P L D 1957 Supreme Court (Pak (PLP)

Laws Cited

Representation

• ----S. 114, ill. (e)‑Official act Presumption of regularity‑Certificate issued by Additional Regis trar of High Court of West Pakistan, Karachi Bench, that the name of a person was borne on the Roll of Advocates of that Court, Karachi Bench.
• The Additional Registrar, High Court of West Pakistan, Karachi Bench, Karachi, issued a certificate to the appellant that his name was borne on the Roll of Advocates of the High Court of West Pakistan, Karachi Bench, Karachi. The certificate was expressed on the face of it to be issued, by order of the High Court and also bore the seal of the High Court.
• The Supreme Court while observing that "the Roll in question would perhaps have been more correctly described as the Branch Roll maintained at Karachi of Advocates of the High Court of West Pakistan," made the following pre sumptions (by majority, Amir‑ud‑Din Ahmad, J., contra) on the strength of the certificate:‑
• That a Roll of Advocates entitled to practise in that High Court was actually drawn up that this was done under the power conferred, and the corresponding duty created by Clause 7 of the Letters Patent, that in drawing up this Roll, the Branch Office of the High Court at Karachi did not act on its own initiative, but under proper orders of the High Court, made under that clause, that no name had been brought on the list otherwise than under proper orders of the High Court that such enrolment was done properly, i.e., in com pliance with all conditions declared by law to be requisite, that at least with reference to those lawyers whose names have been brought upon the Roll prepared under Clause 7 of the Letters Patent, there was no objection to their enrolment raised in or by the High Court under para. 10, High Court of West Pakistan (Establishment) Order (XIX of 1955), and no determination by the High Court to the contrary, that the Roll to which reference is contained in the certificate of the Additional Registrar was not necessarily to be regarded as a Roll prepared under the provisions of the Bar Councils Act, that the presumption should rather be that the roll referred to in the certificate was the roll prepared for the High Court. under Clause 7 of the Letters Patent.
• Per Amir‑ud‑Din. J., (contra)----No presumption under section 114 of the Evidence Act as to regularity of official acts with regard to appellant's enrolment can be raised. The Court dealing with the certificate has not itself accepted the reference to the appellant's enrolment as an enrolment under clause 7 of the Letters Patent or section 8 of the Bar Councils Act. To my mind it appears to be a list compiled by the Court's office from the roll of the now defunct Chief Court for the use of the Karachi Bench of the High Court, which is the successor Court to the Chief Court, pending the preparation of the roll of Advocates of the whole of West Pakistan High Court.
• ---para. 10‑"Unless the High Court otherwise deter mines"‑Words to be construed in a general sense‑" Screening" of individual lawyers at uncontrolled discretion of High Court not permitted‑Words relatable only to policy underlying new statute‑Removal of Advocates was never a matter of pure discretion in High Court‑Bar Councils Act (XXXVIII of 1926)‑Ss. 8 (1) and 19 (2)‑Letters (Patent) (Lahore), Cl. 7.
• Removal of an Advocate has never been a matter of pure discretion in the High Court. It is inconceivable that a statute whose plain and paramount purpose was to continue without interruption, the right of Advocates to practise in the High Court, as well as the availability to the High Court ' of the services of Advocates, without which it could not function for a single day, should at the same time have vested the new High Court with a power of general screen ing of Advocates, so as to eliminate individual lawyers as to the Judges might seem fit. To interpret the words as strengthening the power of the High Court to remove, or otherwise restrict the activities of individual lawyers is impos sible.
• The repealing provision contained in section 19 (2) of the Bar Councils Act should be strictly construed. If any condition requisite for its application is not satisfied, the provision will not take effect. The High Court of West Pakistan was not established by Letters Patent, and on that ground the validity of paragraph 10 of the order of 1955, and of the roll drawn up under clause 7 of the Letters Patent, remains unaffected by the application of section 8 to that High Court. This result is without prejudice to the conclusion that the inclusion of the name, of a particular Advocate in such a roll excludes the power of `otherwise determination' in rela tion to such Advocate.
• Per Amir‑ud‑Din Ahmad, J.‑----As the appellant's name was borne on the roll of the Advocates of the Chief Court of Sind under the Bar Councils Act where by virtue of section 14 (1), he was entitled as of right to practise, which has been replaced by the new High Court of West Pakistan, he shall be deemed to be an Advocate of the new High Court and is entitled to plead and act in the High Court subject to "determination otherwise" by the High Court. Para graph 10 is an interim provision made in order to let the work of the High Court with the aid of Advocates go on without interruption till a comprehensive roll of Advocates of the High Court is prepared either under clause 7 of the Letters Patent or, if the Bar Councils Act is applied, under section 8 of that Act. Paragraph 10 contemplates "otherwise determination" before enrolment in the new High Court of Advocates of the defunct High Courts mentioned therein, who have been given the right subject to this determination to plead and act."
