# Singh Clkludh11ri v. 'The Jlon'l>U tl~ - **Citation:** [1962] 3 S.C.R. 305 - **Court:** Supreme Court of India - **Decided:** 1962 - **Bench:** B. ·P. Sinha, s. K. DAS, A. K. Sarkar, N. Rajagopala Ayyangar, J. R. Mudholkar - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/singh-clkludh11ri-v-the-jlon-l-u-tl-2447 - **Pages:** 8 ## Headnote Mukhmr-Right to practise in Civil Court-Legal Practitioners Act, 1879 (XV ill of 1879), ss. 9, Ji-General Rules and Circular Orders of the Patna High Court, Oh. 111 Part VII, r. 2. Section 9 of the Legal Practitioners Act, 1879, entitles a duly enrolled Mukhtar to "practise" in any Civil Court, and s. 11 thereof empowers the High Court to make rules declaring what shall be deemed to be the "functions, powers and duties" of Mukhtars practising in the subordinate Courts. Rule 2 framed under s. 11 lays down that a Mukhtar shall not be allowed to address any Civil Court except for the purpose of "stating the nature and effect of his application or to offer any legal argument or to examine any witness" without the leave of the Court. The petitioners contended that r. 2 was in excess of the rule-making power under s. 11 and was an unreasonable restriction on their rights under Art. 19 ( l) (g) of the Constitution. Held, that ss. 9 and 11 of the Act must be read together and the right to '~practise" given under s. 9 cannot be dissociated from the ''functions, powers and duties of Mukhtars" ·as contemplated under s. 11. In declaring what shall. be the functions, powers and duties of a Mukhtar the High Court may by its rules so delimit them as to regulate their right of practice in the Civil Courts, and such delimitation is no violation of their fundamental right to practise the profession as allowed under the Act. Aswini Kumar Ghosh v. Arabinda BoBe, (1953) S.C.R. I, explained and distinguished. ORIGINAL JURISDICTION : Petition No. 117 of 1958. Petition under Art. 32 of the Constifotion of India. for enforcement of Fundamental Rights. R. K. Cfarg, M. K. Ramamurthi, S. G. Agarwala and D. P. Sirtgh, for the petitioners. The respondent did not appear. 1961 Auguat 29. 19G/ /1,t:ala Pra1:id Singh Clkludh11ri v. 'The Jlon'l>U tl~ Chit.f Justiu a,1d Judzts of tlu Palna JJigh Coiirl S. K, Da• J, 306 SUPREi\IE C'OURT REPOHTS [ l!J(ii J ]f){il. August 2H. The ,J uclgment of the Court was delivered by S. K. DAS, J.--This is a writ petitiun 011 behalf of the .Bihar State i\fukhtars' ARsoeiation, Patna. and the Vice-Presid\·nt and the General :-:lccrotary thereof. The petitio11 has been jicard ex-parte as there baa been no appearance on behalf of the Chief JuAticc and Judges uf the Patna High Court who were cited as respcndcnts to the petition. The petitioners contend that certain rul\'8 of the Patna High Court ma1le as Jar back as HJ22 under e.ll of the Legal Practitioners Act, 18i9 (Act XVIII of 18i9), hereinafter referred to as the Act, in respect of the functfons, powers and duties of Mukhtars praetioiug in the subordinate courtB arc now invalid and void, U..icause they contravene the fw1damontal right of tho petitioners guaranteed under i\rt. 19(l)(g) of the Constitution of India ancl are not saved by cl. (u) thereof. The petitioners h;we, in particular, challenged the validity of r. 2 made by the said High Court under s. JI of tho Aot and incorporated iu Chapter III, Part Y rI of tho General Hules aud Circular Orders of the High Court of Judicature at Patrni (Ci\·il), 1922. The petitioners pray that an appropriate writ, dil'cction or ord<·r be issued by this Court r!cclractising in the courts subordinate to the High Court of Patrni within the meaning of s. 3 of the Act. At its various annual confercnres the said Association passed resolutions to move tho High Court for the remo\·al of tho restriction imposed by r. 2 aforesaid on tho right of Mukhtars practising in - L - • - 3 S.C.R. . SUPREME COURT REPORTS 307 aubordinate civil courts. The llig4 Court did ## Text - 3S.C.R. SUPREME COURT REPORTS 305 DEVATA PRASAD SINGH CHAUDHURI AND OTHERS v. THE HON'BLE THE CHIEF JUSTICE AND JUDGES OF THE PATNA HIGH COURT (B. ·P. SINHA, c. J., s. K. DAS, A. K. SARKAR, N. RAJAGOPALA AYYANGAR and J. R. MUDHOLKAR, JJ.) Mukhmr-Right to practise in Civil Court-Legal Practitioners Act, 1879 (XV ill of 1879), ss. 9, Ji-General Rules and Circular Orders of the Patna High Court, Oh. 