1. This Court ordered notice before admission on 29.12.2008 and granted interim stay for a limited period in CRPMP No. 7744 of 2008, which is being extended from time to time.
2. The matter is coming up for admission.
3. Heard Sri K.S Gopalakrishnan, the learned Counsel representing the revision petitioner and Sri K v. Subba Reddy, the learned Counsel representing the respondent.
4. This civil revision petition is filed against an order, dated 27.11.2008 made in IA No. 1297 of 2007 in OS No. 163 of 2004 on the file of the Principal Senior Civil Judge, Srikakulam. The said application was filed by the plaintiff/respondent herein under Order 32 of the ‘Civil Rules of Practice praying for permission to the General Power of Attorney Holder to represent the plaintiff. It is stated that the plaintiff, who filed the suit is the son-in-law of the General Power of Attorney Holder and his son-in-law had been to U.S.A for his higher studies and he is aware of the agreement of sale and in order to prosecute the case further, the original plaintiff executed the General Power of Attorney on 6.8.2005 in U.S.A The said application was resisted by the revision petitioner/defendant disputing the genuineness of the same, and also making certain allegations against the plaintiff relating to the pendency of N.B.W and certain other aspects. The learned Judge having formulated the point for consideration at Paragraph No. 3 referring to Section 85 of the Indian Evidence Act and also the relevant provisions under both the Indian Evidence Act and also the Indian Registration Act, recorded reasons in detail at Paragraph Nos. 4 to 6 and ultimately, allowed the application. Aggrieved by the same, the present revision petition had been filed by the revision petitioner/defendant.
5. Sri K.S Gopalakrishnan, the learned Counsel representing the revision petitioner made certain submissions that allowing the application by the learned Judge cannot be sustained since the General Power of Attorney itself is not valid and further pointed out to the relevant provisions of the Code of Civil Procedure and Civil Rules of Practice and would maintain that in the facts and circumstances of the case, the order cannot be sustained.
6. On the contrary, Sri K.V Subba Reddy, the learned Counsel representing the respondent/plaintiff would maintain that in the peculiar facts and circumstances, it cannot be said that the order under challenge is illegal. At the best, it may be a curable irregularity and definitely not an illegality and that at any rate, in the peculiar facts and circumstances, all the other merits and demerits may have to be gone into at the appropriate stage. But, however, this is not a fit matter to be interfered with under Article 227 of the Constitution of India.
7. Both the learned Counsel placed reliance on certain decisions.
8. Heard the learned Counsel.
9. In Bhimappa v. Allisab, AIR 2006 Kar. 231, the learned Judge of Karnataka High Court observed at Paragraphs 11 and 14 as hereunder:
“The proposition of law about the competence of a person to testify as a witness is governed by Section 118 of the Evidence Act. Giving evidence before a Court of law is an act within the meaning of the said provision. However, everyone is not entitled or competent to give evidence as witness before a Court unless one fulfils the requirements of the qualifications envisaged in Section 118 of the Evidence Act. There is no express bar made in the provisions of C.P.C to debar the Power of Attorney to be examined as a witness on behalf of the parties to the proceedings. Power of Attorney is a competent witness and is entitled to appear as such. His evidence cannot be refused to be taken into consideration on the ground that the parties to the suit i.e, plaintiff or defendant do not choose to appear as witness in the witness box. The question whether the General Power of Attorney Holder of a party can be competent witness on behalf of a party has to be answered in the light of Section 118 of the Evidence Act. The Power of Attorney Holder of a party, only on the ground that he holds the Power of Attorney, cannot be said to be in the category of persons who are in a capable of being witness as provided by Section 118 of the Evidence Act. Whether such Power of Attorney Holder has personal knowledge about the matters in controversy, may be a question which can be thrashed out by cross-examining him and if it is found that the Power of Attorney Holder has no personal knowledge about the facts in controversy, the evidentiary value of his deposition may be determined, but that has nothing to do with the competence of such a Power of Attorney Holder to depose before a Court or a Judicial Tribunal as a competent witness.
