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Pannalal v. Deoji Dhanji
Structured Summary of the Opinion (Samvatsar, J.)
Factual and Procedural Background
The summary below is drawn exclusively from the text of the provided opinion.
One Deoji (son of Dhannaji Thakur) instituted a suit against the petitioners (defendants) in the Court of the Civil Judge, Second Class, Kannod. The defendants did not engage a pleader but were represented in court by Hiralal Dube, who held an "Am Mukhtyar Nama" (power of attorney / recognised agent) from them. On 19-2-1954, the plaintiff examined Rajaramsingh on commission at his residence as a witness. The defendants were absent from that examination, but their Mukhtyar (Hiralal Dube) was present and sought to cross-examine the witness. The Commissioner refused to allow the recognised agent to cross-examine, stating that a recognised agent had no such right, and instructed the Mukhtyar to suggest questions for the Commissioner to put. The Mukhtyar declined and the commission was closed; the commission-warrant was returned to the Court.
On 20-2-1954 the defendants applied to the trial Court for re-issuance of the commission, contending the Commissioner had wrongly refused to allow cross-examination by their Mukhtyar. The Civil Judge upheld the Commissioner's view that the Mukhtyar had no right to cross-examine but ordered the commission to be re-issued on the defendants depositing commission fees. The defendants (petitioners) filed this revision application challenging that order.
Legal Issues Presented
- Whether a recognised agent (a person holding a power of attorney / "Mukhtyar") can examine and cross-examine witnesses on behalf of his principal before a Court of law.
- Whether the trial Court exercised its jurisdiction illegally or with material irregularity in holding that the recognised agent had no right to cross-examine a witness and in ordering re-issuance of the commission only upon deposit of commission fees.
Arguments of the Parties
Petitioners' (Defendants') Arguments (as recorded)
- Mr. Pande, counsel for the petitioners, argued that the trial Court had wrongly held the Mukhtyar could not be allowed to cross-examine the witness and that this constituted an illegal or materially irregular exercise of jurisdiction.
- He submitted that Order 3, Rule 1 of the Civil Procedure Code (C.P.C.) permits a recognised agent "to appear, apply and to act" for his principal, and that the word "act" is sufficiently broad to include examination and cross-examination of witnesses.
- To support this interpretation, counsel relied on the decision reported as Governor General in Council v. Bhagwan Sahai, AIR 1948 EP 61, where Teja Singh J. held that a recognised agent could examine and cross-examine witnesses.
The opinion does not contain a detailed account of opposing party (plaintiff) arguments in this record.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Governor General in Council v. Bhagwan Sahai, AIR 1948 EP 61 | Held by Teja Singh J. that a recognised agent (holding a power of attorney) could examine and cross-examine witnesses; the term "act" in O.3 R.1 is wide enough to include examination of witnesses. | The Court considered and examined this authority in detail but expressly disagreed with its reasoning, concluding that examination/cross-examination requires an audience which a recognised agent cannot claim; therefore the Court did not accept this precedent as correctly extending the agent's powers. |
| Harchand Ray v. B. N. Rly. Co., AIR 1916 Cal 181 | Division Bench held that a person holding a power of attorney could not argue a case before the Small Causes Court; recognised agents have no right of audience and thus cannot plead. | The Court relied on this decision as authority for the proposition that a recognised agent has no right to claim audience for pleading or arguing; it formed part of the line of cases limiting the agent's rights. |
| Re: Eastern Tavoy Minerals Corporation Ltd., AIR 1934 Cal 563 | Held that to plead is different from to make an appearance or application; a Director holding power of attorney did not have a right of audience to plead for the company. | The Court cited this decision as supporting the view that "to plead" (i.e., claim audience to argue) is distinct from mere appearance or application under O.3 R.1, and used it in its analysis restricting recognised agents' functions. |
| Jivanlal v. Ram Ratan, AIR 1936 Oudh 261 | Followed the Calcutta cases and held that a recognised agent could not be allowed to argue or plead on behalf of a party; the words "appearance, application or act" do not authorize arguing/pleading. | The Court treated this case as part of the consistent line of authority holding that recognised agents cannot argue or plead, and cited it in support of that interpretation. |
| Thayarammal v. Kuppuswami Naidu, AIR 1937 Mad 937 | Full Bench answer: an agent with a power of attorney to appear and conduct proceedings has no right of audience in Court; O.3 R.1 and R.2 do not give the recognised agent the right to plead on behalf of his principal. | The Court cited this Madras Full Bench decision as aligning with the Calcutta view and used it to reinforce the conclusion that a recognised agent lacks the privilege of audience required for pleading or arguing. |
| M. Krishnammal v. T. Balasubramania Pillai (MANU/TN/0315/1937) | The opinion lists the case among "Cases Referred" but does not set out any specific rule or principle from it in the text of this opinion. | The opinion mentions this case in the header list of cases referred but provides no substantive discussion or application of it within the body of the judgment. |
Court's Reasoning and Analysis
The Court framed the central legal question as whether a recognised agent (a person holding a power of attorney under O.3 R.1 and R.2 C.P.C.) can examine and cross-examine witnesses on behalf of his principal. The opinion proceeds by:
- Interpreting the relevant procedural provisions: O.3 R.1 allows any "appearance, application or act" by a party to be made by the party in person, by a recognised agent, or by a pleader; O.3 R.2 defines a recognised agent to include a person holding a power of attorney authorising him to do such appearance, application or act.
