Allowed

Saji C.P. v. Union of India

Kerala HC19 Jul 2011WP(C)/18334/2011

Case brief

AI extract

What is this about?

The court allowed a writ petition challenging a Family Court notice requiring personal appearance for vakalath execution and sanction petition filing. Ruling that Section 30 of the Advocates Act now grants full right to practice, the court set aside the notice and declared that engaging a lawyer and filing vakalath is a matter of right.

What did the court decide?

Exhibit P1 notice issued by the 3rd respondent is set aside; writ petition allowed; no cost.

Saji C.P. Vs Union of India — Service and Employment | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON

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TUESDAY, THE 19TH JULY 2011 / 28TH ASHADHA 1933

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WP(C).No. 18334 of 2011(N)

PETITIONER(S):

C.P.SAJI, ADVOCATE MARIYAKULATH BUILDINGS, AYYAPPANKAVU KOCHI -18.

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BY ADV. SRI.T.K.AJITHKUMAR (VALATH)

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RESPONDENT(S):

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UNION OF INDIA, REPRESENTED BY THE SECRETARY,MINISTRY OF LAW, NEW DELHI 110001.

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STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF LAW GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 004.

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THE SHRISTADAR

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FAMILY COURT, ERNAKULAM KOCHI -18.

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GOVERNMENT PLEADER SMT.M.J.RAJASREE

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SRI.P.PARAMESWARAN NAIR, ASGI

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 18334 of 2011(N) 2

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PETITIONERS EXHIBITS:

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EXHIBIT-P1 : TRUE TYPED COPY OF THE NOTICE DATED NIL PUBLISHED IN THE NOTICE BOARD OF THE FAMILY COURT, ERNAKULAM BY THE 3RD RESPONDENT.

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RESPONDENTS EXHIBITS: NIL

//TRUE COPY//

PA TO JUDGE.

(CR)

P.R. RAMACHANDRA MENON, J.

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--------------------------------------------WP (C) No. 18334 of 2011

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Dated this the 19^th day of July, 2011 JUDGMENT

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The petitioner is a Lawyer by profession; who is stated as aggrieved of Exhibit P1 notice issued by the 3^rd respondent, whereby it has been stipulated that in all cases, the litigants and their counsel have to appear before the 3^rd respondent for executing and attesting the vakalath and petitions for sanction to engage a lawyer. The above prescription is stated as in clear contravention of Rule 27 of the Civil Rules of Practice, Rule 32 of the Criminal Rules of Practice and also Rule 5(1) of the Family Courts (Procedure) Rules, which hence is sought to be set aside by this Court.

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Heard the learned Government Pleader appearing for the 2^nd and 3^rd respondents and the learned Assistant Solicitor General of India for the first respondent as well. The issue involved being purely a 'question of law', no 'question of fact' is to be rebutted by filing any counter affidavit.

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Learned counsel for the petitioner submits that the party concerned is at liberty to engage any lawyer of his/her choice, by

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WP (C) No. 18334 of 2011

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executing a vakalath, which has to be done under the Civil/Criminal Rules of Practice. It is also a settled position of law that the 'accepting lawyer' is not supposed to attest the vakalath; which in turn has to be done by another lawyer, as held by this Court in Achuthan Vs. Family Court [2000 (3) KLT 951] . Reliance is also sought to be placed on the decision rendered by this Court in Moideen Bava Vs. Shahida [2006 (3) KLT 763] in support of the contentions raised with regard to the incidental aspects.

