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1977 DIGILAW 270 (KER)

PARLI SERVICE CO-OPERATIVE BANK LTD. v. STATE OF KERALA

1977-09-30

G.BALAGANGADHARAN NAIR, V.P.GOPALAN NAMBIYAR

body1977
Judgment :- 1. These writ appeals raise an interesting question, which has got far-reaching importance affecting the rights of the legal profession and of those seeking the service of the legal practitioners to appear on their behalf. But we think the question, in the generality of its import, does not specifically arise for consideration in these appeals and that the appeals can be disposed of oh a much shorter and narrower ground. 2. The matter arises out of an arbitration case filed against the Manager of Parli Service Co-operative Bank Ltd., and the two sureties, who executed a bond to the society on his behalf. The claim in the arbitration case against the Manager was that he was bound to make good certain amounts to the society in respect of his employment by the society and that the sureties were liable for the amount both by reason of their having stood sureties for the Manager and on the terms of the bond executed by them. We have only broadly and generally indicated the nature of the claim. Stated equally broadly and generally, the defences raised were that the matter was not one touching a business of the society and therefore not susceptible of arbitration by the Registrar under S.69 of the Kerala Co-operative Societies Act, 1969; and, on behalf of the sureties, that their liability was restricted to the amount shown in the bond executed by them, and not to the higher amount for which the claim was laid against the Manager. After the case was filed, the Manager and the sureties applied for permission to engage a counsel. Exts. P5 and P8 are the copies of the applications. These applications were returned with the endorsement that they were rejected. The endorsements were quite summary in nature and have been quoted by the learned judge in Para.2 of his judgment under appeal. They wen-: "rejected as I find Advocates' appearance not found necessary' (Exts. P5 and P5(a)), and 'not considered since Advocates' appearance not found necessary' (Exts. P8 and P9)." 3. R.67 (8) of the Kerala Co-operative Societies Rules reads: "67. They wen-: "rejected as I find Advocates' appearance not found necessary' (Exts. P5 and P5(a)), and 'not considered since Advocates' appearance not found necessary' (Exts. P8 and P9)." 3. R.67 (8) of the Kerala Co-operative Societies Rules reads: "67. Reference of disputes, payment of expense and decisions on disputes (8) In the proceedings before the Registrar or such other person deciding the dispute or the arbitrator, legal practitioners shall not be entitled, as a matter of right, to appear to represent parties." The learned judge in our opinion rightly held that this rule does not entitle the Registrar automatically to reject an application for permission to engage counsel or to refuse the assistance of counsel to a party seeking to engage one, but that it required the Registrar to apply bis judicial mind and to exercise bis judicial discretion in regard to the prayer for assistance of a counsel. The learned judge was of the view that on the facts disclosed, there had been no application of the judicial mind and no exercise of judicial discretion in rejecting the requests. We think that in this conclusion the learned judge was right. On this short ground the judgment of the learned judge has to be affirmed and we need not go into the wider and larger aspects of the case, which have been canvassed before us. One strong circumstance which inclines us to agree with the learned judge in these cases is that the very applications made for permission to engage counsel were returned along with the vakalat to the applicants with the endorsements, which we have noticed earlier. We are, therefore, of the opinion that interests of justice do not warrant interference with this conclusion of the learned judge. 4. We may observe that the question was canvassed before us from a larger and more important point of view. For the contesting respondents it was argued that an advocate is entitled, as of right, to appear before all courts and tribunals; and in respect of this, reliance was placed on S.30 of the Advocates Act, which reads as follows: "30. We may observe that the question was canvassed before us from a larger and more important point of view. For the contesting respondents it was argued that an advocate is entitled, as of right, to appear before all courts and tribunals; and in respect of this, reliance was placed on S.30 of the Advocates Act, which reads as follows: "30. Right of advocates to practise Subject to the provisions of this Act, every advocate whose name is entered in the State Roll shall be entitled as of right to practise throughout the territories to which this Act extends, (i) in all courts including the Supreme Court; (ii) before any tribunal or person legally authorised to take evidence;" (iii) before any other authority or person before whom such advocate is, by or under any law for the time being in force, entitled to practise." It was argued that the provisions of R.67(8) of the Co-operative Societies Rules are exactly opposed to the provisions of the Advocates Act and that the former provision had to yield to the latter one. In support of this contention reliance was placed on a recent Full Bench decision of Five Judges of the Punjab and Haryana High Court in Jaswant Kaur v. State (AIR. 1977 Pun. & Har. 221 Para.18). The decision was based on the reasoning of the Supreme Court in O. N. Mohindroo v. Bar Council (AIR. 1968 S.C. 888). The Supreme Courts's reasoning was that the Advocates Act has to be referred to Entries 77 and 78 List I in the exclusive power of Parliament rather than Entry 26 of List III, which is in the concurrent list. The question thus raised, opens up a large vista of enquiry into which we need not enter for the purpose of these cases. 5. The learned judge placed reliance on the decision of the Supreme Court in C.L. Subramaniam v. Collector of Customs, Cochin (AIR. 1972 S.C. 2178). That decision may perhaps be explained on the ground that it has only restricted application having regard to the actual facts disclosed in that case, But here again we need not finally or conclusively express our view. 6. We prefer, to affirm the judgment of the learned judge on the short ground that there was no application of the judicial mind and no exercise of of judicial discretion in rejecting the applications for permission to engage counsel. 6. We prefer, to affirm the judgment of the learned judge on the short ground that there was no application of the judicial mind and no exercise of of judicial discretion in rejecting the applications for permission to engage counsel. On this short ground we affirm the judgment of the learned judge and dismiss these appeals with no order as to costs. Dismissed.