1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.511 OF 2007 Sneha Publishers .. Petitioners Versus M/s.Saraswati Publishing Co. Pvt.Ltd. .. Respondents Mr.Ramesh Badi in person appearing for petitioner Mr.Amit Borkar for respondents CORAM : S.C.DHARMADHIKARI, J. DATE : 19th March 2008 P.C. . The application that was preferred before the trial court was styled as one invoking jurisdiction of the trial court under section 32 2 of the Advocates Act, 1961. The said provision reads as under:- "32. Power of Court to permit appearances in particular cases :- Notwithstanding anything contained in this Chapter any court, authority or person may permit any person, not enrolled as an advocate under this Act, to appear before it." 2. The petitioner is the original defendant in RCS Suit No.1 of 2005. An application being Misc.Civil Application No.48 of 2006 was filed on 22nd November 2006 in the Court of Dist.Judge, Kolhapur by the petitioner Sneha Publishers, signed by one Mr.Sadashiv Shirke and praying that power of attorney holder Mr.Ramesh Badi be permitted to defend the suit against the petitioner. 3 3. It is not necessary to go into the details of the proceedings. Suffice it to state that the suit was filed by the respondent claiming permanent injunction for the alleged infringement of trademark and copyright. The application (Exh.5) for temporary injunction was filed, ex parte injunction was granted. That injunction was confirmed on 13th January 2006. Subsequently, petitioners’ advocate withdrew the vakalatnama and he executed power of attorney in favour of one Ramesh Badi. He also filed review petition which is styled as Misc.Civil Application No.48 of 2006 seeking review of the interim order dated 13th January 2006 in R.C.S.No.1 of 2005. It is during the course of the said proceedings that the above application was opposed and it appears that various contentions were raised with regard to the scope of power of the said Ramesh Badi under the power of attorney to address the court. An argument was raised that there is no question of the said 4 power of attorney holder being allowed to plead or argue the case as that is not the scope of his authority. 4. Learned Judge heard both sides on this application, referred the case law in the field and then held that the application does not disclose any relationship between the power of attorney holder and the petitioner. It does not contain any statement as to whether he has acquired sufficient knowledge or qualification. More so, in trademark cases and except a bear word that the said Ramesh Badi is friend of petitioner, there is nothing stated in the application and, therefore, the same cannot be accepted. Learned Judge holds that the power of attorney holder is not entitled to plead and argue on behalf of petitioner by applying the test laid down by the Supreme Court in the case of Harishankar Rastogi Vs. Girdhari Sharma and Anr. reported in A.I.R. 1978 S.C. 1019 = 1978 5 S.C.C. (Cri.) 168. 5. The question that fell for consideration before the Supreme Court was, whether a person who is not Advocate by profession can be permitted to plead on behalf of the appellant before the Supreme Court or not? Paras 2 and 3 are relevant and the same read thus;- "2. Advocates are entitled, as of right, to practice in this Court (Section 30(i) of the Advocates Act, 1961). But, this privilege cannot be claimed, as of right, by anyone else. While it is true that Article 19 of the Constitution guarantees the freedom to practice any profession, it is open to the State to make a law imposing, interest of the general public, reasonable restrictions on the exercise of the right. The Advocates Act, by Section 29 provides for 6 such a reasonable restriction, namely, that the only class of persons entitled to practice the profession of law shall be Advocates. Even so, is it not open to a party who is unable for some reason or other to present his case adequately to seek the help of another person in this behalf? To negative such a plea may be to deny justice altogether in certain cases, especially in a land illiteracy and indigence and judicial processes of a sophisticated nature. That is precisely why legislative policy has taken care to provide for such contingencies. Sections 302, 303 and 304 of the Criminal Procedure Code are indicative of the policy of the legislature. I do not think that in this Court we should totally shut out representation by any person other than the party himself in situations where an Advocate is not 7 appearing for the party. A comprehensive programme of free legal services is, in a sense, a serious obligation of the State if the rule of law were to receive vitality in its observance. Until then, parties may appear through Advocates, and where they are not represented by one such, through some chosen friend. Such other person cannot practice the profession of habitually representing parties in court. If a non advocate specialises in practising in court, professionally he will be violating the text of the interdict in the Advocates Act. I cannot allow him to do so. Nevertheless, it is open to a person, who is party to a proceedings, to get himself represented by a non-Advocate in a particular instance or case. Practising a profession means something very different from representing some friend 8 or relation on one occasion or in one case or on a few occasions or in a few cases. In the present instance, permission is sought for representing through a non-advocate. It is absolutely clear that anyone who is not an advocate, cannot, as of right, force himself into this Court and claim to plead for