111 Part VII, r. 2. Section 9 of the Legal Practitioners Act, 1879, entitles a duly enrolled Mukhtar to "practise" in any Civil Court, and s. 11 thereof empowers the High Court to make rules declaring what shall be deemed to be the "functions, powers and duties" of Mukhtars practising in the subordinate Courts. Rule 2 framed under s. 11 lays down that a Mukhtar shall not be allowed to address any Civil Court except for the purpose of "stating the nature and effect of his application or to offer any legal argument or to examine any witness" without the leave of the Court. The petitioners contended that r. 2 was in excess of the rule-making power under s. 11 and was an unreasonable restriction on their rights under Art. 19 ( l) (g) of the Constitution. Held, that ss. 9 and 11 of the Act must be read together and the right to '~practise" given under s. 9 cannot be dissociated from the ''functions, powers and duties of Mukhtars" ·as contemplated under s. 11. In declaring what shall. be the functions, powers and duties of a Mukhtar the High Court may by its rules so delimit them as to regulate their right of practice in the Civil Courts, and such delimitation is no violation of their fundamental right to practise the profession as allowed under the Act. Aswini Kumar Ghosh v. Arabinda BoBe, (1953) S.C.R. I, explained and distinguished. ORIGINAL JURISDICTION : Petition No. 117 of 1958. Petition under Art. 32 of the Constifotion of India. for enforcement of Fundamental Rights. R. K. Cfarg, M. K. Ramamurthi, S. G. Agarwala and D. P. Sirtgh, for the petitioners. The respondent did not appear. 1961 Auguat 29. 19G/ /1,t:ala Pra1:id Singh Clkludh11ri v. 'The Jlon'l>U tl~ Chit.f Justiu a,1d Judzts of tlu Palna JJigh Coiirl S. K, Da• J, 306 SUPREi\IE C'OURT REPOHTS [ l!J(ii J ]f){il. August 2H. The ,J uclgment of the Court was delivered by S. K. DAS, J.--This is a writ petitiun 011 behalf of the .Bihar State i\fukhtars' ARsoeiation, Patna. and the Vice-Presid\·nt and the General :-:lccrotary thereof. The petitio11 has been jicard ex-parte as there baa been no appearance on behalf of the Chief JuAticc and Judges uf the Patna High Court who were cited as respcndcnts to the petition. The petitioners contend that certain rul\'8 of the Patna High Court ma1le as Jar back as HJ22 under e.ll of the Legal Practitioners Act, 18i9 (Act XVIII of 18i9), hereinafter referred to as the Act, in respect of the functfons, powers and duties of Mukhtars praetioiug in the subordinate courtB arc now invalid and void, U..icause they contravene the fw1damontal right of tho petitioners guaranteed under i\rt. 19(l)(g) of the Constitution of India ancl are not saved by cl. (u) thereof. The petitioners h;we, in particular, challenged the validity of r. 2 made by the said High Court under s. JI of tho Aot and incorporated iu Chapter III, Part Y rI of tho General Hules aud Circular Orders of the High Court of Judicature at Patrni (Ci\·il), 1922. The petitioners pray that an appropriate writ, dil'cction or ord<·r be issued by this Court r!cclractising in the courts subordinate to the High Court of Patrni within the meaning of s. 3 of the Act. At its various annual confercnres the said Association passed resolutions to move tho High Court for the remo\·al of tho restriction imposed by r. 2 aforesaid on tho right of Mukhtars practising in - L - • - 3 S.C.R. . SUPREME COURT REPORTS 307 aubordinate civil courts. The llig4 Court did not remove the restriction. On July, 27, 1958 at an emergent Executive Committee meeting of the Association it was resolved to move the Supreme Court under Art. 32 of the Constitution. The present writ petition has been filed in pursuance of that resolution. The enrolment of Mukhtars is made under certain provisions of the· Act to which a reference must now be made. Under s.3 of the Act "a subordinate Court" means all courts subordinate to the High Court including.courts of Small Causes established under Act IX of 1850 or Act XI of 1865. "Legal practit.ioner" means an advocate, vakil or attorney of any High Court, a pleader, Mukhtar or revenue,agent. Section 6 of the Act empowers the High Court to make from time to time rules consistent with the Act in respect of certain matters including inter alia the qualifications, admission and certificates of proper persons to be, Mukhtars of .the subordinate