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TMI Blog2022 (11) TMI 983X X X X Extracts X X X X X X X X Extracts X X X X ..... w 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 - It is also equally relevant to reiterate that Section 11 CPC is not the foundation of the doctrine of res judicata but is merely the statutory recognition thereof and, hence, is not considered exhaustive of the general principles of law. This doctrine, it is recognised, is conceived in larger public interest and is founded on equity, justice and good conscience. It hardly needs any over-emphasis that but for this doctrine of res judicata, the rights of the persons would remain entangled in endless confusion and the very foundation of maintaining the rule of law would be in jeopardy. Even if this doctrine carries some technical aspects, as explained by this Court in Daryao [ 1961 (3) TMI 91 - SUPREME COURT] , it is in the interest of public at large that a finality should attached to the binding decisions of the Courts of competent jurisdiction; and it is also in public interest that indivi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court has held that in view of a Division Bench decision of the same High Court, it was not permissible for a GPA holder to participate in the proceedings and, therefore, while disapproving the orders under challenge, the wife of the appellant has been given liberty to act as an advocate on behalf of her husband, the plaintiff, in these cases. 4. With the outline as aforesaid, we may take note of the relevant background aspects as follows: 4.1. A civil suit for partition of certain properties, being O.S. No. 368 of 1995, came to be filed before the said Trial Court, wherein the appellant was arrayed as the 3rd plaintiff. The appellant would submit that on 20.04.1987, he had executed a GPA in favour of his brother, the 1 st respondent herein (the contesting respondent), who had prosecuted the said civil suit for partition. A decree was passed in the said suit on the basis of a compromise memo filed on 17.09.1995. The appellant would allege that he was not aware of filing of the said civil suit; that the decree was detrimental to his interest and was fraudulently obtained; and therefore, he revoked the GPA in favour of the 1st respondent on 26.01.1996. Later on, the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rized GPA holder of the plaintiff in the suit, seeks permission of this Court, to permit her to represent the plaintiff in person. The Petitioner says that, as she is the wife of plaintiff she can protect the best interest of her husband, and as her husband is staying in a far away place and as he cannot attend the court in person she may be permitted to represent her husband in person to conduct the suit and she in support of her contentions relied upon a judgment reported in AIR 2003 A.P. 317, Sundar Raj Jaiswal and others vs. Smt.Vijaywa Jaiswal. 3. Wherein it was held that, under Section 32 of the Advocate Act the court may permit appearance in a particular case permitting any person other than the Advocate and that, under the said provision a discretionary power was given to the court to permit appearance to any non-advocate for party. it was further held in the judgment that, the trial court granted permission for the Power of Attorney holder of the respondent and the said Power of Attorney has been helping the court by appearing for the respondent and there is no remark noticed by the court below. It is always open for the Court to withdraw or cancel permission if the Pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20.04.2018 in CRP Nos. 1784, 2221 2366 of 2018, confirmed the orders of the Trial Court, but while clarifying that the wife of the appellant will appear in person as power agent of the appellant but not in her professional capacity as a lawyer. This order dated 20.04.2018 by the High Court reads as under: - These three revisions arise out of the orders passed by the III Additional Senior Civil Judge, Vijayawada, allowing the applications filed by the 1st respondent herein under Order III Rule 2 of the Code of Civil Procedure read with Section 32 of the Advocates Act, 1961. 2. Heard Mr. V.S.R. Anjaneyulu, learned counsel for the petitioner and Smt. Hemalatha Suryadevara, the General Power Agent of the 1st respondent herein, who was the plaintiff in all the three suits. 3. The 1st respondent, who was the plaintiff in three different suits namely O.S.Nos.368 of 1995, 389 (sic) of 1997 and 104 of 1998, is the principal and his wife Smt. Suryadevara Hemalatha, is his power agent. It appears that the 1st respondent and the plaintiff was all along represented by the counsel before the Court below. One of the suits already got disposed of. The other two suits are now pending. E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mphasis supplied) 4.5. Thereafter, another application of similar nature in relation to O.S. No. 445 of 1998 was considered and allowed by the Trial Court by its order dated 24.09.2018, while rejecting similar objection of the respondent and while observing as under: - The respondent opposed the petition stating that, as per Order 3 rule 2 CPC appearance maybe in person or by recognized agent or by a pleader, which is once again is subject to the personal knowledge of the transactions and it never empowers to argue on behalf of the executants, as such the provisions under which this petition is filed is not correct to seek permission to represent and plead on behalf of the plaintiff in the suit. However, this court considering the petition and counter averments opines that, when GPA is executed in favour of the petitioner authorizing her to represent the plaintiff in the suit, and she as GPA also intends to plead on behalf of the plaintiff in the suit as she can protect the best interest of her husband, and when as per Sec.32 of Advocate Act any court or authority or person may permit any person, not enrolled as to advocate under Act, to appear before it, in any particula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Power of Attorney. 