- Examining the Mukhtyar Nama tendered in the record, which authorised Hiralal Dube "to appear, apply and to conduct cases," and acknowledging petitioners' contention that this language conferred authority to "act" within the meaning of O.3 R.1.
- Surveying the line of authorities on the scope of a recognised agent's authority. The Court reviewed several decisions (Calcutta Division Bench in Harchand Ray; Re: Eastern Tavoy; Jivanlal v. Ram Ratan; Madras Full Bench in Thayarammal) which restrict a recognised agent from pleading or claiming a right of audience, and also considered the contrary decision in AIR 1948 EP 61 (Teja Singh J.), which allowed examination/cross-examination by a recognised agent.
- Critically evaluating the reasoning in AIR 1948 EP 61 that distinguished "pleading" from "acting" and concluded that examination of witnesses falls within "acting": the Court found this reasoning unpersuasive because examination and cross-examination often require addressing the Court on questions of relevancy and admissibility and thus effectively require an audience; further, examination requires skill and the ability to raise objections and argue points that may arise during the process.
- Concluding that the words "appearance, application or act" should be interpreted narrowly as permitting actions necessary for the progress of the proceedings (appear, make applications, and take necessary steps) but not as conferring the privilege of audience to plead or argue. On this construction, examination and cross-examination—which typically necessitate addressing the Court and arguing questions—are not within the authority of a recognised agent who has no right of audience.
- Applying this legal analysis to the facts, the Court found no basis to interfere with the trial Court's order which upheld the Commissioner's refusal to permit the Mukhtyar to cross-examine the witness, and retained the trial Court's condition that the commission be re-issued only on deposit of commission fees.
Holding and Implications
Holding: The revision application is DISMISSED. The Court upheld the trial Court's order that the recognised agent (Mukhtyar) had no right to cross-examine the plaintiff's witness, and that the commission was to be re-issued only upon deposit of commission fees as ordered by the trial Court.
Implications
- Direct effect on the parties: The trial Court's order stands and the defendants' revision is dismissed; no interference with the Commissioner's refusal to allow the recognised agent to cross-examine was ordered. The Court made no order as to costs.
- Legal principle as applied in this opinion: The Court adopts the view that a recognised agent who holds a power of attorney does not possess the privilege of audience required to plead, argue or to address the Court on matters that arise in examination and cross-examination of witnesses; therefore, such an agent cannot be permitted to conduct examination or cross-examination which involves addressing the Court on relevancy, admissibility or other evidentiary questions.
- On precedent: The opinion expressly declines to follow the contrary decision in AIR 1948 EP 61 (Teja Singh J.), and aligns with the Calcutta, Oudh and Madras authorities that confine a recognised agent's functions to appearances, applications and procedural acts that do not amount to pleading or claiming audience.
This summary is limited to and derived solely from the text of the provided opinion. No information has been added beyond what appears in that opinion.