courts. It appears that by a rule made under s. 6 of the Act, the High Court of Patna laid down that any person who shall produce a certificate from a committee constituted by tho High Court that he has passed an examination in the subjects prescribed from time to time by the High Court for the mukhtarship examination may be admitted as a Mukhtar to practise in courts subordin~te to the High Court. Rule 10 laid down the subjects in which the examination was to be held. This examination was known as the Mukhtarship examination. It was abolished some time in the year 1947-48. Under s. 7 of the Act, the High Court made certain rules for the grant of certificates to Mukhtars who had passed the necessary examination for admission as prescribed . by the rules referred to above. Section 7 also provided for annual renewal of such certificates. ['he argument of learned advocate for thEf petitioners is rested mainly on the provisions of s. 9 and they must be quoted in foll. 1961 Devata Prat.ad Singh O!KZUdhuri v. The Hcm/ble the Chlef Justi~ and Judges of t~ Patna High Courl S. K.DM J. 1961 Detuta Pra4ad Singh Chaudh11ri v. Tht 11011' blc tht Ghirf Justice a11d Ju dg1t1 of tltr Patna /lig1• Coud s. h·. /Jcu J. 308 SUPREME COURT REPORTS [1962] "Every mukhtar holding . :t eortiJir,aw issued unde; section 7 may apply to be <'nrolled in any Civil or Criminal Court mentioned therein and Rituate within the same limits ; and, subject to such rules as the High Court may from time to time make in this behalf, the prt·siding Judge "hall enrol him according· Jy ; and thereupon he may practise ;rn a mukh· tar in any such Civil Court and any Court subordinate thereto, and may (subject to the provisions of tho Code of Criminal Procedure) appear, plead and act in any sud1 Criminal Court and aay Court subordinate thcrnto." ::iection JO sayB in effect that except as provid· ed by tho Aot or any other enactment for the timo being in force, no person shall practise as a Mukhtar in any Court unless ho holds a r.ortificate issued wider s. 7 and has been enrolled in such court or in some court to which it is suborrlinate. Then comoa s. ll under which the impugned rule was made. This soction is in these terms. "Notwithstanding anything contained in the Code of Civil Procedure, tho High Court may, from timo time, make rules declaring what shall be deemed to lie the functions, powers and duties of :\fukhtars practising in the subordinate courts and, in the case of a High Court not established by Hoyal Charter, in such Court." Tho High Court of Patna made a num her of rnles definin~ the functions, powers and duties of ll!ukhtarn practising in the subordinate courb. One <•f these rules is r. 2 which is in th1·se tenns. '-'Ruic 2 : A :llukhtar shall not be allow· cd to address any Civil Court except for the purpose of stating the nature and effect of his application or to off or any legal argument or to examine any witnoas without the leaYo oithe '1ourt Hpocially giYen." " .. • 3 S.C.R. SUPREME COURT REPORTS 309 The argument of learned Advocate for the petitioners is this. He has submitted that s.9 of the Act gives every Mukhtar holding a certificate issued under s. 7 the right to apply to be enrolled in any Civil or Criminal Court subordinate to the Higli Court and on enrolment in accordance with the rules, he has the right to practise as a Mukhtar in any Civil Court and in Courts subordinate thereto and has further the right to appear, plead and act in any Criminal Court. This right of practice, learned Advocate for the petitioners has contended, cannot be curtailed and s. 11 which empowers the High Court to Make rules declaring what shall be deemed to be the functions, powers and duties of the Mukhtars practiJing in the subordinate courts does not empower the High Court to make a rule which curtails the r:ight given by s.9. His argument further is that the in1pugned rule curtails the right of a Mukhtar to practise in tho Civil Courts inasmuch as it says that a Mukhtar shall not be allowed to address any Ci vi! Court except for the purpose of stating the nature and effect of his application or to offer any legal argument or to examine any witness without the leave of the court specially given. He has contended firstly, that 1 he rule is in excess of the rulemaking power under s. 11 and secondly, is an unreasonable