8. But clauses 2 and 3 of the deed of General Power of Attorney authorises the G.P.A. holder to sign and verify plaints, written statements, affidavits etc., and also to appear in all courts. Therefore, the General Power of Attorney certainly authorises the holder to plead on behalf of the 1st respondent. 9. Merely because the wife happens to be a lawyer, there is no prohibition in law for her to plead the case of her husband by holding a general power. The bar for a lawyer to take a dual role, is in the context of conflict of interests, which correlate to ethical principles in respect of the profession. But when a lawyer s spouse is involved in litigation, there can be no bar for the lawyer to act as the power agent of the spouse, for doing whatever is authorised by the deed of General Power of Attorney to do . 10. Moreover, I do not know in what way the petitioner is aggrieved by such an act. If at all there are certain things only within the exclusive knowledge of the principal that can certainly be raised as a point. Therefore, I find no merits in the revision. Hence, the Civil Revision Petition is dismissed. No costs. As a sequel thereto, mis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff, as to how she has to conduct the case i.e., either through a counsel or in person. The Hon'ble High Court in CRP No.1784/2018 stated that the GPA holder cannot represent the court both as a GPA and in her professional capacity, but did not say that she cannot in her personal capacity conduct the suit proceedings. Hence, she being the GPA of her husband is competent to do the suit in person that includes the cross examination of witnesses. 4. Heard both sides. 5. Both the parties did not adduce any oral or documentary evidence. Whether the respondent cannot be permitted to participate in the examination of witnesses as prayed by the petitioner ? POINT: 6. The Petitioner's objection for the 1st respondent to cross examine the witnesses herself is that, she being the GPA of the plaintiff can only engage a counsel but cannot participate in the trial and examine the witnesses or argue the matter. Though she was permitted to represent the suit proceedings in person, it does not confer her with the authority of doing any such acts, which a legal practitioner would do. But, the respondent says that, when she was permitted by this Court to conduct the suit pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no bar for a party to cross examine the witnesses, the respondent who is representing the plaintiff as a GPA and permitted to represent in person intending to cross examine the witnesses by herself be curtailed? In fact the principle held under ref.(1) above judgment aptly applies to the case on hand, because in this case also, like in the above referred case, the GPA holder and the plaintiff are husband and wife, as such this court opines that, unless the court opines to withdraw or cancel the permission, if the power of attorney holder is found unworthy there can be no hindrance for the respondent to continue to represent the plaintiff in person. 9. As held in judgment in reference No.2 that- In the present case, considering the fact that the constituted attorney in the present case is not only the husband of the plaintiff but her predecessor in title, who actually carried out the work in question and to whom the amounts claimed in the suit were due before he assigned his entitlement to the plaintiff, there is a preeminent case for permitting him to represent the plaintiff and argue her case in this suit. I have according, permitted him to advance arguments for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to appear in person to plead and conduct the above proceedings. 13. The said applications were allowed by the Court below, forcing the first defendant to come up with the above three revisions. The objections of the learned counsel for the petitioner therein, were two fold, namely (i) that the wife-cum-General Power agent of first respondent also happens to be a lawyer, but she can either appear as a counsel or as a power agent and not as both and (ii) that the address for service should be intimated by the first respondent in Vijayawada to enable the petitioners to serve notices and summons. The Hon ble High Court held that once an application under Order III Rule 2 CPC is allowed, the power agent has two options; the first option is to appear in person as a power agent and second option is to act as an Advocate herself. Both cannot be combined in a single order. 4.8.3. Thereafter, the High Court took note of the reasons that prevailed with the Trial Court in passing the impugned orders dated 07.02.2019, and proceeded to allow the revision petitions, essentially with reference to decision of the Division Bench of the High Court in the case of Madupu Harinarayana @ Haribabu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and act on behalf of such parties. Section 2(a) of the Advocates Act defines, Advocate to mean an advocate entered in any roll under the provisions of the said Act. Section 2(15) of the CPC defines Pleader to mean any person entitled to appear and plead for another in court. *** *** *** 18. After referring to the provisions of Advocates Act and the Rules made by the High Court and the circulars issued, this Court in Madupu Harinarayana s case (supra) held that all the pleadings in the proceedings should be made by party in person as recognized agents. A party in person, and a recognized agent, have to make an appointment in writing (vakalatnama) duly authorizing the advocate to appear and argue the case. Only an advocate entered on the rolls of the Bar Council of Andhra Pradesh, who has been given vakalat and which has been accepted by such advocate, can have the right of audience on behalf of the party, or his recognized agent, who engaged the advocate. Section 32 of the Advocates Act empowers the Advocate to permit any non-advocate to appear in a particular case. This means that any person has to seek prior permission of the Court to argue the case if he is not Advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scellaneous Petitions pending if any in these revisions shall stand closed. (emphasis supplied) 5. A long deal of arguments has been advanced before us in these appeals preferred against the order so passed by the High Court. It has been contended on behalf of the appellant that 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; and such an issue could not have been re-opened at all, for operation of the doctrine of res judicata. In the other limb of submissions, it has been argued on behalf of the appellant that 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. On the other hand, it has been contended on behalf of the contesting respondent that the previous orders between the parties granting permission to the wife of the appellant to conduct the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d even on the principles of per incuriam because those principles have relevance to the doctrine of precedents but have no application to the doctrine of res judicata. 