• (c) Advocate‑-------Giving undertaking, on appointment as Judge of Judicial Commissioner's Court, Sind, that he will not after retirement practise in that Court‑Judicial Commissioner's Court latter ceasing to exist and Sind Chief Court coming into existence, which, too, ceased to exist and High Court of West Pakistan came into existence, which exercised jurisdiction in respect also of the area formerly known as Sind‑Held, that Advocate was entitled to practise in the High Court of West Pakistan including all its Benches anywhere in West Pakistan Letters Patent (Lahore), cl. 7 ‑High Court of West Pakistan Establishment Order (XIX of 1955), para. 10‑Constitution of Pakistan, Art. 12.
• The appellant, an Advocate, on his appointment as Judge of the Judicial Commissioner's Court, Sind, gave an undertaking: "I will not, after retirement, practise in the Court of the Judicial Commissioner to which I am appointed or to which I may be transferred, or any of the Courts sub ordinate thereto."
• Later the Judicial Commissioner's Court ceased to exist the appellant was appointed a Judge of the newly appointed Chief Court of Sind, being eventually, made the Chief Judge of that Court, from which position the appellant retired. Subsequently the Chief Court of Sind was abolished, and the High Court of West Pakistan came into existence under the High Court of West Pakistan Establishment Order (XIX of 1955), by paragraph 10 of which, the appellant, whose name was duly carried on the Roll of Advocates of the Chief Court of Sind, was prima facie entitled to be an Advocate of and to plead and act in the new High Court.
• Held, that as respects practice in the High Court enrol ment in the High Court's roll of Advocates confers a statutory right to practise, under clause 7 of the Letters Patent. That must mean the High Court as a whole, including all its Branches‑or Benches.
• A. K. Brohi, Senior Advocate, Supreme Court, (A. S. Chowdhury, Advocate, Supreme Court, with him), instructed by M. Siddiq, Attorney for Appellant.
• SHAHAB‑UD‑DIN, CORNELIUS AND MUHAMMAD SHARIF, JJ.‑----On the 20th February 1957, an order was made by the Judges of the West Pakistan High Court, Karachi Bench, in relation to a power of attorney filed by the petitioner Mr. Hatim Badr‑ud‑Din Tyabji to appear and act for the plaintiff in a suit pending before that High Court, that Mr. Tyabji should apply to the Registrar for enrolment as an Advocate. Mr. Tyabji claims that he is entitled as of right in view of certain facts which will appear presently, to practise in the High Court of West Pakistan, without the necessity of any further proceedings for his enrolment, and he has invoked the jurisdiction of this Court in two several modes. He has applied for and been granted special leave to appeal against the order of the High‑ Court mentioned above (Civil Appeal No. 22 of 1957). Earlier, and in advance of the making of any order by the High Court he had petitioned this Court under Article 22 of the Constitution for a writ of mandamus or ether appropriate writ, to protect his right under Article 12 of the Constitution to practise his profession of an Advocate of the High Court, for which he holds the necessary qualifi cation including, as he contends, the qualification of being enrolled as an Advocate of the West Pakistan High Court (Writ Petition No. I‑D of 1956). This judgment will dispose of both these matters.
• Mr. Tyabji is a Barrister‑at‑Law, and there is no question as to his qualification in this respect for being enrolled as an Advocate of the High Court of West Pakistan. For the purposes of this judgment it may be assumed that he satisfies all the other requisites for enrolment. This pre sumption is soundly and safely based on the following facts. He was enrolled as an Advocate entitled to practise in the Court of the Judicial Commissioner at Karachi as far back as 1926, and before that was enrolled as an Advocate of the Bombay High Court in 1916. When the Bar Councils Act was applied to the Judicial Commissioner's Court at Karachi, in 1931, Mr. Tyabji's name was entered on the roll maintained under that Act. In the year 1940 the Court of the Judicial Commissioner at Karachi was abolished and in its place the Chief Court of Sind was established. By this time, however, Mr. Tyabji had become a Judge of the Judicial Commissioner's Court, and in 1940 he was appointed to be a Judge of the newly established Chief Court of Sind. He continued in that capacity and was eventually raised to the position of Chief Judge, which he held until his retirement on superannuation in 1951. The Bar Councils Act continued to apply to the Chief Court of Sind by virtue of a notification issued by the Govern ment of Sind, which replaced the reference in the original notification to "the Court of Judicial Commissioner of Sind" by a reference to "the highest Civil Court of appeal in the Province of Sind however named". The expectation appears to have been that the replacement of the Judicial Commissioner's Court by the Chief Court of Sind, was not to be a permanent condition, and that in due time there would be a High Court in the Province of Sind. As it happened when that eventuality did come about, it coincided with the abolition of the Province of Sind.
• As a necessary consequence, the earlier notification under the Bar Council's Act lapsed, but, as will presently appear, case was taken to preserve the right of Advocates of the abolished Chief Court to practise in the new High Court. This right is correlative to the not less important circum stance that the new Court could not have functioned for a day without the aid of lawyers. That is a condition which we regard as of paramount importance in the treatment of the present cases.
