P L D 1953 Lahore 98 (PLP)

MUHAMMAD MUNIR, C.J.‑--This is an appeal from a temporary injunction restraining Khan Hamid Ullah Khan and Mian Ahmad Din Bhatti respondents from acting as members of the Second Election Petitions Commission. The injunction was issued by Sayyed Mohsin Tirmizy, Civil Judge, and the appeal was originally filed in the Court of the Senior Civil Judge, but in view of the importance of the issue involved was transferred to this Court. The suit was instituted by Mst. Nazir Begum, an elector in the Inner Lahore Women's Constituency, Salma Begum, res pondent, an unsuccessful candidate from that constituency, presented a petition to the Governor calling in question the validity of her successful opponent's election and the Governor calling under the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1946, appoint ed an Election Petitions Commission with Mr. Abdul Majid Asghar, as president, and Khan Hamid Ullah Khan and Mian Ahmad Din Bhatti, respondents, as members. In the suit it was alleged by the plaintiff that Khan Hamid Ullah Khan and Mian Ahmad Din Bhatti were not eligible for appointment as members of the Commission because neither of them had been a pleader of the High Court for at least ten years. Khan Hamid Ullah Khan was enrolled by this Court as a pleader on 1st April 1952, under section 6 of the Legal Practitioners Act and as an advocate on 4th February 1944. Mian Ahmad Din Bhatti was enrolled as a pleader on 22nd June, 1932, and as an advocate on 24th October, 1943. Thus, on the date of his appointment neither of these respondents had been entitled to appear and plead in this Court for a period of ten years. Under rule 4 of Part III of the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936, a person to be appointed a member of the Commission must satisfy one of the qualifi cations which make him eligible for appointment as a Judge of a High Court. By subsection (3) of section 220 of the Govern ment of India Act, 1935, a person is qualified to be appointed as a Judge of the High Court if, inter cilia, he has for at least ten years been a pleader of any High Court. Thus the short question to be decided in this appeal is whether the two contesting respondents have for at least ten years been pleaders of this Court. The word "pleader" is not defined by the Government of India Act, though by section 311 it is made to include an advo cate. By section 2, subsection (15) of the Code of Civil Procedure a pleader is defined as a person entitled to appear and plead for another in Court, and includes an advocate, a vakil and an attorney of a High Court. By clauses 7 and 8 of the Letters Patent, this Court is empowered to admit and enrol as many advocates, vakils and attorneys as it may con sider necessary that only persons who are so enrolled are authorised to appear, plead or act for its suitors. It is quite obvious from the terms of these two clauses that the only per sons entitled to practise in this Court are advocates, vakils and attorneys and that pleaders are not competent to appear, plead or act for its suitors. Pleaders are enrolled by this Court not under the Letters Patent but under section 6 of the Legal Practitioners' Act. That section provides that the High Court may make rules, among other matters, as to the qualifications, admission and certificates of proper persons to be pleaders the subordinate Courts and in the case of a High Court not established by Royal Charter, in respect of which the Indian Bar Council Act, 1926, is not in force of such Court. Thus the pleaders that can be enrolled under the Legal Practitioners Act by a High Court fall into two categories (1) pleaders of the Subordinate Courts, and (2) pleaders of High Courts which are not established by Royal Charter and in s respect of which the Indian Bar Councils Act, 1926, is not in force. This Court being established by a Royal Charter is not therefore, competent to enrol pleaders of this Court, though before it was raised to its present status of a Chartered High Court by the Letters Patent it was competent to and did admit persons to be pleaders of the Chief Court who were entitled to appear and plead for the suitors of that Court. The Court of the Judicial Commissioner of the North‑West Frontier Province, which is not a Chartered High Court and is not governed by the Indian Bar Councils Act, 1926, is competent to admit pleaders as well and advocate of that Court under sections 6 and 41 respectively of the Legal Practitioners Act. From an analysis of the several provisions it seems to be quite clear to me i that the Chartered High Court like the Lahore High Court can only admit advocates, vakils and attorneys and not pleaders who may be entitled to practice in it. In the case of non-Chartered High Courts, however, the position is different. Under section 6 of the Legal Practitioners Act they may admit persons as pleaders of the Court and under section 41 of that Act they may also admit