8. It has, however, been strenuously argued by the learned senior counsel for the contesting respondent that the said orders dated 20.04.2018 and 14.12.2018 cannot operate as res judicata because therein, the Court had misapplied the procedural law and had not taken into consideration the impact of Section 32 of the Act of 1961. In this regard, a 3-Judge Bench decision of this Court in the case of Mathura Prasad Bajoo Jaiswal Ors. v. Dossibai N. B. Jeejeebhoy: (1970) 1 SCC 613 has been strongly relied upon. It has been contended that the principles in Mathura Prasad (supra) would apply to both the questions of jurisdiction as well as the situations where a decision of the Court sanctions something which is illegal. The learned counsel would submit that Section 32 of the Act of 1961 entitles only the non-advocates to seek permission of the Court to plead on behalf of any party and the same permission cannot be sought by an advocate. The contention has been that the previous orders of the High Court, having ignore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormer judgment among those allowed by law, each citing for this purpose the text of Katyayana, who escribes the plea thus: If a person though defeated at law sue again he should be answered, You were defeated formerly. This is called the plea of former judgment. [See The Mitakshara(Vyavahara), Bk. II, ch. I, edited by J. R. Gharpure, p. 14, and The Mayuka, Ch. I, sec. 1, p. 11 of Mandlik s edition.] And so the application of the rule by the Courts in India should be influenced by no technical consideration of form, but by matter of substance within the limits allowed by law. (emphasis supplied) 9.2. The contours of this doctrine of res judicata and its application could be taken into comprehension by a reference to the Constitution Bench decision of this Court in the case of Daryao and Ors. v. State of U.P. and Ors.: AIR 1961 SC 1457. In that case, after the writ petitions filed before the High Court of Allahabad under Article 226 of the Constitution of India were dismissed, the petitioners filed substantive petitions in this Court under Article 32 of the Constitution of India for the same relief and on the same grounds. In such petitions, this Court upheld the obj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies equally in all courts, and it is immaterial in what court the former proceeding was taken, provided only that it was a court of competent jurisdiction, or what form the proceeding took, provided it was really for the same cause (p. 187, paragraph 362). Res judicata , it is observed in Corpus Juris, is a rule of universal law pervading every well regulated system of jurisprudence, and is put upon two grounds, embodied in various maxims of the common law; the one, public policy and necessity, which makes it to the interest of the State that there should be an end to litigation interest republicae ut sit finis litium; the other, the hardship on the individual that he should be vexed twice for the same cause nemo debet bis vexari pro eadem causa , Corpus Juris, Vol. 34, p. 743 .. (11) The same question can be considered from another point of view. If a judgment has been pronounced by a court of competent jurisdiction it is binding between the parties unless it is reversed or modified by appeal, revision or other procedure prescribed by law. Therefore, if a judgment has been pronounced by the High Court in a writ petition filed by a party rejecting his prayer for the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on an issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue . (emphasis supplied) 9.4. It hardly needs any over-emphasis that but for this doctrine of res judicata, the rights of the persons would remain entangled in endless confusion and the very foundation of maintaining the rule of law would be in jeopardy. Even if this doctrine carries some technical aspects, as explained by this Court in Daryao (supra), it is in the interest of public at large that a finality should attached to the binding decisions of the Courts of competent jurisdiction; and it is also in public interest that individual should not be vexed twice with the same kind of litigation. As noticed, the Constitution Bench has placed this doctrine on a high pedestal, treating it to be a part of rule of law. 9.5. Having taken into comprehension the object and framework of doctrine of res judicata, a few ancillary principles, relevant to the case at hand, may also be usefully noticed. 9.5.1. The principle that the doctrine of res judicata is attracted not only in separate subsequent proceedings but also at subsequent stage of the same proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court of competent jurisdiction. Such a binding decision cannot be ignored even on the principle of per incuriam because that principle applies to the precedents and not to the doctrine of res judicata. 10.1. In true application of these principles, it would appear that the orders passed in these matters by the High Court on 20.04.2018 and 14.12.2018, as regards the issue of participation of the wife of the appellant in these proceedings as a GPA holder of the appellant, remain binding on the parties and cannot be ignored. In other words, this issue concerning the capacity of the wife of the appellant to participate in these proceedings as his GPA holder cannot be agitated over again in these very proceedings, even if the earlier orders granting such permission to her are suggested to be erroneous. 