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TMI Blog2015 (11) TMI 1813X X X X Extracts X X X X X X X X Extracts X X X X ..... vil Procedure would include the right to address the Court on the strength of the power of attorney is the preliminary issue that arises for consideration in this writ petition filed at the instance of a power agent for a direction to permit him to argue the case of his principal before the Debts Recovery Appellate Tribunal, Chennai. Background facts:- 2. The petitioner filed an appeal before the Debts Recovery Appellate Tribunal (hereinafter referred to as DRAT ), challenging the order dated 27 January 2015 on the file of Debts Recovery Tribunal (hereinafter referred to as DRT ) at Bangalore. The appeal was filed on the strength of the power of attorney executed by Sri.K.Anand, the appellant who lost the original application before the DRT, Bangalore. 3. The DRAT, Chennai by its order dated 15 April 2015 rejected the plea made by the petitioner to argue the appeal on behalf of his principal. Feeling aggrieved, the petitioner has come up with this writ petition. 4. The power agent, who is not a legal practitioner wanted to argue the writ petition on the strength of the power of attorney. The learned counsel for the Bank opposed the prayer and made a request to deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. Discussion:- 7. The provisions of Order III Rules 1 and 2 would show that the appearance by recognised agents and applications or acting in any Court are subject to the provisions of any other law. Since the Advocates Act is a self contained Code dealing with the law relating to legal practitioners, the provisions of the said Act and more particularly Sections 29 and 33 would prevail over Rules 1 and 2 of Order III of the Code of Civil Procedure. 8. The right conferred under Rules 1 and 2 of Order III on a person holding a power of attorney to appear before the Court and plead on behalf of his principal in a representative capacity has nothing to do with the right to practice in Court. There is a clear distinction between appear and practice . The legislature while permitting non advocates to appear with the permission of Court consciously used the word appear in Section 32 of the Act. Section 33 of the Act used the word practice which would include acting an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whittled down by giving permission under Section 32 of the Act to represent the principal and plead on behalf of him in a very routine manner. The legislature appears to have not contemplated such an extreme situation. The Authorities:- 14. In Bar Council of Maharashtra v. M.V. Dabholkar1, the Supreme Court observed that canons of conduct cannot be crystallised into rigid rules. 15. Now to the legal issue bearing on canons of professional conduct. The rule of law cannot be built on the ruins of democracy, for where law ends tyranny begins. If such be the keynote thought for the very survival of our Republic, the integral bond between the lawyer and the public is unbreakable. And the vital role of the lawyer depends upon his probity and professional lifestyle. Be it remembered that the central function of the legal profession is to promote the administration of justice. If the practice of law is thus a public utility of great implications and a monopoly is statutorily granted by the nation, it obligates the lawyer to observe scrupulously those norms which make him worthy of the confidence of the community in him as a vehicle of justice social justice. The Bar cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do for a party, does not include the right to plead. 18. The Supreme Court in Harishankar Rastogi v. Girdhari Sharma (1978) 2 SCC 165 held that a private person, who is not an advocate, has no right to barge into court and claim to argue for a party. The Supreme Court observed that the party must get prior permission of the Court for which the motion must come from the party himself and that it is open to the Court to grant or withhold permission in its discretion. It was held that even after grant of such permission, it is open to the Court to withdraw it half way through if the representative proves himself reprehensible. The Supreme Court sounded a word of caution that the antecedents, the relationship, the reasons for requisitioning the services of the private person and a variety of other circumstances must be gathered before grant or refusal of permission. The Supreme Court further said: 2. Advocates are entitled, as of right, to practise in this Court [Section 30(i) of the Advocates Act, 1961]. But, this privilege cannot be claimed, as of right, by anyone else. While it is true that Article 19 of the Constitution guarantees the freedom to practise any profession, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeding here) as spelt out in Section 2(q). A pleader, by definition, includes any person other than one authorised by law to practise in a court if he is appointed with the permission of the court, to act in a particular proceeding. This Courts power may well be exercised in regulating audience before it in tune with the spirit of Section 2(q) of the Code. 3. ........... If the man who seeks to represent has poor antecedents or irresponsible behaviour or dubious character, the court may receive counter productive service from him. Justice may fail if a knave were to represent a party. Judges may suffer if quarrelsome, ill-informed or blackguardly or blockheadly private representatives fling arguments at the court. Likewise, the party himself may suffer if his private representative deceives him or destroys his case by mendacious or meaningless submissions and with no responsibility or respect for the court. Other situations, settings and disqualifications may be conceived of where grant of permission for a private person to represent another may be obstructive, even destructive of justice. Indeed, the Bar is an extension of the system of justice; an advocate is an officer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olled lawyers, and the discretion in the court to permit a non-lawyer to appear before it. Under Sections 29 and 33 of the Act only those persons have a right to appear and argue before the court who are enrolled as an advocate while under Section 32 of the Act, a power is vested in the court to permit, in a particular case, a person other than an advocate to appear before it and argue the case. A power-of-attorney holder cannot, unless he is an enrolled lawyer, appear in court on behalf of anyone, unless, permitted by the court under Section 32 of the Act, though of course he may sign sale deeds, agreements, etc. and do other acts on behalf of someone else, unless prohibited by law. 22 (a) The petitioner placed reliance on the decision of Supreme Court in C.Venkatachalam vs. Ajithkumar C.Shah and others4, in support of his contention that non advocates are permitted to appear before the Tribunals. (b) In C.Venkatachalam, the Supreme Court considered the provisions of the Consumer Protection Act and held that when the legislature has permitted the authorized agents to appear on behalf of the complainant, then the Courts cannot compel the consumer to engage the services of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the office of the Registrar by the petitioner or his duly authorized advocate or attorney. The Writ Petition shall be signed by the petitioner or his advocate or attorney. Rule 21 deals with hearing as to admission. As per the said rule, the petition filed under Article 226 of the Constitution of India, after it is numbered, would be posted before the Court for hearing as to admission. The Court may, on hearing the petitioner, or advocate, either admit the Writ Petition or reject it. Such being the rule position, the petitioner has no right to insist that he should be permitted to address the Court on behalf of his principal. 26. The question as to whether the petitioner being the power agent of the appellant is entitled to represent the principal before DRAT is a separate issue to be decided in the writ petition. We are now concerned only with the question as to whether even to decide the said issue, the petitioner could be permitted to address the Court. Conclusion:- 27. In view of the reasons aforesaid, we hold that the petitioner being a third party, is not entitled to address this Court on behalf of his principal. We therefore decide the preliminary issue against t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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