S. RAMACHANDRA RAO VERSUS S. NAGABHUSHANA RAO & ORS
S. RAMACHANDRA RAO VERSUS S. NAGABHUSHANA RAO & ORS
Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 7691 - 7694 OF 2022
[Arising out of SLP (C) Nos. 21187-21190 of 2019]
S. RAMACHANDRA RAO ………. APPELLANT(S)
VERSUS
S. NAGABHUSHANA RAO & ORS. ….…. RESPONDENT(S)
JUDGMENT
DINESH MAHESHWARI, J.
Leave granted.
2. These appeals are directed against the common order dated
28.06.2019 in Civil Revision Petition Nos. 758, 759, 760 & 761 of 2019,
as passed by the High Court of Andhra Pradesh at Amaravathi, whereby
the High Court has not approved the similar orders dated 07.02.2019, as
passed by the Court of III Additional Senior Civil Judge at Vijayawada in
four separate civil proceedings between the same contesting parties.
3. Put in a nutshell, the issue involved in the matter is concerning the
capacity in which the plaintiff-appellant’s wife, who is the General Power
of Attorney1
holder of the appellant and is also an enrolled advocate,
1 ‘GPA’, for short.
1
could appear and act on his behalf in the said civil proceedings. Even
before passing of the orders which form the subject-matter of present
appeals, this issue had led to various orders by the Trial Court at different
stages of proceedings as also to a couple of orders by the High Court in
challenge to the orders so passed by the Trial Court. Therein, the Trial
Court and the High Court essentially held that merely for the wife of the
appellant being an advocate, there was no prohibition in law for her to act
on behalf of her husband as a GPA holder but, it was made clear that she
would appear in-person as a power agent of her husband and not in her
professional capacity as an advocate. The same proposition was iterated
by the Trial Court in its orders dated 07.02.2019 in these very
proceedings, while rejecting the objection against examination of the
witnesses by the wife of the appellant in her capacity as GPA holder.
However, in the impugned order dated 28.06.2019, the High Court has
held that in view of a Division Bench decision of the same High Court, it
was not permissible for a GPA holder to participate in the proceedings
and, therefore, while disapproving the orders under challenge, the wife of
the appellant has been given liberty to act as an advocate on behalf of
her husband, the plaintiff, in these cases.
4. With the outline as aforesaid, we may take note of the relevant
background aspects as follows:
4.1. A civil suit for partition of certain properties, being O.S. No. 368 of
1995, came to be filed before the said Trial Court, wherein the appellant
2
was arrayed as the 3rd plaintiff. The appellant would submit that on
20.04.1987, he had executed a GPA in favour of his brother, the 1st
respondent herein (the contesting respondent), who had prosecuted the
said civil suit for partition. A decree was passed in the said suit on the
basis of a compromise memo filed on 17.09.1995. The appellant would
allege that he was not aware of filing of the said civil suit; that the decree
was detrimental to his interest and was fraudulently obtained; and
therefore, he revoked the GPA in favour of the 1st respondent on
26.01.1996. Later on, the appellant executed another General Power of
Attorney dated 25.01.1997 in favour of his wife. Thereafter, on behalf of
the appellant, I.A. No. 634 of 1997 was filed in the said O.S. No. 368 of
1995 by his new GPA holder (his wife) for recalling the judgment and
decree passed in the suit. This apart, the appellant instituted three more
civil suits, being (i) O.S. No. 388 of 1997, for declaration of title,
possession, partition, and mesne profits; (ii) O.S. No. 104 of 1998, for
rendition of accounts in relation to actions and bank transactions by the
contesting respondent in his erstwhile capacity as agent of the appellant;
and (iii) O.S. No. 445 of 1998, for partition and mesne profits.
4.2. While the said four civil proceedings remained pending, the GPA
holder of the appellant, i.e., his wife, graduated in law and she was
enrolled as an advocate in the year 2011.
4.3. On 27.09.2011, an application, being I.A. No. 1308 of 2011, was
filed in said I.A. No. 634 of 1997 in O.S. No. 368 of 1995 under Order III
3
Rule 2 read with Section 151 of the Code of Civil Procedure, 19082
read
with Section 32 of the Advocates Act, 19613
read with Rules 32 and 33 of
the Civil Rules of Practice in Andhra Pradesh read with Section 120 of the
Evidence Act, 1872 with the prayer that the GPA holder of the appellant
be permitted to appear in person; and to plead, argue and do all
necessary acts for conduct of proceedings. Similar applications were filed
in two of the aforesaid civil suits, being I.A No. 1307 of 2011 in O.S. No.
104 of 1998 and I.A. No. 1306 of 2011 in O.S. No. 388 of 1997. The Trial
Court, by its similar orders dated 19.02.2018, allowed the applications so
moved and granted the prayer so made while rejecting the contentions
urged on behalf of contesting respondent with reference to Order III Rule
2 CPC. The said order 19.02.2018, as passed in relation to O.S. No. 368
of 1995 reads as under: -
“1. This petition is filed under Order 3 Rule 2 Section 151 CPC and
Section 32 of Advocates Act, 1961 & Rule 32 and 33 of Civil Rules
of practice in A.P. and Evidence Act Sect.120 praying to allow the
petitioner to represent her husband the plaintiff in the above suit,
before the Hon'ble Court to appear in person, to plead and to all
acts necessary in the conduct of above proceedings.
2. The Petitioner who is the authorized GPA holder of the plaintiff
in the suit, seeks permission of this Court, to permit her to
represent the plaintiff in person. The Petitioner says that, as she is
the wife of plaintiff she can protect the best interest of her
husband, and as her husband is staying in a far away place and
as he cannot attend the court in person she may be permitted to
represent her husband in person to conduct the suit and she in
support of her contentions relied upon a judgment reported in AIR
2003 A.P. 317, Sundar Raj Jaiswal and others vs. Smt.Vijaywa
Jaiswal.
2 ‘CPC’, for short.
3 ‘the Act of 1961’, for short.
4
3. Wherein it was held that, under Section 32 of the Advocate Act
the court may permit appearance in a particular case permitting
any person other than the Advocate and that, under the said
provision a discretionary power was given to the court to permit
appearance to any non-advocate for party. it was further held in
the judgment that, the trial court granted permission for the Power
of Attorney holder of the respondent and the said Power of
Attorney has been helping the court by appearing for the
respondent and there is no remark noticed by the court below. It is
always open for the Court to withdraw or cancel permission if the
Power of Attorney holder is 'unworthy or reprehensible. Hence
sought permission to allow her to represent her husband/plaintiff in
the suit.
4. The objection of respondent was that as per Order 3 Rule 2
appearance may be in person or by recognized agent or by
pleader, which is once again subject to the person knowledge of
the transactions, but never empowers to argue on behalf of the
executant, as such the above provisions are not correct for asking
to plead in the court on behalf of plaintiff. He further opposed the
petition stating that, the petitioner is not resident of Vijaywada, as
such, it would be difficult for them to serve notice on the petitioner
in case of any applications filed in the suit. Hence, opposed the
petition.
5. However this court having considered the petition and counter
averments opines that, when the petitioner was permitted by this
court at the inception of the suit itself, to represent as GPA, now
the permission is sought by her to represent her husband in
person, instead of by a pleader. Moreover, she states to be the
wife of the original plaintiff, who in the opinion of this court can
protect the best interest of her spouse and as held by his lordship,
in the above reported judgment that, the permission cannot be
withdrawn at the instance of petitioners. More so, when there is
nothing on record to show that, the GPA holder has created an
unhealthy atmosphere on indiscipline situation or exchanged
words.
