- Bookmark
- Share
- CaseIQ
Sajida Banu v. Halema Banu And Others
Factual and Procedural Background
The plaintiff filed a suit seeking partition and separate possession of her legitimate share in the schedule properties. The defendants contested the claim by filing a written statement and issues were framed. When the case proceeded to evidence, the plaintiff applied under Order 3 Rule 1 read with Section 151 CPC for permission to be represented through a Power of Attorney by her son, citing her inability to appear personally due to health issues including high blood sugar, blood pressure, and old age. The defendants opposed the application, arguing that the plaintiff had no right to the property and thus the application was not maintainable. The Trial Court dismissed the application after considering the medical certificate, finding the plaintiff's ailments not serious enough to justify representation through a Power of Attorney. The plaintiff challenged this dismissal by filing the present writ petition.
Legal Issues Presented
- Whether a party can be represented in court proceedings through a Power of Attorney holder under Order 3 Rule 1 read with Section 151 CPC without the court’s prior permission.
- Whether the Trial Court was justified in dismissing the application for representation through Power of Attorney on the basis of the plaintiff’s medical condition.
Arguments of the Parties
Plaintiff's Arguments
- The plaintiff is unable to personally appear due to physical infirmities including inability to walk, hear, and understand the matter because of old age and health conditions such as high blood sugar and blood pressure.
- She has executed a Power of Attorney in favor of her son, who is familiar with the facts of the case, and seeks permission for him to represent her.
Defendant's Arguments
- The application is misconceived as the plaintiff allegedly has no right to the property.
- Therefore, the application for representation through Power of Attorney is not maintainable.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court examined the provisions of Order 3 CPC, which allow parties to appear in court personally, through recognized agents holding Power of Attorney, or through pleaders, except where the law expressly requires personal appearance. The Court emphasized that it is not obligatory for a party to appear in person unless mandated by law, and that the statutory right to be represented by a Power of Attorney holder must be honored without requiring special permission from the Court. The Court noted that the Trial Court had erred in dismissing the application based on the plaintiff’s medical condition, as the ailments cited were not sufficient grounds to deny representation through a Power of Attorney. The Court further observed a judicial trend of entertaining such applications with extensive objections and orders, causing unnecessary delays. It directed that such applications should be promptly decided, preferably rejected at the threshold if no valid reason is shown to deny representation, and warned against allowing such applications to delay proceedings. The Court held that the credibility and admissibility of evidence given by a Power of Attorney holder is a matter for trial and does not affect the right to appear through a Power of Attorney.
Holding and Implications
The writ petition is allowed and the impugned order of the Trial Court dismissing the application under Order 3 Rule 1 is set aside.
The application filed under Order 3 Rule 1 seeking permission to be represented through Power of Attorney is hereby dismissed as misconceived. The decision reinforces the principle that parties have a statutory right to be represented through Power of Attorney holders without requiring court permission, except where personal appearance is mandated by law. The ruling cautions Trial Courts against entertaining such applications with lengthy proceedings and encourages prompt disposal to avoid unnecessary delays. No new precedent beyond this clarification was set.
N. Kumar, J.:— This Writ Petition is filed by the plaintiff challenging the order passed by the Trial Court dismissing on I.A No. 2 under Order 3 Rule 1 read with Section 151 CPC seeking permission to be represented through Power of Attorney.
2. The plaintiff has filed, a suit for partition and separate possession of her legitimate share in the plaint schedule properties. The defendants have filed the written statement contesting the claim; issues are also framed. When the case is set down for evidence, the plaintiff filed an application under Order 3 Rule 1 read with Section 151 CPC, seeking permission of the Court to examine her son stating that she has executed Power of Attorney in his favour, as she is not in a position to walk or hear or be present before the Court personally and also that she is suffering from high blood sugar, B.P Further due to old age, she is not in a position to easily understand the matter whereas her son knows the facts of the case. This application was opposed by the defendant, contending that, the application is misconceived, as the plaintiff has no right to property. Therefore the application is not maintainable.
