# S. RAMACHANDRA RAO v. S. NAGABHUSHANA RAO & ORS

- **Citation:** [2022] 17 S.C.R. 451
- **Court:** Supreme Court of India
- **Decided:** 2022-10-19
- **Case number:** Civil Appeal Nos. 7691-7694 of 2022
- **Bench:** Dinesh Maheshwari, Aniruddha Bose
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-ramachandra-rao-v-s-nagabhushana-rao-ors-35521
- **Pages:** 40

## Headnote

Doctrines/Principles - Doctrine of res judicata - Application
of - Advocates Act, 1961 - s.32 - High Court held that it was not
permissible for a GPA holder to participate in the proceedings, wife
of the appellant (his GPA holder) was given liberty to act as an
advocate on behalf of her husband, the plaintiff, in these cases -
Correctness of - On appeal, held: Doctrine of res judicata is attracted
not only in separate subsequent proceedings but also at subsequent
stage of the same proceedings - A binding decision cannot lightly
be ignored and even an erroneous decision remains binding on the
parties to the same litigation and concerning the same issue, if
rendered by a 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 - In the present case, the previous 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 - The 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 - The meaning,
purport and effect of the previous concluded orders of the High
Court dated 20.04.2018 and 14.12.2018 had been clear and
unambiguous that in these cases, wife of the appellant would be
entitled to appear only as the GPA holder and not as an advocate -
Also, the enabling provision of s.32 of the 1961 Act, whereby any
Court, authority or person may permit any non-advocate to appear
before it or him in any particular case is difficult to be read as
creating a corresponding bar in giving permission to a GPA holder
of a party to represent that party as such, if the said GPA holder,
[2022] 17 S.C.R. 451
451
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SUPREME COURT REPORTS
[2022] 17 S.C.R.
during pendency of the proceedings in the Court, gets enrolled as
an advocate - 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 1961 Act as also the rules made under it by
specifically providing that wife of the appellant shall appear only
as his GPA holder and not as an advocate - Further, 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 -
Impugned common order dated 28.06.2019 is set aside; and the
orders passed by the Trial Court dated 07.02.2019 are restored -
Power of Attorney - Code of Civil Procedure, 1908 - s.11.
Doctrines/Principles - Doctrine of res judicata - Object and
framework of - 'res judicata pro veritate occipitur' - 'nemo debet bis
vexari pro una et eadem causa' - Discussed.
Advocates Act, 1961 - s.32 - Power of Court to permit
appearances in particular cases - Held: Permission u/s.32 of the
Act of 1961, by its very nature, is to be granted on case-to-case
basis and could also be refused with reference to the given set of
facts and circumstances referable to a particular case and any
particular person.
Allowing the appeals, the Court
1.1 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 gene

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S. RAMACHANDRA RAO
v.
S. NAGABHUSHANA RAO & ORS.
(Civil Appeal Nos. 7691-7694 of 2022)
OCTOBER 19, 2022
[DINESH MAHESHWARI AND ANIRUDDHA BOSE, JJ.]
Doctrines/Principles - Doctrine of res judicata - Application
of - Advocates Act, 1961 - s.32 - High Court held that it was not
permissible for a GPA holder to participate in the proceedings, wife
of the appellant (his GPA holder) was given liberty to act as an
advocate on behalf of her husband, the plaintiff, in these cases -
Correctness of - On appeal, held: Doctrine of res judicata is attracted
not only in separate subsequent proceedings but also at subsequent
stage of the same proceedings - A binding decision cannot lightly
be ignored and even an erroneous decision remains binding on the
parties to the same litigation and concerning the same issue, if
rendered by a 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 - In the present case, the previous 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 - The 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 - The meaning,
purport and effect of the previous concluded orders of the High
Court dated 20.04.2018 and 14.12.2018 had been clear and
unambiguous that in these cases, wife of the appellant would be
entitled to appear only as the GPA holder and not as an advocate -
Also, the enabling provision of s.32 of the 1961 Act, whereby any
Court, authority or person may permit any non-advocate to appear
before it or him in any particular case is difficult to be read as
creating a corresponding bar in giving permission to a GPA holder
of a party to represent that party as such, if the said GPA holder,
[2022] 17 S.C.R. 451
451
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during pendency of the proceedings in the Court, gets enrolled as
an advocate - 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 1961 Act as also the rules made under it by
specifically providing that wife of the appellant shall appear only
as his GPA holder and not as an advocate - Further, 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 -
Impugned common order dated 28.06.2019 is set aside; and the
orders passed by the Trial Court dated 07.02.2019 are restored -
Power of Attorney - Code of Civil Procedure, 1908 - s.11.
