(V.V.S. Rao)

1. Madupu Harinarayana (appellant herein), represented by his General Power of Attorney (GPA) holder Sri T.D.Dayal (hereafter referred to as the GPA), has filed this Letters Patent Appeal against the order and judgment dated 13.7.2010 of the learned single Judge in W.P. (SR) No.81961 of 2010. The appellant filed the said writ petition under Article 226 of the Constitution of India praying this Court to issue a writ of certiorari calling for the records in, and connected with, the judgment and decree in O.S.No.44 of 2002 dated 29.4.2006 on the file of the Court of the I Additional District Judge, Kadapa, and quash the same. The Registry raised an objection regarding maintainability of such a petition. The GPA represented the case referring to Syed Yakoob v K.S.Radhakrishnan AIR 1964 SC 477. The Registry listed the matter before the learned single Judge. By the impugned order the learned single Judge dismissed the writ petition.

2. After giving a very patient hearing to Mr.T.D.Dayal, and perusing various provisions of the Advocates Act, 1961 as well as the decisions of the Supreme Court and of this Court in which he himself figured either as a social activist or a GPA for parties to the proceedings in the writ petitions, we are convinced that this is vexatious litigation. This is yet another instance of busybodies and meddlesome interlopers resorting to filing frivolous cases before the highest Court of the State due to perceived injustice to the community, or to the cause of a few gullible individuals whom they represent.

3. With these remarks we will consider the case. For the sake of convenience and clarity, we divide this order into three parts: (1) Maintainability of the writ petition; (2) GPA’s right of Court audience; and (3) Court’s response to vexatious and frivolous litigation.

Maintainability of Writ Petition

4. The fourth respondent herein, namely, Smt.P.Swaroopa Rani is the proprietrix of M/s.Venkateswara Theatre AIR 1963 SC 114, Kadapa. She allegedly entered into an agreement dated 28.3.2001 for sale of the theatre, with the appellant herein, for a consideration of Rs.64,00,000/-. The appellant allegedly paid Rs.17,12,000/- as advance. Subsequent to the agreement, the appellant also allegedly paid another sum of Rs.15,50,000/-. When the sale deed was not registered, he instituted O.S.No.44 of 2002 for specific performance on the file of the Court of the I Additional District Judge, Kadapa – first respondent herein. The vendor opposed the suit, which went into trial. As many as six witnesses – two for the appellant and four for the fourth respondent – were examined, and as many as 56 documents were marked. By an elaborate judgment, the District Judge dismissed the suit on 29.6.2006. Being aggrieved by the judgment and decree of the trial Court, the appellant approached this Court by filing A.S.No.271 of 2006. The same was elaborately heard, along with the cross-objections of the fourth respondent, by the Division Bench. By judgment dated 23.9.2008, the judgment of the District Judge was confirmed.

5. The appellant then filed Special Leave Petitions before the Supreme Court. The same being SLP (Civil) Nos.26051 – 26052 of 2008 were dismissed on 10.11.2008. Thereafter the appellant filed Review Petition (C) Nos.352 – 353 of 2009 which were dismissed on 08.4.2009. Till this stage, it appears, the appellant was represented by a duly instructed counsel – an Advocate enrolled on the rolls of the respective State Bar Councils.

6. The appellant still harboured views that justice evaded him. Although his appeal to this Court, and the appeal to the Supreme Court, were dismissed he again filed a writ petition under Article 32 of the Constitution of India before the Supreme Court. The Registrar (Judicial) recorded proceedings on 09.7.2009 in the said unregistered writ petition being W.P.(Civil) Diary No.15246 of 2009 filed by the appellant on 15.5.2009. The appellant was informed that he had not made out any reasonable cause justifying receipt of the writ petition, and consequently the same was lodged under Order XVIII Rule 5 of the Supreme Court Rules, 1966. The appellant then filed I.A.Nos.1 – 3 of 2010 by way of an appeal against the Registrar’s order. They were dismissed on 19.2.2010. In these cases before the Supreme Court, Sri T.D.Dayal represented the appellant as his GPA holder. He addressed a letter to the Registry of the Supreme Court complaining that his appearance was not noted in the record of proceedings of the Supreme Court. He again appears to have addressed another letter dated 19.2.2010 in response to which the Registry of the Supreme Court, by communication dated 16.3.2010, informed him that his appearance “as petitioner in person has already been shown in the record of proceeding dated 19.2.2010.” Yet again he addressed another letter dated 14.4.2010. On 26.4.2010 he was informed that

"no action can be taken on the said letter as Interlocutory Application No.1 of 2010 appealed against LD (Registrar’s Order) dated 09.7.2009/petition has already been dismissed by the Court on 19.2.2010."

He was informed to take other remedy as available under law. About two months thereafter the appellant through GPA filed W.P.(SR) No.81961 of 2010. The affidavit in support of the writ petition has been filed by the GPA. The averments are, mostly, a criticism of the judgment of the Trial Court in O.S.No.44 of 2002 on the file of the Court of the I Additional District Judge, Kadapa. In paragraph 7 of the writ affidavit, the GPA has cast unfounded and unsubstantiated aspersions on the High Court of Andhra Pradesh as well as the Supreme Court of India. For ready reference, we may extract the same hereunder.

I submit that the petitioner/plaintiff could not succeed in A.S.No.271/2006 on the file of this Hon’ble Court as well as in S.L.Ps (Civil) No.26052-26053/2008 and Review Petitions No.352-353/2009 on the file of the Hon’ble Supreme Court of India, in spite of engaging senior counsels, obviously due to undue influence of the defendant and due to prejudice against the petitioner/ plaintiff as he belongs to a Schedule Caste.

7. The GPA of the appellant submits that, even after the case has attained finality, a party to such proceedings can challenge the judgment of the Civil Court in a writ petition. He relies on Provincial Transport Services v State Industrial Court AIR 1964 SC 477 and Syed Yakoob. According to him, if a judicial decision suffers from misconception of law, the High Court under Article 226 of Constitution can interfere in the matter. He nextly contends that the trial Judge was in error in disbelieving the case of the appellant on the ground that the suit agreement is a forgery, and that the appellant had obtained possession forcibly. He has invited attention of this Court to the oral evidence of D.W.2 (husband of the fourth respondent) and Ex.A15 receipt issued by the fourth respondent, to contend that the Trial Court had misdirected itself in appreciating the evidence. He has also referred to the provisions of the Indian Evidence Act, 1872, the Transfer of Property Act, 1882 and the Specific Relief Act, 1963. Indeed in his affidavit accompanying the writ petition, though he was never in the picture till dismissal of the SLPs, the petitioner narrates the factual background (makes allegations) as if he is personally aware even without mentioning that he is deposing to the affidavit based on the record. Be that as it is, in the writ affidavit the GPA has given a summary of the judgment in O.S.No.44 of 2002, and has extracted portions from paragraphs 31, 42, 45 and 46 of the said judgment.

8. We have carefully considered the submissions, and have perused the judgment of the trial Court, appellate Court and the orders passed by the Supreme Court.

9. The issue is whether certiorari proceedings would lie for quashing the judgment and decree of the Civil Court when the same has been affirmed by the appellate Court and Supreme Court. In our opinion the answer cannot be in the positive. The jurisdiction of the High Court under Article 226 of the Constitution of India is wider than the jurisdiction of the Supreme Court under Article 32 of the Constitution. If a decision of the High Court, in exercise of its appellate civil jurisdiction, is erroneous it can be corrected by appeal or revision. Such decision, however, cannot be called in question under Article 226 of the Constitution especially if the order is inter-parties. This is the law of the land. A nine Judge Constitution Bench of the Supreme Court in Naresh Shridhar Mirajkar v State of Maharashtra AIR 1967 SC 1 considered and held as postulated herein.

10. In Mirajkar a suit for damages for defamation was instituted against the editor of the English weekly ‘Blitz’. Trying the suit the Bombay High Court, in exercise of its jurisdiction under Section 151 of the Code of Civil Procedure, 1908 (CPC), passed an order prohibiting publication of the proceedings during the trial. Four journalists invoked Article 32 of the Constitution before the Supreme Court. It was contended that the order prohibiting publication of the trial Court proceedings is without jurisdiction and violates the fundamental rights under Article 19(1)(a) of the Constitution. By a majority of 8 : 1, the four writ petitions were dismissed. Chief Justice Gajendragadkar, for himself and four other learned Judges writing the lead opinion (in which A.K.Sarkar, J.C.Shah and R.S.Bachawat, JJ concurred), held that

"if a Court of competent jurisdiction makes an order in proceedings before it, and the order is inter parties, its validity cannot be challenged by invoking the jurisdiction of the Court … … though said order may affect the aggrieved party’s fundamental rights."

Further, it was observed as follows.

The High Court is a superior court of record and under Article 215, shall have all powers of such a court of record including the power to punish contempt of itself. One distinguishing characteristic of such superior courts is that they are entitled to consider questions of their jurisdiction raised before them.

