Dinesan K. v. Pushpa K.

**CR** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY, THE 21ST DAY OF AUGUST 2019 / 30TH SRAVANA, 1941** **OP (FC).No.458 OF 2019** **AGAINST THE ORDER/JUDGMENT IN I.A.NO.250/2019 AND I.A.NO.251/2019 IN OP 509/2018 DATED 05-04-2019 OF FAMILY COURT, THALASSERY** ## **PETITIONER/PETITIONER:** **DINESAN K., AGED 51 YEARS S/O.LATE KRISHNAN, PUTHIYEDATH HOUSE, KURUMBUKKAL AMSOM, MANGATTIDAM DESOM, THALASSERY TALUK, P.O.NIRMALAGIRI, KANNUR DISTRICT.** **BY ADV. SMT.K.V.BHADRA KUMARI** ## **RESPONDENT/RESPONDENT:** **PUSHPA K, AGED 45 YEARS W/O.DINESAN, PUTHIYEDATH HOUSE, KURUMBUKKAL AMSOM, MANGATTIDAM DESOM, THALASSERY TALUK, P.O.NIRMALAGIRI, KANNUR DISTRICT, PIN- 670 701.** **R1 BY ADV. SRI.RAMESH .P** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 21-08-2019, THE COURT ON THE SAME DAY DELIEVERED THE FOLLOWING:** OP (FC).No.458 OF 2019 2 **CR** ## **JUDGMENT** ## **Harilal, J** Whether the power of attorney holder has the right to argue the case for on behalf of the Principal, as of right, under the power of attorney before the court? This is the question that emerges for consideration in this original petition. 2. The petitioner herein is the petitioner in O.P.No.509/2018 on the files of the Family Court, Thalassery. The aforesaid original petition was filed seeking dissolution of marriage on the ground of cruelty. He has filed I.A.No.250/2019 seeking permission to argue his case by his power of attorney holder. According to the petitioner, OP (FC).No.458 OF 2019 3 he has not appointed a lawyer in this case because of his previous experience with his lawyer. So he prayed for permitting his power of attorney holder to appear and argue the case on behalf of him. 3. The respondent filed counter contending that none other than a lawyer or a party-in-person has the right to argue a case before the court. The intention of the petitioner is only to protract the proceedings and to unnecessarily harass the respondent. 4. After considering the aforesaid rival pleas, the court below dismissed the said application on a finding that though a party can appoint an agent or a power of attorney holder to appear on behalf of him in a court, the agent or the power OP (FC).No.458 OF 2019 4 of attorney holder cannot be permitted to argue the case before the court, on behalf of the principal. The legality and correctness of the aforesaid findings are challenged in this original petition. 5. Heard Smt.K.V.Bhadra Kumari, the learned counsel appearing for the petitioner and Sri.Ramesh P., the learned counsel appearing for the respondent. 6. We find that the aforesaid question in controversy centers around Order 3 Rules 1 and 2 of the Code of Civil Procedure and Sections 29, 30, 32 and 33 of the Advocates Act, 1961. So, it is necessary to refer and analyse the aforesaid provisions as stated in the Act. OP (FC).No.458 OF 2019 5 ## 7. Order 3 Rules 1 and 2 of CPC Reads thus: _**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 authorised 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 recognised agent, or by a pleader 1[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._ _**2. Recognized agents.-** The recognized agents of parties by whom such appearances, applications and acts may be made or done are-_ _(a) persons holding powers of attorney, authorizing them to make and do such appearances, applications and acts on_ OP (FC).No.458 OF 2019 6 _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 authorised to make and do such appearances, applications and acts._ _[Emphasis supplied]_ 8. According to Order 3 Rule 1 of the CPC, any appearance, application or act in or to any court, required or authorised by law to be made by a party in person is allowed to be done by his recognized agent also except where otherwise expressly provided by any law, for the time being in force. As per Order 3 Rule 2 of CPC, the power OP (FC).No.458 OF 2019 7 of attorney holder is a recognized agent of the principal, who authorised him. So, the power of attorney holder is permitted to act, on behalf of the Principal, except where otherwise expressly provided by any law, for the time being in force. 9. Firstly, let us analyse the aforesaid provision. What does the expression “appearance, application or act” in Order 3 Rule 1 mean and include. What is stated is right to appear, make application or act only in court. It is significant to note that the word 'plead' has not been employed in Order 3 Rule 1 of CPC. According to Section 2(15) of CPC 'pleader' means any person entitled to appear and plead for another in court and includes an advocate, a vakil and an attorney of a High Court. So, even if the word plead is not OP (FC).No.458 OF 2019 8 specifically incorporated in Order 3 Rule 1, the expression 'pleader' referred to in the said provision gets the right to plead to the court. But in the case of recognized agent, his right is confined to appearance, application or act in or to court only. Thus, it is the difference in the right conferred to 'recognized agent' and 'pleader' under Order 3 Rule 1. In the above view, the conspicuous absence of the word 'plead' in the said provision implies that the recognized agent is not allowed to plead to the court. The expression 'any appearance, application or act' does not mean anything more than appearing, making an application and generally acting, on behalf of the party, by taking necessary steps for the proper conduct of the case, during the course OP (FC).No.458 OF 2019 9 of litigation. But when the pleader is appearing, he is allowed to argue the case by virtue of definition under Section 2(15) of CPC. In short, the recognized agent cannot be allowed to argue before the court, on behalf of the principal. 