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Petitioner: HATIM BADR-UD-DIN TYABJI VS Respondent: CHIEF JUSTICE AND JUDGES OF HIGH COURT
P L D 1957 Supreme Court (Pak
P L D 1957 Supreme Court (Pak.) 272
Present: M. Shahab‑ud‑Din, A. R. Cornelius,
Muhammad Sharif and Amir‑ud‑Din Ahmad, JJ
HATIM BADR‑UD‑DIN TYABJI‑-Appellant
versus
THE CHIEF JUSTICE AND JUDGES OF THE HIGH
COURT OF WEST PAKISTAN ----Respondents
Civil Appeal No. 22 of 1957 and Writ Petition No. 1‑D of 1956, decided on 30th July 1957.
(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 20th February 1957, in Civil Reference No. 253 of 1956: P L D 1957 (W. P.) Karachi 366.
(a) Evidence Act, (I of 1872)----
----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.
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) (d) 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, section 8 of the Bar Councils Act has not been implemented yet.
Profulla Ranjan Das v. Chief Justice and Judges of Patna High Court A I R 1931 P C 22 (2) and Sir Iqbal Ahmad v. The Allahabad Bench of the High Court of Judicature at Allahabad A I R 1950 F C 71, distinguished.
(b) High Court of West Pakistan Establishment Order (XIX of 1955)---
---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.
The power conferred upon the High Court by the words "unless the High Court otherwise determines" must be con strued in a general sense relatable to the policies underlying the new statute. For instance, 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 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 s of lawyers. The paragraph is to be understood rather in this sense, 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.
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."
"Under the present circumstances, paragraphs 9 and 10 of the High Court of West Pakistan (Establishment) Order have not been repealed."
(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.
The question was whether in view of his undertaking the appellant could be debarred from practising in the High Court of West Pakistan Karachi Bench.
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.
The appellant's right to practise in the High Court, by virtue of his enrolment under clause 7 of the Letters Patent, is a statutory right which cannot be subjected to any exercise of discretion by the High Court.
That the undertaking was not sine qua non in relation to the validity of the appellant's appointment as Judge. That circumstance pointed to the necessity of strict interpretation of such an undertaking where it was given. That necessity bad received a great enhancement of importance by the decla ration, as a fundamental right in Part II of the Constitution (vide Article 12), that
`Every citizen, possessing such qualification, if any, as may be prescribed by law in relation to his profession or occupa tion, shall have the right to enter upon his lawful profession or occupation . . . . . . '
That the expression "Court of Judicial Commissioner to which I am appointed or to which I may be transferred" did not include, in turn, the Chief Court of Sind, and the High Court of West Pakistan, because the latter two Courts were com pletely distinct from the Court of the Judicial Commissioner.
The appellant, therefore, could not be debarred from practising in the High Court of West Pakistan as a whole including all its Brances‑or Benches.
Profulla R. Das v. Chief Justice and Judges Patna High Court A I R 1931 P C 22 rel.
Sir Iqbal Ahmad v. The Allahabad Bench of the High Court of Judicature at Allahabad A I R 1950 All. 162 and A I R 1950 F C 71 distinguished.
A. K. Brohi, Senior Advocate, Supreme Court, (A. S. Chowdhury, Advocate, Supreme Court, with him), instructed by M. Siddiq, Attorney for Appellant.
Respondents : Not represented,
Date of hearing : 28th May 1957.
JUDGMENT
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.:‑
(1) that when he was appointed a permanent Judge of the Judicial Commissioner's Court at Karachi, he had, as a condition of his appointment, given 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 subordinate thereto"; and
(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.
Mr. Tyabji produced before the learned Judges of the High Court who decided the case, a certificate which is in the following terms:‑
"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."
Seal of the Court:
By order of the High Court, B. J. DESA, Additional Registrar.
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:‑--
"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 rights 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."
Having heard Mr. Brohi on behalf of Mr. Tyabji, and given most careful consideration to this important and somewhat intricate case, we have formed…
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