If the decision of a superior court on a question of its jurisdiction is erroneous, it can, of course, be corrected by appeal or revision as may be permissible under the law; but until the adjudication by a superior court on such a point is set aside by adopting the appropriate course, it would not be open to be corrected by the exercise of the writ jurisdiction of this Court.

But apart from this aspect of the matter, we think it would be inappropriate to allow the petitioners to raise the question about the jurisdiction of the High Court to pass the impugned order in proceedings under Article 32 which seek for the issue of a writ of certiorari to correct the said order. If questions about the jurisdiction of superior courts of plenary jurisdiction to pass orders like the impugned order are allowed to be canvassed in writ proceedings under Article 32, logically, it would be difficult to make a valid distinction between the orders passed by the High Courts inter-partes, and those which are not inter-partes in the sense that they bind strangers to the proceedings. Therefore, in our opinion, having regard to the fact that the impugned order has been passed by a superior court of record in the exercise of its inherent powers, the question about the existence of the said jurisdiction as well as the validity or propriety of the order cannot be raised in writ proceedings … …

11. In Roopa Ashok Hurra v Ashok Hurra (2002) 2 SCC 388 : AIR 2002 SC 1771 a Constitution Bench held that though the power vested in the High Court under Article 226 of the Constitution is broad and pervasive, while exercising such power, the judgment of the High Court in exercise of its Constitutional power or statutory power or power vested under a procedural law or a special law cannot be challenged in a writ petition. The ratio laid down by the Supreme Court therein is as follows.

Therefore, on principle, a writ of certiorari cannot be issued to coordinate courts and a fortiorari to superior courts. Thus, a High Court cannot issue a writ, to another High Court, nor can one Bench of a High Court issue a writ to a different Bench of the same High Court; much less to the Supreme Court. Though, the judgments/orders of High Courts are liable to be corrected by the Supreme Court in its appellate jurisdiction under Articles 132, 133, and 134 as well as under Article 136 of the Constitution, the High Courts are not constituted as inferior courts in our constitutional scheme. Therefore, the Supreme Court would not issue a writ under Article 32 to a High Court. Further, neither a larger bench of the Supreme Court can issue a writ under Article 32 of the Constitution to any other Bench of the Supreme Court. Moreover, Article 32 can be invoked only for the purpose of enforcing the fundamental rights conferred in Part III and it is a settled position in law that no judicial order passed by any superior court in judicial proceedings can be said to violate any of the fundamental rights enshrined in Part III. Furthermore, the superior courts of justice do not also fall within the ambit of State or other authorities under Article 12 of the Constitution.

12. In an unreported judgment in P.Saibabu v Metropolitan Magistrate, Nampally, Hyderabad W.P.(SR) No.35288 of 2006, dated 22.6.2006, a learned single Judge of this Court considered the question “whether a writ would lie against a judicial order”. Therein the petitioner was convicted in C.C.No.1170 of 1998 by the Court of the V Metropolitan Magistrate, Nampally, Hyderabad for an offence under Section 138 of the Negotiable Instruments Act, 1881. He filed Criminal Appeal No.380 of 2001 unsuccessfully, and his appeal was dismissed on 21.4.2002. His revision, being Crl.RC No.87 of 2002, was also dismissed on 26.6.2005 but the sentence was reduced. He then filed the writ petition being W.P. (SR) No.35288 of 2006. He was represented by Sri T.Deena Dayal, his GPA holder (GPA herein also). The Court, without going into the question whether a GPA holder, who was not a legal professional, could be permitted to represent and argue a matter on behalf of the petitioner in a writ petition, considered the question of maintainability of writ petition against a judicial order. Relying on Mirajkar, Triveni Ben v State of Gujarat (1989) 1 SCC 678, Ajit Kumar Barat v Secretary, Indian Tea Association (2001) 5 SCC 42 : AIR 2001 SC 2056 and Roopa Ashok Hurra, this Court dismissed the writ petition observing that,

"there is a unvarying and binding authority laying down the principle that a judicial order of this Court exercising jurisdiction conferred upon it, is not amenable to writ jurisdiction under Article 226 of Constitution."

13. Sri T.Deena Dayal (or T.D.Dayal) filed W.A.No.180 of 2007 against the order of the learned single Judge in P.Sai Babu. The Division Bench, comprised of Hon’ble the Chief Justice Sri G.S.Singhvi (as his lordship then was) and the Hon’ble Sri Justice G.V.Seethapathy, dismissed the writ appeal on 11.7.2007 observing that,

"in exercise of power under Article 226 of Constitution of India, this Court cannot scrutinize the legality or correctness of the judgment rendered by a competent court more so when such judgment has been upheld by the appellate and revisional Courts."

Sri T.D.Dayal, GPA of Sri P.Sai Babu, filed Review W.A.M.P.No.1551 of 2007. A Division Bench, comprising the Hon’ble the Chief Justice Sri Anil R. Dave and the Hon’ble Sri Justice Gopala Krishna Tamada, dismissed the Review W.A.M.P. imposing costs of Rs.10,000/-. The Division Bench observed that,

"filing of writ petition, appeal and then review petition is nothing but an abuse of process of the Court. It is settled principle of law that High Court exercising the power of jurisdiction under Article 226 … … cannot scrutinize the legality or correctness of the judgment rendered by a competent Court having jurisdiction to deal with the matter … … ."

14. In view of the binding decisions of the Supreme Court, and the judgments in the cases where Sri T.D.Dayal appeared in similar cases, we have no doubt to hold that the writ petition filed by Sri Madupu Harinarayana, represented by his GPA Sri T.D. Dayal, is a gross abuse of the process of the Court warranting initiation of suo motu contempt proceedings against the appellant as well as his GPA. We will deal with this aspect when we consider the third point.

GPA’s right of Court audience

15. Any person approaching the Court seeking some legal redressal has to scrupulously, and without exception, follow the procedural rules and regulations framed by the High Court. The Code of Civil Procedure, 1908 (CPC), and the Code of Criminal Procedure, 1973 (Cr.PC), broadly deal with the procedure for filing cases and the procedure for prosecuting cases. The Rules made by the High Court, Civil Rules of Practice and Circular Orders, and Criminal Rules Practice & Circular Orders as well as various other procedural Rules made under various statutes supplant the two Codes. A party to the proceeding can either himself appear as a party in person to ventilate his grievance or engage an advocate enrolled on the rolls of the Bar Council of Andhra Pradesh (a Statutory professional body constituted under the Advocates Act, 1961). A party to the proceedings may authorize another by giving a Power of Attorney (PoA) to appear in the case, file affidavits, instruct lawyers and act on his behalf.

16. The GPA holder cannot plead and/or argue for his principal. If a person, other than an advocate enrolled on the rolls of the Bar Council, appears in the Court it is an offence punishable under law. Therefore, for the reasons to follow hereinafter, we hold that Sri T.D.Dayal or Sri T.Deena Dayal cannot derive any authority under the GPA allegedly executed by the appellant. We may mention that no such GPA or a copy thereof is annexed to the writ petition or the writ appeal. Be that as it is, before we consider the question of the right of the GPA to seek Court audience on behalf of a party to the proceedings, we may indicate in general terms the scope of a GPA or a Special GPA executed by a person authorizing another person to act and represent him in the Court.

17. Powers-of-Attorney Act, 1882 (hereafter, PoA Act) defines “Power-of-Attorney” to include any instrument empowering a specified person to act for and in the name of the person executing it. If so empowered the donee may execute any instrument or do anything in his own name and signature by the authority of the donor of the power. section 4 of the poa act casts an obligation on the donee of the PoA to verify the affidavit, give a declaration or other sufficient proof of the PoA, and to deposit the same in the High Court or the District Court within the local limits of whose jurisdiction the instrument may be. The High Court is empowered, under Section 4(e) of the PoA Act, to make rules prescribing the method and manner of taking note of PoAs. It may be mentioned here that a vakalatnama is a PoA as held by the High Court of Nagpur in Ramdeo v Lalu Natha AIR 1937 Nagpur 65. It was held therein that,

"power of attorney is an authority whereby one person empowers another to represent him or act in his stead or place of another to act for him (and) vakalatnama is a power of attorney."

18. The CPC lays down Rules in the First Schedule spread over LI (fifty one) Orders. Order VI deals with pleadings. Rule 15 thereof requires a party to the proceedings to verify and sign the pleading. Such verification can also be by every person proved to the satisfaction of the Court acquainted with the facts of the case. Order III deals with recognized agents and pleaders. Rule 1 thereof enables the recognized agent to make appearance, application or act in any Court. Rule 2 explains recognized agents as “agents of parties by whom such appearances, applications and acts may be made or done.” These are the persons holding PoA authorizing them to make an application and act on behalf of such parties. section 2(15) of the cpc defines “pleader” to mean any person entitled to appear and plead for another in Court. “Pleader” includes an advocate, a vakil and an attorney of a High Court. Rule 4 of Order III of CPC lays down that, unless he has been appointed for the party, a pleader shall not act for any person in any Court. Rule 30 of the Civil Rules of Practice mandates vakalat (PoA) to be in Form No.12. Form No.12 reads as under.