6. So when the Hon'ble High Court held that, when once the
permission so granted can be withdrawn, if the acts of GPA
representing the party in person is in derogative to the interest of
the original party, the petitioner herein being the wife of plaintiff, in
the opinion of this court can be permitted to represent in person on
behalf of her husband. With regard to the other objection of
respondent that, service of notice on the petitioner in case of any
applications filed, would be difficult as she does not reside at
Vijayawada, as the petitioner at the time of arguments submitted
that she will stay at Vijayawada, till the suit is disposed off, this
court does not find any grounds to disallow her plea.
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7. Accordingly petition is allowed.”
(emphasis supplied)
4.4. The aforesaid orders dated 19.02.2018 were challenged by the
contesting respondent in the High Court. The High Court by its common
order dated 20.04.2018 in CRP Nos. 1784, 2221 & 2366 of 2018,
confirmed the orders of the Trial Court, but while clarifying that the wife of
the appellant will appear in person as power agent of the appellant but
not in her professional capacity as a lawyer. This order dated 20.04.2018
by the High Court reads as under: -
“These three revisions arise out of the orders passed by the
III Additional Senior Civil Judge, Vijayawada, allowing the
applications filed by the 1st respondent herein under Order III Rule
2 of the Code of Civil Procedure read with Section 32 of the
Advocates Act, 1961.
2. Heard Mr. V.S.R. Anjaneyulu, learned counsel for the
petitioner and Smt. Hemalatha Suryadevara, the General Power
Agent of the 1st respondent herein, who was the plaintiff in all the
three suits.
3. The 1st respondent, who was the plaintiff in three different
suits namely O.S.Nos.368 of 1995, 389 (sic) of 1997 and 104 of
1998, is the principal and his wife Smt. Suryadevara Hemalatha, is
his power agent. It appears that the 1st respondent and the
plaintiff was all along represented by the counsel before the Court
below. One of the suits already got disposed of. The other two
suits are now pending. Even in the disposed of suit, some
applications have been filed.
4. In the meantime, the wife of the 1st respondent filed
applications in all the three suits, under Order III Rule 2 of CPC for
representing her husband and to appear in person, to plead and to
conduct the above proceedings. These applications were allowed
by the Court below, forcing the 1st defendant in two suits and the
sole defendant in the third suit to come up with the above
revisions.
5. The objections of the learned counsel for the petitioner to
the orders impugned in these revisions are two fold namely (i) that
the wife-cum-General Power Agent of the 1st respondent also
happens to be a lawyer, but she can either appear as a counsel or
as a power agent and not as both and (ii) that the address for
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service should be intimated by the 1st respondent in Vijayawada
to enable the petitioners to serve notices and summons.
6. The power agent of the 1st respondent, who appeared in
person before me, stated that she is not seeking to appear as an
advocate for the 1st respondent but she is seeking to appear only
as the power agent of the 1st respondent. There can be no
objection to a party to a proceeding to appear through the power
agent. Order III Rule 2 of CPC provides for the same and to that
extent the order of the trial Court allowing the applications cannot
be found fault with. Once an application under Order III Rule 2
CPC is allowed, the power agent has two options, first option is to
appear in person as a power agent and the second option is to
engage an advocate herself. Both cannot be combined in a single
order and that is the objection of the learned counsel for the
petitioner. That objection is sustainable in law.
8. But in so far as the second objection is concerned, if the
1st respondent is appearing only as a power agent of a party, the
question of informing the local address for service does not arise.
It is only when a lawyer is engaged, the question of furnishing a
local address for service would arise.
Therefore, all the Civil Revision Petitions are disposed of
confirming the orders of the trial Court and clarifying that Smt.
Suryadevara Hemalatha, will appear in person as a power agent
of the 1st respondent and will not appear in her professional
capacity as a lawyer.
As a sequel thereto, miscellaneous petitions, if any, pending
shall stand closed.”
(emphasis supplied)
4.5. Thereafter, another application of similar nature in relation to O.S.
No. 445 of 1998 was considered and allowed by the Trial Court by its
order dated 24.09.2018, while rejecting similar objection of the
respondent and while observing as under: -
“The respondent opposed the petition stating that, as per Order
3 rule 2 CPC appearance maybe in person or by recognized agent
or by a pleader, which is once again is subject to the personal
knowledge of the transactions and it never empowers to argue on
behalf of the executants, as such the provisions under which this
petition is filed is not correct to seek permission to represent and
plead on behalf of the plaintiff in the suit.
However, this court considering the petition and counter
averments opines that, when GPA is executed in favour of the
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petitioner authorizing her to represent the plaintiff in the suit, and
she as GPA also intends to plead on behalf of the plaintiff in the
suit as she can protect the best interest of her husband, and when
as per Sec.32 of Advocate Act any court or authority or person
may permit any person, not enrolled as to advocate under Act, to
appear before it, in any particular case, petitioner being the
authorized agent of plaintiff in the suit, seeking permission to
appear in person and conduct the suit on behalf of her husband
seems reasonable.
Moreover, when the permission granted can be withdrawn by
the Court, if the acts of GPA representing the party, in person in
derogative to the interest of the original party. So, the petitioner
being the wife of plaintiff in the suit seeking permission to
represent in person on behalf of her husband seems justice and
necessary. Hence, for the reasons stated above, I am inclined to
allow the application. Accordingly, the petition in allowed.”
(emphasis supplied)
4.6. The aforesaid order dated 24.09.2018 was challenged by the
contesting respondent in the High Court in CRP No. 6924 of 2018. This
petition was also dismissed by the High Court by its order dated
14.12.2018, which may also be usefully reproduced as under: -
“Aggrieved by an order passed by the trial Court permitting the 1st
respondent to be represented by his wife as the General Power of
Attorney holder, to act, to appear and to plead, the defendant in
the suit has come up with the above revision.
2. Heard Mr. V.S.R. Anjaneyulu, learned counsel for the petitioner.
The G.P.A. holder of the 1st respondent takes notice.
3. The 1st respondent herein has filed a suit in O.S.No.445 of
1998 for partition. It appears that the 1st respondent is a retired
I.A.S. Officer and his wife who is General Power of Attorney holder
is an Advocate enrolled in the Bar Council of Andhra Pradesh.
4. Therefore, the 1st respondent has appointed his own wife as
General Power agent. This fact is not disputed.
5. When an attempt was made by the G.P.A. holder to act in dual
capacity, both as a General Power of Attorney and as an advocate
for her husband, this Court directed that she can only opt for one.
6. Therefore, the 1st respondent filed I.A.No.556 of 2018 seeking
permission for the G.P.A. holder to plead, present and argue his
case in person. This application has been allowed by the trial
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Court by an order dated 24-09-2018. It is against the said order
that the revision has been filed.
7. The contention of Mr. V.S.R. Anjaneyulu, learned counsel for
the petitioner is that G.P.A. holder, having a personal interest,
cannot plead on behalf of the party. Reliance is placed upon the
clause contained in the deed of a General Power of Attorney.
8. But clauses 2 and 3 of the deed of General Power of Attorney
authorises the G.P.A. holder to sign and verify plaints, written
statements, affidavits etc., and also to appear in all courts.
Therefore, the General Power of Attorney certainly authorises the
holder to plead on behalf of the 1st respondent.
9. Merely because the wife happens to be a lawyer, there is no
prohibition in law for her to plead the case of her husband by
holding a general power. The bar for a lawyer to take a dual role,
is in the context of conflict of interests, which correlate to ethical
principles in respect of the profession. But when a lawyer’s spouse
is involved in litigation, there can be no bar for the lawyer to act as
the power agent of the spouse, for doing whatever is authorised by
the deed of General Power of Attorney to do.
10. Moreover, I do not know in what way the petitioner is
aggrieved by such an act. If at all there are certain things only
within the exclusive knowledge of the principal that can certainly
be raised as a point. Therefore, I find no merits in the revision.
Hence, the Civil Revision Petition is dismissed. No costs.