persons to be advocates of that Court. The only persons who can be admitted as pleaders by a Chartered High Court like the Lahore High Court are pleaders of subordinate Courts who are not entitled to practise in and cannot be called as pleaders of the High Court. There fore, when subsection (3) of section 220 of the Government of India Act declares that persons who have for 10 years been pleaders of any High Court are eligible for appointment as Judges of the High Court, the reference, if the word "pleaders" is to be understood in the cause in which it is used in the Legal practitioners Act, necessarily is to pleaders of non. Chartered High Court to which the Bar Councils Act, 1926, does not apply and who are admitted under section 6 of the Legal Practitioners Act to appear and plead for the suitors of that Court. If a person is not entitled to practice as a pleader in a High Court, he cannot be described as a pleader of that Court, though he has been admitted by it under section 6 o: the Legal Practitioners Act as a pleader and on the issue of a certificate under section 7 of that Act he is entitled to get himself enrolled in the Court or revenue officer mentioned in the certificate and on such enrolment he becomes entitled to practise in the enrolling Court or revenue office and the Courts and revenue offices subordinate thereto. I have, therefore no doubt in my mind that the expression "pleader of any High Court" has a restricted meaning and, apart from advocates who are included in the definition of "pleader" by section 311 of the Constitution Act, only refers to pleaders who have been enrolled by non‑chartered High Courts under section 6 of the Legal Practitioners Act to practise in those Courts. A person who is not entitled to practise in a High Court cannot be described as a pleader of that Court. This is made further clear by subsection (4) of section 19 of the Indian Bar Councils Act which refers to advocates, vakils and pleaders entitled to practise in High Courts and by section 254 of the Government of India Act which relates to the qualification of persons who may be appointed as District Judges. By the latter section a pleader of five years standing may be appointed as a District Judge and such pleader need not be a pleader of the High Court because the words "of any High Court" which occur in subsection (3) of section 220 are omitted from that section. Learned counsel for the appellants also referred to clause (d) of subsection 3 to section 220 of the Government of India Act which deals with one of the qualifications which a person my possess to be eligible for appointment as a Judge of the Federal Court and provides that a person may be appointed to be a Judge of that Court if he has been for at least ten years a pleader of a Federal State. This provision instead of helping the appellants is dead against them because a Federated State may not be governed by the Legal Practi tioners Act and may have its own categories of pleaders. For instance if a High Court in a Federated State enrols three kinds of pleaders: (1) first class pleaders who are entitled to appear, plead and act in the High Court and all the Courts subordinate thereto; (2) second class pleaders who are entitled to appeal before the District Judge and the Courts subordinate to him; and (3) third class pleaders who are entitled to appear, plead and act only in Courts of subordinate Judges, then if the appellants contention is correct, second and third class pleaders who are not entitled to practise in the High Court in the Federated State would be entitled to be appointed Judges of the Federal Court. This would indeed be anomalous and could never have been intended by the framers of the Constitution Act. It is for this reason that the provision relied on expressly states that the person to b.‑ appointed a Judge of the Federal Court, if he is a pleader, must have at least ten years standing as a pleader of the High Court in the Federal State. For the reasons stated above I am of the opinion that the view taken by the learned Civil Judge is correct and that this appeal must be dismissed with costs. CORNELIUS, J.‑

I agree that this appeal should be dismissed and would like to add a few observations of my own. Provision in respect of legal practitioners, using the expres sion in its widest sense, is contained in the Letters Patent of the various Chartered High Courts in the Legal Practitioners Act, 1879, and in the Bar Councils Act 1926. With respect to Chartered High Courts, provisions for enrolment of advocates, vakils and attorneys, is made by the Letters Patent, which also authorises such advocates, vakils and attorneys to appear, plead and act for suitors in the High Courts in which they are enrolled and go on to provide that "no person whatsoever but such advocates, vakils or attorneys shall be allowed to act or plead for or on behalf of any suitor in the said High Court" clause 8 of the Letters Patent of the Lahore High