FORM No.12

Rule 30 (old Rule 19) – Vakalat

(Cause-title)

I do hereby appoint and retain-to-appear for me in the above Original …….. (suit) Miscellaneous Petition and to conduct and prosecute (or defined) the same and all proceedings that may be taken in respect of any application for execution of any decree of order passed therein. I empower any vakil to appear in all miscellaneous proceedings in the above suit or matter till and decrees or orders are fully satisfied or adjusted and to obtain the return of documents and draw any moneys that might be payable to me in the suit or matter and I do further empower my vakil to accept on my behalf, service of notice of all any appeals or petitions filed in any court of Appeal, Reference or Revision with regard to the said suit or matter before the disposal of the same in this Honourable Court.

“Accepted” The address for service of the said (pleader) is …

19. The vakalat and verification of pleadings can be signed either by the party or a PoA. As per Rule 33 of the Civil Rules of Practice, when the pleadings are verified and signed by a person under written authority (PoA), such document shall be filed with an affidavit by the PoA holder to the effect that such person is a recognized agent of the party as defined in Order III Rule 2 of CPC.

20. A perusal of Rules 30, 33, Form XII (Vakalatnama) and the relevant Rules in Order III would show that a pleader or an advocate who is given vakalatnama can only appear in the Court as contemplated under Order III Rule 4 of CPC. When an aggrieved party gives a PoA empowering the donee to act for him in any Court proceedings, what is the scope of such authority? It is now well settled that a PoA can sign and verify the pleadings, sign affidavits, instruct advocates to whom vakalatnama is issued and no more. A PoA cannot even give evidence on behalf of the party to the proceedings who has given PoA. This is also well settled.

21. In Janki Vashdeo Bhojwani v Indusind Bank Limited (2005) 2 SCC 217, the Supreme Court laid down that the GPA cannot depose for the Principal for the acts done by the latter and not by him. The ratio decidendi is as under.

Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts” employed in Order 3 Rules 1 and 2 CPC confines only to in respect of “acts” done by the power-of-attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has rendered some “acts” in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.

22. A reference also needs to be made to Section 303 of Cr.PC. It is to the effect that,

"any person accused of an offence before a criminal court or against whom proceedings are instituted under the Code may of right be defended by a pleader of his choice"

. Section 2(q) of Cr.PC defines ‘pleader’ as mean a person authorized by or under any law to practise in a Court and includes any person appointed with the permission of the Court to act in a criminal proceeding.

23. In Hari Om Rajender Kumar v Chief Rationing Officer of Civil Supplies, A.P. AIR 1990 ap 340, relevant provisions of the advocates act, cpc and the rules made by the Bar Council of India under Section 49(1)(c) of the Advocates Act were considered. While holding that the ‘practice’ before the Courts, Tribunals and Authorities can only be by Advocates, and not by any other person unless specifically authorized by the Courts in that behalf, it was observed that Section 32 is an exception to Sections 29, 30 and 33 of the Advocates Act. It was therefore held that a PoA cannot be placed in the same position as an Advocate. The basis for conferring exclusive right to argue, as elucidated by the Court, is as follows.

Both American and English Courts have adopted the doctrine that a non-lawyer may not appear in Court to represent another person. Outside the court-house, non-lawyers in earlier periods of American history freely performed tasks that today would be called the unathorised practice of law. That general pattern still obtains in England and other countries in Europe where there has been never a prohibition against non-lawyers performing such legal functions as giving legal advice or preparing some kinds of legal documents. (1) Modern Legal Ethics Charles W. Wolfrom, 1985 -- p. 825 quoting M. Zander, Lawyers and the Public Interest 174 (1968); Q. John Stone and D. Hopson Lawyers and their work 486-89 (1967).

After the First World War, particularly after the beginning of the Depression, Bar Associations waged a campaign to eradicate unauthorised practice. The American Bar Association formed a Committee in 1930 for this purpose and these committees were holding unauthorised practitioners. About the same time, the Courts began to announce sweeping common law doctrines of exclusive lawyer competence and this helped the Bar's newly kindled concern for protecting potential clients against incompetence and 'unscrupulous charlatans', (2) ibid p. 825-26 quoting W. Hurst, the Growth of American Law 323 (1950). The basis for restriction on unauthorised appearances, practice and pleading in Courts appeared to be based upon various principles viz., to avoid harm to the client in the hands of non-lawyers who are not legally qualified, preventing harm to the legal system as a whole, and for assuring a basis for professional discipline and for protecting lawyers against competition.

(emphasis supplied)

24. Therefore the PoA in favour of a person to act for another person in a Court proceeding cannot be construed as authorizing the holder of the PoA to argue a case in the Court. Order III Rule 1 of CPC, which permits “appearance or acting” in any Court by PoA, is subject to the provisions of the Advocates Act, 1961. Any such claim violates the Advocates Act which is the law relating to legal practitioners. The same would also be contrary to the binding precedents referred to herein below. We would first refer to the Advocates Act, and then to the precedents.

25. Section 2(a) of the Advocates Act defines, “advocate” to mean an advocate entered in any roll under the provisions of the said Act. The State Bar Council constituted under Section 3(a) of the Advocates Act is required by Section 17 to prepare and maintain a roll of advocates in which the names of all persons, who are eligible to enter as advocates, shall be entered. Chapter IV (Sections 29 to 34) deals with the right of the advocates to practice. A reading of these five provisions is necessary. They read as under.

29. Advocates to be the only recognised class of persons entitled to practice law.

Subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates.

30. Right of advocates to practise.

Subject to provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends, -

(i) In all Courts including the Supreme Court; (ii) Before any tribunal or person legally authorised to take evidence; and (iii) Before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice.

31. (omitted AIR 1978 SC 1019)

32. Power of Court to permit appearances in particular cases.

Notwithstanding anything contained in this chapter, any court, authority or perse may permit any person, not enrolled as an advocate under this Act, to appear before or him in any particular case

33. Advocates alone entitled to practise.

Except as otherwise provided in this Act or in 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 person unless he is enrolled as an advocate under this Act

34. Power of High Courts to make rules.

(1) The High Court may make rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the courts subordinate thereto. (1A) The High Court shall make rules for fixing and regulating by taxation or otherwise the fees payable as costs by any party in respect of the fees of his adversary's advocate upon all proceedings in the High Court or in any Court subordinate thereto.

(2) Without prejudice to the provisions contained in sub-section (1), the High Court at Calcutta may make rules providing for the holding of the Intermediate and the Final examinations for articled clerks to be passed by the persons referred to in Section 58 AG for the purpose of being admitted as advocates on the State roll and any other matter connected therewith.

26. It is also necessary to read Section 45 of the Advocates Act.

45. Penalty for persons illegally practicing in courts and before other authorities.

Any person who practises in any court or before any authority or person, in or before whom he is not entitled to practise under the provisions of this Act, shall be punishable with imprisonment for a term which may extend to six months.

27. It is also necessary to refer to the relevant rules made by the High Court of Andhra Pradesh under Section 34(1) of the Advocates Act (hereafter, Section 34 Rules). Rules 2 and 4 read as under.

2. Save as otherwise provided for in any law for the time being in force, no advocate shall be entitled to appear, plead or act for any person in any court in any proceeding, unless the advocate files an appointment in writing signed and dated by such person or his recognized agent or by some other person duly authorized by or under a power of attorney to make such appointment and signed by the advocate in token of its acceptance or the advocate files a memorandum of appearance in the form prescribed by the High Court.

Provided that where an advocate has already filed an appointment in any proceeding, it shall be sufficient for another advocate, who is engaged to appear in the proceedings merely for the purpose of pleading to file a memorandum of appearance.

Provided further that nothing herein contained shall apply to any advocate who has been requested by the court to assist the court amicus curiae in any case or proceeding or who has been appointed at the expense of the State to defend an accused person in a criminal proceeding.

4. An Advocate who is not on the roll of advocates of the Bar Council of the State in which the court is situate, shall not appear, act or plead in such court, unless he files an appointment along with an advocate who is on the Roll of such State Bar Council and who is ordinarily practicing in such court.

28. A conspectus of Rules 1 and 2 of Order III of CPC, Section 2(a) and Sections 29, 30, 33, 34 of the Advocates Act, Rule 2 of Section 34 Rules and Cr.P.C. would show that all the pleadings in a proceeding shall be made by the party in person, or by his recognized agent. A party in person, and a recognized agent, have to make an appointment in writing (vakalatnama) duly authorizing the advocate to appear and argue the case. Only an advocate entered on the rolls of the Bar Council of Andhra Pradesh, who has been given vakalat and which has been accepted by such advocate, can have the right of audience on behalf of the party, or his recognized agent, who engaged the advocate. Sections 29 and 30 of the Advocates Act make it clear that advocates are the only recognized class of persons entitled to practise law, and such an advocate should have been enrolled as such under the Advocates Act. Section 32 of the Advocates Act empowers the Court to permit any non-advocate to appear in a particular case. This only means that any person has to seek prior permission of the Court to argue a case if he is not an advocate enrolled under the Advocates Act. Further, it is an offence for a non-advocate to practice under the provisions of the Advocates Act. Section 45 prescribes a sentence of six months imprisonment.

