P L D 1957 (W (PLP)

CONSTANTINE, J.

Mr. Tyabji filed a Vakalatnama on behalf of a plaintiff in Suit No. 381 of 1956. The question whether Mr. Tyabji is entitled to practise as an advocate of the High Court of West Pakistan before this Bench has been raised, in view of the fact '.that he gave an undertaking in November 1939, by a letter addressed to the Secretary to the Governor of Sind as follows: "With reference the proposal to appoint me as judge of the Court of the .Judicial Commissioner of Sind, I beg to state for official record that I undertake, as a condition of appointment that 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 in any of the Courts subordinate thereto". Mr. Tyabji was enrolled as a Barrister in England in 1916 and in Bombay in 1916. In 1925 -he was enrolled as an advocate of the Court of the Judicial Commissioner of Sind. The Bar Councils Act of 1926 was applied to the Judicial Commissioner's Court of Sind by Notification dated 10th October 1931, with effect from 8th October 1931. This notification was under section 1 (2) of the Bar Councils Act of 1926. A Roll was prepared in the Court in which Mr. Tyabji's name was entered. In November 1939 Mr. Tyabji was appointed as Additional Judicial Commissioner upon giving the undertaking quoted above. The Judicial Commissioner's Court was superseded in 1940 by the Chief Court of Sind, when the Sind Courts Act. 1926, was, brought into force by notification. In December 1951 Mr. Tyabji retired from the office of Chief Judge of the Chief Court of Sind. His name continued on the Roll of Advocates, but in virtue of his undertaking, he did not practise as an Advocate before the Chief Court or any Court subordinate thereto. On 14th October 1955, the High Court of West Pakistan (Establishment) Order, 1955, came into force whereby the Chief Court of Sind and various other High Courts ceased to exist and a High Court of Judicature for the Province of West Pakistan was established. Paragraphs 9 and 10 of this order read as follows: "

9. Application of Letters Patent.

The Letters Patent constituting the High Court of Judicature at Lahore for the Provinces of the Punjab and Delhi dated the 21st March 1919, shall apply to the High Court and the jurisdiction powers and authority conferred by the said Letters Patent on the High Court of Judicature at Lahore shall be deemed to have been conferred on the High Court of West Pakistan, and the said Letters Patent shall in their application to the High Court of West Pakistan be read subject to such modifications and alterations as the provisions of the Establishment of West Pakistan Act, 1955, or any Order made thereunder, or any other law for the time being in force may warrant.

10. Advocates, Vakils, etc, enrolled in High Court of specified territories to be advocates, vakils, etc., of the High Court.-Unless the High Court otherwise determines any person, who immediately before the commencement of this order was an Advocate, Vakil, Pleader or Attorney entitled to plead or act in any High Court in a specified territory shall be deemed to be an Advocate, Vakil; Pleader or Attorney of the High-Court and shall be entitled to plead and act in the High Court". The relevant provisions of the Letters Patent are Clauses 7 and 8: "

7. Powers of High Court in admitting Advocates, Vakils and Attorneys.-And we do hereby authorise and empower the High Court of Judicature at Lahore to approve, admit and enrol such and so many advocates, Vakils and Attorneys, as to the said High Court may seem meet; and such Advocates, Vakils and Attorneys shall be and are hereby authorized 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 its rules and directions, determine and subject to such rules and directions.

