Surender Raj Jaiswal, And Others v. Smt. Vijaya Jaiswal .

ORDER V. Eswaraiah, J.

1. The petitioners herein are defendant Nos. 2 to 7 in suit O.S. No. 281/ 2001 on the file of the XIII Additional Chief Judge, City Civil Courts, Hyderabad, filed by the respondent for partition of the joint family properties. The petitioners herein filed IA. No. 42/2002 in the said suit under Section 151 Code of Civil Procedure to direct the respondent herein to engage an Advocate to represent her or to appear personally and conduct the case by herself personally and cross-examine DW-1 and other witnesses that may be produced on behalf of the petitioners herein by prohibiting PW-1 the husband of the respondent who is her Power of Attorney Holder from doing such acts.

2. It is stated in the affidavit filed in support of the said Interlocutory Application that the respondent herein originally appointed an Advocate to represent her case and the husband of the respondent herein was examined as PW-1 in the capacity of Power of Attorney Holder of the respondent and he was also cross-examined. After the death of the previous Advocate namely, Sri Shankar Rao Bilolokar, she engaged another Advocate namely, Sri T.V.S.Sastry and changed him and another Advocate namely, Sri A.L. Raju was appointed. The vakalath given to her Advocate was withdrawn and the respondent appointed her husband as her Power of Attorney to conduct the trial and to cross-examine the defendants. The husband of the respondent cross-examined the 1st petitioner herein. It is stated that since the dispute is of a partition suit, unhealthy atmosphere has been created during the cross-examination and the said Power of Attorney Holder is not entitled to cross-examine under Order III, Rule 2 of Code of Civil Procedure. It is further stated that under Rules 32 and 33 of Civil Rules of Practice, when a party appears by an agent other than the Advocate, the agent shall file an application before the Court along with a copy of Power of Attorney with an affidavit permitting the person to appear and the Court thereupon until and unless permission is granted, no appearance, application or act of the agent shall be recognised by the Court. It is stated that the Power of Attorney Holder of the respondent cannot be permitted to cross-examine PW-1 and he cannot do the act of an Advocate. The Power of Attorney Holder can only appoint an Advocate and the Advocates alone are entitled to practise and the Power of Attorney Holders cannot be permitted to appear and play the role of an Advocate in any case.

3. A counter has been filed by the husband of the respondent who is her General Power of Attorney stating that the application filed by the petitioners herein under Section 151 Code of Civil Procedure is not maintainable and the all other allegations contained therein are incorrect.

It is stated that the Advocate can be substituted by an agent of a party and the Power of Attorney Holder is equally entitled to conduct the trial and also can cross-

examine the witnesses. It is stated that Sri A.L. Raju, Advocate, who is recently engaged by the respondent, is not totally acquainted with the facts and the respondent thought it fit to appoint her husband as her Power of Attorney to prosecute the case and accordingly she has given the Power of Attorney to her husband and the Court below granted permission to the Power of Attorney to cross-examine the witness (DW-1). Accordingly, the Power of Attorney cross-examined DW-1. It is stated that no unhealthy atmosphere or no indiscipline situation was created and there was no exchange of words during the course of cross-examination by the said Power of Attorney. The permission was granted to cross-examine the witness by the Court and, therefore, the Power of Attorney Holder is entitled to cross-examine and the said permission cannot be withdrawn without any reason whatsoever. It is stated that the Power of Attorney Holder is a competent person to prosecute the ongoing case without any interruption, delay or loss of time and if the Power of Attorney Holder is not permitted to cross-examine the witnesses, the respondent will suffer serious and irreparable loss.