10. In _**M.Krishnammal v. T.Balasubramania Pillai**_ [ **AIR 1937 Madras 937** ], the High Court of Madras held thus: “But as an agent under a power of attorney has no right of audience in Court, it follows that the power of attorney authorizing him to plead is of no force whatsoever and upon that ground alone his contention must fail. _But quite apart from that difficulty, there is no warrant whatever for putting a power of attorney given to a recognised agent to conduct proceedings in Court in the same category as a vakalat given to a legal practitioner, though probably the latter may_ OP (FC).No.458 OF 2019 10 _also be described as a power of attorney.”_ _**-**_ 11.In _**Hurchand Ray Gobourdhon Das v. The Bengal**_ _**Nagpur Railway Company**_ **(1940) 19 CWN 64,** the High Court of Kolkata held that “ _the recognised agent as such has no right of audience under Order 3 Rule 1 of CPC._ ” 12. The above view is supported by the following decisions of the other High Courts in India. In _**A.S.Patel v. National Rayon Corporation**_ [ **AIR 1955 Bomaby 262]** , the then Chief Justice Chagla of Bombay High Court observed thus: “ _In my opinion, it is clear that 'pleading' would not be included in any of these expressions. The right of audience in Court, the right to address the Court, the right to examine and cross examine witnesses, are all parts of pleading with which O.III does not deal at all.”_ OP (FC).No.458 OF 2019 11 13. Let us examine Order 3 Rule 1 of CPC in view of the 'exception clause' therein, which is underlined above. After analysing the said provision, we have already found that the power of attorney holder is permitted to act, on behalf of the principal, except where otherwise expressly provided by any law, for the time being in force. The said exception provided in Order 3 Rule I of CPC leads us to Sections 29, 30, 32 and 33 of the Advocates Act. For easy reference, the aforesaid provisions are extracted below:- _**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 practice the_ OP (FC).No.458 OF 2019 12 _profession of law, namely, advocates._ _**30.Right of advocates to practice.-** Subject to provisions of this Act, every advocate whose name is entered in the 3[State roll] shall be entitled as of right to practice 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._ ## _**32.Power of Court to permit appearances**_ _-_ _**in cases. particular** Notwithstanding anything contained in this Chapter, any court, authority, or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case._ ## _-_ _**33.Advocates alone entitled to practice.**_ OP (FC).No.458 OF 2019 13 _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 practice in any court or before any authority or unless he is enrolled as an person advocate under this Act._ 14. According to Section 29 of the Advocates Act, there shall be only one class of persons entitled to practice the profession of law, namely, advocates. As per Section 30, every advocate whose name is entered in the State roll shall be entitled, as of right, to practice throughout the territories to which this Act extends. According to Section 33 of the said Act, no person shall be entitled to practice in any court or before any authority or person, unless he is enrolled as an OP (FC).No.458 OF 2019 14 advocate under the said Act. 15. But, we further find that, according to Section 32 of the Advocates Act, any court, authority or person may permit any person, not enrolled as an advocate to appear and plead before it in any particular case. This is a discretionary power, which cannot be claimed, as of right, under the power of attorney. Therefore, only if the court permits the power of attorney holder, he can appear and argue the case for the principal as a person and not, as of right, on the strength of the power of attorney. 16. On a conjoined reading and analysis of the aforesaid provisions in the CPC and Advocates Act, we are of the opinion that Sections 29, 30 and 33 of the Advocates Act would fall under the OP (FC).No.458 OF 2019 15 'exception' provided in Order 3 Rule I of the CPC i.e., except where otherwise expressly provided by any law for the time being in force. Order 3 Rule 1 of the CPC, which permits 'appearance, applications or acting in any court by a power of attorney holder on behalf of the principal is subject to the provisions contained in Sections 29 to 33 of the Advocates Act, 1961 [for short, the Act, 1961]. It follows that the right to argue the case before the court, for and on behalf of the party, is granted to only one class of persons entitled to practice the profession of law, namely, advocates, and no other person has the right to plead before the court, on behalf of another, the parties to the _lis,_ unless the court permits him in a particular case. The power of attorney holder has OP (FC).No.458 OF 2019 16 no right to argue the case, before the court, as of right, on the strength of the power of attorney, for and on behalf of the principal, but he can argue, if the court expressly permits him, in a particular case. The permission is not on the strength of the power of attorney; but under the discretionary power, as per Section 32 of the Advocates Act, 1961. The question raised above is answered accordingly. 