As a sequel thereto, miscellaneous petitions, if any, pending
shall stand closed.”
(emphasis supplied)
4.7. On the other hand, when the said proceedings were to
progress further, the contesting respondent filed separate
applications, this time contending that the wife of the appellant, who
was representing him as GPA holder, was not entitled to examine the
witnesses. The Trial Court, yet again, rejected the objection of the
contesting respondent by its separate but substantially similar orders
dated 07.02.2019. The order so passed by the Trial Court in relation
to O.S. No. 368 of 1995 reads as under: -
“1. This petition is filed under Sec.151 CPC by the petitioner
seeking the court to prevent the wife of the plaintiff who is
9
representing the plaintiff in person, as his GPA from examining the
witnesses.
2. The Petitioner says that, the 1st plaintiff in the suit is being
represented by his wife as GPA holder from 1998 onwards, and as
on the said date the suit was being represented by different
counsel. The 1st respondent who came on record as GPA, of the
plaintiff filed an application under Order 3 Rule 2 CPC seeking
permission to represent the 1st plaintiff in person and the said
application was allowed, against which this petitioner preferred
CRP 1784/2018, which was disposed of on 20-4-2018, directing
the GPA holder not to conduct the suit proceedings both in the
capacity of an advocate as she is enrolled in bar, and as GPA. The
petitioner says that, when the 1st respondent nowhere stated that,
the GPA in her name was cancelled, and she was authorized to
make personal appearance on behalf of the plaintiff, the
respondent has to only engaged a counsel represent in her
personal capacity. Hence, the 1st respondent cross examining the
witnesses in person is against the orders of Hon'ble High Court in
CRP 1784/2018. Hence, this petition to declare that the 1st
respondent who is GPA holder is not authorized to participate in
the cross examination of the witnesses.
3. The 1st respondent opposed the petition stating that, she as a
GPA of her husband/plaintiff is appearing in person, after obtaining
permission from this Court, and though she is enrolled in bar
council, she is not appearing in her professional capacity, in this
matter and thus she is appearing in person, as such, she is
entitled to cross examine the witnesses and that petitioner cannot
direct the plaintiff, as to how she has to conduct the case i.e.,
either through a counsel or in person. The Hon'ble High Court in
CRP No.1784/2018 stated that the GPA holder cannot represent
the court both as a GPA and in her professional capacity, but did
not say that she cannot in her personal capacity conduct the suit
proceedings. Hence, she being the GPA of her husband is
competent to do the suit in person that includes the cross
examination of witnesses.
4. Heard both sides.
5. Both the parties did not adduce any oral or documentary
evidence.
"Whether the respondent cannot be permitted to
participate in the examination of witnesses as prayed by
the petitioner?"
POINT:
6. The Petitioner's objection for the 1st respondent to cross
examine the witnesses herself is that, she being the GPA of the
plaintiff can only engage a counsel but cannot participate in the
trial and examine the witnesses or argue the matter. Though she
was permitted to represent the suit proceedings in person, it does
10
not confer her with the authority of doing any such acts, which a
legal practitioner would do. But, the respondent says that, when
she was permitted by this Court to conduct the suit proceedings as
GPA of her husband- 1st plaintiff in person, it is for her to decided,
whether she would continue the suit in person or engage any
counsel to represent the suit proceedings and that this petitioner
has no business to direct the respondent as to adopt to which
course in the conduct of the suit proceedings.
7. The 1st respondent in support of her arguments has relied upon
the following two judgments 1) Surender Raj Jaiswal and others
vs. Vijaya Jaiswal, AIR 2003 AP 317; 2) Prabha P.Shenai vs. Ispat
Industries Limited 2016 Law Suit (Bombay) 271. In the said
judgment referred (1) above at paragraph No.13 his Lordship
opined that
I do not see any bonafides on the part of the petitioners to
insist the respondent to prosecute either personally or appoint
an Advocate. The respondent herself no doubt is empowered to
prosecute the particular case but due to the relationship of
herself with her husband and the acquaintance of the case, she
reposed confidence fully in her husband and appointed him as
her Power of Attorney to appear on her behalf in a particular
case and, therefore, the application filed by the petitioners
herein was rightly dismissed by the Court below. The Trial Court
granted permission for the Power of Attorney Holder of the
respondent and the said Power of Attorney has been helping
the Court by appearing for the respondent and there is no
remark noticed by the Court below. It is always open for the
Court to withdraw or cancel permission if the Power of Attorney
Holder is unworthy or reprehensible.
8. This Court considering the arguments submitted by either side
and the principle held in the above referred judgments opines that,
when once the respondent was permitted to represent the 1st
plaintiff who is no other than her husband, in person opining that
no person can protect the Interest of the spouse, and act in the
best Interest of the spouse other than the wife/husband,
herself/himself, permitted the respondent, who is the wife of 1st
plaintiff, and also GPA to represent the suit proceedings in person
and because she was permitted and representing the suit in
person, now she wants to cross examine the witnesses also, by
herself, as rightly put forth by the respondent what locus standi
does the petitioner have in objecting the respondent, in cross
examining the witnesses on behalf of the plaintiff, and her
husband? when there is no bar for a party to cross examine the
witnesses, the respondent who is representing the plaintiff as a
GPA and permitted to represent in person intending to cross
examine the witnesses by herself be curtailed? In fact the principle
held under ref.(1) above judgment aptly applies to the case on
hand, because in this case also, like in the above referred case,
the GPA holder and the plaintiff are husband and wife, as such this
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court opines that, unless the court opines to withdraw or cancel
the permission, if the power of attorney holder is found unworthy
there can be no hindrance for the respondent to continue to
represent the plaintiff in person.
9. As held in judgment in reference No.2 thatIn the present case, considering the fact that the constituted
attorney in the present case is not only the husband of the
plaintiff but her predecessor in title, who actually carried out the
work in question and to whom the amounts claimed in the suit
were due before he assigned his entitlement to the plaintiff,
there is a preeminent case for permitting him to represent the
plaintiff and argue her case in this suit. I have according,
permitted him to advance arguments for the plaintiff.
10. The said principle also is apt to the case on hand, as in this
suit also the 1st respondent was permitted to represent the 1st
plaintiff in person, so she can very well represent the 1st plaintiff
and argue the case in this matter, and the petitioner cannot raise
any objection with regard to the entitlement of the respondent, who
was permitted to represent in person; with regard to the bar
enshrined by his lordship in CRP 1784/18 that, the respondent
being GPA holder cannot represent the matter in her professional
capacity, when certainly the respondent is not representing the
Court as an advocate, and she is representing the Court, as the
wife of plaintiff who was permitted to represent the 1st plaintiff in
person being his GPA holder and not as an advocate, she cannot
be curtailed from cross examining the witnesses. Accordingly, this
point is answered against the petitioner.
11. In the result, the petition is dismissed.”
(emphasis supplied)
4.8. The aforesaid orders dated 07.02.2019 were challenged before
the High Court in Civil Revision Petition Nos. 758, 759, 760 and 761 of
2019, which have been considered and decided by the impugned
common order dated 28.06.2019.
4.8.1. In the impugned order dated 28.06.2019, the High Court, after
taking note of the background aspects and stand of the respective
parties, stated the point for determination in the following terms: -
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“9. The short point that arises for consideration is “Whether the
G.P.A. holder of the plaintiff can be permitted to act like a counsel
and cross-examine the witnesses?”
4.8.2. Thereafter, the High Court took note of the previous applications
moved in these matters and the orders passed thereupon, while stating
its construction of such previous orders, inter alia, in the following terms: -
“12. The said order came to be passed in the month of December,
2018. As stated above, earlier to this order, a common order was
passed in C.R.P.Nos.1784, 2221 and 2366 of 2018, wherein, the
applications filed under Order III Rule 2 of C.P.C., read with
Section 32 of the Advocates Act were disposed of clarifying that
Smt.S.Hemalatha will appear in-person as a power of agent to the
first respondent and will not appear in her professional capacity.