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When the matter came up for consideration before this Court on 7.7.2011, the Registrar (Judicial) was directed to call for a Report from the Family Court, Ernakulam, on the allegations. Pursuant to this, Report dated 13.7.2011 has been submitted by the learned Judge of the Family Court, along with a covering letter bearing No.3016/2011 dated 13.7.2011. As per the said Report, the learned Judge has made it clear that direction or order for issuance of any such notice like Exhibit P1 was ever issued and hence an explanation was called for from the 3^rd respondent/Sheristadar. The 3^rd respondent explained that, Exhibit P1 notice was issued following the practice in similar Family Courts, insisting the parties to present the

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'sanction petition' (for engaging a Lawyer) in person, to make sure that the 'party in person' was actually filing the petition. As per the practice, it is stated, that the parties are asked to subscribe their signature on the docket of the 'sanction petition' in presence of the Sheristadar and that, this is only to ensure the genuineness of the request. It is also stated in the Report that, while issuing Exhibit P1 notice the word “vakalath” happened to be included by way of mistake, which actually was not intended, as clarified by 3^rd respondent, who submitted the explanation dated 12.7.2007 in this regard. A copy of the explanation submitted by the 3^rd respondent has also been forwarded by the learned Judge.

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On going through the contents of the Report as afore said, it is seen that the learned Judge of the Family Court, on coming across the mistake, has already given a direction for removal of the notice and it has been removed accordingly. As it stands so, the petitioner need not feel aggrieved of any probable consequence forming the basis for the prayers 1 and 2 in the writ petition. But it is stated that Exhibit P1 notice happened to be issued as a matter of 'practice' followed in other Family Courts as well. It is settled law that a wrong practice cannot set

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WP (C) No. 18334 of 2011

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a good precedent, howsoever long it might be, especially when it is contrary to the statutory prescription.

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Coming to the question of law raised in the writ petition, as to the manner of execution and authenticity of the Vakalath, reference is necessary to Rule 27 of the Civil Rules of Practice, which is almost similarly worded as Rule 32 of the Criminal Rules of Practice, Rule 27 reads as follows:

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“27. Form and attestation of vakkalath. -(1) Every vakkalath shall, unless otherwise permitted by the Court, be in Form No.12 and may authorize the pleader to appear in all execution and miscellaneous proceedings in the suit or matter even subsequent to the decree or order passed therein. The name of the pleader or the pleaders if more than one pleader is appointed shall be inserted in the vakkalath before it is executed. It shall be dated at the time of its execution and of its acceptance. Its execution shall be attested by a judicial officer, a District Registrar, or a Sub Registrar, the chief ministerial officer of Civil or Criminal Court in the State of Kerala, a member of Parliament or of the Legislature of any State in India, the Chairman, Executive Authority or member of any Municipal Council or Corporation, or other local authority in India, a Village Officer, a Gazetted Officer in the service of the Central Government or of any State in India, a Commissioned Officer in the Defence Forces of India, or an Ambassador or Envoy duly accredited by or to the Central Government, or a Pleader other than the pleader accepting

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WP (C) No. 18334 of 2011

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the vakkalath:

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Provided that any other person may attest the vakkalath where the executant is personally known to the pleader in whose favour the vakkalath is executed and where the executant signs the same in the presence of the pleader and an endorsement is made by the pleader to the above effect.

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(2) The authority attesting the vakkalath under subrule (1) shall certify that it has been duly executed in his presence and subscribe his signature over his name and designation. No vakkalath shall be attested unless the pleader's name is inserted therein previous to its execution. When a vakkalath is executed by a party who appears to the person before whom it is executed to be illiterate, blind or unacquainted with the language in which the vakkalath is written, the person shall certify that the vakkalath was read, translated and explained in his presence to the executant, that he seemed to understand it and that he made his signature or thumb mark in his presence.

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(3) The Execution of a vakkalath by a person in custody may be authenticated by the Jailer, Station House Officer or other officer-in-charge.

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(4) When the executant of Vakkalathnama is himself a Public Officer of whose signature a Court may take Judicial notice, authentication of the Vakkalthnama is not necessary.

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(5) Every vakalath shall contain an endorsement of the pleader in whose favour it is executed that it has been accepted by him. There shall also be endorsed on the vakkalath a statement of his address for service. If more

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pleaders than one are named in the vakkalath it shall be accepted by all such pleaders but the address for service may be of any one of them”.

