RECENT SUPREME COURT JUDGMENT ON ‘POWER OF ATTORNEY’

[Mr. M. GOVINDARAJAN]

A power of attorney is a legal document that involves the agent or attorney-in-fact, and the principal. It is used in the event of a principal's temporary or permanent illness or disability, or when they can't sign necessary documents. The principal must choose a Power of Attorney who they trust to handle their affairs for them.  The document authorizes the agent to represent the principal in all property and financial matters as long as the principal’s mental state of mind is good.

Many a litigation arises in the matter of Power of Attorney. Recently Supreme Court gave a ruling on Power of Attorney in  S. RAMACHANDRA RAO VERSUS S. NAGABHUSHANA RAO & ORS. - 2022 (11) TMI 983 - SUPREME COURT  that a Power of Attorney holder can continue to represent the party even if she gets enrolled as an Advocate. 

In the above said case a civil suit has been filed for partition in OS 368 of 1995 in which the appellant was the third plaintiff.  The appellant, on 20.04.1987 executed a General Power of Attorney (‘GPA’ for short) in favor of his brother, the first respondent in this case and also who filed the civil suit for partition.  Since the said suit was filed without the knowledge of the appellant and the judgment is not in favor of the appellant, the appellant revoked the GPA.

On 25.01.1997 the appellant gave GPA to his wife.  The GPA filed an IA in the original suit for recalling the judgment and decree.  The appellant has filed three more suits as detailed below-

• O.S. No. 388 of 1997, for declaration of title, possession, partition, and mesne profits;
• 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
• O.S. No. 445 of 1998, for partition and mesne profits.

During the pending of the above cases the wife of the appellant passed Law degree and became an Advocate in the year 2011.  She filed IAs in the suits with the prayer to permit her to appear in person and to plead, argue and do all necessary acts for the conduct of suits.  The Trial Court allowed her prayers, rejecting the objections of the other parties on 19.02.2018.

The above said order was challenged by the respondent before the High Court.  The GPA told that she is not seeking to appear as an Advocate but seeking to appear as a GPA on behalf of the appellant in the present appeal.  Therefore the question of informing local address does not arise.  The High Court disposed the review petitions confirming the order of trial court on 20.04.2018.  The High Court further clarified that the GPA would appear as a power of Agent and not an Advocate.  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.

When the proceedings are in progress, the respondent filed separate applications contending that the GPA of the appellant is not entitled to examine the witnesses before the Trial Court.  The Trial Court rejected the objections of the respondent on 07.02.2019.  The said order was also challenged before High Court.  The High Court rejected the same.

Against these orders the appellant approached the Supreme Court for remedy. The appellant submitted the following before the Supreme Court-

• 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.
• Such an issue could not have been re-opened at all, for operation of the doctrine of res judicata;
• 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.

The respondent submitted the following before the Supreme Court-

• 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.
• As an officer of the Court, an advocate cannot plead or cross-examine without filing a vakalatnama and the jurisprudence of this Court as also of the High Court does not allow an advocate to appear as a power of attorney holder.

The Supreme Court considered the submissions of the parties to the present appeal.  The Supreme Court first considered the issue of res judicata before moving to any other issue raised in these appeals.  The Supreme Court analyzed the provisions of Section 11 of the Code of Civil Procedure, 1908.  The doctrine of res judicata 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 Supreme Court also analyzed the provisions of section 32 of the Advocates Act, 1961.  According to the respondents 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    The Supreme Court did not accept the contention that the 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. 

Apart from the above, the Supreme Court was 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.  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  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.

The Supreme  Court was of the view that the 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 erred in ignoring the said powers inter parties binding decisions.  The Supreme Court allowed the appeal and set aside the order of High Court.