The said applications came to be filed under Order III Rule 2 of
C.P.C., for the following relief, to represent her husband; to appear
in person to plead and conduct the above proceedings.
13. The said applications were allowed by the Court below,
forcing the first defendant to come up with the above three
revisions. The objections of the learned counsel for the petitioner
therein, were two fold, namely (i) that the wife-cum-General Power
agent of first respondent also happens to be a lawyer, but she can
either appear as a counsel or as a power agent and not as both
and (ii) that the address for service should be intimated by the first
respondent in Vijayawada to enable the petitioners to serve
notices and summons. The Hon’ble High Court held that once an
application under Order III Rule 2 CPC is allowed, the power agent
has two options; the first option is to appear in person as a power
agent and second option is to act as an Advocate herself. Both
cannot be combined in a single order.”
4.8.3. Thereafter, the High Court took note of the reasons that prevailed
with the Trial Court in passing the impugned orders dated 07.02.2019,
and proceeded to allow the revision petitions, essentially with reference to
decision of the Division Bench of the High Court in the case of Madupu
Harinarayana @ Haribabu rep. by his G.P.A., T. D. Dayal v. 1st
Additional District Judge, Kadapa and Ors.: 2011 (2) ALT 405 (D.B.)
and Section 32 of the Act of 1961. The High Court expressed its views
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against participation of the wife of the appellant in the proceedings as
GPA holder, while giving her liberty to conduct the case as an advocate
and while observing as under: -
“16. The Hon’ble Division Bench in the Judgment referred to
above observed that 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 rules made by the High Court, Civil Rules of Practice
and Circular Orders and Criminal Rules of Practice and 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
to appear in the case, file affidavits, instruct lawyers and act on his
behalf. It was held that the G.P.A. 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 court, it is an offence
punishable under law. Power of Attorney Act defines “power-ofAttorney” to include any instrument empowering a specified
person to act for and in the name of the person executing it. If so
empowered, the donor 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 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. Order III C.P.C., 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(a) of the
Advocates Act defines, “Advocate” to mean an advocate entered
in any roll under the provisions of the said Act. Section 2(15) of the
CPC defines “Pleader” to mean any person entitled to appear and
plead for another in court.
*** *** ***
18. After referring to the provisions of Advocates Act and the
Rules made by the High Court and the circulars issued, this Court
in Madupu Harinarayana’s case (supra) held that all the
pleadings in the proceedings should be made by party in person
as recognized agents. A party in person, and a recognized agent,
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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. Section 32 of the Advocates Act empowers the
Advocate to permit any non-advocate to appear in a particular
case. This means that any person has to seek prior permission of
the Court to argue the case if he is not Advocate enrolled under
the Advocates Act.
19. From the above observations made, it is clear that Section 32
of the Advocates Act empowers the court to permit any nonadvocate to appear in a particular case after seeking prior
permission of the court to argue a case if he is not an Advocate. It
would be appropriate to extract Section 32 of the Act which is as
under:
“32. Power of Court to permit appearances in
particular cases.—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.”
20. Prima-facie, a reading of the above provision vis-à-vis the law
laid down by the Division Bench show that it is only the Advocate,
who has enrolled under the provisions of the Advocates Act, has
the right of practice in any court. Any violation of the same would
amount to committing the offence under Section 35 of the
Evidence Act.
21. In the instant case, the wife of the plaintiff, who is representing
her husband, intends to examine the witness as a G.P.A. holder.
She is not arguing the matter as an Advocate for the plaintiff nor
she is cross-examining the witness as a lawyer for the first plaintiff,
though she is a lawyer practicing in the said court.
22. Though the judgment in C.R.P.No.6924 of 2018 between the
same parties held that there is no bar for the petitioner to
participate in the trial, but the Division Bench judgment of this
Court prohibits participation by the G.P.A. Holder. The same was
not brought to the notice of the learned Judge. As observed by me
earlier, the Division Bench of this Court categorically held that the
G.P.A. 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.
23. It may be true that the respondent herein, who is also an
Advocate, is doing the case of her husband as a General Power of
Attorney holder. It may also be true that the same may not cause
15
much prejudice to the petitioners. But, in view of the judgment of
the Division Bench of the combined High Court, C.R.Ps. are
allowed, however, giving liberty to the respondent to conduct the
case as an Advocate since she is a practicing Advocate as well.
24. There shall be no order as to costs. Miscellaneous Petitions
pending if any in these revisions shall stand closed.”
(emphasis supplied)
5. A long deal of arguments has been advanced before us in these
appeals preferred against the order so passed by the High Court. It has
been contended on behalf of the appellant that the High Court has totally
misdirected itself and has failed to consider that the issue in question
relating to the appearance of wife of the appellant as his GPA holder
stood concluded in these proceedings by virtue of the previous orders of
the High Court dated 20.04.2018 and 14.12.2018; and such an issue
could not have been re-opened at all, for operation of the doctrine of res
judicata. In the other limb of submissions, it has been argued on behalf of
the appellant that the wife of the appellant has a right to conduct the legal
proceedings as his GPA holder; and there is no explicit bar under any law
which prevents the wife of the appellant to act as his GPA holder merely
for her being an enrolled advocate. On the other hand, it has been
contended on behalf of the contesting respondent that the previous
orders between the parties granting permission to the wife of the
appellant to conduct the cases do not attract the doctrine of res judicata,
for having been passed in ignorance of the statutory directions in Section
32 of the Act of 1961. In the other segment, it has been argued on behalf
of the contesting respondent that as an officer of the Court, an advocate
16
cannot plead or cross-examine without filing a vakalatnama and the
jurisprudence of this Court as also of the High Courts does not allow an
advocate to appear as a power of attorney holder. Various authorities
have been cited by the learned counsel for the parties in support of their
respective contentions; we shall deal with the relevant of them at the
appropriate juncture hereafter.
6. Having regard to the background aspects and the rival
contentions, we may, first of all, take up the issue of res judicata before
moving to any other issue raised in these appeals.
7. Learned counsel for the appellant has contended, with reference
to various decisions including that in the case of Y.B. Patil & Ors. v. Y.L.
Patil: (1976) 4 SCC 66, that the doctrine of res judicata is attracted not
only in separate subsequent proceedings but also at subsequent stage of
the same proceedings and hence, the concluded orders passed earlier in
these proceedings are binding on the parties. The learned counsel has
argued that the issue as regards conduct of the case by the wife of the
appellant on his behalf and in her capacity as GPA holder has attained
finality in these proceedings with the concluded orders dated 20.04.2018
and 14.12.2018 as passed by the High Court and such an issue cannot
be reopened at the subsequent stage of these very proceedings. It has
been contended, with reference to the several decisions, including that in
the case of Gorie Gouri Naidu (Minor) v. Thandrothu Bodemma:
(1997) 2 SCC 552, that even an erroneous decision, if rendered between
17
the same parties, binds them if the same had been decided by a Court of
competent jurisdiction. The learned counsel has also referred to the
decision in Makhija Construction & Engg. (P) Ltd. v. Indore
Development Authority: (2005) 6 SCC 304 as regards the distinction
between a precedent and the operation of the doctrine of res judicata;
and to the decision in S. Nagaraj (Dead) by Lrs. & Ors. v. B.R.
Vasudeva Murthy & Ors.: (2010) 3 SCC 353 to submit that the orders as
passed in this matter by the High Court on 20.04.2018 and 14.12.2018
cannot be ignored even on the principles of per incuriam because those
principles have relevance to the doctrine of precedents but have no
application to the doctrine of res judicata.