another. Permission may, however, be granted by this Court taking the justice of the situation and several other factors into consideration for such non-professional representation. This approach accords with the policy of the Criminal Procedure Code (I am concerned with a criminal proceeding here) as spelt out in section 2(q). A pleader, by definition, includes any person other than one authorised by law to practice in a court if he is appointed with the permission of the court, to act in a 9 particular proceeding. This Court’s power may well be exercised in regulating audience before it in tune with the spirit of Section 2(q) of the Code". "3. The petitioner has put in a written representation citing a number of decisions to justify his stand that private persons may be permitted by the Court to appear, act and plead. He has cited a number of decisions in support of his position. Apparently, some legal hand has lent him held. I thought it fit to give notice to the Supreme Court Bar Association and Sri Jain has represented the Bar Association before me and assisted me with his brief but telling submissions. His experience as a senior member of the Bar and as a one time Judge of a High Court is an additional factor of assistance. Sri Jain persuasively 10 stated that while a private person who is not an advocate by profession cannot, as of right, walk in and claim to argue before this Court, he may, in a particular case, be specially permitted by the Court in exercise of its wise discretion. The wisdom of the discretion, in his submission, must be guided by a plurality of considerations. If the man who seeks to represent has poor antecedents or irresponsible behaviour or dubious character, the court may receive counter productive service from him. Justice may fail if a knave were to represent a party. Judges may suffer quarrelsome, ill-informed or blackguardly or blockheadly private representatives fling arguments at the court. Likewise, the party himself may suffer if his private representative deceives him or destroys his case by 11 mendacious or meaningless submissions and with no responsibility of respect for the Court. Other situations, settings an disqualifications may be conceived of where grant of permission for a private person to represent another may be obstructive, even destructive of justice. Indeed, the bar is an extension of the system of justice; an advocate is an officer of court. He is master of an expertise but more than that, accountable to the court and governed by a high ethic. The success of the judicial process often depends on the services of the legal profession." 6. The Supreme Court holds that such a person who is not an Advocate has no right to barge in the court and claim to argue for a party, he must get prior permission from the Court for which application must come from the 12 party himself. It is open to the Court to grant or withhold the permission in its discretion. Permission can be withdrawn halfway through if the representative proves himself reprehensible. The antecedents, the relationship, the reasons for requisitioning the services of the private person and a variety of other circumstances must be gathered before grant or refusal of permission. The Supreme Court, it is pertinent to note, granted permission. 7. To my mind, the learned Judge has not scrutinised the application which was preferred on behalf of the petitioner to allow his friend Mr.Ramesh Badi to appear and argue the case, in the light of the principles laid down in the aforesaid decision. The decision must be seen as a whole and in its entirety. The Supreme Court does not hold that the permission cannot be granted. Discretion has to be exercised bearing in mind the relevant principles. In the present 13 case, the application recites that the power of attorney holder possesses required knowledge in Intellectual Property and its theory and is capable to assist the Court in administration of justice. Petitioner has belief and trust in the said power of attorney holder. In the interest of justice, the power of attorney holder may be permitted to defend the suit. In such circumstances and when the petitioner who is original defendant had signed the application. There was no reason to disbelieve the contents thereof. The application should have been scrutinised in the light of the settled principles and bearing in mind section 32 of the Advocates Act, 1961 and repeal of section 31 thereof. 8. In the above circumstances, the order under challenge is quashed and set aside. Application Exh.20 shall be restored to the file of trial court for being decided afresh on merits 14 in accordance with law. 9. Mr.Ramesh Badi has appeared before me and has assured the Court that he would follow the decorum and follow the ethics and do nothing during the conduct of proceedings which would undermine the prestige and dignity of the Court. He has assured that he would conduct himself accordingly. Needless to state that learned Judge would bear in mind this aspect also and the assurance given to this Court. However, Mr.Ramesh Badi has stated before me that he is undergoing training in law and is presently in last year of the three year L.L.B. course. The above facts may also be taken into consideration while passing the final orders. Needless to state that all contentions of respondent are also kept open and he can urge that the permission should not be granted bearing in mind past conduct of the said Ramesh Badi and in that behalf place reliance upon the affidavit in reply 15 filed in this Court so also annexures thereto. Petition is allowed in the above terms. (S.C.Dharmadhikari, J)