17. The legal proposition, which we have laid down above is further supported by the decisions of the Supreme Court also. In _**Harishankar**_ _**Rastogi v. Girdhari Sharma and Another**_ [ **AIR 1978 SC 1019]** the Supreme Court held that a private person, who is not an advocate, cannot argue the case of a litigant, without the permission of the OP (FC).No.458 OF 2019 17 ## court. Further the Supreme Court cautioned the litigants thus: “ _If the man who seeks to represent has poor antecedents or behaviour or irresponsible dubious character, the court may receive counter-productive service from him. Justice may fail if a knave were to represent a party. Judges may suffer if quarrelsome, ill-informed or or blackguardly blockheadedly private representatives filing arguments at the court. Likewise, the party himself may suffer if his private representative deceives him or destroys his case mendacious or by meaningless submissions and with no responsibility or respect for the court. Other situations, settings and disqualifications may be conceived of where grant of permission for a private person to represent another may be obstructive, even destructive of justice.”_ 18. The Supreme Court again in _**T.C.Mathai and**_ OP (FC).No.458 OF 2019 18 ## _**another v. District & Sessions Judge,**_ _**Thiruvananthapuram, Kerala**_ **(1999) 3 SCC 614,** after approving the Full Bench Decision in _**Krishnammal's**_ case (supra) held thus: _8.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 which is now adversary system being followed in India, both in civil and criminal litigation, it is very necessary that the court gets proper assistance from both sides. 9.xxx_ _10.But if the person proposed to be appointed by the party is not such a qualified person, the court has first to satisfy itself_ OP (FC).No.458 OF 2019 19 _whether the expected assistance would be rendered by that person. The reason for Parliament for fixing such a filter in the definition clause[Section 2(q) of the Code] that prior permission must be secured before a non-advocate is appointed by the party to plead his cause in the court, is to enable the court to verify the level of equipment of such a person for pleading on behalf of the party concerned.”_ In _**Goa Antibiotics and Pharmaceuticals Ltd.**_ 19. _**v. R.K.Chawla and Another**_ [ **2011 (15) SCC 449]** the Supreme Court again held as follows : _“4. A natural person can, of course, appear in person and argue his own case personally but he cannot give a power of attorney to anyone other than a person who is enrolled as an advocate to appear on his behalf. To hold otherwise would be to defeat the provisions of the Advocates Act.”_ OP (FC).No.458 OF 2019 20 20. The legal proposition that arises out of the aforesaid decisions is that even though the court has discretionary power to grant permission to a private person, who is not an advocate, to argue the case for on behalf of another, in a particular case, as envisaged under Section 32 of the Act, 1961, the said power has to be exercised carefully and vigilantly on full satisfaction of his capability and the assistance that the court may get from him. A person, other than an advocate, cannot claim right to plead as of right for another, before the court. 21. In the instant case, the court exercised that discretionary power and rejected the prayer as the court has no confidence in him. We do not OP (FC).No.458 OF 2019 21 find any reason to hold otherwise. Hence, this original petition is dismissed. Sd/- **K.HARILAL, JUDGE** sd/- **ANNIE JOHN, JUDGE** AMV/21/08/2019 OP (FC).No.458 OF 2019 22 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE DIVORCE PETITION FILED BY THE PETITIONER O.P.NO.509/2018 BEFORE THE FAMILY COURT, THALASSERY.** - **EXHIBIT P2 TRUE COPY OF THE POWER OF ATTORNEY EXECUTED BY THE PETITIONER IN FAVOUR OF SRI.V.V.PRABHAKARAN ON 21.02.2019 FOR THE PURPOSE OF CONDUCTING HIS DIVORCE CASE.** - **EXHIBIT P3 TRUE COPY OF THE PERMISSION PETITION FILED BY THE PETITIONER.** - **EXHIBIT P4 TRUE COPY OF THE PETITION FILED ON BEHALF OF THE PETITIONER.** - **EXHIBIT P5 TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT IN I.A.NO.250/2019 AND 251/2019.** - **EXHIBIT P6 CERTIFIED COPY OF THE COMMON ORDER PASSED BY THE FAMILY COURT, THALASSERY IN I.A.NOS.250/2019 AND I.A.NO.251/2019 IN O.P.NO.509/2018.** - **EXHIBIT P7 CERTIFIED COPY OF THE ORDER IN I.A.NO.525/2019 IN I.A.NOS.250/2019 AND I.A.NO.251/2019 IN O.P.NO.509/2018 OF FAMILY COURT, THALASSERY.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R (1)** **COPY OF THE JUDGMENT DATED 05.06.2018 IN C.C.NO.1636/2013** **TRUE COPY P.A.TO JUDGE**