8. It has, however, been strenuously argued by the learned senior
counsel for the contesting respondent that the said orders dated
20.04.2018 and 14.12.2018 cannot operate as res judicata because
therein, the Court had misapplied the procedural law and had not taken
into consideration the impact of Section 32 of the Act of 1961. In this
regard, a 3-Judge Bench decision of this Court in the case of Mathura
Prasad Bajoo Jaiswal & Ors. v. Dossibai N. B. Jeejeebhoy: (1970) 1
SCC 613 has been strongly relied upon. It has been contended that the
principles in Mathura Prasad (supra) would apply to both the questions
of jurisdiction as well as the situations where a decision of the Court
sanctions something which is illegal. The learned counsel would submit
that Section 32 of the Act of 1961 entitles only the non-advocates to seek
18
permission of the Court to plead on behalf of any party and the same
permission cannot be sought by an advocate. The contention has been
that the previous orders of the High Court, having ignored the import and
effect of Section 32 of the Act of 1961, do not operate as res judicata in
the current proceedings. Another decision of this Court in the case of
Allahabad Development Authority v. Nasiruzzaman & Ors.: (1996) 6
SCC 424, has also been cited to contend that this Court has clarified the
law that where the consequence of giving effect to res judicata would be
of enforcing an order standing contrary to statutory direction or
prohibition, the doctrine of res judicata has no applicability.
9. The basic principles of res judicata are generally specified in the
principal part of Section 11 of the Code of Civil Procedure, 1908 which
reads as under:-
“11. Res judicata. —No Court shall try any suit or issue in which
the matter directly and substantially in issue has been directly and
substantially in issue in a former suit between the same parties, or
between parties under whom they or any of them claim, litigating
under the same title, in a Court competent to try such subsequent
suit or the suit in which such issue has been subsequently raised,
and has been heard and finally decided by such Court.”
9.1. The doctrine of res judicata, having a very ancient history,
embodies a rule of universal law and is a sum total of public policy
reflected in various maxims like ‘res judicata pro veritate occipitur’, which
means that a judicial decision must be accepted as correct; and ‘nemo
debet bis vexari pro una et eadem causa’, which means that no man
should be vexed twice for the same cause. The ancient history of this
doctrine and its consistent recognition could well be underscored with
19
reference to the following statement of law in the case of Sheoparsan
Singh and Ors. v. Ramnandan Prasad Narayan Singh and Ors.:
A.I.R. 1916 Privy Council 78: -
“…But in view of the arguments addressed to them, their
Lordships desire to emphasise that the rule of res judicata, while
founded on ancient precedent, is dictated by a wisdom which is for
all time.
“ ‘It has been well said,’ declared Lord Coke, ‘interest
reipublicoe ut sit finis litium, otherwise great oppression
might be done under colour and pretence of law’ ”.-(6 Coke,
9 A.)
Though the rule of the Code may be traced to an English source, it
embodies a doctrine in no way opposed to the spirit of the law as
expounded by the Hindu commentators. Vijnanesvara and
Nilakantha include the plea of a former judgment among those
allowed by law, each citing for this purpose the text of Katyayana,
who escribes the plea thus: “If a person though defeated at law
sue again he should be answered, ‘You were defeated formerly.
This is called the plea of former judgment.” [See “The
Mitakshara(Vyavahara),” Bk. II, ch. I, edited by J. R. Gharpure, p.
14, and “The Mayuka,” Ch. I, sec. 1, p. 11 of Mandlik’s edition.]
And so the application of the rule by the Courts in India should be
influenced by no technical consideration of form, but by matter of
substance within the limits allowed by law.”
(emphasis supplied)
9.2. The contours of this doctrine of res judicata and its application
could be taken into comprehension by a reference to the Constitution
Bench decision of this Court in the case of Daryao and Ors. v. State of
U.P. and Ors.: AIR 1961 SC 1457. In that case, after the writ petitions
filed before the High Court of Allahabad under Article 226 of the
Constitution of India were dismissed, the petitioners filed substantive
petitions in this Court under Article 32 of the Constitution of India for the
same relief and on the same grounds. In such petitions, this Court upheld
the objection that the decision of the High Court would operate as res
judicata while observing, inter alia, as under: -
20
“(9) But, is the rule of res judicata merely a technical rule or is it
based on high public policy? If the rule of res judicata itself
embodies a principle of public policy which in turn is an essential
part of the rule of law then the objection that the rule cannot be
invoked where fundamental rights are in question may lose much
of its validity. Now, the rule of res judicata as indicated in S. 11 of
the Code of Civil Procedure has no doubt some technical aspects,
for instance the rule of constructive res judicata may be said to be
technical; but the basis on which the said rule rests is founded on
considerations of public policy. It is in the interest of the public at
large that a finality should attach to the binding decisions
pronounced by Courts of competent jurisdiction, and it is also in
the public interest that individuals should not be vexed twice over
with the same kind of litigation. If these two principles form the
foundation of the general rule of res judicata they cannot be
treated as irrelevant or inadmissible even in dealing with
fundamental rights in petitions filed under Art. 32.
(10) In considering the essential elements of res judicata one
inevitably harks back to the judgment of Sir William B. Hale in the
leading Duchess of Kingston’s case, 2 Smith Lead Cas. 13th Ed.
pp. 644, 645. Said Sir William B. Hale “from the variety of cases
relative to judgments being given in evidence in civil suits, these
two deductions seem to follow as generally true: First, that the
judgment of a court of concurrent jurisdiction, directly upon the
point, is as a plea, a bar, or as evidence, conclusive between the
same parties, upon the same matter, directly in question in another
court; Secondly, that the judgment of a court of exclusive
jurisdiction, directly upon the point, is in like manner conclusive
upon the same matter, between the same parties, coming
incidentally in question in another court for a different purpose.” As
has been observed by Halsbury, “the doctrine of res judicata is not
a technical doctrine applicable only to records; it is a fundamental
doctrine of all courts that there must be an end of litigation”,
Halsbury's Laws of England, 3rd Ed., Vol. 15, Paragraph 357, p.
185. Halsbury also adds that the doctrine applies equally in all
courts, and it is immaterial in what court the former proceeding
was taken, provided only that it was a court of competent
jurisdiction, or what form the proceeding took, provided it was
really for the same cause” (p. 187, paragraph 362). “Res judicata”,
it is observed in Corpus Juris, “is a rule of universal law pervading
every well regulated system of jurisprudence, and is put upon two
grounds, embodied in various maxims of the common law; the
one, public policy and necessity, which makes it to the interest of
the State that there should be an end to litigation — interest
republicae ut sit finis litium; the other, the hardship on the
individual that he should be vexed twice for the same cause
— nemo debet bis vexari pro eadem causa”, Corpus Juris, Vol. 34,
p. 743…..
(11) The same question can be considered from another point
of view. If a judgment has been pronounced by a court of
21
competent jurisdiction it is binding between the parties unless it is
reversed or modified by appeal, revision or other procedure
prescribed by law. Therefore, if a judgment has been pronounced
by the High Court in a writ petition filed by a party rejecting his
prayer for the issue of an appropriate writ on the ground either that
he had no fundamental right as pleaded by him or there has been
no contravention of the right proved or that the contravention is
justified by the Constitution itself, it must remain binding between
the parties unless it is attacked by adopting the procedure
prescribed by the Constitution itself. The binding character of
judgments pronounced by courts of competent jurisdiction is itself
an essential part of the rule of law, and the rule of law obviously is
the basis of the administration of justice on which the Constitution
lays so much emphasis. As Halsbury has observed: “subject to
appeal and to being amended or set aside a judgment is
conclusive as between the parties and their privies, and is
conclusive evidence against all the world of its existence, date and
legal consequences” Halsbury's Laws of England, 3rd Ed., Vol. 22,
p. 780 paragraph 1660.