Court. There is an exception in favour of suitors appearing, pleading and acting on their own behalf or on behalf of co‑suitors, For High Courts not established by Royal Charter and in respect of which the Bar Councils Act, 1926, does not apply there is a provision for the enrolment of the "pleaders of each Court" contained in clause (a) of section 6 of the Legal Practitioner Act and such High Courts may also under section 41, with the previous sanction of the Provincial Government enrol persons "to be Advocates of the Court" "who shall be entitled to appear for the suitors of the Courts'". By the Bar Council Act of which sections 8 and 9 are relevant, in provinces where this Act, is in force in respect of any High Court the Bar Council is empowered to make rules for the admission of persons to be "advocates of the High Court", and a provision is made for a roll, of "Advocates of the High Court", which is to be maintained by the High Court. Thus the only provision in any relevant instrument pro viding for "pleaders of a High Court" is that contained in section 6 (a) of the Legal Practitioners Act. That Act, however, has other provisions in sections 4 and 6 relating to the admission and certification of proper person to be pleaders of the subordinate Courts and of revenue offices. By section 4 it is provided, specifically with reference to the Lahore High Court, that a person enrolled as a pleader under section 8 shall be entitled to practise in any of the Courts subordinate to the Lahore High Court, and in the revenue offices situated within the local limits of the appellate jurisdiction of the Lahore High Court. It is particularly to be noted that by a proviso to this section, a pleader or this class is debarred from practising before the High Court. Again by section 6 (a), the High Court is empowered to admit and certify proper person to be pleaders of the subordinate Court and of revenue offices situated within its appellate jurisdiction. Since the Lahore High Court is a Chartered High Court, it has no power under section 6 (a) to admit and certify persons to be pleaders of the Lahore High Court. Any pleader admitted and certified by the Lahore High Court must therefore, be pleaders of the sub ordinate Courts and of the revenue officer situated within the appellate jurisdiction of the Lahore High Court. There is no provision for pleaders to be found either in the Letters Patent of the various High Courts, or in the Bar Councils Act. It is quite clear from a careful examination of the relevant provisions of the Legal Practitioners Act, compared with the parallel provisions in the other instruments mentioned above that the expression "pleader of a High Court", if understood within the meaning of the Local Practitioners Act alone, has application to a very small category of persons. It is even possible that at the present time there are no persons, anywhere in Pakistan answering to this description, in view of the power conferred by section 41 of the Legal Practitioners Act upon non‑Chartered High Courts to which the Bar Councils Act does not apply to enrol advocate to be advocates of such Courts. The possibility was suggested in the course of the argument, although no firm statement on the point was made. However, that may be, what is clear is that the category of "pleaders of High Court" is a very small one and is sharply dis tinguished from the large category of pleaders of sub‑ordi nate Courts and revenue offices". The provisions relating to admission and certification ;of "pleaders of a High Court" are contained in narrow and specific terms which are entirely dis tinct from the wide terms in which the similar power in respect of "pleaders of subordinate Courts and revenue offices" is given. In construing the expression the "pleader of any High Court occurring in clause (d) or subsection (3) of section 230 of the Government of India Act, 1935, it is necessary to bear in mind, these circumstances, arising out of the instrument contained in the statute Book of Pakistan, which have been application to legal practitioners in general and pleaders in particular it must be assumed that this expression was used with reference to the prevailing law in the territories to be governed under the constitution provided by the Government of India Act, 1935. When this is borne in mind along with the provision in section 311 of the Constitution Act that the expression "pleader" includes "advocates" it becomes immediately apparent that the intention of parliament by use of this expres sion was to confine the choice in the relevant respect, to the small category of persons who, as seen above, qualify under the laws of Pakistan for the description "pleader of a High Court". It would of course have been possible, and to some it may appear to be more natural, to have used the expression advocate of the High Court" in section 223 and in section 311, to have defined the expression "advocate" so as to include a pleader