• The Provinces of West Pakistan having been merged into a single Province by an Act of the Constituent Assembly in 1955, there was created at the same time a single High Court of West Pakistan exercising jurisdiction over the whole of the new Province. In the statutory instrument setting up the new High Court, namely, the High Court of West Pakistan (Establishment) Order, 1955, provisions were included whereby, firstly, the Letters Patent consti tuting the High Court of Judicature at Lahore in the year 1919 were declared by paragraph 9 to apply to the High Court of West Pakistan subject to modification by certain instruments, and secondly, by paragraph 10 it was declared that "unless the High Court otherwise determines, any person who immediately before the commencement of this order was an Advocate . . . entitled to plead or act in any High Court in any specified territory shall be deemed to be an Advocate . . of the High Court, and shall be entitled to plead and act in the High Court". This special provision relating to Advocates, etc., must be read with clauses 7 and 8 of the Letters Patent. By clause 7 the High Court was authorised and empowered "to approve, admit and enrol such and so many Advocates as to the said High Court may seem meet". . By the same clause which, being included in Letters Patent, has the effect of a statute, the following further provision was made, viz., "such Advocates . . . shall be and are hereby authorised to appear for the suitors of the said High Court and to plead or to act, or to plead and act, for the said suitors, according as the said High Court may by rules and directions determine and subject to such rules and directions". By clause 8 the High Court was empowered to make rules for the qualifica tion and admission of proper persons to be Advocates, etc., and also to remove or suspend such persons from practice on reasonable cause; such Advocates were given, the ex clusive right to act or plead for suitors in the High Court who were not acting or pleading on their own behalf or on behalf of a co‑suitor.
• As Mr. Tyabji's name was carried on the roll of Advo cates of the Chief Court of Sind until that Court was abolished, he was prima facie entitled to be an Advocate of, and to plead and act in the new High Court, by virtue of paragraph 10 of the order establishing that High Court. The objections that can be raised against his exercise of this right, are the following, viz.:‑
• (2) that this right is subject to a prior right vested in the High Court by paragraph 10 aforesaid to determine whether Mr. Tyabji shall enjoy the status of an Advocate of the new High Court and be entitled to plead and act therein.
• "I, Bruno Joseph G. Desa, Barrister‑at‑Law, Additional Registrar, High Court of West Pakistan, Karachi Bench, Karachi, do hereby certify and declare that the name of Mr. Hatim Badr‑ud‑Din Tyabji, Barrister‑at‑Law, is borne on the roll of Advocates of the High Court of West Pakistan, Karachi Bench, Karachi, on this date. Given under my hand and the seal of the Court this 29th day of December, in the year of one thousand nine hundred and fifty‑six."
• Reliance is placed on this certificate as showing that since the conversion of the Chief Court, of Sind into the Karachi Bench of the High Court of West Pakistan, a roll of "Advo cates of the High Court of West Pakistan, Karachi Bench, Karachi" has been drawn up, and that Mr. Tyabji's name has been placed on this roll the description applied to this Roll is probably terminologically incorrect. It would perhaps have been more correctly described as the Branch Roll maintained at Karachi of Advocates of the High Court of West Pakistan. However, that may be, we entertain no doubt whatsoever that it may be presumed on the strength of this certificate, given by a responsible and experienced official that a Roll of Advocates entitled to practise in that High Court was actually drawn up. We may also safely presume firstly that this was done under the power conferred, and the corresponding duty created by clause 7 of the Letters Patent, to which reference has already been made above. We may further presume that in drawing up this Roll, the Branch Office of the High Court at Karachi did not act on its own initiative, but under proper orders of the High Court, made under that clause. Finally, we think it is a safe pre sumption that no name has been brought on the list otherwise than under proper orders of the High Court. From these presumptions certain conclusions of importance to the decision of this case necessarily follow.
• Since by clause 7 of the Letters Patent it is provided that Advocates who are enrolled by the High Court under that clause shall be entitled to plead and act in the High Court, the fact of enrolment has a definitive and enabling effect in law, and this is in consequence of the exercise of its discretion by the High Court to enrol "such and so many Advocates . . . as to the said High Court may seem meet". It must be presumed that such enrolment was done properly, i.e., in compliance with all conditions B declared by law to be requisite. Moreover the preparation oft the Roll under the Letters Patent follows upon and falls to be done in consequence of the enactment of paragraph 10 of the Statutory Order by which the new High Court was established. It is a proper presumption to make, and in our opinion, nothing stands in the way of the making of this presumption that at least with reference to those lawyers whose names have been brought upon the Roll prepared under clause 7 of the Letters Patent, there was no objection C to their enrolment raised in or by the High Court, and no determination by the High Court to the contrary. In other words, so long as a definitive act had not been per formed by or under proper orders of the High , Court, having the effect in law of conferring upon a person the statutory right of appearing and acting as an Advocate in the new High Court, it might have been argued, with some show of force, that the power still remain vested in the High Court under paragraph 10 of the Order referred to above, to determine to the contrary. But, once such an act has been performed, and the legal consequences flowing there from have taken effect, it is impossible, in our opinion to suggest that the High Court still retains power under paragraph 10 aforesaid to reverse this state of affairs.
