IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 WP(C).No. 5588 of 2009(P) ------------------------- RCR.47/2008 of II ADDL. DISTRICT COURT, TRIVANDRUM .................... PETITIONER(S): --------------- S.BALACHANDRAN,ADVOCATE,VANCHIYOOR, THIRUVANANTHAPURAM. BY ADV. SRI.L.MOHANAN SMT.LIGEY ANTONY RESPONDENT(S): --------------- N.KRISHNAMOORTHY,AGED 56, S/I.M.C.S.PILLAI, T.C.17/1643(1),KATTU ROAD, POOJAPPURA, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ----------------------------------------------- W.P.(C)No. 5588 OF 2009 ----------------------------------------------------- Dated this the 26th day of February, 2009 J U D G M E N T Pius C.Kuriakose, J. The petitioner is a senior member of the Thiruvananthapuram Bar and he challenges in this writ petition under Article 227 of the Constitution of India Ext.P2 order passed by the II Addl. District Judge, Thiruvananthapuram, the Rent Control Appellate Authority reiterating the view of the ministerial side of his court that the Vakkalath filed by the petitioner in RCA. No. 47 of 1998 for one Smt.B.Rajamma who was the respondent in the RCA was defective. Ext.P1 is the photostat copy of the Vakkalath which was actually filed by the petitioner in RCA. No. 47 of 1998. Ext.P1 shows that Smt.Rajamma, the respondent in the RCA had executed the Vakkalath in favour of the petitioner Advocate. Ext.P1 will also show that the Vakkalath has been accepted by the petitioner Advocate. The defect WP(C)N0. 5588/09 -2- noted by the registry of the court is that the Vakkalath is not attested by any authorised person and that the attestation is done by the accepting Advocate himself. 2. Drawing our attention to sub-rule (1) of rule 27 of the Civil Rules of Practice Mr.L.Mohanan, learned counsel would submit that the words “any other person” occurring in the proviso to sub-rule (1) of rule 27 includes the pleader who accepts the Vakkalath. Learned counsel submitted that the proviso enables all persons other than the persons enumerated under sub-rule (1) of rule 27 are wide enough to include the pleader accepting the Vakalath provided the executant of the Vakkalath is personally known to that pleader and the pleader makes an endorsement to the effect that the Vakkalath is executed in his favour. Counsel submitted that there is absolutely no prohibition in the rule prohibiting attestation of the Vakkalath by the accepting pleader and in the absence of any such prohibition it was illegal on the part of the court below to have imported such a prohibition into the rule. Mr.Mohanan argued that the WP(C)N0. 5588/09 -3- words “any other person” occurring in the proviso to sub- rule (1) of rule 27 can include only “any one other than the pleader accepting the same” would mean that even a stranger can attest the Vakkalath in the absence of the pleader which would make the attestation meaningless. Drawing our attention to rule 32 of the Criminal Rules of Practice dealing with form and attestation of Vakkalath Mr.Mohanan argued that the said rule clearly provides that the accepting pleader can attest the Vakkalath when the executant is personally known to that pleader and an endorsement to that effect is made by the pleader. Mr.Mohanan submitted that the practice which has been followed hitherto in the courts at Thiruvananthapuram has been that the accepting pleader himself attested the Vakalathnama and such Vakalathnamas were being accepted by the registry without any objection whatsoever. Counsel concluded by submitting that approving Ext.P2 will result in considerable inconvenience to the members of the Bar. WP(C)N0. 5588/09 -4- 3. Having considered the submissions of Mr.L.Mohanan in the light of the relevant rules we came to be of the view that there is no warrant whatsoever for interfering with Ext.P2 in the visitorial jurisdiction of this court under Article 227. In fact, we informed the learned counsel of our view and the learned counsel would then seek leave to withdraw from the writ petition. We are not inclined to grant the leave sought for having heard the learned counsel at length on two days and having been taken through all the relevant provisions. 4. The Civil Rules of Practice have been framed by the High Court by virtue of powers statutorily conferred for the purpose of regulating the procedure and practice in the Subordinate Courts in the State. Part-Ba of Chapter I deals with appointment of pleaders and rule 27 therein deals with form and attestation of Vakalathnama. We are extracting below sub-rule (1) and the proviso to rule 27: “27.FForm and attestation of vakkalath:- (1) Every vakkalath shall, unless otherwise permitted by the Court, be in Form No.12 and may authorise the pleader WP(C)N0. 