Nerella Chiranjeevi Arun Kumar v. Nerella Akulasowjanya
2019-09-13
C.PRAVEEN KUMAR
body2019
DigiLaw.ai
JUDGMENT : C Praveen Kumar, J. The present Civil Revision Petition is filed under Article 227 of the Constitution of India aggrieved by the order dated 23.4.2019 passed in I.A. No.991 of 2018 in F.C.O.P. No.634 of 2017 on the file of the XIV Additional District Judge, Krishna, wherein the application filed by the petitioner under Order 9 Rule 9 C.P.C. to set aside the dismissal order dated 10.6.2018 and to restore the main petition and permit the G.P.A. holder to contest the petition proceedings came to be allowed while directing the petitioner to appear in person for reconciliation. 2. In spite of service of notice on the respondent, there is no representation on her behalf. 3. Heard the counsel for the petitioner and perused the record. 4. The short point that arises for consideration is, "Whether the petitioner can be allowed to be represented by G.P.A. Holder for reconciliation?" 5. The issue is no more res integra in view of the order dated 17.6.2015 passed in C.R.P. No.1621 of 2015 by the High Court of Judicature at Hyderabad for the State of Telangana and the state of Andhra Pradesh. It was also a case pending before the Family Court. The petitioners and respondents therein sought divorce by mutual consent, but husband in the said case was not able to attend the court personally as he was in Australia pursuing his career. He gave Power of Attorney to a person known to him to plead after the expiry of the mandatory period for giving divorce by mutual consent. After referring to various judgments of the Apex Court and also interpreting the meaning of the word 'pleading' and 'practice', the learned Single Judge, in the facts and circumstances of the case, permitted to examine the person who is in Australia by using skype technology. 6. In Podelly Chinna Chinnanna v. Bandari Pedda Bhumanna and others, 2003 SCJOnline(AP) 1040 this Court, while dealing with the similar issue, held as under : "11. ......Therefore, there is no bar for a power of attorney to represent the principal unless the law does not intend, either expressly or impliedly. The provisions of Powers of Attorney Act has to be read with the aforesaid provisions of the Code of Civil Procedure and the Civil Rules of Practice, which amply substitutes the power of attorney in the place of a party.
The provisions of Powers of Attorney Act has to be read with the aforesaid provisions of the Code of Civil Procedure and the Civil Rules of Practice, which amply substitutes the power of attorney in the place of a party. Section 60 of the Evidence Act insists oral evidence to be direct viz., the best evidence available should be brought before the Court. However, while weighing the evidence, Court can certainly take note of absence or withholding of best evidence and can draw inference. There is no doubt that parties to the proceedings have to appear and give evidence. A Power of Attorney surrogates a party in all aspects, including giving of evidence. As contemplated under Section 118 of the Evidence Act, statements made by an agent constitute a valid admission..... 14. In view of the aforesaid principles and the provisions, it cannot be said that any restrictions can be imported which are not contemplated under the law. The very expression 'act' takes in every step by the G.P.A., on behalf of the executant and further it gets buttressed by the preceding expressions 'appearance' and 'applications'. However, the extent of credence to be given to the statement of a General Power of Attorney is totally a different consideration and it turns on each individual case. In a given circumstance, the non-examination of the principal or withholding himself may be fatal but the Court cannot throw out the evidence of a power of attorney on behalf of the principal, which has to be tested on the same lines as any witness subject to the principles under the law of evidence. In a given case, if the statement of a power of attorney cannot be relied on as not being a direct evidence, necessary presumption can always be drawn against the party for not coming before the Court. There is also no bar, if the circumstances warrant, to examine the party himself in the Court on a commission if he is otherwise disabled. But it cannot be said that there is any such total bar under law for examining a power of attorney on behalf of the executant . 15...........Therefore, it cannot be said that the Power of Attorney holder cannot be said to be a incompetent as witness on behalf of the party/executant." 7.