Doctrines/Principles - Doctrine of res judicata - Object and
framework of - 'res judicata pro veritate occipitur' - 'nemo debet bis
vexari pro una et eadem causa' - Discussed.
Advocates Act, 1961 - s.32 - Power of Court to permit
appearances in particular cases - Held: Permission u/s.32 of the
Act of 1961, by its very nature, is to be granted on case-to-case
basis and could also be refused with reference to the given set of
facts and circumstances referable to a particular case and any
particular person.
Allowing the appeals, the Court
1.1 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
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technical aspects, as explained by this Court in Daryao, 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. The principle that the doctrine of res judicata
is attracted not only in separate subsequent proceedings but also
at subsequent stage of the same proceedings is hardly of any
doubt or dispute. Even an erroneous decision remains binding
on the parties to the same litigation and concerning the same
issue, if rendered between the same parties by a Court of
competent jurisdiction. [Paras 9.3, 9.4, 9.5.1, 9.5.2][478-D; 479A-B, D, F]
Daryao and Ors. v. State of U.P. and Ors. AIR 1961
SC 1457 : [1962] SCR 574 - followed.
Lal Chand (dead) by L.Rs. and Ors. v. Radha Krishan
(1977) 2 SCC 88 : [1977] 2 SCR 522; Y. B. Patil &
Ors. v. Y. L. Patil (1976) 4 SCC 66 : [1977] 1 SCR
320; Gorie Gouri Naidu (Minor) v. Thandrothu
Bodemma (1997) 2 SCC 552 : [1997] 1 SCR 118 -
relied on.
1.2 It remains hardly a matter of doubt that the doctrine of
res judicata is fundamental to every well regulated system of
jurisprudence, for being founded on the consideration of public
policy that a judicial decision must be accepted as correct and
that no person should be vexed twice with the same kind of
litigation. This doctrine of res judicata is attracted not only in
separate subsequent proceedings but also at the subsequent stage
of the same proceedings. Moreover, a binding decision cannot
lightly be ignored and even an erroneous decision remains
binding on the parties to the same litigation and concerning the
same issue, if rendered by a 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. 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
S. RAMACHANDRA RAO v. S. NAGABHUSHANA RAO &
ORS.
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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.
[Paras 10, 10.1][480-B-F]
1.3 The question in these appeals, therefore, is as to
whether the previous orders in relation to these proceedings, as
passed by the High Court on 20.04.2018 and 14.12.2018 between
the same parties and dealing with the same issues relating to the
capacity of the wife of the appellant in the present matters, could
be said to be not conclusive and not operating as res judicata
because of any question of jurisdiction or of statutory direction
or prohibition. This Court is unable to appreciate the contention
which suggests that the said 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. The enabling provision of Section
32 of the Act of 1961, whereby any Court, authority or person
may permit any non-advocate to appear before it or him in any
particular case is difficult to be read as creating a corresponding
bar in giving permission to a GPA holder of a party to represent
that party as such, if the said GPA holder, during pendency of the
proceedings in the Court, gets enrolled as an advocate. In other
words, there does not appear any statutory prohibition operating
in the situation like that of present case, for which the existing
GPA holder of a party cannot be given permission to appear only
as the GPA holder, even if he/she has been enrolled as an
advocate. The meaning, purport and effect of the previous
concluded orders of the High Court dated 20.04.2018 and
14.12.2018 had been clear and unambiguous that in these cases,
wife of the appellant would be entitled to appear only as the GPA
holder and not as an advocate. The submissions made on behalf