restriction on the right guaranteed under Art. 19( l)(g) of the Constitution. The simple question for decision really is this: is the impugned rule in exce~s of the powers given to the High Court under s. 11 of tho Act ? If the rule is intra vires the Act, then olearly enough there has been no violation of any fundamental right of the petitioners. The right of the petitioners to practise in the subordinate courts was created by the Act. In the arguments before us there was no challenge to the constitutional validity of s. 11 of the Act as permitting an unreasonable restriction of a guaranteed right, if on a proper construction that section enabled the High Court to regulate the right 1961 Devata Prasad Singh Chaudhuri . v. The Hon' ble the Chief Justice and Judges of tht Patna High Court S. K. Ca• J, 1161 D1tJJta Pruad Sin~h Chaudhuri v. Tiu Hon'blt tlk (,'hit/ Jwti« n11d Judgea of the Pilf of suito1·s in tho subordinate courts; the power of the High Court to make rules under s.11 of the Act as respects th•i function8, powers and duties of l\Inkhtars practising in the subordinate courts merely means that the High Court may give effect to the right givP,n undor s. 9 by making rules, but it cannot curtail that right ; when therefore the High Court made the impugned rule re;;tricting the right of ?lfukhtarn to plearl in civil courts, it did something in excess of tho powPr ginn bys. I I. We are unable to accept this line of argument as correct. Soctions 9 and 11 of the Act must be read together and it won Id ho wrong to treat the right to practise gi\·en by s. !l as dissociatPcl from tho functions, powers and duties of lllukhtars referred to in s. 11. 4'Thc learnod Advocate for the petitionNs is reading the two section" as though ono section gives an abHolute right and thn other section merely empowers t.he making of rules to effectuate that right. That, we do not think, is a proper readin~ of the t"·o section;;. It. is worthy of not-0 that under s. 9 itself a distinction is made between the right of a :\Inkhtar to practiHe in civil courts and hiH right to appear, plead and act in any criminal conrt.. In express terms s. fl gives every (I) [1953) S.C.R. I. l... • ... 3 S.C.R. SUPREME COURT REPORTS 311 Mukhtar the right to appear, plead and act in any criminal court ; it does not, however, give such an unlimited right in a civil court. On the contrary, it merely says that on enrolment a Mukhtar may practise in any civil court, but under s. 11 the High Court may make rules declaring what shall be deemed to be the functions, powers and duties of Mukhtan practising in the subordinate courts. It i~ clear to us that in declaring what shall be the functions and powers of mukhtars practising in the subordinate courts, the High Court can so delimit them as to regulate the right of practice. It will be wrong to treat the functions and powers as dissociated from the right to practise. The right to practise must depend on the functions and powers. It is also worthy of note that the expression used ins. 11 of the Act is much wid1ir than the expression used in s. 15 of the Indian Bar Council Act, 1926, (Act XXXVIII of 1926), which gives the Bor Council the power to make mies to provide for and regulate the rights and duties of Advocates of the High Court. We do not think that the majority decision in Aswini [( umar Ghosh v. Arabinda Bose (1) is of any assistance to the petitioners. That decision depended on the interpretation of s. 2 of the Supreme Court Advocates (Practice in High Courts) Act, 1951. That section provided that "notwithstanding anything contained in the Bar Councils Act or any other law regulating the conditions subject to which a person not entered in the roll of Advocates of a High Comt may be pertnitterl to practise in that High Court, every Advocate of the Supreme Court shall be entitled as of right to practise in any High Court whether or not ho is an Advocate of that High Court". It was held by the majority that a rule made by a Hig~ Court which denied to an Advocato of the Supreme Court the right to exercise an essential part of his function, by insisting on a dual agency on the Original Side was much more t,han a rule (l) [1953] S.C.R. I 1961 De'IJata Prasad Singh Chawi.huri v. Phe Hon'ble the Chief JuBtice a'ld Judges of 'he Patna High Couri S. K. Da• J. 1961 Dt'Uata l)ro.t