But it cannot be said that there is any such total bar under law for examining a power of attorney on behalf of the executant . 15...........Therefore, it cannot be said that the Power of Attorney holder cannot be said to be a incompetent as witness on behalf of the party/executant." 7. In T.C.Mathai v. District and Sessions Judge, Thiruvananthapuram,1999 SCJOnline(SC) 1305 the Apex Court held as under: "In Stroud's "Judicial Dictionary", power of attorney is described as "an authority whereby one is set in the turn, stead, or place of another to act for him." In Black's Law Dictionary it is described as the instrument by which a person is authorized to act as an agent of the person granting it. Section 2 of the Powers of Attorney Act, 1882 empowers the donee of a power of attorney to do anything "in and with his own name and signature" by the authority of the donor of the power. Once such authority is granted the said Act recognizes that everything done by the donee "shall be as effectual in law as if it had been done by the donee of the power in the name and with the signature of the donor thereof." 8. In Tukaram, through G.P.A. Holder v. Bheem Rao and others, (1996) 4 ALT 841 this Court held as under : "The execution and authorization for the GPA by the plaintiff was prima facie established. The reason for the party to appoint at GPA to conduct or prosecute a litigation is irrelevant in dealing with such a mater. Such cases wherein GPA holder wants to prosecute the proceedings on behalf of the parties are governed by Order III Rules 1,2, and 6 of C.P.C. Rule 1 of Order III contemplates that 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. Therefore, whatever a party to a litigation can do in person, can be done by his recognized agent or by pleader as the case may be.
Therefore, whatever a party to a litigation can do in person, can be done by his recognized agent or by pleader as the case may be. Rule 2 of the Order explains as to who are the recognized agents. Sub-clause(a) of the Rule in unmistakable terms classify persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties etc., as the recognized agents." 9. The expression "power of attorney" has been defined in the Strouds Judicial Dictionary as an authority whereby one "is set in the turn, stead, or place of another" to act for him. It is generally made by deed poll, but semble, may be by writing unsealed. In the Blacks Law Dictionary; as an instrument granting someone authority to act as agent or attorney-in-fact for the grantor. In The Words and Phrases - Permanent Edition - as : The term "power of attorney" indicates a power or authority under seal. A "power of attorney is an instrument in writing by which one person, as principal, appoints another as his agent and confers upon him the authority to perform certain specified acts or kinds of acts on behalf of the principal. "Power of Attorney" is not contract, but is merely document evidencing to third parties existence of agency relationship and power of agent. Hence, the power of attorney holder can act on behalf of his Principal without any reservations. It would help the Principal to perform all such acts and functions through such an agent, in his own interest. 10. Section 32 of the Advocates Act uses the word 'appear' while Sections 29 and 33 use the expression 'Practice'. The word 'Practice' includes both acting and pleading, and takes in all the normal activities of a legal practitioner. Section 33 of the Advocates Act uses the word 'Practice', whereas the word 'appear' is used in S.32. A non-Advocate, when he seeking permission to 'appear' cannot, in my view, be permitted to 'address' the Court on the strength of the power-of-attorney. In Sornam's case, while observing that he can 'appear' or 'act' Natesan, J. observed. "As a recognized agent, he can have appearance and he can act; now he wants also to plead the cause before the court, that is factually to practice the profession of law." 11.