8. Powers of High Court in making rules for the qualification, etc. of Advocates, Vakils and Attorneys.-And we do hereby order in that the High Court of Judicature at Lahore shall have power to make rules from time to time for the qualification and admission of proper persons to be Advocates, Vakils and Attorneys-at-Law of the said High Court and shall be empowered to remove or to suspend from practice on reasonable cause, the said Advocates, Vakils or Attorneys-at-Law ; and no person whatsoever but such Advocates, Vakils or Attorneys shall be allowed to act, or to plead for, or on behalf, of, any suitor in the said High Court, except that any suitor shall be allowed to appear, plead or act on his own behalf, or on behalf of a co-suitor". With effect from 1st March 1956 sections 3 to 16 of the Bar Councils Act were brought into force under section 1 (3) in respect of the High Court of West Pakistan by the Governor of West Pakistan, vide notification dated 27th February 1956, at page 26 of (1956) P L I? Acts and Notifications of West Pakistan, and by a notification of the same date the Governor of West Pakistan applied the Act under section 1 (2) to the High Court of West Pakistan. At the Bar Mr. Brohi, on behalf of Mr. Tyabji, stated that he had received a D. O. letter No. 639 dated 1st August 1956, from the Secretary to the Government of Pakistan in the Law Ministry to the effect that the Chief Justice and Judges of the High Court of West Pakistan considered that Mr. Tyabji should not be allowed to practise in Courts corresponding to those in respect of which the undertaking had been given but should be allowed to practise in other Courts. The learned Assistant Advocate-General, Mr. Khamisani, supported Mr. Brohi's arguments, while the High Court Bar Association of Karachi and the Bar Association of Karachi contested the application. It is not denied that Mr. Tyabji's name was entered on the Rolls kept under the Bar Councils Act by the Judicial Commissioners Court. During the hearing it was ascertained that the notification of the Government of India dated the 8th October 1931, was amended by notification dated 30th March 1940, issued by the Government of Sind on 30th March 1940 as follows: "For the words 'the Court of the Judicial Commissioner of Sind', substitute the words 'the Highest Civil Court of appeal in the Province of Sind howsoever named'." This wording has reference to section 1 (2) of the Bar Councils Act which provides. "It extends to the whole of British India, and shall apply to the High Courts of Judicature at Fort William in Bengal, and at Madras, Bombay, Allahabad. Patna and Rangoon and to such other High Courts within the meaning of Clause (24) of section 3 of the General Clauses Act, 1897, as the Governor-General in Council may, by notification in the Gazette of India declare to be High Courts to which this act applies." (The Adaptation of Indian Laws Order, 1937, had transferred the power from the Governor-General to the Provincial Government). The definition in the General Clauses Act is: "High Court used with reference to civil proceedings shall mean the highest Civil Court of appeal in a Province or part thereof in which the Act or regulation containing the expresssion operates". This notification came into operation a few days before the creation of the Chief Court of Sind and after its publication the High Court in Sind to which the Bar Councils Act was applied was no longer known under a particular name. Whether the highest Court of appeal was the Judicial Commissioner's Court or the Chief Court of Sind was immaterial for the purposes of the application of the Bar Councils Act. It follows, therefore, in my opinion, that the Roll of Advocates prepared by the Judicial Commissioner's Court continued to be effective as the Roll of Advocates entitled to practise in the Chief Court of Sind. Mr. Tyabji's name continued on the Roll-this is not denied-of advocates after his elevation to the Bench. As Mr. Brohi pointed out- the undertaking was confined to certain Courts which are fewer in number than the Courts where a person enrolled under the Bar Councils Act is entitled to practise by section 14 of the Bar Council Act. When the High Court of West Pakistan (Establishment) Order, 1955, came into force, the Bar Councils Act was not applicable to the new Court, nor had it been applicable .to the old High Court of Lahore. Paragraph 10 above cited gave the right to plead and act in the new High Court to any advocate who was entitled to plead or act in any High Court in the specified territories. This expression has reference to the enumeration of territories which comprised the new Province of West Pakistan, vide section 2 of the Establishment of West Pakistan Act, 1955. But this right was subject to the determination otherwise of the new High Court. The Constitution of Pakistan came into force on 29th February 1956 and by Article 221 the Government of India Act, 1935 and all enactments amending that Act were repealed. By Article 224 it was provided that notwith standing the repeal of that enactment, and save as is otherwise expressly provided in the Constitution, all laws, including orders, in force immediately before the Constitution Day should, so far as applicable and with the necessary adaptations, continue in force until altered, repealed or amended by the appropriate legislature or other competent authority. As stated above, the Bar Councils Act was applied to the High Court of West Pakistan on 1st of March and on the same date sections 3 to 16 were brought into force, while on the 27th of February the Bar Councils Act was applied to the new High Court. . As Mr. Brohi pointed out, one of the objects contained in the preamble of the Bar Councils Act is to consolidate and amend the law relating to legal practitioners entitled to practise in certain Courts in British India. In my opinion paragraph 10 of the High Court of West Pakistan (Establish ment) Order, 1955, was impliedly repealed by the application of the Bar Councils Act to the new High Court. Sections 8 (1) and (2) of the Bar Councils Act read as follows: "8. (1) 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: Provided that nothing in this subsection shall apply to any attorney of the High Court. (2) The High Court shall prepare and maintain a roll of advocates of the High Court in which shall be entered the names of-- (a) all persons who were, as advocates, vakils or pleaders entitled as of right to practise in the High Court imme diately before the date on which this section comes into force in respect thereof ; and (b) all other persons who have been admitted to be advocates of the High Court under this Act: Provided that such persons shall have paid in respect of enrolment the stamp-duty, if any chargeable under the Indian Stamp Act, 1899, and a fee, payable to the Bar Council, which shall be ten rupees in the case of the persons referred to in clause (a), and in other cases such amount as may be prescribed." The Legislature has cast upon the High Court the duty of preparing and maintaining a roll of advocates of the High Court. A distinction is drawn between persons who were, as advocates, entitled as of right to practise in the High Court immediately before the date on which section 8 comes into force on the one hand, and all other persons admitted to be advocates of the High Court under this Act on the other hand. In the present case, stamp-duty is not payable, but a fee payable to the Bar Council of Rs. 10 is due. Mr. Tyabji is prepared to pay the fee as soon as the Bar Council is consti tuted and since it is impossible to pay the fee to the Bar Council until the Bar Council is constituted, I think we should apply the maxim lex non cogit ad impossibilia, all persons claiming to practise as advocates of the new High Court are subject to this same impossibility. Subsection 2 (a) of section 8, therefore, requires the High Court to consider whether Mr. Tyabji was entitled as of right to practise in the High Court of West Pakistan immediately before the first day of March 1956. This therefore refers us back to paragraph 10 of the High Court of West Pakistan (Establishment) Order which though impliedly repealed rules us from its grave. In Mr. Tyabji's case there is no express ruling of the High Court that he was not entitled to practise. But in the case of Mr. Agha, who had given a similar undertaking on elevation to the Chief Court of Sind the High Court had ruled that he was not entitled to practise in Courts correspond ing to those mentioned in the undertaking. Mr. Tyabji had not applied or made any move to practise before the 1st of March 1956, and therefore the High Court had not had the opportunity .of determining whether he had a right or should have a right to practise in the new High Court. It is clear that the High Court in so determining will not act capri ciously, but will act on principle and so far as I can see there is no material distinction between the case of Mr. Agha and that of Mr. Tyabji. But we agree with Mr. Brohi that a decision in the case of A which does not purport to have reference to any person other than A does not per se con stitute a decision in the case of B. Until B's case arises for consideration his case has not been decided. B may be able to distinguish his case from A's case or convince the tribunal that the decision in A's case was wrong. Mr. Brohi argued that the High Court has no longer the power of applying the principle of Mr. Agha's case to that of Mr. Tyabji for, so it is argued the power of determining otherwise has ceased, because by the application of the Bar Councils Act Para 10 was impliedly repealed. To this the reply is advanced-correctly in our opinion-that subsection 2 (a) of section 8 of the Bar Councils Act keeps in ford para. 10 for the purpose of subsection 2 (a). The High Court under section 8 has the duty to enter upon the rolls a person entitled under subsection 2 (a). It must therefore consider the question whether a person is entitled under section 2 (a) and by the terms of this subsection it is required to consider whether immediately before this section came into force, he was entitled to practise. It must, therefore, consider whether 'he was entitled under para. 10 and since para. 10 subjected his right to determination otherwise by the High Court, then the High Court not having already exercised its power of determination is at liberty to determine otherwise. Subsection 2 (a) does not confer upon Mr. Tyabji a right greater than that conferred by para.