29. In Hari Shankar Rastogi v Giridhari Sharma (1999) 3 SCC 614 : AIR 1999 SC 1385, an application was moved by a non-advocate seeking permission to appear in a Criminal Transfer Petition. The Supreme Court indicated that the word “pleader”, as defined in Section 2(q) of Cr.PC, included any person other than the one authorized by law to practice in a Court if he was appointed with the permission of the Court to act in a particular proceeding. While emphasizing that advocates alone are entitled as of right to practise in the Court, and that a non-advocate has no right to barge into the Court and claim to argue for a party, the Supreme Court indicated that, in a given case, even if permission is accorded to a non-advocate it can be withdrawn if the representative proves himself reprehensive.

30. In T.C.Mathai v District and Sessions Judge, Thiruvananthapuram, Kerala AIR 1937 Madras 937, approving the Full Bench view in M.Krishnammal v T.Balasubramania Pillai AIR 2003 Kant 30 it was held that section 2 of the poa act cannot override the specific provision of a statute which requires that the particular act should be done by a party in person, and that an agent has no right of audience on behalf of the principal to argue the case in a High Court, and that a GPA cannot be equated to a vakalatnama given to a legal practitioner. Justification for not allowing non-advocates to appear in the Courts, in the observations of the Supreme Court, is as follows.

The work in a court of law is a serious and responsible function. The primary duty of a criminal court is to administer criminal justice. Any lax or wayward approach, if adopted towards the issues involved in the case, can cause serious consequences for the parties concerned. It is not just somebody representing the party in the criminal court who becomes the pleader of the party. In the adversary system which is now being followed in India, both in civil and criminal litigation, it is very necessary that the court gets proper assistance from both sides. … … Legally qualified persons who are authorised to practise in the courts by the authority prescribed under the statute concerned can appear for parties in the proceedings pending against them. No party is required to obtain prior permission of the court to appoint such persons to represent him in court. Section 30 of the Advocates Act confers a right on every advocate whose name is entered in the Roll of Advocates maintained by a State Bar Council to practise in all the courts 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. 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.

(emphasis supplied)

31. The statutes and precedents are clear on the point. It is only advocates, whose names are entered on the rolls of the State Bar Council, who have the right to practise in any Court. If a person practices in any Court without any such authority, and without such an enrolment, it would be committing an offence under Section 45 of the Advocates Act punishable with imprisonment for a term which may extend to six months. Therefore the GPA Sri T.D.Dayal is not entitled to appear and argue for the appellant. He has no right of audience in this case or any other case.

32. A Division Bench of the Karnataka High Court, in Kota Co-operative Agricultural Bank Limited v State of Karnataka AIR 1962 AP 4, considered the question as to whether an advocate, who did not file a vakalat for a party in a case, can appear, plead or argue without presenting a memorandum of appearance, and obtaining express permission of the Court in terms of Rule 3 of Chapter V of the High Court of Karnataka Rules, 1959. The said rule reads as follows.

Rule 3.-- (1) When an Advocate retained to appear for any party on the vakalatnama in an appeal or other matter in the High Court is prevented by sickness or engagement in another Court or by other reasonable cause from appearing and conducting the case of his client, he may appoint another Advocate to appear for him. In such a case the Court if it sees no reason to the contrary, may permit the case to proceed in the absence of the Advocate originally engaged and permit his nominee to appear for him without a vakalatnama.

(2) Where an Advocate, who has filed a vakalatnama, engages another to appear and argue his client's case but not to act for the client, the Court may permit such other Advocate to appear and argue, either without filing a vakalatnama or on filing a memorandum of appearance, instead of a vakalatnama.

33. After referring to the Advocates Act, the Bar Council of India Rules, and the provisions of CPC (Section 119 and Order III), the Bench held that even a senior advocate designated under Section 16 of the Advocates Act is required to file a memorandum of appearance, and any other advocate has to obtain permission of the Court if he does not hold a vakalat for the party to the proceedings. The relevant observations are as follows.

… … when an Advocate who is retained by a party to appear for him by executing vakatatnama in his favour but is prevented to do so because of some exceptional situation constituted reasonable cause for him not to appear, then subject to the permission of the Court some other Counsel may appear for him without furnishing any vakalatnama. … …

… … But, certainly, under this rule a Counsel who does not hold vakalatnama for a party cannot claim as a matter of right to appear for the Advocate on record and this will be always subject to the permission accorded by the Court which is normally never refused unless there are good reasons for doing so. This power of the Court has to be preserved to avoid chances of fraud or even otherwise to protect the rights of litigants. … …

… … Therefore, according to us, for appearance and argument even a Senior Advocate is required to file memorandum of appearance which will show that he has been engaged and instructed for the purpose by the Advocate on record.

Court’s response to vexatious and frivolous litigation

34. Use of the Court for wrecking vengeance, or using the Court as a tool to foster injustice, would poison the purity of judicial administration. The role of Judges as protectors of the rights can well be discharged only when they decide genuine causes. A concocted, fabricated, false and spurious case by one party against the other using the Court as a forum would cause immense damage to the judicial institution besides damaging the reputation of the person dragged to the Court. The Court has to be on constant vigil to reject such cases. Common Law loathes frivolous and vexatious cases and persons who file such cases. Advance Law Lexicon by Sri P.Ramanatha Aiyar gives the definitions of these terms, which are extracted herein below.

“Frivolous” Paltry; trifling; not serious; silly; Of little weight or importance. A pleading is “frivolous” when it is clearly insufficient on its face, and does not controvert the material points of the opposite pleading, and is presumably interposed for mere purposes of delay or to embarrass the opponent. A claim or defense is frivolous if a proponent can present no rational argument based upon the evidence or law in support of that claim or defense.

“Frivolous suit”. A lawsuit having no legal basis, often filed to harass or extort money from the defendant.

(Book 2, 3rd Edition, 2007, p.1935)

“Vexatious” includes false. An accusation cannot be said to be vexatious unless the main intention of the complainant was to cause annoyance to the person accused, and not merely to further the ends of justice.

“Vexatious action”. An action brought for the purpose of annoying the opponent and with no reasonable prospect of success. A vexatious litigant is a person who regularly brings such actions. The actions may be struck out and the Court may order, on an application made by the Attorney General, that no legal proceedings may be begun or continued by the vexatious litigant without the leave of the Court.

“Vexatious litigation or suit” The litigation initiated deliberately for the purpose of annoying someone.

“Vexatious suit”. A lawsuit instituted maliciously and without good cause.– Also termed vexatious lawsuit; vexatious litigation; vexatious proceeding.

(Book 4, 3rd Edition, 2007, p.4890)

35. As far back as in 1949, the legislature of composite Madras State made Vexatious Litigation (Prevention) Act, 1949. After formation of the State of Andhra, by reason of the Andhra Adaptation Order 1953, the same was enforced in the Andhra Area as “Vexatious Litigation (Prevention) Act, 1949” (1949 Act). This is an Act to prevent the institution of vexatious proceedings in Courts. Section 2 thereof empowers and enables the Advocate General for the State to make an application to the High Court to prohibit any person from instituting civil or criminal proceeding in any Court. If the High Court is satisfied that such a person,

"has habitually and without any reasonable ground instituted vexatious proceedings, civil or criminal, in any Court or the Courts, the High Court may prohibit such person from filing vexatious and frivolous cases."

36. Whether the 1949 Act is applicable to the territories comprised in the erstwhile State of Hyderabad (Telangana Area)? This question was considered in Advocate General v Prabhakara Rao H. Mowle AIR 1965 SC 1827. The case arose on an application filed by the Advocate General for Andhra Pradesh under Section 2(1) of the 1949 Act to bar the respondent therein from instituting any proceedings in any Court in Andhra Pradesh without leave of the High Court or the District Court concerned. A plea was raised that the 1949 Act cannot be invoked as the same has not been extended to the Telangana Area, and that the 1949 Act is unconstitutional as it deprives his right to seek redressal in a Court of law. On the first plea, it was held that the Act is applicable to the Telangana Area also, and that the High Court is vested with the jurisdiction to make an order in appropriate cases. In so far as the constitutional validity is concerned, the argument was repelled observing as under.