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Going by the rules extracted above, as to the execution of the vakalath, the rules of attestation and the dictum laid down by this Court in Balachandran S. Vs. N.Krishnamoorthy (2009 (1) KLT 975 = 2009 (2) KHC 1) , the Vakalath is valid and proper, if the same is executed and attested as per the Rules. As such, there is no authority for the 3^rd respondent or anybody else to insist the litigant to execute the vakalath in front of the 3^rd respondent. Vakalath executed by the litigant has to be accepted, if the same is in conformity with the statutory prescription, ie, Rule 27 of the Civil Rules of Practice or Rule 32 of the Criminal Rules of Practice, as the case may be.

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Remaining question is with regard to the necessity to file a 'Sanction petition' before the Family Court and the stipulation in Exhibit P1, to have it executed in presence of the 3^rd respondent. Though the idea behind Exhibit P1 may be with all good intention, the same cannot be accepted in law, if it is not supported by any legal provision or authority. Rule 5 of the Family Court (Procedure) Rules 1989, stipulating the proceedings and procedure, reads as follows:

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WP (C) No. 18334 of 2011

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“5. Institution of proceedings. - (i) Every case will be instituted in the Court of the Principal Judge, or the Court of such other Judge as may be designated by the Principal Judge (or by sending a plaint, petition or application by registered post acknowledgment due to such Judge).

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(ii) The Court to which a case has been allocated will be indicated in the list to be displayed in the notice board of the Court where it was instituted. The list will indicate when the party instituting the case is required to appear before the Court to which the case is allocated to take further orders.

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(iii) In all cases where a case has been commenced by filing a plaint, petition or application by registered post, intimation of the Court to which the case is allocated will be sent by registered post, intimation of the Court to which the case is allocated will be sent by registered post at the address given. If the party instituting a case does not appear on the first date of hearing before the Judge, he shall send a notice, both by post and in the ordinary way, to the party instituting the case intimating the next date of hearing”.

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By virtue of the above rule, the litigant is at liberty to file application, petition or such other proceedings before the Family Court, even by sending the same by registered post . In other words, the personal presence of the litigant is not at all necessary in this regard, nor can it be insisted by the 3^rd

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WP (C) No. 18334 of 2011

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respondent, even if it is to ensure authenticity in seeking for 'Sanction' to engage a Lawyer; which on the other hand, has to be enquired/ascertained/ensured, by other means, if doubted or necessitated.

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Yet another aspect to be considered, is whether any 'Sanction' to engage a Lawyer is necessary as on date. Section 30 of the Advocates Act is relevant in this regard; which reads as follows:

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S.30- Right of Advocates to Practise:-

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“Subject to the 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;

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(i) in all courts including the Supreme Court;

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(ii) before any tribunal or person legally authorized to take evidence; and

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(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force to practise”

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It remains a fact that Section 30 was never notified for 5 decades, after giving effect to the legislation in the year 1961.

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Scope of Section 13 of the Family Courts Act, 1984 dealing with the right to legal representation (which speaks about the necessity to file 'Sanction petition') has to be analyzed in the above background. The said provision reads as follows:

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S.13. “ Right to legal representation Notwithstanding anything contained in any law, no party to a suit or proceedings before a Family Court shall be entitled, as of right, to be represented by a legal practitioner:

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Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae”.

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By virtue of the above provision, right of a litigant to be represented through a lawyer, before the Family Court is not automatic; but subject to the Sanction to be obtained.