4. It is stated that the Power of Attorney Holder of the respondent/plaintiff was empowered to do all acts on behalf of the respondent including cross-examination Under Order III, Rule 2, the recognized agent or the Power of Attorney Holder can appear and act on behalf of the persons who gave the power of Attorney. The Trial Court held that the Power of Attorney Holder was empowered to act on behalf of the respondent and the General Power of Attorney Holder can appear and act on behalf of the respondent. The Trial Court held that the General Power of Attorney was permitted and he was entitled to examine and cross-examine the witness since the same is an act on behalf of the person who gave such authority to him. The Power of Attorney Holder can act on behalf of the person who gave such authority. The respondent gave the power to her husband and her husband is entitled to cross-examine DW-1 and accordingly the application filed by the petitioners herein was dismissed holding that the General Power of Attorney of the respondent can cross-examine the witnesses.

5. The learned Counsel appearing for the petitioner submits that the General Power of Attorney Holder filed an application under Rules 32 and 33 of Civil Rules of Practice to permit him to prosecute the case by tendering the evidence in the above case on behalf of the respondent herein and the said Interlocutory Application was allowed but there was no specific permission permitting him to appear on behalf of the respondent and, therefore, the General Power of Attorney Holder of the respondent cannot be permitted to appear and cross-examine the witnesses. The Interlocutory Applications filed along with the General Power of Attorney by the respondent was allowed permitting the husband of the respondent who is her General Power of Attorney to prosecute the case by tendering the evidence in the case on behalf of the respondent.

6. The question that arises for consideration is as to whether the General Power of Attorney Holder of the respondent is entitled to appear and prosecute the case on behalf of the respondent.

7. Under Order III, Rule 2 of the Code of Civil Procedure, the recognized agents of parties are entitled to appear, file applications and act on behalf of such parties who gave the power. Section 29 of the Advocates Act, 1961, empower the Advocates alone to practise the profession of law. Under Section 30 of the Advocates Act empowers the Advocate to practise throughout the territories to which the Advocates Act is extended including the Supreme Court, Tribunal or any other authority etc. Section 32 of the Advocates Act reads as follows:

Section 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 or him in any particular case.

8. Chapter IV of the Advocates Act deals with the right to practise. Under Section 33 of the Advocates Act except as otherwise provided in the Advocates Act or any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practise in any Court or before any authority or persons unless he is enrolled as an Advocate.

Under Section 32, the Court may permit appearances in a particular case permitting any person other than the Advocate.

Chapter IV of the Advocates Act deals with the right of practise of legal profession. But in a given particular case, a person may also be entitled to appear.

9. In the instant case, the respondent gave Power of Attorney to her own husband who is well acquainted with the facts of the case and who is looking after her affairs. The Court permitted the respondent's Power of Attorney under Rules 32 and 33 of Civil Rules of Practice to prosecute the case of the respondent by tendering the evidence in the suit filed for partition by the respondent. The said permission granted by the Court below has become final and it has not been questioned. Pursuant to the permission granted to the respondent's husband/General Power of Attorney Holder, he also cross-examined DW-1. No doubt, it is always open for the Court to withdraw such permission but such permission cannot be withdrawn at the instance of the petitioners herein as there is nothing on record to show that the General Power of Attorney Holder has created an unhealthy atmosphere or indisciplined situation or exchanged words. The right of practise is different from the right of appearance in a particular case. The right of practise is a right given to the Advocate to practise the profession of law before all Courts, Tribunals, authorities etc., but whereas the right of appearance to appear in a particular case on the permission granted by the Court under Section 32 of the Advocates Act is an exception to the right of practise by the Advocates.

10. It is clear from Section 32 of the Advocates Act that the Court cannot permit a person to appear in general in all cases and that right can be exercised by the Advocates only. Therefore, this Court in Hari Om Rajender Kumar v. Chief Rationing Officer of Civil Supplies, , held that the Power of Attorney agent in that case was given power not only to appear in one case but in all cases that might be filed at any time in future and an allegation was made in the said case that the party was not having confidence in the members of the legal profession as a whole and the agent in mat case appeared in 40 or 50 cases in various Courts in India for various principals on behalf of the Power of Attorneys and in those circumstances it was held that from the facts and circumstances of the case, the acts of Power of Attorney amounts to practicing the profession of law but not appearing in a particular case. The party in the said case wanted to engage an agent in all cases where normally lawyers should have been engaged which clearly hit by Section 33 of the Advocates Act and in those circumstances, the party was not permitted as no special grounds warranting to grant the permission under Section 32 of the Act have been pleaded or argued.

