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2014 DIGILAW 357 (KAR)

Sajida Banu v. Halema Banu

2014-03-14

N.KUMAR

body2014
ORDER N. Kumar, J. 1. This writ petition is filed by the plaintiff challenging the order passed by the trial Court dismissing I.A. No. 2 under Order 3 Rule 1 read with Sec. 151 CPC seeking permission to be represented through Power of Attorney. 2. The plaintiff has filed a suit for partition and separate possession of her legitimate share in the plaint schedule properties. The defendants have filed the written statement contesting the claim; issues are also framed. When the case is set down for evidence, the plaintiff filed an application under Order 3 Rule 1 read with Sec. 151 CPC, seeking permission of the Court to examine her son stating that she has executed Power of Attorney in his favour, as she is not in a position to walk or hear or be present before the court personally and also that she is suffering from high blood sugar, B.P. Further due to old age, she is not in a position to easily understand the matter whereas her son knows the facts of the case. This application was opposed by the defendant, contending that, the application is misconceived, as the plaintiff has no right to property. Therefore the application is not maintainable. 3. After hearing both the parties, the trial Court was of the view that the Medical certificate produced by the plaintiff, though disclosed that the plaintiff to be suffering from diabetes, arthritis and cholithiasis, these are not serious diseases to permit the plaintiff to conduct the case through her GPA holder and therefore it dismissed the application filed by the plaintiff. Aggrieved by this the present writ petition is filed. 4. I have heard the learned Counsel for the parties. 5. Order 3 CPC dealing with recognized agents and pleaders reads as under: "1. Appearances, etc., may be in person, by recognized agent or by pleader.- Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader (appearing, applying or acting, as the case may be,) on his behalf: Provided that any such appearance shall, if the Court so directs, be made by the party in person." 6. The aforesaid provision enables a party to appear, file application or act in a Court personally without engaging a Counsel and all such acts can also be performed by a recognized agent if the party executes a Power of Attorney in favour of such agent; this can also be done by a pleader who is duly authorized. The only exception is, 'if under any law, the party has to appear in person then neither the pleader nor the Power of Attorney Holder can appear'. 7. Sub-Rule (2) deals with who are the recognized agents and the same reads thus: "2. Recognised agents. - The recognized agents of parties by whom such appearances, applications and acts may be made or done are- (a) Persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties; (b) Persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts." Therefore, the aforesaid provision provides that persons holding Power of Attorney under which they are duly authorized, to make such appearances, applications and act as recognized agents. Similarly, when a person is a legal person, such legal person is represented by natural persons by virtue of such express authorization given to them. 8. From the above, it becomes clear that it is not obligatory on the part of the party to a litigation to appear in person, unless the law so requires. The party could prosecute or defend a legal proceedings through a Power of Attorney Holder or even a Pleader. Therefore, when the statute confers such a power on a party, it has to be honoured. The question of Court granting permission to a party to prosecute the matter through a Power of Attorney Holder or a Pleader would not arise. However, the Court cannot prevent a party from prosecuting the litigation or defending it through a Power of Attorney Holder or a Pleader. The question of Court granting permission to a party to prosecute the matter through a Power of Attorney Holder or a Pleader would not arise. However, the Court cannot prevent a party from prosecuting the litigation or defending it through a Power of Attorney Holder or a Pleader. Only in some exceptional cases, such as the case arising under the Family Courts Act, where an Advocate cannot appear as a matter of right and can appear only on the permission granted by the Court, the party has a right to be represented by a Power of Attorney Holder or a Pleader. 9. Under the above circumstances, the application filed for such permission is wholly misconceived. Unfortunately, the trial Court without properly appreciating the aforesaid provision has rejected the said application on the ground that, a reasonable case is not made out for allowing the said application. 10. This is a recent trend in our judicial system. We find in almost every case, such applications are filed, objections are filed, arguments are canvassed and lengthy orders running to several pages are written, either allowing or rejecting the application and thereby wasting the precious time of the court as well as the public. This ultimately results in delay in disposal of cases, which trend has to be put an end to forthwith. 11. Therefore, the Courts before which such applications are filed, shall apply their mind at the earliest point of time, i.e., immediately on receiving the application in the court and reject that application without waiting for the other side to file objections to it. A party should be permitted to be represented by a Power of Attorney Holder or a Counsel as a matter of right. But a party should not, as a matter of right drag prosecution of the matter through a Power of Attorney Holder. Once a Power of Attorney Holder enters the witness box and gives evidence, whether that evidence has to be acted upon, whether it is a direct evidence or hearsay evidence, is to be decided by the trial Court at the time of appreciation of the evidence. On the ground that the Power of Attorney Holder has no personal knowledge of the case, he cannot be prevented from entering the witness box and from deposing. 12. On the ground that the Power of Attorney Holder has no personal knowledge of the case, he cannot be prevented from entering the witness box and from deposing. 12. Therefore, it is high time, the trial Courts should, look to these provisions, understand the scope of the same and do not give room for entertaining such applications or write lengthy orders while allowing or dismissing such application. Such applications are to be rejected at the threshold and heavy costs should be imposed to discourage filing such applications either out of ignorance or with the motive of dragging on the proceedings. 13. Writ petition is allowed. Impugned order is hereby set aside. Application filed under Order 3 Rule 1 is hereby dismissed.