The provisions of Order III Rule 1 CPC deal with the legal position of the validity of attorney in conduct of cases for a limited purpose and in a limited context. The primary object of Order III Rule 1 CPC is to enable a party to perform certain acts before the Court, which he would have been otherwise required to do in person through recognized agent or pleader. The other object is to prevent perpetration of fraud by unauthorized person who poses himself to be the agent of a party before a Court. Order III Rule 2 contemplates the persons who are authorized to act. No unauthorized person can take part in the proceedings before a Court of Law. Order III does not deal with the rights of parties who appear in person in Court. Order in Rule 1 CPC enacts a general rule and confers only procedural right. There are other modes of appearances, applications, or acting, expressly prescribed by the Code for particular case, e.g, Order 33 Rule 3 and Order 44 Rule 1 CPC which by reason of the words “except where otherwise provided by any law for the time being in force” are taken out of the operation of the general rule to the extent so prescribed. In applications for leave to sue as a pauper appeals a recognized agent cannot, therefore, appear, make application and take such other necessary steps as may be required to be taken up for the progress of the proceedings. It offers no guidance whatsoever for giving deposition on oath as a Power of Attorney on behalf of a party. It is not a part of the pleadings. It is the part of the procedure for proving a case by competent witness. It does not deal with evidence to be adduced in a legal proceeding at all. Merely because the aforesaid provision does not deal with the evidence or who may testify, or depose, it cannot be said that the General Power of Attorney has no such power to depose. Order III CPC does not deal with the Power of Attorney Holder exhaustively.”
10. In Aswin Shambhuprasad Patel v. National Rayon Corporation Ltd., AIR 1955 Bom. 262, wherein the learned Judge observed at Paragraphs 4, 5, 7 and 8 as hereunder:
“Mr. Bengeri has contended that if that construction were to be put on Order III, Rule I, then even a party in person would have no right to plead. That is not the correct view of Order III. Order III does not deal with rights of parties who appear a party in Court, and it cannot be disputed that a party in person has the right of audience in Court. As I have already mentioned, Order III merely deals with recognized agents and pleaders. It does not even deal with the right of pleaders to plead, because the right of a pleader to plead arises independently of Order III and I shall presently point out under what law the right of pleaders arises. In Order III, Rule 5, a reference is made to a pleader pleading and that rule provides that when a pleader has been engaged only for the purpose of pleading he need not file a vakalatnama. But neither Order III of the Civil Procedure Code nor any other Order strictly deals with the right of a member of the Bar to have audience in Court.
Now, as far as the High Court is concerned, the right of the members of the Bar really flow from the Letters Patent and Clause 10 really constitutes the charter of the rights of the Bar because that clause provides that no person whatsoever but such advocates, vakils or attorneys shall be allowed to act or to plead for or on behalf of any suit or in the said High Court, except that any suitor shall be allowed to appear, plead or act on his own behalf or on behalf of a co-suitor. It is worth considering, but the question does not strictly arise before me today, whether in view of Clause 10 of the Letters Patent it is open to a recognized agent, as far as the High Court is concerned, even to act, leave aside to plead, because Order III, Rule 1 is made subject to any other law for the time being in force, and in my opinion Clause 10 of the Letters Patent expressly provides that the right to act no less than the right to plead is only conferred upon advocates, vakils and attorneys and the only exception made in Clause 10 is that the suitor himself may appear, plead and act either on his own behalf or on behalf of a co-suitor.
The next provision of the law to which attention might be drawn is the Bar Councils Act and Section 8 provides that no person shall be entitled as of right to practice in any High Court unless his name is entered in the Roll of Advocates of the High Court maintained under this Act. Now, “right to practice” in my opinion is an expression much wider than the right to plead. It includes both pleading and acting, and the Bar Councils Act has conferred that right only upon those persons who have been enrolled as Advocates of the High Court. Therefore, Section 8, Bar Councils Act, really is in conformity with Clause 10, Letters Patent and there again Section 8 seems to me to provide expressly otherwise than what Order III, Rule 1, enacts. Therefore, again it is possible to take the view that as far as the High Court is concerned, under Section 8 of the Bar Councils Act the right not only to plead but to act is restricted to those who are enrolled by the High Court and that right cannot be conferred upon recognized agents.
