P L D 1961 Supreme Court 162 (PLP)

HAMOODUR RAHMAN, J.‑This is an appeal, by special leave, against an order of the Administration Committee of the High Court of West Pakistan passed in Chambers on the 15th of October 1956, cancelling a certificate granted to the appellant on the 19th of November 1953, declaring him admitted and enrolled as an Advocate of the High Court of Judicature at Lahore. The appellant, who was originally a resident of Maier Kotla State in India, is a Graduate and has passed the examination in Law prescribed in the said State. He was enrolled as a Pleader in 1936 and was later admitted as an Advocate of the High Court of Maier Kotla in the year 1940. He migrated to Pakistan after Independence and settled in Montgomery. Although he was under the Rules of the Lahore High Court then in force, namely, the proviso to rule 1 of Chapter 6‑A of the High Court Rules and Orders, Volume V (inserted by High Court Notification No. 30‑Gen./XIII‑D‑3, dated the 12th February 1948) entitled to be enrolled as an Advocate of the said Court, he, due to his stiallened financial circumstances, applied on the 27th of September 1948 for enrolment as a Pleader only and was granted a Pleader's certificate on the 26th of May 1949 under rule 1‑A of Chapter 6‑D of the High Court Rules and Orders, Volume V (introduced by Notification No. 53‑Gen./XIII‑D‑2, dated the 11th March, 1948). He practised as such Pleader for over four and a half years and then applied to be enrolled as an Advocate of the said High Court. His application was granted and a certificate of enrolment dated the 19th November 1953 was issued under the signature of the Deputy Registrar but ex facie purported to have been issued "by order of the High Court" and under the seal of the Court. He claims that by virtue of such enrolment he also became an Advocate of the High Court of West Pakistan in accordance with the provisions of Paragraph 10 of the High Court of West Pakistan (Establishment) Order, 1955. The Administration Committee of the said High Court, however, it is said, arbitrarily and in con travention of the principles of natural justice, cancelled the said certificate in October 1956 without giving any prior notice to the appellant or giving him any opportunity to show cause. It appears that after the aforesaid cancellation the Deputy Registrar of the said High Court informed the District and Sessions Judge. Montgomery, by his letter of the 29th October 1956, that it having come to the notice of the Chief Justice and Judges of the said High Court that the admission of the appellant as an Advocate was irregular, inasmuch as it was "opposed to their policy to admit and enrol non‑ LL.sBs. as Advocates" of the said Court, they had decided to cancel the certificate and to refund to the appellant the fees paid by him for such enrolment. The appellant should, therefore, be directed to renew his certificate as a Pleader for the period he remained as an Advocate upon payment of the prescribed renewal fees. The appellant, in these circumstances, made representation to the West Pakistan High Court on the 24th of November 1956, praying for the restoration of his certificate. This was again rejected by the Administration Committee on the 20 December 1956. In this order again it was stated that the appellant may be informed that his Advocate's licence "was issued as a matter of routine by this office without it being noticed that he was not a Law Graduate and that the decision cancelling his Advocate's certificate was given after considering all the facts and in accord ance with the policy of the Judges". The appellant, however, on the 28th November 1957 made a second representation to the High Court drawing their attention to the decision of this Court in the case of Din Muhammad v. the High Court of West Pakistan (1). The High Court however, again refused his prayer holding that the facts of his case were distinguishable from the facts of the decision referred to above and that his certificate had been cancelled "after considering all the facts and in accordance with the policy of the Judges". The appellant then applied to this Court for special leave to appeal against the said order and such leave was granted to consider if in the circumstances of his case the High Court was justified under the Rules in cancelling his certificate. It is contended on behalf of the appellant that the grant of the certificate of enrolment to him in 1953 must be presumed to have been made in accordance with the Rules then prevailing after considering his eligibility for such enrolment and, therefore, in the absence of any evidence to show that the certificate was obtained by fraud or misrepresentation, it could not be cancelled or withdrawn, unless the appellant had incurred some subsequent disqualification or been found guilty, after proper enquiry, of some misconduct redering him unfit to continue to practise as an Advocate. In any event, the right which had vested in him by virtue of his enrolment could not be taken away by the learned Judges of the High Court sitting in