of a High Court enrolled under section 6 (a) of the Legal Practitioners Act. This mode of drafting would have produced the same result, but it must be admitted that the method actually adopted has a great advantage in respect of neatness and economy in the use of words over that suggested. In any case the meaning of the Legislative appears to me to be perfectly clear, namely that by using the expression "pleader of a High Court" in the restrictive sense indicated above; which also follows directly from the words of qualification included in the expression, and by providing that the expression "pleader" should include "advocate", the result was produced that the choice of persons for the Bar to fill the office of a High Court Judge should be restricted to those who are entitled as of right to practise in a High Court, and had been so entitled for a period of at least ten years. It would be entirely contrary to reason if this choice were extended so as to include persons who were under the law, debarred from appearing as lawyers in a High Court. On this point, I am in agreement with the conclusion reached by the learned Judge of the Court below. He has also based his conclusion on the point, upon the consideration that whereas a lawyer who is not a barrister or a Scottish Advocate needs the qualifications of being a pleader of a High Court, for appointment as a High Court Judge, in section 254 of the Constitution Act, which provides for the qualifications of lawyers to be District Judges, the pro vision is that such a person must have been "for not less then five years a barrister, a member of the Faculty of Advocates in Scotland, or a "pleader" i.e., in this case the requirement that he should be a pleader of a High Court" is absent. From this disparity of expression, the learned Judge has concluded that the expression "pleader of a High Court" must have a special meaning, viz. a lawyer who is entitled to practise in same subsection. The proviso relates to qualifications for appoint ment as Chief Justice, and lays down that no person shall be qualified for the appointment unless he has served for a period of three years as a High Court Judge, but there is an exception in favour of any person who "is or when first appointed to judicial office was a barrister, a member of the Faculty of Advocates, or a pleader". I entertain no doubt that the reference to "judicial office" includes a reference to appointments to District Judgeship, and this ii the reason for the use of the simple expression "pleader" rather than the qualified expression "pleader of a High Court". Any doubt upon this point is eliminated by reference to the immediately following paragraph, which lays down a scheme for computing the standing of lawyers for purposes of appoint ment as High Court Judges. It is laid down that the standing in years of, inter alia, a pleader, shall include any period during which ha has held "judicial office" after he became a pleader, and the paragraph proceeds thereafter to provide that "In computing the period during which a person has served as a Judge of the High Court or been a pleader of a High Court or held judicial office in Pakistan, any period before the establishment of the Federation during which the person has served as a Judge or been a pleader of any High Court in British India or has held judicial office in British India, as the case may be, shall be included." Here, it 1s clear that expression "pleader of a High Court" is used in a differential sense from the word "pleader". There may be some doubt whether, under the first part of this paragraph, the intention of the Legislature was to provide that a period during which a person, who was a "pleader" (as distinguished from a "pleader of a High Court") at the time when he was first ap pointed to judicial office holds such office should count towards the standing of such person as "a pleader of a High Court", in a computation falling to be made after such person, having relinquished his judicial office, has reverted to the Bar, and either immediately or after an interval, acquires the status of "a pleader of a High Court". This doubt arises from the opening words of the paragraph which are:‑ "In computing for the purposes of this subsection the period during which a person has been a pleader .", and the subsection itself makes it clear that it is not sufficient that the person should have been "a pleader" to acquire the qualification ; it is necessary that he should have been "a pleader of a High Court". However that may be, it is, in my opinion, sufficiently clear from the use of the two expressions in contradistinction with each other in this paragraph, that the expression "a pleader of a High Court" is used in this paragraph, as well as elsewhere in the Constitution Act, in a special sense, viz., the sense of a lawyer who is entitled to practise in a High Court. On the facts of the case, there is no dispute. The persons in question were at the time of their appointment within the category of "pleaders of a High Court", but they had not been included in this category for the requisite period of ten years, and they were therefore not qualified to be appointed as Judges of a High Court it follows that they also lack the qualification to be appointed as members of an Election Petitions Commission under the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1946. KAYANI, J.‑