• The order under appeal has precisely this effect. With reference to the certificate of the Additional Registrar, the view taken by the learned Judges is as follows. It is said firstly that the entry of Mr. Tyabji's name on the Roll is not contended to have been "made by the office in pursuance of any order of the Judges of the High Court". Secondly, it is said that "the entry is inconsistent with the orders of the Judges in respect of Mr. Agha". (This objection will be elucidated with greater fullness in the sequence). Thirdly it is said "the Roll of Advocates of the Chief Court automatically became by virtue of para graph 10 and later of section 8 (2) (a) of the Bar Councils Act, 1926) a list of Advocates presumptively entitled to practise in the new High Court, and no further effect can be given to the certificates than that of presumption". In the result, the learned Judges held that the certificate had no effect whatsoever, as they were unable to treat it as "conclusive of an entry on the rolls within the meaning of section 8 (2) (a)" and they accordingly directed Mr. Tyabji to apply again for enrolment. It seems clear from certain passages in their judgment that in doing so they desired that the High Court should have an opportunity of exercising its power of "otherwise determining", under the aforesaid paragraph 10. As an instance, the following short passage may be cited:‑--
• Having heard Mr. Brohi on behalf of Mr. Tyabji, and given most careful consideration to this important and somewhat intricate case, we have formed the conclusion. for the reasons set out already that the Roll to which reference is contained in the certificate of the Additional Registrar is not necessarily to be regarded as a Roll prepared under the provisions of the Bar Councils Act. Indeed, since it is stated before us that no Bar Council has yet been formed and it is consequently impossible to comply with a condition precedent to enrolment under the Bar Councils Act, namely payment of enrolment fee to the Bar Council, we think that the presumption should rather be that the Roll referred to in certificate is the roll prepared for the High Court under clause 7 of the Letters Patent. Inclusion of a name in a Roll prepared under the Letters Patent confers a statutory right to appear and act as an Advocate precise to the same extent as enrolment under the Bar Councils Act does under section 14 of that Act.
• The learned Judges of the High Court appears to think that the certificate has reference to the Roll of Advocates of the abolished Chief Court of Sind. We cannot agree with this inference, which there is nothing on the record to sustain. The judgment gives the impression that the learned Judges thought that the certificate merely represented a legal presumption drawn by the Additional Registrar, on the basis of certain statutory instruments, and the previous Roll of Chief Court Advocates. Such an impression, in the absence of evidence which was readily available to the Court, seems to us to be devoid of foundation. We con sider that when the Additional Registrar speaks of the Roll of Advocates of the High Court he means an actual roll prepared of such Advocate entitled to practise in the High Court in compliance with clause 7 of the Letters Patent. We note that the certificate is expressed on the face of it to be issued, by order of the High Court and also bears the seal of the High Court.
• We have already indicated sufficiently our opinion that the entry of Mr. Tyabji's name on this roll must be pre sumed to have been made by or under the orders of the High Court and in this respect it is not suggested that the name was brought on the roll in any manner such as might invalidate the enrolment, e.g., by any under‑hand means, or misconception, or like circumstances. Therefore, in our opinion, Mr. Tyabji's name is properly borne upon the authentic Roll of Advocates prepared under clause of the Letters Patent, and subject to any effect that may be given to the undertaking of 1939, this gives him a statutory right to appear and act as an Advocate in the High Court.
• Firstly the learned Judges have interpreted these words as providing the High Court with an opportunity for screening all lawyers individually for fitness to remain as Advocates of the new High Courts. It seems to us that the words are capable of no such construction. The intention of the paragraph was clearly to continue without interruption, the right of Advocates of the existing High Courts to appear in the new High Court in which those High Courts were to be merged. The right of acting as an Advocate, etc. was enjoyed by these persons subject to a power of removal vested in the High Court exercisable under the Letters Patent of the High Court, the Legal Practitioners' Act and the Bar Councils Act. This power of removal, however, is exercisable under these instruments on limited grounds only and in accordance with proper procedure, as prescribed. It has never been a matter of pure discretion in the High Court. It is conceivable that a statute whose plain and paramount purpose was to continue without interruption, the right of Advocates to practise in the High Court, as well as the availability to the High Court of the services of Advocates, without which it could not function for a single day, should at the same time have vested the new High Court with a power of general screening of Advocates, so as to eliminate individual lawyers as to the Judges might seem fit. To interpret the words as strengthen ing the power of the High Court to remove or otherwise restrict the activities of individual lawyers is, in our view, impossible. Consequently it seems to us that the power conferred upon the High Court by the words "unless the High Court otherwise determines" must be construed in a general sense relatable to the policies underlying the new statute. We can imagine, for instance, that in certain of the areas which were being merged in the new Province the laws enforced may have been of a character so special that to permit lawyers unfamiliar with those laws to appear and act P for litigants from those areas or in a branch of the High Court established in such area might lead to confusion and be injurious to the interests of the litigant public of those areas. The opposite case may also be conceived of lawyers who had been practising in territories where litigation was but little developed, and who by their knowledge and experience might not be thought to be properly qualified to be associated with a High Court functioning under an intricate complex of laws requiring greater knowledge and experience than that possessed by the lawyers in question. In either of these cases, the High Court might reasonably impose restrictions, to operate in respect of a particular area, or a particular class of lawyers. We are quite clear in our view that the para graph is to be understood rather in this sense, and that it cannot carry the sense of enabling screening of individual lawyers at the uncontrolled discretion of the High Court, on grounds which would not justify their removal under the ordinary law.