11. Similarly, Gujarat High Court in Jaymal Thakore v. Charity Commissioner, , held that the power given to a recognized agent cannot be permitted to act the role of the pleader and he was not having any right to plead. The provisions under the Advocates Act, 1961 confers a monopoly right of pleading and practising law only on the enrolled or registered Advocates. Section 30 of the Advocates Act confers such a right to practise on a pleader or Advocate. Under Section 32 of the Advocates Act, a discretionary power was given to the Court to permit appearance to any non-Advocate for a party. Section 32 restricts the power of the Court to permit any non-Advocate only to appear on behalf of the party in any particular case. But the Chartered Accountant - a Power of Attorney Holder was not entitled to practise as a pleader or an Advocate. In the said case, the Power of Attorney Holder was not entitled to practise and the Court rightly refused to permit him to practise. But whereasin the instant case, the General Power of Attorney of the 1st respondent was rightly permitted to appear on behalf of the respondent in the particular case alone but not to practise.

12. The learned Counsel for the petitioner placed reliance on another case of this Court in K. Umeshwar v. Electornics Corporation of India, , wherein this Court refused to grant permission to a party to represent him by his power of attorney agent to adorn the right of the Advocate as the General Power of Attorney Holder. In the said case the General Power of Attorney Holder was not having any relationship to the party who gave the power of attorney and the power of attorney Holder was indulging in speculation and, therefore, his conduct was suspected and held that there is no justification on the Power of Attorney to barge into the Court to plead and argue on behalf of the petitioner therein. No special circumstances were shown to the Court for grant of permission to a non-lawyer to plead or argue the case in certain special circumstances. Therefore, the facts of the said case have no application to the facts of the present case.

13. The Apex Court in Harishankar Rastogi v. Girchari Sharma, , held that a private person, who is not an Advocate, has no right to barge into Court and claim to argue for a party. He must get the prior permission of the Court, for which the motion must come from the party himself. It is open to the Court to grant or withhold the permission in its discretion. In fact, the Court may even after grant of permission, withdraw it 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 the other circumstances must be gathered before grant or refusal of permission. In the said case, the Apex Court noticed that the Power of Attorney Holder was a friend of the party and was having mutual confidence and, therefore, he was permitted to appear. In the instant case, the Power of Attorney is no other than the husband of the respondent and the said Power of Attorney Holder sought permission to prosecute the particular case alone and, therefore, the Court below rightly permitted him to prosecute and adduce evidence and the said permission granted by the Court below was not questioned. Only after cross-examination of DW-1, on certain occasions, it was not known why the petitioners thought it fit to file such an application under Section 151 of the Code of Civil Procedure to direct the respondent either to conduct the case herself personally and cross-examine DW-1 or other wise engage an Advocate prohibiting the husband of the 1st respondent from prosecuting the case. I do not see any bona fides on the part of the petitioners to insist the respondent to prosecute either personally or appoint an Advocate. The respondent herself no doubt is empowered to prosecute the particular case but due to the relationship of herself with her husband and the acquaintance of the case, she reposed confidence fully in her husband and appointed him as her Power of Attorney to appear on her behalf in a particular case and, therefore, the application filed by the petitioners herein was rightly dismissed by the Court below. The Trial Court granted permission for the Power of Attorney Holder of the respondent and the said Power of Attorney has been helping the Court by appearing for the respondent and there is no remark noticed by the Court below. It is always open for the Court to withdraw or cancel permission if the Power of Attorney Holder is unworthy or reprehensible.

14. I, therefore, do not see any illegality or irregularity in the order under revision and the Civil Revision Petition is accordingly dismissed. There shall be no order as to costs.