Mohd Hasnuddin v. Dontagani Sathamma

1. This Civil Revision Petition is directed against the order dated 15-4-2000 in I.A No. 668 of 1998 in O.S No. 56 of 1997 passed by the Senior Civil Judge, Nalgonda, whereby the learned Senior Civil Judge has dismissed the application filed under Order 1 Rule 10(2) of the Code of Civil Procedure to implead the petitioner-Mohd. Hasnuddin through GPA Holder Mohd. Khasim Farooqui, as 8th defendant in the suit.

2. It is stated that the petitioner is the elder brother of one Mohd. Rahimuddin and during the lifetime of Yousufuddin, the father of petitioner and Mohd. Rahimuddin, partition was effect with regard to the lands and the suit lands in Sy. No. 413 and 414 were allotted to the share of the petitioner. The said Hasnuddin is residing abroad i.e Germany and settled there and on 8-7-1998 he visited Voilaplly village and came to know about the litigation and, therefore, he executed General Power of Attorney. The prayer was resisted by the respondents.

3. The Court below, on appreciation of material placed before it, rejected the application on the ground that the petitioner who is General Power of Attorney Holder has not filed affidavit of Mr. Hasnuddin under Rule 33 of the Civil Rules of Practice stating that the General Power of Attorney executed in favour of the petitioner is subsisting and that he has not obtained any permission from the Court under Rule 32 of the Civil Rules of Practice, that the person to whom the General Power of Attorney is given is subsisting. That apart, the court observed that the General Power of Attorney was also not filed and, therefore, dismissed the petition.

4. That order is assailed in this Revision Petition and reliance is placed on the judgment of this Court in Janab Syed Kazim Sahab v. Janab Sayeed Bakaran Sahab (died) by L.R 1990 1 An.W.R 256. and contended that no affidavit is necessary when the General Power of Attorney holder has engaged his advocate and appeared and that no permission is also necessary when the Advocate is represented the General Power of Attorney Holder.

5. But as seen from the judgment of this Court at paragraph 23 of the judgment it was held that

“……In my judgment, therefore, though in so far as the presentation of the plaint signed and verified by the power of attorney holder coupled with the very power of attorney executed in his favour filed in the court, does not require any permission from the Court, for an Advocate, duly appointed by the said power of Attorney holder, duly authorizing him in this behalf, entered appearance in the Court. But however, in order to hold the said plait to be valid, it must be accompanied by an affidavit of the executant of the GP in terms of Rule 33…..”.

6. As seen from the circumstances of the case, the learned Senior Civil Judge has observed that the petitioner has neither filed affidavit of the executant nor copy of the General Power of Attorney. Therefore, applying the ratio laid down in Kazim Sahab's case to the facts and circumstances of the case on hand, when both these documents were not filed, though the advocate engaged appeared in the matter, the Court below has rightly rejected the application.

7. On the other hand, the learned counsel for the respondents has relied on a judgment of the Supreme Court in T.C Mathai v. District & Sessions Judge, Thiruvanthapuram, Kerala 1999 3 SCC 614. and the Supreme Court dealing with a matter that arose under Sec. 2 of the Power of Attorney Act, 1882 and Sec. 303 & 2 (q), 205 and 273 of the Criminal Procedure Code and Section 32 of the Advocates Act, 1961 has held that Section 2 of the power of Attorney Act cannot override the specific provision of a statute which requires that a particular act should be done by a party-in person, that no party needs prior permission of the Court to appoint an advocate to represent him in the Court, that an Advocate is an officer of the Court and thus accountable to the Court and it is right of appearance and duty towards the court.

8. Reliance is also placed on the judgment of this Court in Hari Om Rajender Kumar v. Chief Rationing Officer of Civil Supplies, A.P, Hyderabad 1990 1 ALT 645., wherein it was held that a Non-Advocate, when he seeks permission to ‘appear’ cannot be permitted to ‘address’ the Court on the strength of the power-of-attorney. The provisions of Order 3 Rule 1 which permit appearance, applications or acting in any court by a power-of-attorney holder on behalf of a principal are subject to the provisions of the Advocates Act, 1961 in particular Sections 32 and 33. The Parliament in its wisdom has introduced Sec. 33 in the Advocates Act permitting Advocates alone to practice. One of the exceptions to above said provision is contained in Sec. 32 which gives power to the Court to permit appearance in particular cases by persons who are not advocates. Though the Court has power to grant permission for non-lawyers to plead/argue cases in certain special circumstances, where the power-of-attorney permitted the agent to file, plead and argue all cases of the principals in future and the deed is not confined to any particular case and the petitioner — agent is continuously pleading and arguing every case for the principals on the sole ground that the principals have decided never to engage any lawyers before any Court or Tribunal, that clearly is hit by Sec. 33 of the Advocate Act. In the absence of any special grounds applicable to the case before the Court warranting grant of permission under Sec. 32, the agent could not be permitted to plead the case in Court.

9. The Apex Court in Mathai's case (2 supra), held that personal attendance may be dispensed with under the Criminal Procedure Code by the court and appearance by pleader is permitted, but the accused cannot appear through a power of attorney holder unless permission for such appearance is sought by the accused himself and the Court expressly grants such permission. The appellant before the Supreme Court power of attorney holder seeking to represent two persons arrayed as respondents in a criminal revision petition, permission was refused by the Sessions Judge on ground that the request for permission did not emanate from the parties concerned themselves, writ petition was dismissed by the learned Single Judge of the High Court and writ appeal by the Division Bench and held that the High Court has rightly dismissed the writ appeal of the power-of-attorney holder. While dealing with this question, the Apex Court had held that legally qualified persons who are authorized to practice in the Courts by the authority prescribed under the statue concerned can appear for parties in the proceedings pending against them. No party is required to obtain prior permission of the court to ap???t such persons to represent him in court. Section 30 of the Advocates Act confers a right on every advocate whose ???ame is entered in the Roll of Advocates maintained by a State Bar Council to practise in all the court in India including the Supreme Court. Section 33 says that no person shall be entitled to practise in any court unless he is enrolled as an Advocate under that Act. Every Advocate so enrolled becomes a member of the Bar. The Bar is one of the main wings of the system of justice and an Advocate is the Officer of the Court and is hence, accountable to the court. Efficacious discharge of judicial process very often depends upon the valuable services rendered by the legal profession. The Apex Court while approving the Full Bench Judgment of Madras High Court in M. Krishnammal v. T. Balasubramania Pill???i (AIR 1937 Madras 937) had the reference of the Full Bench Judgment wherein it was held that an agent with a power of attorney to appear and conduct judicial proceedings. but who has not been so authorized by the High Court, has no right of audience on behalf of the principal, either in the appellate or original side of the High Court. The Apex Court further observed that though the said observation of the Madras High Court was stated sixty years ago, it represents the correct legal position even now. Therefore, having regard to this legal position, it is abundantly clear that unless the Court grants permission to an Agent to appear, the General Power of Attorney cannot appear in the Court on behalf of his principal under Rule 32 of the Civil Rules of Practice. From the narration of above paragraphs, it is clear that the petitioner has neitl??? filed copy of the General Power of Attorney nor affidavit of the executant, as contemplated under Rule 32 and 33 of the Civil Rules of practice. Therefore, there is no merit in the Civil Revision Petition.

10. The Civil Revision Petition accordingly fails and dismissed confirming the impugned order. No order as to costs.