(emphasis supplied)
9.3. It is also equally relevant to reiterate that Section 11 CPC is not
the foundation of the doctrine of res judicata but is merely the statutory
recognition thereof and, hence, is not considered exhaustive of the
general principles of law. This doctrine, it is recognised, is conceived in
larger public interest and is founded on equity, justice and good
conscience. These aspects were tersely put by this Court in the case of
Lal Chand (dead) by L.Rs. and Ors. v. Radha Krishan: (1977) 2 SCC
88 in the following words: -
“19. … The fact that Section 11 of the Code of Civil Procedure
cannot apply on its terms, the earlier proceeding before the
competent authority not being a suit, is no answer to the extension
of the principle underlying that section to the instant case. Section
11, it is long since settled, is not exhaustive and the principle
which motivates that section can be extended to cases which do
not fall strictly within the letter of the law. The issues involved in
the two proceedings are identical, those issues arise as between
the same parties and thirdly, the issue now sought to be raised
was decided finally by a competent quasi-judicial tribunal. The
principle of res judicata is conceived in the larger public interest
which requires that all litigation must, sooner than later, come to
22
an end. The principle is also founded on equity, justice and good
conscience which require that a party which has once succeeded
on an issue should not be permitted to be harassed by a
multiplicity of proceedings involving determination of the same
issue….”
(emphasis supplied)
9.4. It hardly needs any over-emphasis that but for this doctrine of res
judicata, the rights of the persons would remain entangled in endless
confusion and the very foundation of maintaining the rule of law would be
in jeopardy. Even if this doctrine carries some technical aspects, as
explained by this Court in Daryao (supra), it is in the interest of public at
large that a finality should attached to the binding decisions of the Courts
of competent jurisdiction; and it is also in public interest that individual
should not be vexed twice with the same kind of litigation. As noticed, the
Constitution Bench has placed this doctrine on a high pedestal, treating it
to be a part of rule of law.
9.5. Having taken into comprehension the object and framework of
doctrine of res judicata, a few ancillary principles, relevant to the case at
hand, may also be usefully noticed.
9.5.1. The principle that the doctrine of res judicata is attracted not only
in separate subsequent proceedings but also at subsequent stage of the
same proceedings is hardly of any doubt or dispute. A 3-Judge Bench of
this Court in the case of Y.B. Patil (supra), has tersely underscored this
principle of law in the following terms: -
“4. …It is well settled that principles of res judicata can be invoked
not only in separate subsequent proceedings, they also get
attracted in subsequent stage of the same proceedings. Once an
23
order made in the course of a proceeding becomes final, it would
be binding at the subsequent stage of that proceeding….”
9.5.2. It is also well-settled, as laid down in several decisions, that even
an erroneous decision remains binding on the parties to the same
litigation and concerning the same issue, if rendered between the same
parties by a Court of competent jurisdiction. In the case of Gorie Gouri
Naidu (supra), this Court, inter alia, said,
“4…..The law is well settled that even if erroneous, an inter-party
judgment binds the party if the court of competent jurisdiction has
decided the lis….”
9.5.3. In Makhija Construction & Engg. (P) Ltd. (supra), this Court
also clarified the distinction between a precedent and the operation of the
doctrine of res judicata in the following terms: -
“19. …A precedent operates to bind in similar situations in a
distinct case. Res judicata operates to bind parties to proceedings
for no other reason, but that there should be an end to litigation.”
9.5.4. In S. Nagaraj (supra), it was also made clear by this Court that
binding decisions cannot be ignored even on the principles of per
incuriam because those principles have relevance to the doctrine of
precedents but have no application to the doctrine of res judicata.
10. For what has been noticed and discussed in the preceding
paragraphs, it remains hardly a matter of doubt that the doctrine of res
judicata is fundamental to every well regulated system of jurisprudence,
for being founded on the consideration of public policy that a judicial
decision must be accepted as correct and that no person should be vexed
twice with the same kind of litigation. This doctrine of res judicata is
24
attracted not only in separate subsequent proceedings but also at the
subsequent stage of the same proceedings. Moreover, a binding decision
cannot lightly be ignored and even an erroneous decision remains binding
on the parties to the same litigation and concerning the same issue, if
rendered by a Court of competent jurisdiction. Such a binding decision
cannot be ignored even on the principle of per incuriam because that
principle applies to the precedents and not to the doctrine of res judicata.
10.1. In true application of these principles, it would appear that the
orders passed in these matters by the High Court on 20.04.2018 and
14.12.2018, as regards the issue of participation of the wife of the
appellant in these proceedings as a GPA holder of the appellant, remain
binding on the parties and cannot be ignored. In other words, this issue
concerning the capacity of the wife of the appellant to participate in these
proceedings as his GPA holder cannot be agitated over again in these
very proceedings, even if the earlier orders granting such permission to
her are suggested to be erroneous.
11. However, learned senior counsel for the contesting respondent
has strenuously argued, with reference to the decisions in Mathura
Prasad and Allahabad Development Authority (supra), that the said
orders dated 20.04.2018 and 14.12.2018 do not operate as res judicata.
In view of the submissions made on behalf of the contesting respondent,
we may examine the relevant features of the said cited cases in
necessary details.
25
11.1. In the case of Mathura Prasad (supra), the appellant constructed
buildings for commercial or residential purposes on open land in
pursuance of lease granted by the respondent. His application to the Civil
Judge for determination of standard rent was, however, dismissed on the
ground that the Bombay Rents, Hotel and Lodging House Rates Control
Act, 1947 did not apply to open land leased for the construction of such
buildings. A Single Judge of the Bombay High Court confirmed this order
in a group of revision applications. However, in the case of Vinayak
Gopal Limaye v. Laxman Kashinath Athavale: ILR (1956) Bom 827,
the Bombay High Court decided that a building lease in an open plot was
not excluded from Section 6(1) of the said Act of 1947. The view so taken
by the Bombay High Court in Vinayak Gopal Limaye (supra) was
affirmed by this Court in the case of Mrs. Dossibai N. B. Jeejeebhoy v.
Hingoo Manohar Missa: (1962) 3 SCR 928. Relying upon this judgment,
the appellant filed a fresh petition in the Court of Small Causes, Bombay
for an order determining the standard rent since the area was located
within the limits of Greater Bombay. The Trial Judge rejected this
application essentially on the consideration that the matter had already
been decided between the same parties in the earlier proceedings for
fixation of rent. The High Court affirmed the order so passed and hence,
the matter was in appeal before this Court.
26
11.1.1. In the aforesaid context, various features of the doctrine of res
judicata were explained by this Court in the relied upon passage as
follows: -
“11. It is true that in determining the application of the rule of res
judicata the Court is not concerned with the correctness or
otherwise of the earlier judgment. The matter in issue, if it is one
purely of fact, decided in the earlier proceeding by a competent
Court must in a subsequent litigation between the same parties be
regarded as finally decided and cannot be reopened. A mixed
question of law and fact determined in the earlier proceeding
between the same parties may not, for the same reason, be
questioned in a subsequent proceeding between the same parties.
But, where the decision is on a question of law i.e. the
interpretation of a statute, it will be res judicata in a subsequent
proceeding between the same parties where the cause of action is
the same, for the expression “the matter in issue” in Section 11 of
the Code of Civil Procedure means the right litigated between the
parties i.e. the facts on which the right is claimed or denied and
the law applicable to the determination of that issue. Where,
however, the question is one purely of law and it relates to the
jurisdiction of the Court or a decision of the Court sanctioning
something which is illegal, by resort to the rule of res judicata a
party affected by the decision will not be precluded from
challenging the validity of that order under the rule of res judicata,
for a rule of procedure cannot supersede the law of the land.”
