG for the purpose of being admitted as advocates on the State roll and any other matter connected therewith.] Chapter VI deals with Miscellaneous parts of Act and Section 49 deals with General power of the Bar Council of India to make rules and the relevant part is provided as below : Section 49 (l)(g) : the restrictions in the matter of practice to which senior advocates shall be subject; Under the powers provided under Rules 16(3) and 49 (1) (g) of Act and part VI of Bar Council of India Rules deals with the rule governing advocates and Chapter I deals with the Restrictions on Senior Advocates.;