Turning next to the Bombay Pleaders Act which applies to the districts, that makes the position perfectly clear. Section 9 provides that no person shall appear, plead or act for any party in any civil proceeding in any Court unless he is a pleader as defined in the Act and is duly empowered to appear, plead and act for such party in such proceeding. But the provisions is very significant:
“Provided that nothing in this section shall apply to any party appearing, pleading or acting on his own behalf or appearing or acting by his recognized agent as defined in Rule 2, Order III of the Code of Civil Procedure, or to any advocate of the High Court”.
Therefore, the proviso makes a distinction between appearing, pleading or acting and appearing or acting. Whereas a party may not only appear or act but he may also plead, a recognized agent as defined in Rule 2, Order III can only appear or act and not plead. Therefore, as far as the districts are concerned, a recognized agent has no right to plead by reason of the proviso to Section 9, and, as I have already pointed out, right of audience is a natural and necessary concomitant of the right to plead, and therefore if a recognized agent has no right to plead, it follows that he has no right of audience directly arises for my decision as raised by Mr. Bengeri is concerned, there is no doubt that even on a strict construction of Order III, Rule 1, and even assuming that the provisions of Order III, Rule 1, apply to the High Court, Shambhuprad has no right of audience in this Court, as the right of audience does not form part of an appearance, application or act in or to any Court. The larger and the wider question to my mind is also of great importance to the Bar as to whether a recognized agent can act in the High Court. It may be considered by the Bar and may come up for decision on a suitable and appropriate occasion.”
11. The Division Bench of this Court in Podelly Chinna Chinnanna v. Bandaii Pedda Bhumanna, 2004 (1) ALD 241(2) (DB), observed at Paragraph Nos. 10 and 15 as hereunder:
“Order III of the Code of Civil Procedure, contemplating the mode of appearance of parties, under Rule 2, allows recognized agents, who include Power of Attorney to appear, apply and act on behalf of party. There is no embargo as such in making appearance through Power of Attorney except to the extent of the requirement of prior permission from the Court.
Therefore, the only requirement for a person to come into the witness box to speak in regard to any facts and circumstances of the case is that he should be competent enough to testify i.e, to speak. The competency as contemplated is a very wider in its connotation. There is distinctive feature between one who is said to be competent on behalf of the person to speak and another how far and to what extent the person can speak. These two aspects cannot be mixed up to reject a person from entering the witness box. As long as one holds proper authority under a Power of Attorney or otherwise, he is fully competent to come as witness on behalf of the said party. The competency as provided for further gets extended under Section 120 thereof providing that in any civil proceedings the husband or wife of a party to a suit shall be a competent witness. Therefore, it cannot be said that the Power of Attorney Holder cannot be said to be a incompetent as witness on behalf of the party/executant. Neither the decisions reported in Ramprasad's case, AIR 1988 Raj. 185, or K. Bharathi's case, 1999 (3) ALT 428, considered these aspects and as such it has to be held that the aforesaid decision is not correct. It is thus held answering the reference that a Power of Attorney Holder is a competent witness on behalf of the party/executant and further that the effect and relevancy of such evidence has to be considered from proper perspective on the facts and circumstances of each case.”
12. Likewise, the learned Judge of this Court in Dr. Abu Taher represented by his Dr. Abu Taher Rep. By His G.P.A v. Abdul Majeed, 1995 (1) ALD 609 : 1995 (1) ALT 57, observed at Paragraphs 6 and 8 as follows:
“It is a fact that the petitioner left for Bombay from Hyderabad on 2.10.1990 and for U.S.A from Bombay on 14.10.1990 Originally, the petitioner planned to leave for Bombay on 10.10.1990 from Hyderabad to catch the Flight to U.S.A from Bombay on 11.10.1990, but as there was cancellation of Flight from Hyderabad to Bombay on 10.10.1990, he had to postpone the journey. On 12.10.1990, as mentioned already, petitioner left for Bombay from Hyderabad and from Bombay to U.S.A on 14.10.1990 These facts are categorically mentioned in the affidavit filed on behalf of the petitioner, and the same have not been denied. In those circumstances, there was no need to let in evidence on behalf of the petitioner to prove that he was planning to leave for Bombay on 10.10.1990 and ultimately he left for Bombay on 12.10.1990 The lower Court has wrongly taken into consideration the prior conduct of the petitioner when the matter was called on the earlier occasions in dismissing the petition filed under Order 9, Rule 9 C.P.C The question for consideration in a petition filed under Order 9, Rule 9 C.P.G, would be as to whether there was sufficient cause for the petitioner to absent himself on the relevant date when the case is posted for hearing.