I think the word "pleader" has been used in Government of India Act in a general sense to mean a person who pleads in a Court of law and to that extent the definition in the Code of Civil Procedure a person entitled to appear and plead for another in Court" may be said to have been adopted. The phrase "pleader of the High Court" should, therefore, mean a person who is entitled to plead in the High Court, as dis tinguished from an ordinary pleader, who can appear only in subordinate Courts and offices. The further provision in the definition of "pleader" in the Code of Civil Procedure‑that the term includes an advocate, a vakil and an attorney of the High Court‑takes it for granted that (1) an ordinary pleader does not appear in the High Court and that (2) an advocate is always a pleader, that is to say, a person who pleads. Knowing as everybody did in 1935, when the Constitution Act was drafted, what "pleader" means, it was unnecessary to define it, and where it was intended to confer a qualification on a person who pleaded in the High Court only, the term was qualified by the words "of the High Court" Where this was not necessary, as in the case of persons who may be appointed as District Judges under section 254, Government of India Act, the term was not so qualified. If a student of law were asked as to what, according to the Government of India Act, are the qualifications of a person who is entitled to appointment as a Judge of the High Court, he will say, reading from the book, that such person, among others, should be a pleader of the High Court of at least ten years' standing. If a similar question were put to him in respect of the appointment of a District Judge, the answer should be: "a pleader of five years' standing". It should, therefore, be clear that "a pleader of the High Court" was intended to convey something more than a mere "pleader". It is elementary that good draftsmenship avoids superfluity and where additional words are used with the same expressions "pleader"‑in one of two different contexts, those words must have been used with a purpose. A question may arise whether the term "pleader" could not have been profitably substituted by "advocate" in the present context, if indeed the intention was to confine the qualification to practitioners in the High Court. Whether or not the draftsman had any particular intention in preferring "pleader" to "advocate", it so happens that in 1935 there was at least one Court in India‑the Judicial Commissioner's Court at Peshawar‑which was neither a Chartered High Court nor a Court to which the Indian Bar Councils Act, 1926 applied, and which was for that reason empowered by section 6 of the Legal Practitioners Act to make rules relating to the qualifications and admission of persons to be "pleaders" of its own Court, having, for the time being, no advocates. Provisions for advocates was made in Peshawar for the first time by rules made under section 41 of the Legal Practitioners Act on the 1st April 1935, but at the same time "pleaders of the first grade" who were entitled to appear in the Judicial Commissioner's Court were kept alive. One result, therefore, of using the word "advocate" would have been to exclude such pleaders from the benefit of the qualification. It is true that this result could have been avoided by providing in the definition clause (section 311) that "advocate" includes: "pleader", but that device was likely to lead to a controversy as to whether an "advocate of a High Court" would, mean, by this process of substitution, a "pleader of a High Court" or a mere "pleader". For while the expression advocate is almost invariably used with reference to a High Court, the term pleader is almost as invariably used by itself. It will be useful to remember that the distinction between pleaders of subordinate Courts and pleaders of a High Court was recognized not only in section 6 of the Legal Practitioners Act of 1879, but also in the Indian Courts Act of 1861, which made eligible for appointment as Judges of a High Court "persons who have been pleaders of a Sadr Court or High Court for a period of not less than ten years, if such pleaders of a Sadr Court shall have been admitted as pleaders of a High Court". The expression "pleaders of a High Court" is thus an expression recognized as far back as 11:61 to mean a pleader practising in the High Court, as distinguished from a pleader practising in the Sadr or subordinate Court. I agree that the appeal should be dismissed. K. M. A. Appeal dismissed.