11. However, learned senior counsel for the contesting respondent has strenuously argued, with reference to the decisions in Mathura Prasad and Allahabad Development Authority (supra), that the said orders dated 20.04.2018 and 14.12.2018 do not operate as res judicata. In view of the submissions made on behalf of the contesting respondent, we may examine the relevant features of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of action is the same, for the expression the matter in issue in Section 11 of the Code of Civil Procedure means the right litigated between the parties i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land . (emphasis supplied) 11.1.2. This Court held that in the given case, the earlier decision of the Civil Judge that he had no jurisdiction to entertain the application for determination of standard rent was plainly erroneous; and if such a decision was regarded as conclusive, it will assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the Legislature . Therefore, the operation of doctrine of res judicata was ruled out in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under Section 6 would not arise. Considered from this perspective, original direction itself was erroneous and the later direction with regard to delivery of possession of the land, in consequence, was not valid in law .. (emphasis supplied) 11.3. Thus, in the case of Mathura Prasad (supra), this Court observed that when the earlier decision on the question of jurisdiction was erroneous, it could not be treated as conclusive, else it would assume a special status to rule of law applicable to the parties relating to the jurisdiction, in derogation of the rule declared by the legislature. In Allahabad Development Authority (supra), this Court was concerned with operation of the statutory direction and inapplicability of the provisions of lapsing of acquisition where possession was already taken and the land stood vested in the State. Simply put, in these cases, the doctrine of res judicata has been held inapplicable in relation to the question of jurisdiction and in relation to the question of statutory direction/prohibition. 12. The question in these appeals, therefore, is as to whether the previous orders in relation to these proceedings, as passed by the High Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at conflict with any statutory bar or prohibition or they relate to any such mandatory provision of law which is going to be violated. 14.2. Apart from the above, we are 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. 14.3. 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch authority, and without such an enrolment, it would be committing an offence under Section 45 of the Advocates Act punishable with imprisonment for a term which may extend to six months. Therefore the GPA Sri T.D.Dayal is not entitled to appear and argue for the Appellant. He has no right of audience in this case or any other case. 15.2. With respect, we are unable to endorse the approach of the High Court in this matter, particularly when reliance has been placed on the decision in the case of Madupu Harinarayana (supra) without taking note of the basic facts and the background aspects in which the said decision was rendered by the Court. The appellant of the said matter had filed a suit for specific performance which was dismissed by the Trial Court. The decree of the Trial Court was affirmed by the High Court and then, even the petitions seeking leave to appeal were dismissed by this Court. Until that juncture, the appellant was being represented by a duly instructed counsel, an enrolled advocate. Thereafter, the appellant filed a writ petition under Article 32 of the Constitution of India in this Court. It was lodged under Order XVIII Rule 5 of the Supreme Court Rules, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rising before the High Court in the present case. In Madupu Harinarayana (supra), the point for determination was as to whether a GPA holder, who was not enrolled as an advocate, was having a right to appear and plead before the Court, particularly when he has been found to be involved in filing frivolous cases and making reckless remarks against the entire justice delivery system. In contrast, the point for determination in the present case before the High Court was as to whether the wife of the appellant, being his GPA holder and having been permitted to appear as such despite having been enrolled as an advocate during the pendency of proceedings, was not entitled to cross-examine the witnesses. The said decision in Madupu Harinarayana, in any case, could not have been pressed into service to override the concluded and binding decisions between the same parties in the same proceedings at a previous stage. 16. For what has been discussed hereinabove, we are of the view that the aforesaid 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e two capacities, of GPA holder and advocate, cannot be combined. However, further to that, in the said orders dated 20.04.2018 and 14.12.2018, the High Court had precisely noticed that the wife of the appellant was appearing only as a power agent and the orders of the Trial Court were confirmed while clarifying that she would appear in-person as a power agent and will not appear in her professional capacity. This later part of the substance of the both the orders dated 20.04.2018 and 14.12.2018 appears to have not gone into the requisite consideration of the High Court. 18. Thus, it is apparent that the High Court has viewed the entire case from an altogether wrong angle, i.e., by misdirecting itself on the real point for determination; by not taking into comprehension the meaning, purport and effect of the previous binding orders dated 20.04.2018 and 14.12.2018 between the same parties in the same proceedings; and by misapplication of the Division Bench decision of the same High Court. This misdirected approach has resulted in the High Court ignoring the doctrine of res judicata and issuing such directions which are squarely opposite to the directions contained in the previous ..... X X X X Extracts X X X X X X X X Extracts X X X X
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