5588/09 -5- to appear in all execution and miscellaneous proceedings in the suit or matter even subsequent to the decree or order passed therein. The name of the pleader or the pleaders if more than one pleader is appointed shall be inserted in the vakkalath before it is executed. It shall be dated at the time of its execution and of its acceptance. Its execution shall be attested by a judicial officer, a District Registrar, or a Sub Registrar, the chief ministerial officer of a Civil or Criminal Court in the State of Kerala, a member of Parliament or of the Legislature of any State in India, the Chairman, Executive Authority or member of any Municipal Council or Corporation, or other local authority in India, a Village Officer, a Gazetted Officer in the service of the Central Government or of any State in India, a commissioned officer in the Defence Forces of India, or an Ambassador or Envoy duly accredited by or to the Central Government, or a pleader other than the pleader accepting the vakkalath: Provided that any other person may attest the vakkalath where the executant is personally known to the pleader in whose favour the vakkalath is executed and where the executant signs the same in the presence of the pleader and an endorsement is made by the pleader to the above effect”. A reading of the rule extracted above will show that it is mandatory that execution of the Vakalathnama is attested by any one of the officers or authorities enumerated therein and the last among the enumerated person is a pleader other than the pleader accepting the Vakkalath. In other WP(C)N0. 5588/09 -6- words, it is clear that the pleader accepting the Vakkalath is excluded from the category of the persons empowered to attest the Vakkalath. The proviso to sub-rule (1) of rule 27 in our view, is an enabling provision which empowers “any other person” obviously meaning any person other than the person enumerated in sub-rule (1) of rule 27 to attest the Vakkalath provided the executant of the Vakkalath is perpsonally known to the pleader accepting the Vakkalath and the Vakkalath is executed in the presence of the pleader accepting Vakkalath and an endorsement is made by the accepting pleader to that effect. If it was the intention of the rule making authority to enable the pleader accepting the Vakkalath also to attest the Vakkalath the same would have been clearly provided in the sub-rule itself that all pleaders including the pleader accepting the Vakkalath can also attest the Vakkalaths. The proviso to which mind has been incorporated by the rule making authority in view of the pragmatic difficulties which may be experienced by the litigants and the accepting pleader in having the Vakkalaths WP(C)N0. 5588/09 -7- attested by the persons enumerated in sub-rule (1) of rule 27. It is by virtue of the proviso only that other persons such as the pleader's clerks and other persons available in the office of the pleader who quite often figure as an attesting witness to Vakalathnamas are enable to attest the Vakkalathnamas. Here again the rule making authority insists that when the attesting person who attests the Vakkalathnama is not one among the persons enumerated under sub-rule (1) of rule 27 it is necessary that the party executing the Vakkalath should be personally known to the Advocate accepting the Vakkalath and the said Advocate should make an endorsement to the effect on the Vakkalath that Vakkalath is executed by the party in his presence. In the instant case, Vakkalathnama is not attested by anybody at all. It only contains an endorsement by the accepting Advocate that the executant is personally known to him and that the Vakkalath is signed in his presence. In terms of rule 27 which is applicable to the court in which Ext.P1 Vakkalathnama was filed, the Vakkalathnama was certainly WP(C)N0. 5588/09 -8- defective and the District Judge was certainly right in approving the stand taken by the registry of his court. 