Valuable rights of the petitioner and the respondent are involved in the suit, and the petitioner had made all arrangements to safeguard his interests in the case by executing the General Power of Attorney in favour of one Mr. M.A Baig. The G.P.A Holder, though present in the lower Court, could not make any representation in the Court, as he was new to the Court procedures. In fact, the advocate appearing for the petitioner in the lower Court in the suit was present in the lower Court when the matter was called in the first instance. The explanation of the G.P.A Holder deserves to be accepted, and the same is accepted. The very-fact that the G.P.A Holder has filed the petition under Order 9, Rule 9 C.P.C to set aside the ex parte decree passed against the petitioner indicates that except the G.P.A Holder, there is no other person to represent the interests of the petitioner. No doubt, the G.P.A Holder has not obtained the permission of the lower Court to represent the petitioner as his agent, as required under Rule 23 of the Civil Rules of Practice. This defect is only a procedure defect. The procedure to be followed by Courts is only to do justice between the parties and, therefore, any defect in procedure should not be allowed to come in the way of the Courts in doing justice between the parties. The defect, at the most, can be considered as only a curable irregularity, and not an illegality. This Court, in Mangatayaramma v. Indian Bank, 1984 (2) An.W.R 292, interpreting Rule 17 of the Civil Rules of Practice inter alia, held that, Rule 17 of the Civil Rules of Practice is only directory, In that case, a person who signed on behalf of plaintiff-bank did not file into the Court the authorization to verify the pleadings, and the same Was held to be a procedural defect only. Similarly, this Court in B. Rizwang Baig v. M.C.H, 1989 (2) ALT 476, interpreting the provisions of Order 23, Rule 1(3) C.P.C held that, instituting a fresh suit before grant of permission does not bar regard must be treated as a procedural defect only. In Govinddoss v. Muthaiah Chetty, AIR 1925 Mad. 660, the Madras High Court held that the plaint signed and verified by the agent, without the leave of the Court and obtaining the leave subsequently, is only a procedural defect not fatal to the institution of the suit itself. A Full Bench of this Court, in Saiyanarayana v. Venkata, AIR 1957 AP 172 : 1957 ALT 369 (F.B), was to consider the question as to the validity of the Execution Petition filed by a Counsel who had no vakalat at the first instance when the Execution Petition was filed, but the vakalat duly signed by the petitioner/party was filed in the Court subsequent hereto. Dealing with the above situation, the Full Bench ruled:
“The preponderance Of judicial Opinion establishes that failure to comply with the provisions regarding presentation of an application for execution is a mere irregularity so that if the person presenting it is not properly authorized to do so, the presentation Would be irregular but it would not be a nullity. In such a case the Court would have a discretion to have the irregularity cured and if the applicant had acted in good faith and without gross negligence the Court would allow it to be cured.
A part from the desirability of achieving uniformity in a matter relating to procedure, there is a well-known distinction between a case where the directions of the Legislature are imperative and a case where they are directory. The general rule is that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment is obeyed or fulfilled substantially. It has always been held that where no public policy is involved, the provisions of a statute should be held to be directory only and not mandatory. Here, it cannot be suggested that there is any public policy involved. Applying this cannon of interpretation it must be held that the provisions of Order 3 Rule 4, are directory only.”
13. In the light of the facts and circumstances of the case, all the other aspects, which had been argued in elaboration, may have to be gone into at the appropriate stage. But, however, in the light of the peculiar fact situation the allowing of the application by the learned Judge cannot be found fault with. At any rate, it is not a fit matter to be interfered with under Article 227 of the Constitution of India, and, therefore, the civil revision petition is liable to be dismissed.
14. Accordingly, the civil revision petition shall stand dismissed giving liberty to the petitioner to raise objections, if any, at the appropriate stage. No order as to costs.
Comments