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Non-issuance of notification giving effect to Section 30 of the Advocates Act, 1961 was the subject matter of debate for many a decade. As a matter of fact, the Advocates Act 1961, received the assent of the President of India on 19^th May, 1961. Sub-section (3) of Section 1 of the Act provides that, it shall, in relation to the territories other than those referred to in subsection (4) come into force as such date as the Central Government may, by notification in the Official Gazette, appoint

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WP (C) No. 18334 of 2011

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and different dates may be appointed for different provisions of the Act. Chapters I, II and VII of the Act were brought into force on 16.08.1961, Chapter II and Section 50 (2) on 01.12.1961, section 50 (1) on 15.12.1961, Sections 51 and 52 on 24.01.1962, Section 46 on 29.03.1962, Section 32 and Chapter VI (except Sections 46, 50 (1) and (2), 51 and 52 which had already come into force) on 04.01.1963, Chapter V on 01.09.1963 and Sections 29, 31, 33 and 34 of Chapter IV of the Act on 01.06.1969; while no notification was issued in respect of Section 30 conferring the right to practise on every advocate before any Court / Tribunal or such other authorities as specified therein.

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Since the above provision was not notified even after a quarter of century, interference of the Court was sought for. The issue was brought up for consideration before the Apex Court in Aeltemesh Rein Vs. Union of Inidan (AIR 1988 SC 1768), wherein it was observed by the Court that, in view of the law declared by the Constitution Bench of the Supreme Court in A.K Roy Vs. Union of India (AIR 1982 SC 710) , no Writ of Mandamus could be issued to the Central Government to bring a statute or a provision in a statute into force in exercise of the

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powers conferred by the Parliament in that statute. However, after hearing the learned Attorney General and the learned Additional Solicitor General, it was observed that, there was no hurdle in directing the Central Government to consider whether the time for bringing Section 30 of the Advocates Act 1961 into force had arrived or not. The Writ Petition was accordingly disposed of, directing the Central Government by a Writ in the nature of Mandamus, to consider the said aspect within six months.

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As observed by the Apex Court in paragraph 4 of the decision cited supra, when Section 30 of the Advocates Act is brought into force, every Advocate whose name is entered in the State roll will be entitled as of right to practise throughout the territories to which the Act extends, before the Courts, Tribunals and other authorities or persons referred to therein. It is also observed in the very same paragraph that, there are various enactments in force in the country, which impose restrictions on the right of an Advocate to appear before certain Courts, Tribunals and authorities, like section 36 (4) of the Industrial Disputes Act 1947, Section 13 of the Family Courts Act, 1984 (as involved herein)...etc.

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It took more than another quarter of a century for the Central Government to have awakened from the slumber and to have felt the necessity to notify the provision. It is brought to the notice of this Court that after much deliberations things have now taken a positive turn, when the Union Government thought it fit to have Section 30 of the Advocates Act notified. Accordingly, the said provision was notified in the Gazette of India dated 9.6.2011 declaring that the Government appointed, '15.6.2011' as the date for giving effect to Section 30 of the Advocates' Act 1961. In view of the notification as aforesaid, Section 30 of the Advocates Act, 1961 has been brought into force from 15.06.2011 and as it stands so,

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all the Lawyers have acquired a right to Practise before all Courts/Tribunals and such other Forum of India as a

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matter of right, which provision is having all the traits and effect of a subsequent legislation to override the restrictive covenants as contained in Section 13 of the Family Courts Act. This being the position; the stipulation contained in Section 13 of the Family Courts Act 1984, necessitating prior Sanction of the said Court has virtually become redundant.

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In the above circumstances, this Court declares that it

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is open for a litigant to pursue the cause of action before the Family Court, engaging any Lawyer of his choice and such Lawyer is entitled to present the matter, on filing the Vakalath, as a matter of right. Exhibit P1 issued by the 3^rd respondent is set aside.

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The writ petition is allowed. No cost. The Registry is directed to forward a copy of this judgment to all the Family Courts in Kerala.

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sd/-

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P.R. RAMACHANDRA MENON, JUDGE.

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rkc

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//TRUE COPY//

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PA TO JUDGE

Saji C.P. v. Union of India

Case brief

What is this about?

What did the court decide?

Saji C.P. v. Union of India

Case brief

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