The Act is an extremely useful one, and is intended to prevent people from harassing others. If the effect of any order which might be made under the Act would be to prevent the litigant altogether from taking any proceedings, there would be some substance in the contention of the respondent. But the only effect of the order which might be made under the Act is that the litigant has to obtain the leave of a Judge of the High court or of a District and Sessions Judge before instituting proceedings. This would mean that a perfectly impartial Judge would consider the litigant’s statement as to his case and if he thinks that the litigant ought to be allowed to proceed with it, would give him leave to do so. We are, therefore, led to conclude that the Act is a perfectly valid piece of legislation and is not unconstitutional as contended by the Respondent.

37. The decision of the High Court in Prabhakara Rao was carried in appeal to the Supreme Court. In Prabhakara Rao H. Mowle v State of Andhra Pradesh (1971) 1 SCC 626 : AIR 1971 SC 1132 upholding the constitutional validity, it was observed as follows.

The next argument of the appellant before us is that this Act is unconstitutional because it prevents some citizens from approaching the court and obtaining relief to which everyone is entitled in a State governed by Rule of Law. This argument really invokes Art.19 and Art.14. The latter Article is invoked because the Act, according to the appellant, seeks to create an unreasonable distinction between litigant and litigant. This argument is also not acceptable to us because the litigants who are to be prevented from approaching the court, without the sanction of the High Court etc., are in a class by themselves. They are described in the Act as persons who 'habitually' and 'without reasonable cause' file vexatious actions, civil or criminal. The Act is not intended to deprive such a person of his right to go to a court. It only creates a check so that the court may examine the bona fides of any claim before the opposite party is harassed. A similar Act, passed in England, has been applied in several cases to prevent an abuse of the process of court. In its object the Act promotes public good because it cannot be claimed that it is an inviolable right of any citizen to bring vexatious actions without control, either legislative or administrative. The Act subserves public interest and the restraint which it creates, is designed to promote public good. The Act does not prevent a person declared to be habitual litigant from bringing genuine and bona fide actions. It only seeks to cut short attempts to be vexatious. In our judgment, the Act cannot be described as unconstitutional or offending either Art.19 or Art.14.

38. However on the second plea regarding its applicability to the Telangana Area, the decision of the High Court was reversed by the Apex Court on the ground that,

"it has not been extended to the area known as Telangana area and, till extended, S.119 of the States Reorganisation Act expressly prohibits an extension to the Telangana area by judicial construction."

39. By reason of the Constitution Bench judgment, the 1949 Act has no application to the Telangana area. But the same does not preclude the High Court of Andhra Pradesh from prohibiting any person from appearing before it. Section 34 of the Advocates Act empowers the High Court to make rules laying down the conditions subject to which an advocate is permitted to practise before it, and the Courts subordinate to it. In exercise of the said power, rules have been made. A perusal of these Rules would make it clear that the High Court has the power and jurisdiction to prevent any advocate or a party from filing frivolous and vexatious cases or pursuing them. Keeping this in view, we propose to consider the issue framed by us.

40. This matter was initially listed before us on 02.8.2010. As we were surprised that Sri T.D.Dayal, the alleged GPA was himself arguing the case, we queried. He submitted that, during the last more than 20 years, he has appeared in a number of cases in this Court. On that day we recorded the following proceedings.

The General Power of Attorney (GPA) holder of an aggrieved person, subject to the terms thereof, may file affidavits and cases before the Courts. But, a GPA holder cannot have a right of audience before Court to plead on behalf of others, like an Advocate enrolled on the rolls of the Bar Council of Andhra Pradesh. This was so held in Harishankar Rastogi v Giridhari Sharma (AIR 1978 SC 1019) and T.C.Mathai v District and Sessions Judge, Thiruvananthapuram, Kerala (AIR 1999 SC 1385). When this is pointed out, Sri T.D.Dayal requests time to place before this Court the order of the Supreme Court.

41. The matter was thereafter listed before the 1st Court. By an order dated 16.8.2010 the Hon’ble Chief Justice and Justice Vilas V.Afzulpurkar thought it fit to list the matter again before this Bench. When the matter appeared on our board, having regard to the submission made by the GPA that he had appeared in a number of cases during the last more than 20 years; in exercise of our inherent power as a Court of record No rule prevents the court from investigating in private whatever materials it thinks fit to ensure that it is well informed, whether in relation to the case before it or generally. The Court has an inherent power to inspect any material brought before it. This is to enable the court to determine whether the material is relevant to the point of construction in question, and if so whether it should be admitted. (see Sections 243 and 244 of Francis Bennion’ Statutory Interpretation, 1984 Edn.,)– we called for information from the registry with regard to all the cases where Sri T.D.Dayal (some times he calls himself as Sri T.Deena Dayal) appeared either as a party in person or a GPA holder for other persons filing writ petitions, criminal cases and civil cases. After getting the information, we are indeed surprised that Sri T.D.Dayal is a habitual Court bird filing all sorts of cases. These cases are vexatious and frivolous. As we shall presently point out, more often than not, he annoyed the Hon’ble Judges, attributed motives, filed and argued false, frivolous and vexatious cases, and also cases invoking the PIL (Public Interest Litigation) jurisdiction of this Court. We would summarize the gist of various cases where he appeared as party in person, and as GPA, in two separate tabular columns as below.

TABLE-I

Particulars of cases in which Sri T.D.Dayal appeared as party in person

Sl. No

CASE NO.

PARTY NAME

PRAYER

RESULT

1

2

3

4

5

1

WP No. 7986/94

TD Dayal

Assailed the action of High Court in extending the age of superannuation of a Sub-Judge upto 60 years following the ratio in All India Judges Assn. v UoI, AIR 1992 SC 165. He contended that law declared by Supreme Court cannot overrule a statutory provision like Section 3 of A.P. Public Employment (Regulation of age of superannuation) Act, 1984.

A Division Bench dismissed the writ petition at the stage of admission on 13.4.1994 even before it was numbered observing that, even if there is a legislative enactment contrary to the law laid down by the apex Court, the law laid down by the Supreme Court is binding on all the Courts within the territory of India.

2

Contempt Case No.7/96

Ditto

Suo motu proceedings initiated by Court for unruly conduct in the Court

By order dated 24.01.1996, the Division Bench sentenced T.D.Dayal for three months imprisonment. The same was confirmed on 22.02.1996.

3

WPMP Nos. 1056 & 1057 of 1997 in

W.P. No.19345 of 1995

Ditto

The Miscellaneous applications were filed for a direction to the Registry to circulate his letter to Hon’ble the Chief Justice and other learned Judges.

By an order dated 24.1.1997, the applications were dismissed. The Division Bench observed that,

"a person who is not learnt the ways of dealing with the Court and making petitions in spite of conviction for contempt, will never learn if he is convicted over and over again."

. The Registry was directed not to entertain any petitions filed on his behalf unless specifically ordered by the Court.

4

WP No. 1287/97

Ditto

The writ petition was filed challenging reconstitution of STD/ISD/PCO allotment Committees.

The writ petition was dismissed on 29.2.1997 observing that no writ petition can be allowed to challenge the constitution of a non-statutory committee.

5

Crl.P No. 2943/97

Ditto

The petition was filed under Section 438 of Cr.PC for anticipatory bail.

It was dismissed on 13.8.1997 observing that it was filed on a mere apprehension.

6

WP No. 8067/07

Ditto

For appropriate writ directing Election Commission of India and Delimitation Commission of India to include 119-Bhadrachalam (ST) Assembly Constituency in 17-Khammam Parliamentary Constituency and restore the same to STs.

The writ petition was dismissed on 19.4.2007 as pre-mature because by then Government of India has not issued any notification on the recommendation of Delimitation Commission.

7

WP No. 12057/97

Ditto

Directing the 3rd Respondent to Investigate the 7th Respondent

The writ petition is dismissed holding that except vague allegation in the affidavit, no material is placed on record.

8

WP No. 3298/98

Ditto

To change the subject of 1st petitioner from Civil Engineering in G.Pulla Reddy College of Engineering, Kurnool to Textiles Engineering in College of Engineering, Osmania University.

The writ petition was dismissed on 09.2.1998 holding that for the same cause espoused in W.P.No.10909 of 1997, in W.A.No.999 of 1997 as well as Review.

9

WP 4973/98

Ditto

To enhance the reservation for Educationally Backward

The writ petition was dismissed for default as the party-in-person was not present.

10

WP No. 10451/01

Ditto

1st Respondent to exercise jurisdiction U/s. 57(3) AP (Telangana Area) Land Revenue

The writ petition was dismissed.

11

WP No. 3678/01

Ditto

Invoking PIL jurisdiction, writ petition was filed to cancel the building permission given to Sri Syed Wahid Hussain alleging that the land belongs to Government.

On 24.1.2002 the Division Bench dismissed the writ petition observing that the subject matter of writ petition became final by reason of the order in W.P.No.14523 and 11547 of 1991.

12

Crl.P No. 219/03

Ditto

Petition under Section 482 Cr.PC to quash the proceedings in C.C.No.471 of 2000 on the file of the Court of XVII Metropolitan Magistrate, Hyderabad, filed aginst him under Section 506 of the Indian Penal Code, 1860.