In Sornam's case, while observing that he can 'appear' or 'act' Natesan, J. observed. "As a recognized agent, he can have appearance and he can act; now he wants also to plead the cause before the court, that is factually to practice the profession of law." 11. Natesan, J., also stated that the Supreme Court in Aswini Kumar Ghosh v. Arabinda Bose, (1952) AIR SC 369 at 375), approved the meaning given to the word 'practice' by Kumaraswami Sastry, J. in the Full Bench case in Re-Powers-of-Advocates,1928 AIR Madras 1182 to the following effect:-- "the word 'Practice' means appear, act, and plead, unless there is anything in the subject or context to limit its meaning." 12. Therefore, the word 'appear' is only one aspect and does not take in the concept of 'pleading' without which; it cannot be equated to 'practicing'. In Thayarammas case, (1937) AIR Madras 937, also it was stated that 'Practice' means drafting, engrossing, filing plaints, Judge's summons, affidavits and generally issuing legal process, and all that a legal practitioner does. Even one isolated act has, in England, been held to constitute 'acting as a solicitor' rendering persons guilty of such conduct liable to be dealt with under Section 26 of the Solicitors Act, 1860 for contempt of Court (In Re Ainsworth, Ex parte Incorporated Law Society, 1905 KB 103). 13. In the instant case, originally an application under Section 13(i)(i-a) of the Hindu Marriage Act seeking to dissolve the marriage between the petitioner and the respondent on 4.6.2014 came to be filed on the ground of cruelty. When the matter was coming up for reconciliation, the respondent-wife demanded the personal appearance of the petitioner-husband before the court. Her insistence for appearance lead to passing of the order, which is as under : "I have gone through main docket proceedings. The docket order dated 10.6.2018 goes to show that in spite of direction given by the court to the GPA Holder of the petitioner to produce petitioner but the GPA Holder failed to produce the petitioner, thereby the petition was dismissed for default. In fact when the matter is coming for reconciliation, the GPA Holder cannot represent the petitioner, particularly at the time of reconciliation.
In fact when the matter is coming for reconciliation, the GPA Holder cannot represent the petitioner, particularly at the time of reconciliation. The GPA holder can represent the other aspects but not particularly with regard to reconciliation between the wife and husband and even in the affidavit that was filed by the deponent on behalf of the original petitioner, there is no mention in the affidavit that he will attend before this court personally at the time of reconciliation. That shows even the petitioner or the deponent i.e., GPA holder has no respect towards law and obey the direction passed by this court. However, to give an opportunity to the petitioner, as rightly contended by the respondent that she has no objection provided the petitioner appear before this court for reconciliation, thereby once again to give an opportunity to the petitioner, this petition is allowed subject to appearance of petitioner for reconciliation by 6-7-2019, otherwise, petition shall stand dismissed." 14. From the narration of events, it is clear that in the instant case the petitioner is not available in India. He is working in USA and that it would be difficult for him to get leave from his company. He categorically states that he may be permitted to go through the process of reconciliation through electronic devices i.e., skype, whatsapp, truecaller etc., For the reasons best known to the respondent-wife, she is insisting on the personal appearance of the petitioner before the court. It is to be noted here that the work load in the family courts is increasing day by day. One does not know whether the case would be taken up on the date when it is posted and at times, the proceedings may not go on or get completed due to pre-occupation of the Presiding Judge with other more pressing work in the court. For the purpose of answering the queries raised during the reconciliation proceedings, it may not be necessary for the person to come all the way from U.S. with the technology in the information sector that is available, more so when the Courts in India are also making every effort to use the technology as available. Skype is one such technology which is available. Therefore, the party, who is seeking such benefit, may be directed to provide necessary skype facility and then proceed with the matter.
Skype is one such technology which is available. Therefore, the party, who is seeking such benefit, may be directed to provide necessary skype facility and then proceed with the matter. By using the skype technology, the parties, who are staying abroad can not only be identified by the family court, but also enquired into about the free will and consent of such party. This will help in reducing the cost of the litigation and save the precious time of one and all. The other party available in the Court can be of great assistance in identification of the other party. Therefore, allowing the application with the condition that the petitioner should appear in person, may not be proper. It appears that repeated insistence by the respondent led the court to pass an order with which I am not in acceptance. Having regard to the fact that the appearance of the husband is only for the purpose of reconciliation, I feel that skype technology can be made use of at the cost of the person who pleads the same, to know the mind of the husband. 15. Hence, the order under challenge, to the extent of directing appearance of the petitioner/husband for reconciliation, is set aside and the matter is remanded back to the trial court to direct the GPA Holder to make available the skype facility for the Court to proceed with the matter in accordance with law. 16. Accordingly, the Civil Revision Petition is disposed of. No order as to costs. Consequently, miscellaneous petitions pending, if any, shall stand closed.