5. The position would have been different had Ext.P1 Vakkalathnama been submitted before a Criminal Court in the State. The rule of the Criminal Rules of Practice 1982 correspondent to rule 27 of the Civil Rules of Practice is rule 32. Sub-rule (1) of rule 32 is a verbatim re-production of sub-rule (1) of rule 27 of the Civil Rules of Practice. But the proviso to sub-rule (1) of rule 32 of the Criminal Rules of Practice is distinctly different from the corresponding proviso to sub-rule (1) of rule 22 and we quote the above proviso as follows: “Provided that the pleader accepting the vakkalath may attest the vakkalath where the executant is personally known to him and an endorsement to that effect is made by the Pleader.” WP(C)N0. 5588/09 -9- The above proviso unlike the corresponding proviso to sub- rule (1) of rule 27 certainly enables the pleader to accept the vakkalath where the executant is personally known to him and an endorsement to that effect is made by the pleader. 6. The language of the applicable rule which is rule 27 (1) of the Civil Rules of Practice does not admit of any doubt that the pleader accepting the Vakkalath is not entitled to attest the Vakkalath despite he personally knowing the executant and making an endorsement regarding the same on the Vakkalath. We are not inclined to accept the argument of Mr.Mohanan that since under the corresponding provision in the Criminal Rules of Practice pleader accepting the Vakkalath is competent to accept the Vakkalath, such a power should be conceded to the pleaders before the Civil Courts also. Execution and acceptance of Vakkalath though a routine matter in pleader's offices is of considerable importance. This is why the rule making authority has specifically empowered only the named 16 categories of WP(C)N0. 5588/09 -10- persons. All of them are responsible and respectable in their own way to attest the Vakkalathnamas. Ofcourse, mindful of the pragmatic difficulties which a pleader who has no other pleader attached to his office may have in the matter the rule making authority has empowered persons outside the enumerated category also to figure as attesters, but that too only in cases where the executant of the Vakkalath is personally known to the accepting pleader and has executed the Vakkalath in the presence of the accepting pleader and an endorsement to that effect is made by the accepting pleader on the Vakkalath. In this context we will refer to rule 19 of the Kerala High Court Rules provided for form and attestation of Vakkalaths to be submitted in the High Court. Sub-rule (1) of rule 19 and the proviso thereto is almost a verbatim re-production of sub- rule (1) of rule 27 of the Civil Rules of Practice and the proviso thereto. The prescribed form of Vakkalath under rule 19 is Form No.1 and according to us that form is prepared strictly in conformity with rule 19. There is WP(C)N0. 5588/09 -11- provision for putting signature by the executant and there is provision in the form for subscription of signatures by witnesses and there is provision in the form for the accepting pleader to make endorsement regarding his personal knowledge of the party and the execution of the Vakkalath in his presence and there is provision also for the accepting pleader to subscribe his signature. It is Form No.1 prescribed under rule 19 of the High Court Rules which is followed in the High Court. 7. We are not impressed by the submission of Mr.Mohanan that the Bar will be put to difficulties if attestation by competent persons other than the accepting pleader is insisted upon. According to us it is in the interest of the Bar that the Vakkalathnama is attested by somebody other than the accepting pleader. This are the times when complaints are being submitted against pleaders by the parties on valid as well as invalid grounds before the Bar Council and other authorities. It is not uncommon now a days that a party disowns his pleader and goes to the extent WP(C)N0. 5588/09 -12- of denying the execution of a Vakkalathnama filed by the lawyer on his behalf. In the event of occurrence of such a situation the position will be all the more embarrassing for the lawyer if the Vakkalathnama is not attested by anybody other than the accepting lawyer himself. We are therefore of the considered view that it is ideal if Vakkalathnamas filed before the Criminal Courts also are attested by somebody other than the pleader accepting the same. The result is that the writ petition fails and will stand dismissed. Forward a copy of this judgment to the Chairman, High Court Rules Committee for perusal and appropriate action. (PIUS C.KURIAKOSE, JUDGE) (C.K.ABDUL REHIM, JUDGE.) ksv/-