• Secondly, we consider that when the learned Judges of the High Court had found as they have done that paragraph 10 of the Order had been repealed upon the application of the Bar Councils Act to the new High Court on the 1st March 1956, they were wrong in thinking that it still remained in full operation after that date, or as they have put it, "paragraph 10 . . though impliedly repealed rules us from its grave". We shall presently give our reasons for thinking that there is no repeal, but assuming that there was a repeal, then, as from the 1st March, 1956, the words "unless the High Court otherwise determines" should have been read as if they were "unless the High Court has otherwise determined". We think so for the reason that the Bar Councils Act does not invest the High Court with any such general power of control over the destinies of lawyers. Also, to interpret the words as the learned Judges have done will not only lead to much conclusion and uncertainty regarding the right of Advocates to appear and plead, but it will further delay completion of the preparation of a definitive Roll of Advocates.
• But the more correct view, in our opinion, is one which takes into account the fact that although the Bar Councils Act has been applied to the High Court, yet it has not been implemented to the extent that it can be said that its pro visions have replaced those of the instruments by which the right of practice was assured to Advocates, and the services of Advocates were assured to the High Court, prior to the 1st March, 1956. We have said before that no Bar Council has yet been formed, and that it is consequently impossible at present to comply with an essential condition of enrolment under section 8 (2) of the Bar Councils Act viz., payment to the Council of enrolment fee. At the same time sub section (1) of that section states in terms which admit of no doubt that:‑--
• "no person shall be entitled as of right to practise in any High Court unless his name is entered in the roll of the Advocates of the High Court maintained under this Act."
• If these provisions were applied in their integrity, the possibility would have to be faced that all presently enrolled Advocates would lose their right to practise, and, as has been said more than once already, the work of the High Court might be brought to a standstill.
• We have said enough already to indicate that there are grave reasons why this provision should be strictly construed. If any condition requisite for its application is not satisfied, the provision will not take effect. We note that the High Court of West Pakistan was not established by Letters Patent, and on that ground we consider that the validity of paragraph 10 H of the Order of 1955, and of the roll drawn up under clause 7 of the Letters Patent, remains unaffected by the application of section 8 to that High Court. This result is without pre judice to our earlier conclusion that the inclusion of the name of a particular Advocate in such a roll excludes the power of `otherwise determination' in relation to such Advocate.
• In the light of the present examination, it might have been more practical to postpone the application of section 8 and perhaps other provisions of the Bar Councils Act until the Bar Council had been formed, if only in "shadow", and a roll of Advocates had been drawn up from whom enrolment fee had been charged in advance, for payment to the Bar Council, so that in these respects, the Act when applied might have been capable of immediate enforcement, and its provisions could thus have safely replaced those contained in the Order of 1955 and the Letters Patent as applied. But in the view we have taken; there is no vacuum, and the latter provisions are still in force to continue the existing control vested in the High Court over the legal profession. We express no opinion as to whether the existing provisions will or will not stand repealed by implication or otherwise, when the provisions of the Bar Councils Act have been fully implemented, ipso facto.
• We have now to consider the undertaking of 1939, and its effect upon the right to Mr. Tyabji to practise in the High Court of which he is an enrolled Advocate. It will be convenient first to examine what has been described in the order under appeal as
• We have said already that, as respects practice in the High Court, enrolment in the High Court's roll of Advocates confers a statutory right to practise, under clause 7 of the I Letters Patent. That must mean the High Court as a whole, including all its branches‑or Benches. 1n the well‑known case of Sir Iqbal Ahmad, who had been Chief Justice of the Allahabad High Court, it was brought to light that the Order amalgamating that High Court with the Oudh Chief Court in 1948 expressly kept alive undertakings given by Judges of either of these Courts not to practise, after retire ment, in such Court or within its jurisdiction. Consequently, Sir Iqbal Ahmad was by virtue of his undertaking, and the operation of the amalgamation Order, held to be rightly barred from appearing before the High Court at Allahabad and in any subordinate Court within the territorial jurisdic tion of the Allahbad High Court prior to the amalgamation. (See the cases reported as (A I R 1950 All. 162) and Sir Iqbal Ahmad v. The Allahabad Bench of the High Court of Judicature at Allahabad (AIR 1950 F C 71). The present is a somewhat similar case, with the exception that the undertakings of Judges are not kept alive by the Order of 1955, establishing the West Pakis tan High Court. It seems to us, therefore, that if a person in the position of Mr. Tyabji were enrolled as an Advocate of that High Court, his statutory right to practise before that High Court, including its Benches at whatever place they might be situated, could not be denied. A rule to the con trary could not be made under clause 8 of the Letters Patent, so as to nullify the absolute right conferred by clause 7.