10. Sitting as a Bench even as a Bench of three Judges, we think we are not competent to decide the question whether Mr. Tyabji's right should be determined otherwise : that is a question which falls within the administrative capacity of the High Court. We take judicial notice of Mr. Agha's case as a warning that the High Court on its administrative side may determine otherwise in the case of Mr. Tyabji. Nor need we at this stage consider whether the High Court is or was competent to grant a restricted right of practice or whether a restricted right fulfils the requirements of section 2 (a) of section

8. Mr. Brohi presented a certificate dated 29th December 1956, of the Additional Registrar that the name of Mr. Hatim Badruddin Tyabji, Barrister-at-Law, is borne on the Roll of Advocates of the High Court of West Pakistan (Karachi Bench) Karachi, on this date. It is not contended that this entry was made by the office in pursuance of any order of the judges of the High Court : moreover, the entry is inconsistent with the orders of the judges in respect of Mr. Agha. In Brofulla Das v. Chief Justice and Judges of Patna High Court (A I R 1931 P C 2), the Judges themselves had ordered the entry of Mr. Das under section 2 (a) of the Bar Councils Act. The roll of advocates of the Chief Court automatically became by virtue of first paragraph 10 and later of section 8 (2) (a) a list f of advocates presumptively entitled to practise in the new High Court, and no further effect can be given to the certificate than that of presumption. The presumption in this case is inconsistent with the decision in Mr. Agha's case and with the D. O. letter of Sir Edward Snelson dated 1st August 1956, addressed to Mr. Tyabji expressing a view of the Chief justice contrary to Mr. Tyabji's claim. We cannot, therefore, treat the certificate of the Registrar as conclusive of 115 an entry on the rolls within the meaning of section 8 (2) (a). Therefore, we do not consider that this certificate has any, effect whatsoever. We accordingly direct Mr. Tyabji to apply to the Registrar for enrolment, and in the meantime we reject his Vakalatnama. Whether Mr. Tyabji should bear the costs of these proceedings will be determined by us after the decision of his application for enrolment or after failure so to apply within a month. We certify under Article 158 of the Constitution that this is a fit case for appeal to the Supreme Court. A. H. Order accordingly.