(emphasis supplied)
11.1.2. This Court held that in the given case, the earlier decision of the
Civil Judge that he had no jurisdiction to entertain the application for
determination of standard rent was plainly erroneous; and if such a
decision was regarded as conclusive, ‘it will assume the status of a
special rule of law applicable to the parties relating to the jurisdiction of
the Court in derogation of the rule declared by the Legislature’. Therefore,
the operation of doctrine of res judicata was ruled out in that case.
11.2. In the case of Allahabad Development Authority (supra), the
relevant aspects were that after a notification under Section 4(1) of the
27
Land Acquisition Act, 1894 (‘the Act of 1894’) for acquiring a large extent
of land for Transport Nagar Scheme, the enquiry under Section 5-A was
dispensed with in exercise of power under Section 17(1-A), as amended
by the Legislature of the State; and possession of land in question was
taken on 02.11.1977, whereby the land stood vested in the State under
Section 16 of the Act of 1894. However, the High Court passed an order
declaring that the acquisition proceedings stood lapsed by operation of
Section 11-A, which requires that after acquisition, an award must be
made within a period of two years from the date of publication of
declaration and if no award is made within that period, the entire
proceeding for acquisition of land would lapse. The same question was
examined by this Court in Satendra Prasad Jain v. State of U.P.: (1993)
4 SCC 369 and Awadh Bihari Yadav v. State of Bihar: (1995) 6 SCC
31, where it was held that Section 11-A of the Act of 1894 would not apply
to the cases of land acquisition under Section 17 where possession had
already been taken and the land stood vested in the State. In the given
context and while referring to a decision in the case of Municipal
Committee v. State of Punjab: (1969) 1 SCC 475, this Court held as
under: -
“6. In view of the above ratio, it is seen that when the legislature
has directed to act in a particular manner and the failure to act
results in a consequence, the question is whether the previous
order operates as res judicata or estoppel as against the persons
in dispute. When the previous decision was found to be erroneous
on its face, this Court held in the above judgment that it does not
operate as res judicata. We respectfully follow the ratio therein.
The principle of estoppel or res judicata does not apply where to
give effect to them would be to counter some statutory direction or
28
prohibition. A statutory direction or prohibition cannot be
overridden or defeated by a previous judgment between the
parties. In view of the fact that land had already stood vested in
the State free from all encumbrances, the question of divesting
does not arise. After the vesting has taken place, the question of
lapse of notification under Section 4(1) and the declaration under
Section 6 would not arise. Considered from this perspective,
original direction itself was erroneous and the later direction with
regard to delivery of possession of the land, in consequence, was
not valid in law…..”
(emphasis supplied)
11.3. Thus, in the case of Mathura Prasad (supra), this Court observed
that when the earlier decision on the question of jurisdiction was
erroneous, it could not be treated as conclusive, else it would assume a
special status to rule of law applicable to the parties relating to the
jurisdiction, in derogation of the rule declared by the legislature. In
Allahabad Development Authority (supra), this Court was concerned
with operation of the statutory direction and inapplicability of the
provisions of lapsing of acquisition where possession was already taken
and the land stood vested in the State. Simply put, in these cases, the
doctrine of res judicata has been held inapplicable in relation to the
question of jurisdiction and in relation to the question of statutory
direction/prohibition.
12. The question in these appeals, therefore, is as to whether the
previous orders in relation to these proceedings, as passed by the High
Court on 20.04.2018 and 14.12.2018 between the same parties and
dealing with the same issues relating to the capacity of the wife of the
appellant in the present matters, could be said to be not conclusive and
29
not operating as res judicata because of any question of jurisdiction or of
statutory direction or prohibition.
13. What has been argued in this Court on behalf of the respondents
is that Section 32 of the Act of 1961 bars the advocates from seeking
permission of the Court and this provision entitles only the non-advocates
to seek such permission to plead on behalf of any party. According to
learned counsel of the respondents, this provision has been ignored in
the previous decisions.
13.1. Section 32 of the Act of 1961 reads as under: -
“32. Power of Court to permit appearances in particular cases.
—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.”
14. We are unable to appreciate the contention which suggests that
the said Section 32 creates a bar for the wife of the appellant to seek
permission of the Court to appear on behalf of her husband in her
capacity as GPA holder because of she being an enrolled advocate. The
enabling provision of Section 32 of the Act of 1961, whereby any Court,
authority or person may permit any non-advocate to appear before it or
him in any particular case is difficult to be read as creating a
corresponding bar in giving permission to a GPA holder of a party to
represent that party as such, if the said GPA holder, during pendency of
the proceedings in the Court, gets enrolled as an advocate. In other
words, there does not appear any statutory prohibition operating in the
situation like that of present case, for which the existing GPA holder of a
30
party cannot be given permission to appear only as the GPA holder, even
if he/she has been enrolled as an advocate.
14.1. As noticed, the meaning, purport and effect of the previous
concluded orders of the High Court dated 20.04.2018 and 14.12.2018
had been clear and unambiguous that in these cases, wife of the
appellant would be entitled to appear only as the GPA holder and not as
an advocate. We are unable to accept the submissions made on behalf of
the contesting respondent that the said orders by the High Court stand at
conflict with any statutory bar or prohibition or they relate to any such
mandatory provision of law which is going to be violated.
14.2. Apart from the above, we are clearly of the view that even if it be
assumed for the sake of arguments that there had been any error in the
previous orders dated 20.04.2018 and 14.12.2018, those orders, having
been rendered between the same parties and on the same issue of
appearance of the GPA holder in the same proceedings, indeed operate
as res judicata.
14.3. In the peculiar facts and circumstances of the present case, where
the only fortuitous event had been that wife of the appellant, who was
already acting as his General Power of Attorney holder, later on took the
degree in law and got herself enrolled as an advocate, the High Court
had, in the previous rounds of proceedings, cautiously balanced the
requirements of law, particularly the requirements of CPC, the Civil Rules
of Practice in the State, and the Act of 1961 as also the rules made under
31
the Act of 1961 by specifically providing that wife of the appellant shall
appear only as his GPA holder and not as an advocate. No such question
like that of jurisdiction or statutory prohibition arises from the said orders
dated 20.04.2018 and 14.12.2018 for which, the issue concluded thereby
could be reagitated at the subsequent stage of these very proceedings by
suggesting different interpretations.
15. At this juncture, we may also deal with the reason that has
prevailed with the High Court in the order impugned.
15.1. As noticed, the High Court has chosen to brush aside the said
previous orders dated 20.04.2018 and 14.12.2018 by reproducing a
couple of paragraphs of the Division Bench decision of that High Court in
the case of Madupu Harinarayana (supra) and by holding that by virtue
of the said decision, the GPA holder cannot plead or argue for his
principal. The High Court has reproduced the following two passages of
the said decision in Madupu Harinarayana:
“28. A conspectus of Rules 1 and 2 of Order III of Code of Civil
Procedure, Section 2(a) and Sections 29, 30, 33, 34 of the
Advocates Act, Rule 2 of Section 34 Rules and Code of Criminal
Procedure 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 (vakaltnama) 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
agnet, 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 pract5ise 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
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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.
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 practice 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.”