• The absolute nature of this right, derived however under section 14, of the Bar Councils Act, was asserted and given effect to by the Judicial Committee in the case of Mr. P. R. Das (A I R 1931 P C 22). Mr. Das had been a Judge of the Patna High Court, and when after his retirement on medical grounds he applied to be enrolled as an Advocate (being a Barrister‑at- law of England) the Judges eventually made the following order:‑--
• "That although in the opinion of a majority of the Judges, Mr. P. R. Das is entitled to be enrolled as an Advocate under section 8 (2) (a), Bar Councils Act, yet, in view of the fact that he was a permanent Judge of this Court, the Judges refuse to allow him to appear in the Courts of this Province."
• Subsequently, Mr. Das was entrolled as an Advocate, and he appealed against the order refusing to allow him to appear in the Courts of the Province of Bahar and Orissa. The Privy Council proceeded solely on the "accomplished fact" of the enrolment as establishing a statutory right to practise and declared that no question arose of the exercise of any discretion by the High Court. We consider that Mr. Tyabji's right to practise in the High Court, by virtue of his enrolment under clause 7 of the Letters Patent, is equally a statutory right which cannot be subjected to any exercise of discretion by the High Court.
• A proviso saves, inter alia, the regulation of a profession by licensing system. We have found that Mr. Tyabji possesses the qualifications and has complied, sufficiently with the conditions of the `licensing system' applicable to the pro fession in question, to have gained enrolment as an Advocate of the High Court ----
• For these reasons we consider that Mr. Tyabji has clearly established that he has a statutory right to practise as an Advocate in the High Court of West Pakistan, and that this right is unaffected by anything contained in the undertaking which he gave in 1939, upon receiving appointment as a Judge of the Court of the Judicial Commissioner in Sind We consider that he is already validly enrolled as an Advocate of the West Pakistan High Court, and that he need take no further steps to secure enrolment as such.
• AMIRUDDIN AHMAD, J.‑-----This is an appeal from a judgment and order in a civil proceeding of the High Court of West Pakistan, Karachi, Bench, under certificate granted by the said Court under Article 1958 (1) (c) of the Constitution. The proceeding was started on an application under section 151 of the Civil P. C., and section 14 (1) of the Bar Councils Act by the appellant in a pending civil suit. In his applica tion, the appellant stated that as doubts have been raised by His Lordship the Chief Justice and other Judges of the High Court with regard to the right of the appellant to appear and plead as an Advocate in Court within the area in which jurisdiction was formerly exercised by the Chief Court of Sind and, as it was necessary to have the doubts removed and establish the right of the appellant to appear and plead in all Courts in Pakistan, he made this application. The appellant stated that he was enrollled as an Advocate in the Court of the Judicial Commissioner of Sind at Karachi in 1926, to which the Bar Councils Act was applied in its entirety from the 8th October 1931, and his name was entered and continued on the roll maintained under the Bar Councils Act as an Advocate of the High Court at Karachi until the abolition of the Chief Court of Sind in 1955. While he was practising as an Advocate he subscribed, in November 1939, on his appointment as a Judicial Commis sioner, as a condition of appointment, to an undertaking not to practise after retirement in the Court of Judicial Commissioner or any of the Courts subordinate thereto. The appellant submitted in his application that with the extinction, on the establishment of the High Court of West Pakistan, of the Courts referred to in the undertaking, and the extinction on the establishment of` the Province of West Pakistan, of the Province of Sind, to whom the undertaking was given, the undertaking in terms ceased to have any application or to be of any effect. In paragraph 5 of the application, the appellant stated that as immediately before the 14th October 1955, when the High Court of West Pakistan was established by the High Court of West Pakistan (Establishment) Order, 1955, he was entitled as of right to plead and act in every one of the four High Courts, namely, the High Courts at Karachi, Lahore, Peshawar and Quetta, and as the High Court of West Pakistan did not otherwise determine, the appellant was, by virtue of Article 10 of the High Court of West Pakistan (Establishment) Order, 1955, deemed to be an Advocate of the High Court of West Pakistan. In paragraph 6 of his application, the appellant asserts that, as the Bar Councils Act was applied in its entirety to the High Court of West Pakistan from the 1st March 1956, and as immediately before the 1st March 1956, he was entitled to practise in the High Court of West Pakistan, the name of the appellant had to be entered on the roll of the Advocates to be maintained by the High Court under the Bar Councils Act, under section 8 (2) (a), and the appellant became entitled to all the rights conferred by section 14 (1) of the Act, as a person enrolled as an Advocate of the West Pakistan High Court under the Act. In paragraph 7 the appellant stated that after the 'statutory' enrolment of the appellant under tile Bar Councils Act on the 1st March 1956, the High Court ceased to have any power or discretion to curtail or restrict any of the rights conferred upon the appellant by section 14 (1) of the Bar Councils Act. In support of this contention, he relied on the case of Profulla Ranjan Das v. Chief Justice and Judges of Patna High Court (AIR 1931 P C 22 (2)) and Sir Iqbal Ahmad v. The Allahabad Bench of the High Court of Judicature at Allahabad (AIR 1950 F C 71), and at the end of his applica tion in paragraph 14, he prayed as follows:‑
• This application was supported by an affidavit sworn by the appellant himself on the 11th of December 1956. It appears that on this application a notice was issued to the appellant to show cause whether the appellant's right to practise had not been "otherwise determined" within the meaning of Article 10 of the High Court of West Pakistan (Establish ment) Order, 1955, by reason of the decision in Mr. Agha's case. The appellant filed a written statement through his advocate, showing cause, the first paragraph of which runs as follows:‑
• "It is submitted as a matter of plain unquestionable fact that no decision of any sort or kind, in the exercise of the power conferred by Article 10 or otherwise, has ever been made by the High Court either directly or otherwise relating to or affecting the applicant's right to practise as an Advocate of this High Court."
