Vidyawati Hemchand vs Fattilal Devidin

T. P. Naik, J.

The short but an important point which at present arises in this civil revision is whether Hemchand, who holds a general power of attorney on behalf of his wife Vidyawati, the applicant, can act and plead on her behalf in this Court

Hemchand says that he, his wife and their children constitute a joint Hindu family and that due to paucity of funds he is required to conduct cases on his own and on behalf of his wife in the various Courts in India. He claims that by virtue of a general power of attorney, which he holds from his wife, he is empowered to act and plead in this Court on her behalf in this civil revision.

The civil revision has been filed by Hemehand as agent of Vidyawati, and by this revision the applicant Vidyawati seeks to challenge the orders passed by the Civil Judge, Class II, Murwara, on 9-8-1965 and 18-6-1965 in Civil Suit No. 66-A of 1964.

Under rule 1 of Order III of the Code of Civil Procedure,-

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 recognised agent, or by a pleader appearing, applying, 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.

Sub-rules (1) and (5) of rule 4 then say-

No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorised by or under a power-of-attorney to make such appointment.

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No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance signed by himself and stating-

(a) the names of the parties to the suit;

(b) the name of the party for whom he appears: and

(c) the name of the person by whom he is authorized to appear:

Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party.

''Pleader'' has been defined in section 2(15) of the Code to mean-

any person entitled to appear and plead for another in Court, and includes an advocate, a vakil and an attorney of a High Court.

Two important things have to be noted in the aforesaid provisions:

(1) A distinction is made between ''appearance, application or act'' and ''plead'', so that while under rule 1 ibid an ''appearance, application or act'' in or to any Court may be made or done by a person through his ''recognised agent'', the latter cannot be authorized by him to ''plead'' on his behalf.

(2) The rule has no application where express provision has been made otherwise by any law for the time being in force. And such a law is to be found in clause 8 of our Letters Patent, which reads as follows:

And we do hereby ordain that the High Court of Judicature at Nagpur shall have power to make rules from time to time for the qualification and admission of proper persons to be Advocates, Pleaders and Attorneys of the High Court and shall be empowered to remove or to suspend from practice, on reasonable cause, the said Advocates, Pleaders or Attorneys and no person whatsoever but such Advocates, Pleaders or Attorneys shall be allowed to act or to plead for, or on behalf of any suitor in the said High Court, except that any suitor shall be allowed to appear, plead or act on his own behalf, or on behalf of a co-suitor.

The provision is, no doubt, subject to the provisions of the Advocates Act, 1961 and clause (3) of Article 227 of the Constitution of India; but there is nothing in these later enactments which can be construed to mean that an authorized agent is permitted to act and plead for or on behalf of any suitor in the High Court.

I may, therefore, at once state that so far as the High Court is concerned, a recognised agent appointed under a general power-of-attorney by a suitor has no right to act or plead on his behalf in this Court.

The same result flows from the language of rule 1 of Order III of the Code of Civil Procedure.

In Ebrahim Saleji v. Johurmull Khemka A I R 1916 Cal. 181. decided by Jenkins C. J. and Chatterjea J., it was laid down that a recognised agent as such had no right of audience.

The decision was followed by Suckland J. in In Re: Eastern Tavoy Minerals Corporation,Ltd., . In the words of the learned Judge:

To plead is not to make or do an appearance, or an application or an act and is not in my judgment within the order and rules cited. I am glad to find that in this matter I am supported by so high an authority as the late Sir Lawrence Jenkins C. J., who held that a recognised agent as such has no right of audience.

It was, therefore, held that one of the Directors of a Company, who claimed a right of audience on behalf of the Company on the strength of a power-of-attorney authorizing him ''to appear for and on behalf of the Company, to conduct and represent the Company in the proceedings etc., etc.,'' had no right of audience.

In Jiwanlal v. Property of Ram Ratan A I R 1936 Oud 261 : I L R 12 Luck. 123. one of the appellants applied that his special agent be allowed to argue the appeal on his behalf. The learned Judges rejected the prayer holding that the words in rule 1 of Order III meant no more than that the recognised agent could appear, make applications and take such steps as might be necessary in the course of the litigation for the purpose of the case of his principal but that could not justify a recognised agent being allowed to argue and plead.

In M. Krishnammal Vs. T. Balasubramania Pillai, Power of Attorney Agent of M. Krishnammal, . the question whether an agent with a power-of-attorney to appear and conduct judicial proceedings had the right of audience in Court was answered in the negative.

In Governor-General in Council v. Bhagwan Sahai A I R 1948 E P 61 at 63. Teja Singh J. said:

........''pleading'' is quite different from ''acting'' and since the law allows a recognised agent to act, he has no right to plead on behalf of his principal." The learned Judge further observed:

The reasons why ''pleading'' stands on a different footing from ''acting'' are given in the cases mentioned above and the most important of them is that it is regarded as a special privilege of pleaders and the intention of the Legislature appears to be that they should not be usurped by private persons.

In Aswin Shambhuprasad Patel and Others Vs. National Rayon Corporation Ltd., . Chagla C. J., dealing with the question, said:

The contention put forward by Mr. Bengeri before me is that ''pleading'' is included in the expression ''appearance, application or act in or to any Court''. 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 Order III does not deal at all. It deals with restricted class of acts in connection with the litigation in Court and it is with regard to that restricted class of acts that Order III permits recognised agents to be appointed.

Reliance is placed on a decision of Full Bench of the Nagpur High Court reported in AIR 1947 17 (Nagpur) . by the agent of the applicant; but, in my opinion, it has no relevance to the present case. All that that case decided was that the express authority given to the agent to ''compromise'' included the power to refer the suit to arbitration. It cannot be an authority for the constructions of rule 1 of Order III of the Code of Civil Procedure, nor for holding that the right given to an authorized agent in rule 1 of Order III ibid to appear, apply and to act in any Court on behalf of a party in such Court included the right to plead in that Court on behalf of such a party.

I thank Shri R. S. Dabir, President of the Bar Council, for assisting me in this case amicus curiae.

I am, therefore, of opinion that Hemachand Jain as the authorized agent of the applicant Vidyawati has no right to act and plead on her behalf in this Court.