The petition was dismissed on 07.1.2003 observing that a non-bailable warrant is pending, as the petitioner was absconding.

13

WPSR No. 6422/03

Ditto

For appropriate writ prohibiting learned XVII Metropolitan Magistrate, Hyderabad from proceeding with C.C. No.471 of 2000.

Even before the case was numbered, the writ petition was dismissed on 28.11.2003 as withdrawn.

14

WPSR No. 72648/04

Ditto

For a writ of Mandamus to the Home Secretary, Government of Andhra Pradesh, to cause fresh investigation and trial in Crime No.149 of 1998 of P.S. V Town, Nellore, for the offence under Section 302 of IPC and for payment of Rs.1,00,000/- as compensation. When the case was numbered, he alleged that the same amounts to contempt of Court by the Registry.

The case was dismissed on 06.10.2004 at scrutiny stage observing that the petitioner filed the case without disclosing his interest and that his application to review order in W.P.No.19345 of 1995 was already dismissed. The Division Bench directed the Registry not to entertain any further application filed by the petitioner.

TABLE-II

Particulars of cases in which Sri T.D.Dayal appeared as GPA for others

Sl. No.

CASE NO.

PARTY NAME

PRAYER

RESULT

1

2

3

4

5

1

WP No. 16306/1997

Smt.Madakam Subhadramma, rep. by GPA

Petition under Article 226 to quash the proceedings in S.C.No.52 of 1996 on the file of the Court of Asst. Sessions Judge, Kothagudem, and for Rs.5,00,000/- as compensation.

The writ petition was dismissed on 18.8.1997 as not maintainable.

2

WP No. 10909/97

Sri T.K. Srikanth rep. by GPA

Petition under Article 226 for a direction to transfer the petitioner to another Engg. College and convert the branch in Engineering.

The writ petition was dismissed on 20.8.1997.

3

WA No. 999/97

Ditto

Petition under Cl.15 of Letters Patent Act against the dismissal of W.P.No.10909 of 1997, dated 20.8.1997.

The Division Bench dismissed the appeal on 11.9.1997 directing the Registry not to entertain any case by GPA and also issue directions to District/ Subordinate Courts that appearance of GPA therein in Court proceedings is impermissible.

The Review petition was also dismissed.

4

WP No.

3298/1998

Ditto

Petition under Article 226 for a direction to change seat from Civil Engg of one Engg. College to Textile Engg of another College.

The writ petition was dismissed on 09.2.1998 observing that for the same cause espoused in W.P.No.10909 of 1997 another writ petition is not maintainable.

5

Crl P No. 1415/1997

Smt. Madekam Subhadramma, rep. by GPA

Petition under Section 482 of Cr.PC to quash all the proceedings in S.C. No.52 of 1996 on the file of the Court of Addl. Sessions Judge, Kothagudem.

The petition was dismissed on 30.8.2004 observing that it is abuse of process of the Court.

6

WPSR No. 35288/06

Sri P.Sai Babu rep. by GPA

Petition under Article 226 to quash the proceedings in C.C. No.1170 of 1998 on the file of the V Metropolitan Magistrate, nampally, Hydeabad, which was confirmed in Crl.A. No.380 of 2001 on 26.6.2005.

The learned Single Judge dismissed the writ petition on 22.6.2006.

7

WA No. 180/2007

Ditto

Against W.P. (SR) No.35288 of 2006 dated 22.6.2006

The appeal was dismissed on 11.7.2007 holding that the writ petition is not maintainable against a judicial order.

8

Rev WAMP 1551/2007

Ditto

Review petition in W.A. No.180 of 2007

The petition was dismissed on 14.2.2008 observing that it is abuse of process of the Court. The Court imposed Rs.10,000/- as costs, in default of which imprisonment for a period of four weeks.

N.B.

1. In all the above cases, Sri T.D.Dayal is the GPA

2. The cases in Sl.Nos.2 to 4 is for the same prayer; the cases in Sl.Nos.1 and 5 are for the same prayer; and the cases in Sl.Nos.6 to 8 are filed for the same prayer.

42. We have given the synopsis in Table-I and Table-II above showing various cases wherein Sri T.D.Dayal appeared though he is not an advocate. We need to mention about the suo motu contempt case initiated by the Division bench comprising of the Chief Justice P.S.Mishra and Justice M.H.S.Ansari. In the said contempt case being C.C.No.7 of 1996 dated 22.02.1996, this Court traced the litigation adventures of the G.P.A., and confirmed his imprisonment for a period of three months, which was imposed on him suo motu on 24.01.1996 for contemptuous, unruly conduct and gesticulations made in the Court. For ready reference, we may extract the relevant portions from some of the orders and judgments referred to in the above table, which would show how cases of vexatious and frivolous litigation were filed in the High Court.

43. In C.C.No.7 of 1996, dated 22.02.1996, the Court made the following observations.

Before we proceed to take notice of the contemner’s conduct we may recapitulate that he has been along with his brother filing separate petitions and masquerading as the champion of the cause of the public. They have been doing so and separately for almost 14 years and taking up issues which had/have political overnotes. They have seldom been found to have taken the cause of any class of citizens or causes which affected the rights of the people at large except such they thought they should agitate as petitioners in court and argue personally matters which could give to them publicity. The court has, however, been tolerant enough and the privileges extended to conscientious citizens were not denied to them including by us to the contemner in the above mentioned writ petition. ... ... Since there is no repentance shown to us we have to proceed on the footing that the contemner has not repented of his conduct and that he has nothing to show cause. The provisions in Section 14 of the Contempt of Courts Act, 1971 postulate vis- -vis ex facie contempt (1) to cause the contemner to be detained in custody, and, at any time before the rising of the court, or as early as possible thereafter (a) to inform him in writing of the contempt with which he discharged, (b) to give him an opportunity to answer the charge, (c) to take such evidence as necessary or as offered by the contemner, hear him and proceed forthwith or after adjournment, to determine if he is guilty and (d) then make such order as to his punishment or discharge him whichever is just. The other provisions in the said Section 14 of the Contempt of Courts Act, however, are not relevant for the instant proceeding for the simple reason that one of us is the Chief Justice and the action against the contemner has been initiated at the level of the court where the Chief Justice is presiding the Bench. ... ... It is well settled that interest of the Court is one of the foremost public interest and any attempt by any person to denigrate, abuse, scandalize or lower its constitutional position is an attack upon the public interest. A person who has no interest of the Court at his heart can never be representing the public interest in the Court. Contemner is one of such person who has all contempt for the Court but wants to use the forum of the Court in the name of the public interest. The contemner belongs to such species who use people mostly but do not care to see whether they are protected by laws or the injuries caused to them are repaired. By his actions he has caused more damage to the public interest than serve it. Since we find ourselves convinced that conviction alone can be the method to make him realize that he could not take such proceedings which are not entertainable or right and if the Court makes specific order not to take such proceedings on its files, he cannot abuse the authority of the Court. We are satisfied that conviction recorded by us is just and proper.

44. In W.P.M.P.Nos.1056 and 1057 of 1997 in W.P.No.19345 of 1995, while dismissing the applications on 24.1.1997, the Division Bench made the following order.

The main writ petition No.19345 of 1995 has already been disposed of with the judgment in writ petition No.19609 of 1995 and other petitions. The party in person has already suffered conviction for contempt of Court for insisting that his petition was not disposed of and that it was still pending. Notwithstanding the above, he has chosen to file further petitions seeking hearing of his writ petition and indulged in abuses to the Hon’ble Judges. A person, who has not learnt the ways of dealing with the Court and making petitions in spite of conviction for contempt, will never learn even if he is convicted over and over again. The Registry of the Court is directed not to entertain any petition filed on his behalf unless specifically ordered by the Court.

(emphasis supplied)

45. While dismissing W.A.No.999 of 1997 on 11.9.1997, which was filed against the order dated 20.08.1997 in W.P.No.10909 of 1997, the Division Bench of this court delivered the following order.

The right to represent a litigant, which is recognized for an advocate under Section 30 of the Advocates Act, it appears, is sought to be used by the so-called General Power of Attorney holder, one Mr.T.D.Dayal, who has already earned notoriety in filing so called public interest petitions in the court and already convicted for contempt of court in Contempt Case No.7 of 1996. We record for the future guidance of the court that any appearance by him i.e., Mr.T.D.Dayal, who is not an advocate, by obtaining so called General Power of Attorney is not permitted and thus he is not allowed to represent any petitioner for the purpose of arguing the cases before the court.

Registrar (Judicial) is directed to issue necessary instructions not to number the cases filed by him without first verifying whether there is General Power of Attorney as claimed by him to represent the petitioner/appellant or respondent, as the case may be, in any proceeding and to permit any cases to be posted only when, in exercise of the General Power of Attorney, he appoints an advocate to appear for the petitioner/appellant or the respondent, as the case may be. Registrar (Judicial) is also directed to inform all District/Subordinate Courts to take notice of the appearance of Mr.T.D.Dayal as General Power of Attorney holder and his appearance in the Court proceedings which is permissible for advocates only.