• "Although it is sufficient for the applicant to show that no determination, decision or order of any kind has at any time up to the present been made by the High Court affecting the applicant's right to practise as an Advocate of 1, the High Court or preventing him from practising in any Court * * * no High Court in Pakistan has ever had the power to make any order of this kind, which would clearly be ultra vires and void."
• These were all the facts on which the appellant claimed his right to practise as an Advocate throughout the territorial jurisdiction of the West Pakistan High Court. It is clear, therefore, that the appellant claims a right to practise by virtue of paragraphs 9 and 10 of the High Court of West Pakistan (Establishment) Order, 1955, read with clause 7 of the Letters Patent of the Lahore High Court from 14th October 1955, to 29th February 1956, and after the 1st March 1956, by section 14 of the Bar Councils Act and that no determination either way in his case under paragraph 10 has been made. The appellant did not claim that he was enrolled as an advocate of the new West Pakistan High Court on the foot of any order of enrolment made under clause 7 of the Letters Patent after the creation of the new Court. During the hearing of the arguments before the High Court, however, a certificate, dated the 29th December 1956, of the Additional Registrar was produced in which it was stated that the name of the appellant was borne on the roll of Advocates of the High Court of West Pakistan, Karachi Bench, Karachi on that date. This, to my mind, does not raise a presumption on the facts of the case that the appellant was enrolled as an advocate of the new High Court on any date between the 14th October 1955, and 1st of March 1956, or under section 8 (2) (a) of the Bar Councils Act after the 1st March 1956, on which date the Bar Councils Act was admittedly applied in its entirety to the High Court of West Pakistan In fact the appellant in his application to the High Court and his subsequent statement referred to above does not even claim to have been so enrolled. Besides clause 7 of the Letter Patent provides for the enrolment of an Advocate entitled to practise in the whole High Court and not in any Bench of the High Court as the certificate shows. I, therefore, think that no presumption under section 114 o the Evidence Act as to regularity of official acts with regard to appellant's enrolment can be raised. The Court dealing with the certificate has not itself accepted the reference to the appellant's enrolment as an enrolment under clause 7 of the Letters Patent or section 8 of the Bar Councils Act. To my mind it appear to be a list compiled by the Court's office from the roll of the now defunct Chief Court for the use of the Karachi Bench of the High Court, which is the successor Court to the Chief Court, pending the preparation of the roll of Advocates of the whole of West Pakistan High Court.
• A roll under clause 7 of the Letters Patent presupposes that it was drawn up in pursuance of an order of the High Court. This was not the case with this list, as the judgment of the High Court shows. The certificate cannot be treated as one under section 8 (2) (a) of the Bar Councils Act for the same reason and for the simple reason that though the Act has been extended to the West Pakistan High Court, sec tion 8 of the Bar Councils Act has not been implemented yet. It is common ground that the roll of Advocates of the new High Court has not been prepared and that the fee of Rs. 10 which is a condition precedent for the entry of the names of the Advocates on this roll, who were entitled as of right to practise in the High Court immediately before the section comes into force, has not been paid by the appellant Unless the name of an Advocate is borne on the roll of the Advocate of the High Court as required by section 8 under the Bar Councils Act, he has no right under section 14, to practise in that High Court. The appellant, therefore, cannot claim a right under section 14 of the Bar Councils Act. The case of Profulla Ranjan Das v. Chief Justice and Judges of Patna High Court, relied upon by the appellant does not help him and the facts of that case are distinguishable. In that case the name of Mr. Dass borne on the roll of Advocates of the High Court of Patna, prepared under the Bar Councils Act and on the foot of it, he claimed his right under section 14 (1) of the Act to practise in that Court. This claim is not available to the appellant, as it is not his case that his name is borne on the roll of the Advocates of the new High Court prepared under the Act. At the most he claims a right to have his name entered on the roll when it is prepared, The other case relied upon by the appellant, viz the case of sir Iqbal Ahmed v. The Allahabad Bench of the high court of Judicature at Allahabad (AIR 1950 FC 71) also does not support him as will be evident from the following observation of the learned Judge Who delivered the judgment of the Federal Court:------
• "For even conceding that the Bar Councils Act does apply to the new High Court, the real difficulty that lies in the way of the appellant is that the Bar Councils Act standing by itself does not create any right in him to practise in the new High Court. In order to acquire this statutory right of practising in a High Court under section 14 (1), Bar Councils Act, it is absolutely necessary that the name of the Advocate should be enrolled in the roll of Advocates prepared by that Court under section 8 (2), Bar Councils Act."