3. After hearing both the parties, the Trial Court was of the view that the Medical certificate produced by the plaintiff, though disclosed that the plaintiff to be suffering from diabetes, arthritis and cholithiasis, these are not serious diseases to permit the plaintiff to conduct the case through her GPA holder and therefore it dismissed the application filed by the plaintiff. Aggrieved by this the present writ petition is filed.
4. I have heard the Learned Counsel for the parties.
5. Order 3 CPC dealing with recognized agents and pleaders reads as under:
“1. Appearances, etc., may be in person, by recognized agent or by pleader.- Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader (appearing, applying or acting, as the case may be,) on his behalf:
Provided that any such appearance shall, if the Court so directs, be made by the party in person.”
6. The aforesaid provision enables a party to appear, file application or act in a Court personally without engaging a Counsel and all such acts can also be performed by a recognized agent if the party executes a Power of Attorney in favour of such agent; this can also be done by a pleader who is duly authorized. The only exception is, ‘if under any law, the party has to appear in person then neither the pleader nor the Power of Attorney Holder can appear’.
7. Sub-Rule 2 deals with who are the recognized agents and the same reads thus:
“2. Recognised agents. — The recognized agents of parties by whom such appearances, applications and acts may be made or done are—
(a) Persons holding powers-of-attomey, authorizing them to make and do such appearances, applications and acts on behalf of such parties;
(b) Persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts.
Therefore, the aforesaid provision provides that persons holding Power of Attorney under which they are duly authorized, to make such appearances, applications and acts as recognized agents. Similarly, when a person is a legal person, such legal person is represented by natural persons by virtue of such express authorization given to them.
8. From the above, it becomes clear that it is not obligatory on the part of the party to a litigation to appear in person, unless the law so requires. The party could prosecute or defend a legal proceedings through a Power of Attorney Holder or even a Pleader. Therefore, when the statute confers such a power on a party, it has to be honoured. The question of Court granting permission to a party to prosecute the matter through a Powder of Attorney Holder or a Pleader would not arise. However, the Court cannot prevent a party from prosecuting the litigation or defending it through a Power of Attorney Holder or a Pleader. Only in some exceptional cases, such as the case arising under the Family Courts Act, where an Advocate cannot appear as a matter of right and can appear only on the permission granted by the Court, the party has a right to be represented by a Power of Attorney Holder or a Pleader.
9. Under the above circumstances, the application filed for such prosecution is wholly misconceived Unfortunately, the Trial Court without properly appreciating the aforesaid provision has rejected the said application on the ground that, a reasonable case is not made out for allowing the said application.
10. This is a recent trend in our judicial system. We find in almost every case, such applications are filed, objections are filed, arguments are canvassed and lengthy orders running to several pages are written, either allowing or rejecting the application and thereby wasting the precious time of the Court as well as the public. This ultimately results in delay in disposal of cases, which trend has to be put an end to forthwith.
11. Therefore, the Courts before which such applications are filed shall apply their mind at the earliest point of time, i.e, immediately on receiving the application in the Court and reject that application without waiting for the other side to file objections to it. A party should be permitted to be represented by a Power of Attorney Holder or a Counsel as a matter of right. But a party should not, as a matter of right drag prosecution of the matter through a Power of Attorney Holder. Once a Power of Attorney Holder enters the witness box and gives evidence, whether that evidence has to be acted upon, whether it is a direct evidence or hearsay evidence, is to be decided by the Trial Court at the time of appreciation of the evidence. On the ground that the Power of Attorney Holder has no personal knowledge of the case, he cannot be prevented from entering the witness box and from deposing.
12. Therefore, it is high time, the Trial Courts should, looking to these provisions, understand the scope of the same and do not give room for entertaining such applications or write lengthy orders while allowing or dismissing such application. Such applications are to be rejected at the threshold and heavy costs should be imposed to discourage filing such applications either out of ignorance or with the motive of dragging on the proceedings.
13. Writ petition is allowed. Impugned order is hereby set-aside. Application filed under Order 3 Rule 1 is hereby dismissed.
Alert