(emphasis supplied)

46. In Criminal Petition No.1415 of 1997, dated 30.8.2004, this Court observed as follows.

In this case, as prima facie material on record would clearly indicate that it is the 1st accused and others who are alleged to have set fire to the houses, causing damage to the houses worth about Rs.40,000/-, the proceedings in S.C.No.52 of 1996 on the file of Assistant Sessions Judge, Kakinada cannot be quashed. Filing of the present petition is nothing but abuse of process of Court as the allegations in the first information report, charge-sheet and the statements of the witnesses clearly indicate that it is the present petitioner along with some others alleged to have set fire to the 3 houses. Therefore, there are absolutely no grounds to quash the proceedings and the petition is devoid of merits.

47. The Division Bench dismissed the W.P. (SR) No.72648 of 2004 on 06.10.2004. While doing so, the Division Bench observed as under.

After investigation, the case was tried and the accused was acquitted. Only in rare cases, it may be possible for the court to intervene in acquittal matters. The petitioner has approached this Court by filing writ petition, but does not state as to what interest he has got in the matter. Earlier the petitioner filed application to review the order passed on 24.7.1997 in W.P.No.19345 of 1995 and we have dismissed the same observing that there is inordinate delay and the remedy of the petitioner was to approach the apex court challenging the order passed by this Court. We have also directed the Registry not to entertain any further application filed by the petitioner. The petitioner has again approached this Court by filing the present writ petition and the Registry has raised objection as to how this writ petition is maintainable in view of the orders passed in WPMP Nos.1056 and 1057 of 1997 and WPMP (SR) Nos.126785, 126787, 126788 of 2003 in W.P.No.19345 of 1995, dated 07.11.2003, and returned the papers. The petitioner represented the writ petition stating that the objection amounts to contempt of Court.

We fail to understand as to how it will amount to contempt of Court when this Court directed not to entertain any further petition filed by the petitioner, and the remedy of the petitioner was to approach the Supreme Court. We have gone through the contents of the writ petition and we do not find any ground to entertain this writ petition.

(emphasis supplied)

48. In W.A.No.180 of 2007 filed against the order of the learned Single Judge in W.P. (SR) No.35288 of 2006 the Division Bench, while dismissing the appeal on 11.7.2007, stated as follows.

Sri T.D.Dayal, GPA holder of the appellant argued that the judgment of the trial Court is non est because no legally admissible evidence was available for convicting the appellant and dismissal of Criminal Appeal No.380 of 2001 and Criminal Revision Case No.87 of 2002 by the lower appellate court and this Court are inconsequential. He relied on Section 68 of the Indian Evidence Act, 1872 and argued that without examining either of the attesting witnesses, the lower court could not have treated the document as duly proved and convicted and sentenced the appellant.

In our opinion, there is no merit in the submission of Sri T.D. Dayal and we do not see any reason to differ with the learned Single Judge that in exercise of power under Article 226 of the Constitution of India, this Court cannot scrutinize the legality of correctness of the judgment rendered by a competent court more so when such judgment has been upheld by the appellate and the revisional courts.

49. In Review W.A.M.P.No.1551 of 2007 in W.A.No.180 of 2007 dated 14.2.2008 it was observed as under.

At the outset, we are of the view that filing of writ petition, appeal and then review petition is nothing but an abuse of the process of the court. It is settled principle of law that High Court exercising the power of jurisdiction under Article 226 of Constitution of India cannot scrutinize the legality or correctness of the judgment rendered by a competent court having jurisdiction to deal with the matter, particularly, when the judgment has been upheld both by the appellate and revisional Courts.

On 21.9.2007, when the review petition came up for hearing, this Court finding that the above statement is ex facie false and scandalous, directed the review petitioner to file affidavit in support of the review petition. As the affidavit has not been filed, this Court by order dated 20.12.2007 directed issuance of contempt notices to the review petitioner as well as to Sri T.D.Dayal, General Power of Attorney Holder of the petitioner as to why action for committing contempt of this Court be not initiated against them. Subsequently, both the review petitioner and Sri T.D.Dayal filed affidavits on 17.1.2008 tendering unconditional apology. By a separate order passed by us today in Suo Motu Contempt Case No.1328 of 2007, we have closed the contempt case accepting the unconditional apology and taking lenient view of the matter.

In the result, review petition is dismissed with costs quantified at Rs.10,000/- (Rupees Ten thousand) payable by the petitioner to the A.P. High Court Legal Services Committee, Hyderabad within a period of four weeks from today and file proof of the same in the Registry, in default, the petitioner shall undergo simple imprisonment for a period of four weeks. In the event of petitioner not complying with the same, a warrant of arrest shall issue for arrest of the petitioner for serving the sentence in civil prison.

(emphasis supplied)

50. We are compelled to deal with the matter in the interest of administration of justice in general, and the advocate community in particular. The nature of cases filed by Sri T.D.Dayal, either as a party in person or as the holder of a GPA for third parties, would show that all the cases are frivolous. We have already demonstrated how he – as found by this court on more than one occasion – filed cases for the same cause of action even though they were dismissed one after the other. He attained notoriety in the corridors of the High Court of Andhra Pradesh, and was punished for contempt of court. It is very much necessary, therefore, to prevent him from filing cases in the Court as GPA.

51. As per Section 45 of the Advocates Act, if any person practices in any Court though he is not entitled to practise under the Advocates Act, it is an offence punishable with imprisonment for a term which may extend to six months. As per Section 4 of Cr.P.C, the same has to be investigated, enquired into and tried in accordance with the provisions of Cr.P.C. When an offence is committed with reference to the Advocates Act, there cannot be any better complainant than the Bar Council. Therefore, the Bar Council of Andhra Pradesh should file criminal cases against Sri T.D.Dayal, who appeared as a GPA for litigants even though he is not entitled to practise, appear and argue cases before this Court or any Court. Indeed, at least on two occasions, the Division Bench of this Court has recorded a finding that Sri T.D.Dayal cannot appear and argue cases for others. We, therefore, issue directions in this regard in this judgment. We may, however, mention that, while filing criminal complaints, one must also keep in view the provisions of Chapter XXXVI of Cr.PC which deal with “Limitation for taking cognizance of certain offences.”

52. We are also surprised to notice that, on occasions more than one, this Court directed the Registry not to accept any case filed by Sri T.D.Dayal. But somehow or the other he is being allowed to sneak into the High Court system and file all sorts of cases. Serious attention should be bestowed on this. If there is any lapse, it would be contumacious and liable for contempt. Indeed in W.A.No.999 of 1997, this court even directed the Registry to issue directions to the District/Subordinate Courts not to allow any GPA to argue cases. This direction issued more than a decade ago has been followed more in breach. We can only caution all those concerned in the Registry about this aspect.

53. Yet another aspect of this case is that Sri T.D.Dayal is in the habit of making allegations against the learned Judges. This conduct is also contumacious. Further, when this case came up before us on 02.8.2010, we passed an order observing that a GPA holder cannot have a right of audience before the Court to plead on behalf of others like an advocate enrolled on the rolls of the Bar Council. The matter then went before the 1st Court comprising of the Hon’ble the Chief Justice and Justice Vilas V. Afzulpurkar. On 16.8.2010 their Lordships felt that, as the matter has been considered by this Bench earlier, it would be appropriate to list the matter before us. On 19.8.2010 Sri T.D.Dayal circulated a letter to the Registrar (Judicial) making unfounded and wild allegations to the effect that one of us (Justice V.V.S.Rao) is biased against him, and it is not desirable to post the writ appeal before the Bench consisting of him. The letter dated 19.8.2010 reads as under.

Dated: 19.08.2010

To

The Registrar (Judicial)

High Court of Judicature,

Andhra Pradesh,

Hyderabad.

Respected Sir,

Sub: Post of W.A.No.556 of 2010 before the Court – Reg.

On 2.8.2010, their Lordships the Hon’ble Mr. Justice V.V.S.Rao and the Hon’ble Mr. Justice Ramesh Ranganathan directed to post the above W.A. before another bench but on 16.8.2010, their Lordships the Hon’ble Chief Justice and the Hon’ble Mr. Justice Vilas V. Afsalpurkar directed to post it on 23.8.2010 before their Lordships the Hon’ble Mr. Justice V.V.S.Rao and the Hon’ble Mr.Justice Ramesh Ranganathan.

As his Lordship the Hon’ble Mr. Justice V.V.S.Rao is biased against me, it is not desirable to post the above W.A. before a bench consisting of him.

I, therefore, pray that the learned Registrar (Judicial) may be pleased to obtain orders of the Hon’ble Chief Justice and post the above W.A. before a bench without his Lordship the Hon’ble Mr. Justice V.V.S.Rao in the interests of justice.

Be pleased to consider,

Yours faithfully,

Sd/- xxx xxx

(T.D. DAYAL)

GPA of the Petitioner

Party in person (9999).

