2019 (4) TMI 1 - HC - Indian Laws

Application for Leave to appear in person on behalf of the defendant/caveatrix - whether appearance, application or acting by a recognized agent of a party would include within such scope, the right to plead and argue before a court of law as defined in Rule 2 of Order III? - Held that - In this case, Mr. Nandy is admittedly a power of attorney holder on behalf of the caveatrix and claims a right to argue the case of the caveatrix including examining witnesses in the proceedings on the basis of the authorization arising from the power of attorney. The scope of the rights given to a holder of a power of attorney/recognized agent would be clarified from a look at some of the other provisions in the CPC and the Original Side Rules. The first of such would be Section 2(15) of the CPC which says that only a pleader would be entitled to appear and plead for another in court and which would include an advocate, a vakil and an attorney of a High Court. Under Rule 1 (i) (b), a person qualifies as an advocate if covered within the meaning of The Advocates Act, 1961. Rule 5 provides, inter alia, that an advocate shall not be entitled to appear and plead before a court unless he has filed a Vakalatnama or is instructed by an advocate who has filed a Vakalatnama. The rights granted under Order III Rule 1 is further clarified by sections 8 and 29 of The Advocates Act, 1961 which provide, inter alia, that no person shall be entitled as of right to practice in any High Court unless his name is entered in the Roll of advocates of the High Court (Section 8) and that there is only one class of persons entitled to practice of law namely, advocates (Section 29). Section 119 further prohibits unauthorized persons from addressing court and mentions examination of witnesses in particular. The courts have stressed on the distinction, namely, that acting and appearing for another will not include a right to plead or argue before a court of law - It is clear from the decisions as well as the relevant statutes and Rules, that a special class of persons, namely, Advocates enrolled under The Advocates Act, 1961, have been authorised to plead and argue before a court of law. It should further be noted that the special reason of permitting any other person under Rule 5 of chapter 1 of The Original Side Rules relate only to appearance and not pleading. This is in consonance with Rule 1 (i) (a) which specifically mentions various acts which a person authorized or a recognized agent can do other than pleading . The application filed by the defendant for permitting Mr. Radhanath Nandy to appear and act on behalf of the defendant/caveatrix under Order III Rule 2 of the CPC, is dismissed.

Summary

Issues Involved:
1. Right of audience for a recognized agent under Order III Rules 1 and 2 of the Civil Procedure Code (CPC), 1908.
2. Interpretation of "appearing," "acting," and "pleading" under the CPC and related statutes.
3. Applicability of the Advocates Act, 1961, and the Indian Bar Councils Act, 1926, in determining who can practice law.

Issue-wise Detailed Analysis:

1. Right of Audience for a Recognized Agent:
The primary issue was whether Mr. Radha Nath Nandy, as a recognized agent holding a power of attorney, has the right of audience before the court. Mr. Nandy argued that his status as a constituted attorney for Shefalika Ash, the defendant/caveatrix, authorized him to appear, argue, and act on her behalf, including signing affidavits and applications. He cited Chapter I of the Original Side Rules and Order III Rules 1 and 2 of the CPC to support his claim.

2. Interpretation of "Appearing," "Acting," and "Pleading":
The court examined whether the terms "appearing," "acting," and "pleading" under Order III Rules 1 and 2 of the CPC include the right to argue and examine witnesses. Ms. Sutapa Sanyal, representing the plaintiffs, contended that Order III Rule 2 restricts recognized agents to appearing and making applications but does not grant the right of audience or examination of witnesses. She relied on precedents such as Ashwin Sambhuprasad Patel v. National Rayon Corporation Limited (AIR 1955 Bombay 262) and P. Thayarammal v. Pitty Kuppuswamy Naidu (AIR 1937 Madras 937), which clarified that recognized agents do not have the right to plead in court. The court agreed, noting that Order III Rule 1 specifically excludes the term "plead" from "appearing" or "acting."

3. Applicability of the Advocates Act, 1961, and the Indian Bar Councils Act, 1926:
The court considered Section 8 of the Indian Bar Councils Act, 1926, and Section 29 of the Advocates Act, 1961, which collectively stipulate that only enrolled advocates have the right to practice law in any High Court. The court emphasized that these statutes create a special class of persons entitled to practice law, namely, advocates. The court also referenced Section 119 of the CPC, which prohibits unauthorized persons from addressing the court or examining witnesses unless specifically authorized by the court's charter.

Conclusion:
The court concluded that Mr. Nandy, as a recognized agent holding a power of attorney, does not have the right to plead or argue before the court. The judgment emphasized that only advocates enrolled under the Advocates Act, 1961, have the right to practice law, including pleading and arguing cases. Consequently, the application filed by Mr. Nandy under Order III Rule 2 of the CPC was dismissed.

Additional Judgment:
The court also addressed G.A. 3700 of 2017, an application for the dismissal of the Testamentary Suit, directing it to be placed before the appropriate Bench. The court ordered that there be no costs and allowed for urgent Photostat certified copies of the judgment to be supplied to the parties upon compliance with requisite formalities.