P L D 1964 Dacca 543 (PLP)

3. After some discussion the petitioner, as is alleged by him, allowed to finish the examination of the witnesses but subse quently the learned Munsif called upon him in writing to explain why he pleaded on behalf of the plaintiffs in the said suit without authority. The explanation was duly submitted and ultimately, after hearing the petitioner as well as some practising lawyers of that Court, the learned Munsif found the petitioner guilty of viola tion of the provision of section 10 of the Legal Practitioners Act and, accordingly, sentenced him to pay a fine under section 32 of the said Act, as already stated above.

4. On a perusal of the records and also after hearing the petitioner in person as well as Mr. Syed Masiruddin appearing on behalf of the State. I find it difficult to support the impugned order imposing fine upon the petitioner who was holding a Power of‑Attorney on behalf of the plaintiffs in the suit in question and was thus their recognised agent. The power of recognised agent as laid down in rule 1, Order III of the Code of Civil Procedure is as follows '‑ "Any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader (appearing, applying or acting, as the case may be), on his behalf : Provided that any such appearance shall, if the Court so directs, be made by the party in person." Apparently the petitioner acted under the authority of this provi sion and, as far as I can see, believed bona fide that under the Power‑of‑Attorney held by him, he was entitled under the above provision not only to present the plaint and take steps in the suit but also to examine witnesses and address the Court in connection therewith. His impression may be erroneous but it can by no means be said he intentionally or deliberately disregarded or violated the provision of section 10 of the Legal Practitioners Act, which lays down:‑ "Except as provided by this Act or any other enactment for the time being in force, no person shall practise as a Pleader or Muktar in any Court not established by Royal Charter unless he holds a certificate issued under section 7 and has been enrolled in such Court or in some Court to which it is subordinate . . ." Violation of this provision has been made punishable under section 32 which provides :‑ Any person who practices in any Court or Revenue office in contravention of the provisions of section 10 or section 20 shall be liable, by order of such Court or the officer at the head of such office, to a fine not exceeding ten times the amount of the :.tamp required by this Act for a certificate authorizing him so to practise in such Court or office, and, in default of payment, to imprisonment in civil jail for a term which may extend to six months . . . . . ."

5. As has already been made clear above, the petitioner cannot be said to be one who was absolutely unauthorised, i.e., one who could not at all do anything in the suit on behalf of the plaintiffs. Under rule 1, Order III of the Code of Civil Proce dure he was expressly authorised to appear, apply or act in the Court in question on behalf of the plaintiffs. The most that can be said against him, even according to the view taken by the learned Munsif, is that he exceeded the authority conferred by the said provision ; but, as already observed by me, there is nothing to show that he acted with the guilty knowledge that the impugned act he was doing was in excess of his authority. On the other hand, he appears to have been under the bona fide impression that the said rule fully authorised him not only to appear, apply and act but also to plead and it is under that bona fide impression that he examined the witnesses before the learned Munsif. The learn ed Munsif, too, appear to have been under the same impression as otherwise he would not have, I think, allowed the petitioner at all to proceed to do an act for which he, i.e., the petitioner, has subsequently been found guilty by him. In that view of the matter, it cannot be said that the petitioner consciously, i e., inten tionally and deliberately, disregarded the provision of section 1 of the Legal Practitioners Act, and, as such, he does not, in my view, come within the mischief of section 32 of the said Act ; in other words, the order imposing fine upon him cannot be sustained as proper.

6. Some arguments have also been advanced before me as to whether under the provision of rule 1, Order III of the Code of Civil Procedure the petitioner was entitled to plead on behalf of the plaintiffs as their recognised agent. In this behalf the peti tioner has, in fact, referred to a number of provisions in the Code of Civil Procedure, to wit, rules 1. and 2 of Order XXVII, sections 85 and 119, as well as section 2, clause (21) of the Stamp Act. Regard, however, being had to the view already taken by me above, it is hardly necessary for me to enter into a discussion of this point. I may, however, point that the words "appearing, applying and acting" had a well‑defined and well‑known meaning. To appear for a client in Court is to be present and to represent him in the various stage of the litigation at which it is necessary that the client should be present in Court by himself or by some representative. To act or apply for a client in Court, is to take) on his behalf in the Court or in the offices of the Court the necessary steps that must be taken in the course of the litigation in order that the case may be properly laid before the Court. Thus "acting" includes applying ; so that a Pleader, who makes an application on behalf of a litigant, acts for him but he cannot do so unless he is authorised in writing under rule 4 of Order III of the Code of Civil Procedure. The words "appearance" and "act" do not include "pleading" ; and a recognised agent, who is entitled to appear and act for a party, is not entitled to a right of audience. The same view has been taken also by a Division Bench of this Court in the case of In the matter of Jogesh Chandra Mukherjee (P L D 1953 Dacca 144). It has thus been laid down therein that "a recognised agent can make an appearance or an application or act on behalf of a party but cannot plead in a Court and that under rule 4 of Order III of the Code of Civil Procedure he can appoint a Pleader but he has no right of audience". This is binding upon me and I cannot accept the petitioner's contention contrary thereto that he was entitled under the law to plead also on the strength of the power‑of attorney held by him.

7. In the result, the Rule is made absolute and the order of the learned Munsif, sentencing the petitioner to a fine of Rs. 50, in default, civil imprisonment for a period of two months, is set aside. The petitioner shall be entitled to refund of the fine, if already paid. S. Q.