A c t s / R u l e s / O r d e r s : C o d e o f C i v i l P r o c e d u r e , 1 9 0 8 ( C P C ) - S e c t i o n 1 1 9 , C o d e o f C i v i l P r o c e d u r e , 1 9 0 8 ( C P C ) - S e c t i o n 2 C a s e s R e f e r r e d : I n R e : E a s t e r n T a v o y M i n e r a l s C o r p o r a t i o n , L t d . M A N U / W B / 0 3 4 6 / 1 9 3 3 ; M . K r i s h n a m m a l v s . T . B a l a s u b r a m a n i a P i l l a i , P o w e r o f A t t o r n e y A g e n t o f M . K r i s h n a m m a l M A N U / T N / 0 3 1 5 / 1 9 3 7
Disposition: Application Dismissed
Citing Reference: Discussed 4Mentioned 1
Case Note:Civil - Correctness of order - Impugned order passed upholding view taken by Commissioner but ordered commission to be re-issued on Defendants' depositing commission fees - Held, in instant case, word plead was not defined anywhere but word pleader was defined in Section 2, Clause 15, of Code of Civil Procedure, 1908 (CPC) as a person entitled to appear and plead - All the High Courts seem to be agreed on proposition that it was privilege of a pleader to be allowed to plead and to claim an audience for that purpose and that a recognised agent had no such right - Application dismissed.
ORDER
Samvatsar, J.
1. This is a revision application by the defendants.
2. The facts of the case are briefly stated as follows:--One Deoji son of Dhannaji Thakur filed a suit against the petitioners in the Court of the Civil Judge, Second Class, Kannod. As the claim was resisted, by the petitioners the trial of the case was proceeded with. The petitioners, who were defendants in the lower Court did not engage any pleader for conducting their case before the trial Court, but were represented by one Hiralal Dube who held an 'Am Mukhtyar Nama' from them.
3. On 19-2-1954 one Rajaramsingh was examined on commission at his residence by the plaintiff as his witness. The petitioners were absent at the time of his examination but their 'Mukhtyar Hiralal Dube was present. He wanted to cross-examine the witness but the Commissioner who was of the opinion that the recognised agent had no right to cross-examine his witness told him to suggest questions in order that he may put them to the witness and elicit his replies. The 'Mukhtyar' however did not agree and the result was that the commission was closed and the commission-warrant was returned to the Court by the Commissioner.
4. On 20-2-1954 the defendants applied to the Court for issuing the commission again, contending that the Commissioner had wrongly refused to allow the 'Mukhtyar' to cross-examine the witness. The learned Civil Judge by his order upheld the view taken by the Commissioner but ordered the commission to be re-issued on defendants' depositing the commission fees. Aggrieved by this order the defendants have preferred this revision application.
5. Mr. Pande, the learned counsel for the petitioners contended that the trial Court had wrongly held that the 'Mukhtyar' could not be allowed to cross-examine the witness. The learned counsel submitted that by doing so the trial Court had exercised jurisdiction vested in it illegally or with material irregularity.
6. Dealing with the merits Mr. Pande urged that O. 3, R. 1, C. P. Code permitted a recognised agent "to appear, apply and to act" for his principal before any Court. The learned counsel submitted that the word "act" was wide enough to include examination of witnesses. To support his arguments, the learned counsel referred to the decision reported in -- 'Governor General in Council v. Bhagwan Sahai', AIR 1948 EP 61 (A).
7. According to O. 3, R. 1, C. P. Code any appearance, application or act to be made by a party before a Court may be made by him in person or by a recognised agent or by pleader (appearing, applying or acting as the case may be) on his behalf. Recognised agent by whom such appearance, application or act may be done includes, in the language of O. 3, R. 2, a person holding a power of attorney authorising him to do such appearance, application or act on behalf of a party.
8. Under the terms of the 'Mukhtyar Nama', copy of which was filed at p. 10, Part B of the trial Court's record, this Hiralal Dube is authorised to appear, apply and to conduct cases (). The learned counsel for the petitioners submitted that the words () was intended to confer authority to act within the meaning of O. 3, R. 1, C. P. Code. The petitioner's 'Mukhtyar' Hiralal Dube was thus a recognised agent who could appear, apply and act before a Court of law on behalf of the petitioners provided be was authorised to do so.
9. The question which is of some general importance and which arises for consideration in this case is whether a recognised agent can examine and cross-examine witnesses on behalf of his principal before a court of law. In AIR 1948 EP 61 (A) it is held by Teja Singh J. that he can.
10. The scope of the authority and power of a recognised agent to work on behalf of a party in a court of law has been the subject matter of consideration in several decisions.
11. The first case bearing on this point is the decision of a Division Bench of the Calcutta High Court in -- 'Harchand Ray v. B. N. Rly. Co.', AIR 1916 Cal 181 (1) (3). In that case a person holding a power of attorney claimed a right to argue a case on behalf of a party before the Small Causes Court but was not allowed to do so. On the case being taken up to the High Court, Jenkins C. J. and Chatterjee J. held that he could not do so as a recognised agent had no right of audience.