a meeting to Chambers without giving him any opportunity of showing cause. In the present case there is no allegation of any fraud or misrepresentation or any suppression of any material fact from the Court but all that is contended, on behalf of the respondents, is that the licence originally granted by the Deputy Registrar was granted as a matter of routine, although the appellant was not, under the Rules then prevailing, even entitled to be enrolled as a Pleader, as he was not a Law Graduate. The special relaxation made for refugees from India by rule 1‑A of Chapter 6‑D of Volume V of the High Court Rules and Orders, came to an end on the 14th of August 1949 and thereafter a Pleader. could only be enrolled as such if he possessed the Law Degree. In 1953, therefore, when the appellant was enrolled as an Advocate, a Pleader in sub‑rule (1) (i) of rule 1 of Chapter 6‑A meant a Pleader enrolled in accordance with the rules then prevailing and not a Pleader enrolled under the relaxed rules which came to an end on the 14th of August 1949. The relevant portion of the rule, relating to the enrolment of Advocates, then prevailing reads as follows :‑ "1 (l) The following persons may be admitted to the Roll of Advocates of the High Court of Judicature at Lahore‑ without test or examination :‑ (i) Pleaders of Courts subordinate to the High Court, who shall at the time of applying for admission have practised regularly in one or more Courts subordinate to the High Court for a period of not less then two years and shall satisfy the Chief Justice and the Judges that they are qualified to practise as Advocates of the High Court." This rule was added by correction pamphlet No. 27, dated the 30th of November, 1949, after the special rules for enrolment o refugees as Pleaders and Advocates had ceased to be operative and in this the word "Pleaders" has been used in a wide sense embracing all Pleaders then practising in Courts subordinate to the High Court. In this category the appellant was then also included. If the intention was to exclude Pleaders enrolled under the relaxed rules from the ambit of the rule quoted above, even though they had practised as such Pleaders for not less then two years, then the framers of the rule should have expressed that intention in clear and unequivocal terms, particularly, since they had themselves permitted persons who were not Law Graduates to be enrolled as Pleaders. In the absence of any express provision in the rules making Pleaders so enrolled ineligible for enrolment as Advocates we are unable to understand how the appellant could be said to have been not qualified in 1953 to be enrolled as an Advocate of the said Court., He was, therefore, in our view, duly qualified for such enrolment and was in fact so enrolled. There can, as such, be no manner of doubt that the enrolment did vest in him a right which could not be taken away except for sufficient cause and after proper enquiry, as was held by this Court in the case of Din Muhammad v. The High Court of West Pakistan. The principles therein enunciated apply with equal force to the facts of the present case and there appear to us to be no valid grounds for making any differentiation. Neither the order of the High Court nor the communications addressed by the Deputy Registrar of the said Court to the District and Sessions Judge, Montgomery, and the appellant give any indication of the cancellation having been made in exercise of the power given to the High Court by paragraph 10 of ‑he High Court of West Pakistan (Establishment) Order, 1955, to "otherwise determine" the suitability of a person enrolled before the com mencement of the said Order to continue to be entitled to act or plead in the High Court. In the circumstances, since there is no dispute as to the facts of this case we are entitled to assume that the appellant s name was also duly included in the roll of advocate of the high Court of West Pakistan at the time when it was' purported to be cancelled in October 1956. The result of such inclusion, as pointed out by this Court in the case of Hatim' Badruddin Tyabji v. Chief Justice and Judges of the High Court of West Pakistan (P L D 1957 S C (Pak.) 272), was to exclude the power of the High Court thereafter to "otherwise determine" in relation to the appellant his eligibility to continue to act or plead as an Advocate of the High Court. For these reasons we are constrained to hold that the cancellation of the appellant's licence was not in accordance with law, and the order of the High Court cancelling his licence must, therefore, be set aside. It is suggested that this appeal should, in any event, not beg accepted, as it is out of time by several months. The delay, it appears, was condoned at the time of granting special leave upon sufficient grounds. In any event, since no question of prejudice arises in this case, we see no reason why the said condonation should not be valid even for the appeal. This appeal is accordingly allowed, but in the special circum stances of this case we make no order as to costs. A. H. Appeal allowed.