15.2. With respect, we are unable to endorse the approach of the High
Court in this matter, particularly when reliance has been placed on the
decision in the case of Madupu Harinarayana (supra) without taking note
of the basic facts and the background aspects in which the said decision
was rendered by the Court. The appellant of the said matter had filed a
suit for specific performance which was dismissed by the Trial Court. The
decree of the Trial Court was affirmed by the High Court and then, even
the petitions seeking leave to appeal were dismissed by this Court. Until
that juncture, the appellant was being represented by a duly instructed
counsel, an enrolled advocate. Thereafter, the appellant filed a writ
petition under Article 32 of the Constitution of India in this Court. It was
lodged under Order XVIII Rule 5 of the Supreme Court Rules, 1966
because no reasonable cause was made out justifying the receipt of the
writ petition. Then, IAs were filed by way of appeal against the Registrar’s
order, which were also dismissed. In these cases, before this Court, one
Mr. T.D. Dayal represented the appellant as his alleged GPA holder, who
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also addressed certain communications to the Registry of the Court that
were also duly replied. Thereafter, a writ petition was filed in the High
Court and an affidavit in support thereof was filed by the alleged GPA
holder wherein, apart from the criticism of the judgment of the Trial Court,
even unfounded and unsubstantiated aspersions were sought to be cast
on the High Court and on this Court. The said writ petition was dismissed
by the Single Judge of the High Court and then, the matter was before the
Division Bench in appeal. The appeal was also conducted by the said
alleged GPA holder. The Division Bench noticed several features of the
questionable dealings of the alleged GPA holder and it was also noticed
that even the copy of GPA was not annexed to the writ petition or the writ
appeal. The High Court found it to be a vexatious litigation by an
interloper and being a gross abuse of the process of Court while
observing at the very beginning of the judgment as follows: -
“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…….”
15.3. The High Court also issued a slew of directions, including that of
debarring the said alleged GPA holder from taking up any proceedings in
the Court and also registering Suo Motu Contempt case for making
unfounded and scurrilous remarks. We need not go into all those details
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for the purpose of the present case; suffice it to observe that the said
decision proceeded on its own peculiar facts and there had been a
marked distinction of the points arising in the said case from the point
arising before the High Court in the present case. In Madupu
Harinarayana (supra), the point for determination was as to whether a
GPA holder, who was not enrolled as an advocate, was having a right to
appear and plead before the Court, particularly when he has been found
to be involved in filing frivolous cases and making reckless remarks
against the entire justice delivery system. In contrast, the point for
determination in the present case before the High Court was as to
whether the wife of the appellant, being his GPA holder and having been
permitted to appear as such despite having been enrolled as an advocate
during the pendency of proceedings, was not entitled to cross-examine
the witnesses. The said decision in Madupu Harinarayana, in any case,
could not have been pressed into service to override the concluded and
binding decisions between the same parties in the same proceedings at a
previous stage.
16. For what has been discussed hereinabove, we are of the view that
the aforesaid orders dated 20.04.2018 and 14.12.2018 operate as res
judicata and create a bar in raising of the issue again as regards capacity
of the wife of the appellant in these matters. The High Court has fallen in
grave error in ignoring the said previous inter partes binding decisions.
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17. In continuity with what has been observed hereinabove, we are
impelled to observe, as has rightly been contended on behalf of the
appellant, that in the order impugned, the High Court has
mischaracterised the issue before it. As noticed, the High Court has
proceeded to observe that the point for determination in the matter was
as to ‘whether the GPA holder of the plaintiff can be permitted to act like a
counsel and cross-examine witnesses’. It has been pointed out on behalf
of the plaintiff-appellant that his GPA holder (wife) never attempted to act
like an advocate and to cross-examine the witnesses in that capacity. In
the earlier rounds of proceedings, the High Court had specifically ordered
that the wife of the appellant would only act as power agent of appellant
and not in her professional capacity as an advocate. In view of the above
and in view of the objections thereafter raised by the contesting
respondent, the point for determination, in essence, before the Court was
as to whether the wife of the appellant, being his GPA holder, was not
entitled to cross-examine the witnesses, as captured by the Trial Court in
paragraph 5 of its order dated 07.02.2019. The Trial Court had also
noticed the objections of the contesting respondent that the wife of the
appellant, being a GPA holder, could only engage a lawyer but could not
participate in the Trial Court and examine the witnesses or argue the
matter. It was contended that though she was permitted to attend the suit
proceedings in-person, it did not confer her with the authority of doing any
such act which only a legal practitioner would do. The Trial Court had
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rightly overruled such objections, particularly with reference to the
previous orders passed by the High Court.
17.1. Moreover, the errors on the part of the High Court in this case are
not confined to the erroneous framing of the point for determination and
erroneous application of the decision in Madupu Harinarayana (supra).
In fact, reference to the previous orders dated 20.04.2018 and
14.12.2018 by the High Court in the background narrative had also been
incomplete and rather incorrect. It is noticed that in paragraph 13 of the
order impugned, the High Court read as if the previous orders dated
20.04.2018 and 14.12.2018 stopped at observing that the two capacities,
of GPA holder and advocate, cannot be combined. However, further to
that, in the said orders dated 20.04.2018 and 14.12.2018, the High Court
had precisely noticed that the wife of the appellant was appearing only as
a power agent and the orders of the Trial Court were confirmed while
clarifying that she would appear in-person as a power agent and will not
appear in her professional capacity. This later part of the substance of the
both the orders dated 20.04.2018 and 14.12.2018 appears to have not
gone into the requisite consideration of the High Court.
18. Thus, it is apparent that the High Court has viewed the entire case
from an altogether wrong angle, i.e., by misdirecting itself on the real
point for determination; by not taking into comprehension the meaning,
purport and effect of the previous binding orders dated 20.04.2018 and
14.12.2018 between the same parties in the same proceedings; and by
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misapplication of the Division Bench decision of the same High Court.
This misdirected approach has resulted in the High Court ignoring the
doctrine of res judicata and issuing such directions which are squarely
opposite to the directions contained in the previous binding orders.
19. For what has been discussed and held hereinabove, the
impugned order dated 28.06.2019 cannot sustain itself and is required to
be set aside.
20. The discussion until this juncture is itself sufficient to conclude
this matter. However, before closing, we may refer to a few other features
of the case.
20.1. A long deal of arguments has been made on behalf of the
respondents in this case on the point that as an officer of the Court, an
advocate cannot plead or cross-examine without vakalatnama; and as
regards the impact of Bar Council Rules, particularly on the standards of
professional conduct and etiquettes. Several decisions have been cited
to submit that the jurisprudence of this Court and the High Court does not
allow advocates to appear as Power of Attorney holders. In our view, all
such contentions remain entirely inapposite to the facts of the present
case for the simple reason that the matter in issue stands concluded by
the previous decisions by the Trial Court and then by the High Court. We
are unable to find the said decisions operating in any manner against
statutory mandate. Various contentions that the wife of the appellant
being an advocate is likely to face the position of conflict of interest and
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her disability to act as an advocate in the matter in which she is likely to
have direct pecuniary interest, are all rather unnecessary when viewed in
the light of facts that as per the binding orders passed in these cases,
wife of the appellant would be appearing only as GPA holder and not as
an advocate.
20.2. In view of the above, we need not dilate on the other contentions
urged on behalf of the contesting respondent and counter thereto by the
learned counsel for the appellant. However, we may take note of an
apprehension suggested in the submissions made on behalf of the
respondent that if the operation of Section 32 of the Act of 1961 is not
confined to non-advocates, it may additionally create scope for
unscrupulous advocates, who might have been suspended from practice
or might be engaged in other malpractices as per the Bar Council of India
Rules, to circumvent the legal consequences by appearing as power of
attorney holders. This line of submissions is rather unnecessary and
overexpansive; and it does not correlate with the real matter in issue
before us. However, we may observe that the permission under Section
32 of the Act of 1961, by its very nature, is to be granted on case-to-case
basis and could also be refused with reference to the given set of facts
and circumstances referable to a particular case and any particular
person. In any case, for all the features and factors of the present case,
this line of submissions carries no relevance and does not require any
further comment.
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21. For what has been discussed hereinabove, these appeals
succeed and are allowed; the impugned common order dated 28.06.2019
is set aside; and the orders passed by the Trial Court dated 07.02.2019
are restored.
21.1. The costs of this litigation in this Court shall follow the decision in
the main proceedings by the Trial Court.
……....…………………….J.
(DINESH MAHESHWARI)
……....…………………….J.
(ANIRUDDHA BOSE)
NEW DELHI;
OCTOBER 19, 2022.
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