12. This case was followed by another Division Bench of the same High Court in -- 'Re: Eastern Tavey Minerals Corporation Ltd.', AIR 1934 Cal 563 (C). In that case a Director of a limited Company holding the power of attorney from the company claimed a right of audience. This was not allowed as the learned Judges were of the opinion that to plead is not the same thing as to make an appearance or an application or an act within the meaning of O. 3, R. 1, C. P. Code.
13. In -- 'Jivanlal v. Ram Ratan', AIR 1936-Oudh 261 (D) a party to an appeal applied to the court that his recognised agent may be allowed to argue the appeal on his behalf. This prayer was refused. The learned Judges followed the two Calcutta cases mentioned above and held that the words used in O. 3, R. 1, C. P. Code viz., any "appearance, application or act" meant no more than that the recognised agent could appear, make application and take such steps as may be necessary in the course of litigation for the purpose of the case for the principal being properly laid before the Court and that they could not justify a recognised agent being allowed to argue and plead.
14. The next case which has some bearing on this point is the decision of Madras High Court in -- "Thayarammal v. Kuppuswami Naidu', AIR 1937 Mad 937 (E). The question referred to the Full Bench in that case was whether an agent with a power of attorney to appear and conduct judicial proceedings has a right of audience in court. The question was answered in the negative and Beasley C. J. after referring to the decision of the Calcutta High Court in AIR 1916 Cal 181 (1) (B) observed:
It is plain that Rr. 1 and 2 of O. 3, C. P. Code do not give the recognised agent any right to plead in Court on behalf of his Principal either in the appellate or original side of the High Court.
It is true that the ultimate decision of the Madras case turned on S. 119, C. P. Code but the observations so far as they go follow the view expressed by Jenkins C. J. and Chatterjee J. in AIR 1916 Cal 181 (1) (B) and indicate that according to the learned Judges, a recognised agent representing his principal was not entitled to claim audience before the Court under the provisions of O. 3, R. 1, Civil P. C.
15. In AIR 1948 EP 61 (A), Teja Singh J. examined all those various authorities. The learned Judge agreed that a recognised agent could not claim a right of audience and was not entitled to "argue or plead" before a court on behalf of his principal, but the learned Judge was however of the opinion that pleading is quite different from acting and since the law allows the recognised agent to act he was entitled to examine the witnesses of his principal and to cross-examine the witnesses of the other side. According to the learned Judge the term acting was wide enough to include all actions which do not constitute pleading.
16. The word plead is not defined anywhere but the word "pleader" is defined in S. 2, Cl. 15, C. P. Code as a person entitled to appear and plead. All the High Courts seem to be agreed on the proposition that it is the privilege of a pleader to be allowed to plead and to claim an audience for that purpose and that a recognised agent has no such right. The learned Judge who decided that East Punjab case appears to have drawn a distinction between addressing the Court in arguing a case and appearing before a Court for examining witnesses. According to the learned Judge the examination of witness was covered by the word act or acting used in O. 3, R. 1, C. P. C. and this did not involve pleading or argument. I find it difficult to agree to this line of reasoning. Examination of witnesses and cross-examination requires special skill and training and also discussion of questions of relevancy and admissibility of the evidence. Questions often arise during the examination of witnesses regarding relevancy and admissibility of evidence and persons in charge of the case of the parties are required to address the Court and argue the points raised. It cannot therefore be said that for conducting examination of witnesses there is no need to claim an audience or to address the Court. If therefore a recognised agent has no right to address the Court, it is difficult to understand how he can be allowed to examine or cross-examine witnesses.
17. In my opinion the words 'appearance, application or act' only mean appear, make application and take such other necessary steps as may be required to be taken up for the progress of the proceedings. I think the interpretation of the language used in O. 3, R. 1, C. P. Code as made in AIR 1936 Oudh 261 (D) indicates the real scope of the authority of a recognised agent. In my opinion, examination and cross-examination of witnesses require an audience before the Court, which a recognised agent cannot claim. He cannot, therefore, be allowed to examine witnesses on behalf of his principal or to cross-examine the witnesses of the other side.
18. I am, therefore, of the opinion that there is no need to interfere with the order passed by the trial Court and the revision application must be dismissed. In the circumstances of the case I make no order for costs.
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