• The appellant will acquire that right only when his name is actually entered on the roll under section 8 of the Bar Councils Act. In the meantime, the only basis of his right to act and plead in the High Court is under the provisions of paragraph 10 of the High Court of West Pakistan (Establishment) Order, 1955. As his name was borne on the roll of the Advocates of the Chief Court of Sind under the Bar/ Councils Act where by virtue of section 14 (1), he was entitled as of right to practise, which has been replaced by the new High Court of West Pakistan, he shall be deemed to be an advocate of the new High Court and is entitled to plead and act in the High Court subject to "determination otherwise" by the High Court. Paragraph 10 is an interim provision made in order to let the work of the High Court with the aid of Advocates go on without interruption till a comprehensive roll of Advocates of the High Court is prepared either under clause 7 of the Letters Patent or, if the Bar Councils Act is applied, under section 8 of that Act. Paragraph 10 contemplates "otherwise determination" before enrolment in the new High Court of Advocates, of the defunct High Courts mentioned therein, who have been given the right subject to this determination to plead and act. It was considered necessary to give this power to the High Court as quite a large variety of lawyers from different parts of the country from any High Court in a specified territory, which under section 2 of the Establishment of West Pakistan Act, 1955, includes the Province of Baluchistan, the States of Bahawalpur and Khairpur and the Baluchistan States Union, the Tribal Areas of Baluchistan, the Punjab and North West Frontier Province and the States of Amb, Dir, Chitral and Swat, were given the right by paragraph 10 of the High Court of West Pakistan (Establishment) Order to, plead and act in the new High Court. This right, to my mind, was intended to endure till a comprehensive roll of the new High Court was prepared, and power was given to the High Court to exclude a class of persons who did not possess the requisite standard of qualifications, or individuals, on reason able grounds. The Judges of the High Court are responsible persons occupying positions of great importance and dignity was observed by the Privy Council in the case of Punjab Co‑operative Bank Limited, Amritsar v. Commissioner of Income‑tax Lahore (67 I A 464, (476)), and they are expected to exercise this power on the basis of reasonable classification when dealing with classes or grades of pleaders and Advocates, and in the case of individuals, on reasonable grounds. In this connection, one point remains to be considered, namely, whether the introduction of the Bar Councils Act to the High Court of West Pakistan has the effect of repealing paragraphs 9 and 10 of the High Court of West Pakistan (Establishment) Order, 1955. In the first instance, it is an order promulgated under powers conferred by the Establish ment of West Pakistan Act, 1955, which was passed by the Constituent Assembly of Pakistan and is a later and t under normal rules of interpretation a later Act prevails over the earlier. In the second place, section 19 of the Bar Councils Act only provides for amendment or repeal of the enactments mentioned the Schedule which naturally does not mention the Establishment of the West Pakistan Act or the Order, and of the Letters Patent in so far as they are inconsistent with the Act. It only provides for limited amendment or abrogation in case of repugnancy. Thirdly, although the Act has been applied, section 8 of the Bar Councils Act which might conflict with some of the provisions of paragraph 10 has not yet been implemented and till it is implemented, the question of repeal or otherwise will not arise. I am, therefore, of opinion that under the present circumstances, paragraphs 9 and 10 of the High Court of West Pakistan (Establishment) Order have not been repealed.
• I hold that the appellant is deemed to be an Advocate of the High Court of West Pakistan and is entitled to plead and act in the High Court, subject to "determination otherwise" by the High Court at the time when the comprehensive roll of Advocates of the High Court will be prepared. The procedure by which the roll is prepared will be determined by the High Court and the appellant will be required to act accordingly. In the meantime, he has a right to practise as an Advocate. I would, therefore, set aside the direction given to Mr. Tyabji to apply for enrollment and would direct that the vakalatnama, if otherwise in order, be accepted. I would allow the appeal on the above grounds and would make no order as to costs. This also disposes of the writ petition, which would be dismissed.

Headnotes / Summary

Judgment & Decree