54. During oral arguments, however, he did not seriously press the same before the Bench. Even then, this amounts to contempt of court. Further in paragraph 7 of the writ affidavit, filed by Sri T.D.Dayal as GPA, he used bad language imputing prejudice to this Court which decided the first appeal, and the Supreme Court which decided the SLPs. This is also contumacious.

55. In C.K.Daphtary v O.P.Gupta (1954) 345 US 11, a former Attorney General of India and three other advocates, filed a petition complaining contemptuous statements printed and published in a pamphlet by O.P.Gupta and Rising Sun Press, Delhi. The Constitution Bench unanimously concluded that imputing dishonesty to the Judge, even if the judgment contains errors, can be no excuse and that it amounts to scurrilous attack on the Judge amounting to contempt of Court. The relevant passages from the judgment are as follows.

In this case it is claimed that Respondent 1 has committed contempt of court by circulating a pamphlet or booklet containing criticism of the judgment of this Court, delivered by Mr.Justice Hegde, on behalf of himself and Mr.Justice Shah, as he then was, and also containing scurrilous criticism of the conduct of both the Judges. Then, what is the existing law on this particular point? We are relieved from reviewing earlier authorities because this Court has recently in two cases examined the law. In Perspective Publications Ltd. v. State of Maharashtra, (1969) 2 SCR 779 at pp.791 and 792 = (AIR 1971 SC 222 at p.230) Grover, J., speaking on behalf the Court, reviewed the entire case law and stated the result of the discussion of the cases on contempt as follows:

"(1) It will not be right to say that committals for contempt for scandalising the Court have become obsolete."

(2) The summary jurisdiction by way of contempt must be exercised with great care and caution and only when its exercise is necessary for the proper administration of law and justice.

(3) It is open to anyone to express fair, reasonable and legitimate criticism of any act or conduct of a Judge in his judicial capacity or even to make a proper and fair comment on any decision given by him because ‘justice is not a cloistered virtue and she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.’

(4) A distinction must be made between a mere libel or defamation of a Judge and what amounts to a contempt of the Court.

The test in each case would be whether the impugned publication is a mere defamatory attack on the Judge or whether it is calculated to interfere with the due course of justice or the proper administration of law by this Court. It is only in the latter case that it will be punishable as contempt.

"(5) Alternatively the test will be whether the wrong is done to the Judge personally or it is done to the public. To borrow from the language of Mukherjea, J., (as he then was)(Brahma Prakash Sharma, 1953 SCR 1169 = (AIR 1964 SC 10), the publication of a disparaging statement will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the judge or to deter actual and prospective litigants from placing complete reliance upon the Court’s administration of justice or if it is likely to cause embarrassment in the mind of the Judge himself in the discharge of his judicial duties."

Later, Hidaytuallah, C.J., in R.C. Cooper v. Union of India, (1970) 2 SCC 298 at p.301 = (AIR 1970 SC 1318 at pp.1320, 1321) observed:

"There is no doubt that the Court like any other institution does not enjoy immunity from fair criticism. This Court does not claim to be always right although it does not spare any effort to be right according to the best of the ability, knowledge and judgment of the Judges. They do not think themselves in possession of all truth or hold that wherever others differ from them, it is so far error. No one is more conscious of his limitations and fallibility than a Judge but because of his training and the assistance he gets from learned counsel he is apt to avoid mistakes more than others.... We are constrained to say also that while fair and temperate criticism of this Court or any other Court even if strong, may not be actionable, attributing improper motives, or tending to bring Judges or Courts into hatred and contempt or obstructing directly or indirectly with the functioning of Courts is serious contempt of which notice must and will be taken. Respect is expected not only from those to whom the judgment of the Court is acceptable but also from those to whom it is repugnant. Those who err in their criticism by indulging in vilification of the institution of Courts, administration of justice and the instruments through which the administration acts, should take heed for they will act at their own peril. We think this will be enough caution to persons embarking on the path of criticism."

(emphasis supplied)

56. In Advocate General, State of Bihar v M.P. Khair Industries (1972) 1 All ER 997, 1006, it was observed as follows.

While we are conscious that every abuse of the process of the court may not necessarily amount to contempt of court, abuse of the process of the court calculated to hamper the due course of a judicial proceeding or the orderly administration of justice, we must say, is a contempt of court. It may be that certain minor abuses of the process of the court may be suitably dealt with as between the parties, by striking out pleadings under the provisions of Order 6 Rule 16 or in some other manner. But, on the other hand, it may be necessary to punish as a contempt, a course of conduct which abuses and makes a mockery of the judicial process and which thus extends its pernicious influence beyond the parties to the action and effects the interest of the public in the administration of justice. The public have an interest, an abiding and a real interest, and a vital stake in the effective and orderly administration of justice, because, unless justice is so administered, there is the peril of all rights and liberties perishing. The court has the duty of protecting the interest of the public in the due administration of justice and, so, it is entrusted with the power to commit for contempt of court, not in order to protect the dignity of the court against insult or injury as the expression “Contempt of Court” may seem to suggest, but, to protect and to vindicate the right of the public that the administration of justice shall not be prevented, prejudiced, obstructed or interfered with.

"It is a mode of vindicating the majesty of law, in its active manifestation against obstruction and outrage."

1993 Supp (1) SCC 529 : AIR 1992 SC 904

"The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope."

Per Judge Curtis-Raleigh quoted in Jennison v. Baker, (1972) 1 All ER 997, 1006

(emphasis supplied)

57. In Pritam Pal v High Court of M.P. 1993 Supp (1) SCC 529 : AIR 1992 SC 904, the writ petition filed by the appellant therein against a show cause notice issued by Defence Accounts Department was dismissed. His review petitions were also dismissed. By that time he had joined the Bar. He then filed a contempt petition against two learned Judges of the Madhya Pradesh High Court who had dismissed his case. He made scurrilous aspersions in the petition against one of the Judges. The Division Bench, suo motu, initiated criminal contempt and, after putting him on notice, sentenced him to two months imprisonment. The Supreme Court dismissed the appeal observing as under.

To punish an advocate for contempt of court, no doubt, must be regarded as an extreme measure, but to preserve the proceedings of the courts from being deflected or interfered with, and to keep the streams of justice pure, serene and undefiled, it becomes the duty of the Court, though painful, to punish the contemnor in order to preserve its dignity. No one can claim immunity from the operation of the law of contempt, if his act or conduct in relation to court or court proceedings interferes with or is calculated to obstruct the due course of justice.

Coming to the question of sentence, it appears from the order of the High Court that the appellant had adopted a defiant attitude and tried to justify the aspersions made by him even without thinking it necessary to apologise. Before this Court also, the appellant has neither expressed any contrition nor has he any repentance for the vicious allegations made against the learned Judges of the High Court. But on the other hand, he has exhibited a dogged determination to pursue the matter, come what may.

A reading of his memorandum of grounds and the written and signed arguments show that he has ventured into another bout of allegations against the High Court Judges and persisted in his campaign of vilification. His present conduct has aggravated rather than mitigated his offence.

(emphasis supplied)

58. Therefore, by using bad and intemperate language attributing prejudice to Hon’ble Judges of the highest Court and also by addressing a letter to the Registry attributing bias, Sri T.D.Dayal has committed contempt scandalizing the Court besides interfering with the course of justice. Separate proceedings need to be initiated in this regard.

59. In the result, for the above reasons, we dismiss the writ appeal as an abuse of process of law, with the following directions and orders.

1. We direct the Registry not to accept any case or proceeding, application filed by Sri T.D.Dayal either as a party in person or as a holder of a GPA for third parties; we also direct all the District and Subordinate Courts in the State of Andhra Pradesh to abide by this direction;

2. We direct the Security Officer, Incharge of the High Court Security, not to allow Sri T.D.Dayal to enter the High Court premises/precincts and he shall be stopped and sent away from the entry point itself unless he is specifically summoned by the Court to answer a charge or as a witness;

3. We direct the Registry to communicate a copy of this order forthwith to the Secretary, Bar Council of Andhra Pradesh, Hyderabad, for taking necessary action as indicated in paragraph 51 of this Judgment.

4. As the appellant and the GPA have filed this case in gross abuse of the process of Court, we direct both of them jointly and severally to pay a sum of Rs.25,000/- (Rupees Twenty five thousand only) as costs; the costs shall be paid within a period of two months from today to the Member Secretary, District Legal Services Authority, Kadapa; if the amount is not paid, the Member Secretary shall execute this order as a decree of the Court by attachment and sale of movable and/or immovable properties of the appellant and/or Sri T.D.Dayal, the GPA holder of the appellant;

5. We direct the Registry to suo motu register a contempt case against Sri T.D.Dayal drawing appropriate charges for making false, unfounded and scurrilous remarks, and attributing prejudice and motives to the Hon’ble Judges of this Court and the Supreme Court.

60. The writ appeal stands dismissed with costs and directions as above.