of the contesting respondent that the said orders by the High
Court stand at conflict with any statutory bar or prohibition or
they relate to any such mandatory provision of law which is going
to be violated are not accepted. [Paras 12, 14, 14.1][483-G; 484C-G]
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1.4 Apart from the above, 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. [Paras 14.2, 14.3][484-GH; 485-A-C]
1.5 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 has fallen in grave error in ignoring the
said previous inter partes binding decisions. In the order
impugned, the High Court has mischaracterised the issue before
it. As noticed, the High Court has proceeded to observe that the
point for determination in the matter was as to 'whether the GPA
holder of the plaintiff can be permitted to act like a counsel and
cross-examine witnesses'. It has been pointed out on behalf of the
plaintiff-appellant that his GPA holder (wife) never attempted to
act like an advocate and to cross-examine the witnesses in that
capacity. In the earlier rounds of proceedings, the High Court
had specifically ordered that the wife of the appellant would only
act as power agent of appellant and not in her professional capacity
as an advocate. In view of the above and in view of the objections
thereafter raised by the contesting respondent, the point for
determination, in essence, before the Court was as to whether
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the wife of the appellant, being his GPA holder, was not entitled
to cross-examine the witnesses, as captured by the Trial Court
in paragraph 5 of its order dated 07.02.2019. The Trial Court had
also noticed the objections of the contesting respondent that the
wife of the appellant, being a GPA holder, could only engage a
lawyer but could not participate in the Trial Court and examine
the witnesses or argue the matter. It was contended that though
she was permitted to attend the suit proceedings in-person, it
did not confer her with the authority of doing any such act which
only a legal practitioner would do. The Trial Court had rightly
overruled such objections, particularly with reference to the
previous orders passed by the High Court. [Paras 16, 17][488A-F]
1.6 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 binding orders. The permission under
Section 32 of the Act of 1961, by its very nature, is to be granted
on case-to-case basis and could also be refused with reference to
the given set of facts and circumstances referable to a particular
case and any particular person. The impugned common order
dated 28.06.2019 is set aside; and the orders passed by the Trial
Court dated 07.02.2019 are restored. [Paras 18, 20.2, 21][489C-D; 490-D-E; 491-F]
Madupu Harinarayana @ Haribabu rep. by his G.P.A.,
T. D. Dayal v. 1st Additional District Judge, Kadapa
and Ors. 2011 (2) ALT 405 (D.B.)- distinguished.
Makhija Construction & Engg. (P) Ltd. v. Indore
Development Authority (2005) 6 SCC 304; S. Nagaraj
(Dead) by Lrs. & Ors. v. B.R. Vasudeva Murthy & Ors.
(2010) 3 SCC 353 : [2010] 2 SCR 586 - relied on.
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Sheoparsan Singh and Ors. v. Ramnandan Prasad
Narayan Singh and Ors. A.I.R. 1916 Privy Council
78; Mrs. Dossibai N. B. Jeejeebhoy v. Hingoo Manohar
Missa [1962] 3 SCR 928; Satendra Prasad Jain v. State
of U.P. (1993) 4 SCC 369 : [1993] 2 Suppl. SCR 336;
Awadh Bihari Yadav v. State of Bihar (1995) 6 SCC 31
: [1995] 3 Suppl. SCR 197; Municipal Committee v.
State of Punjab (1969) 1 SCC 475 : [1969] 3 SCR 447;
Allahabad Development Authority v. Nasiruzzaman &
Ors. (1996) 6 SCC 424 : [1996] 5 Suppl. SCR 435;
Mathura Prasad Bajoo Jaiswal & Ors. v. Dossibai N.
B. Jeejeebhoy (1970) 1 SCC 613 : [1970] 3 SCR 830
- referred to.
Case Law Reference
[1962] 3 SCR 928
referred to
Para 11.1
[1993] 2 Suppl. SCR 336
referred to
Para 11.2
[1995] 3 Suppl. SCR 197
referred to
Para 11.2
[1962] SCR 574
followed
Para 9.2
[1977] 2 SCR 522
relied on
Para 9.3
[1977] 1 SCR 320
relied on
Para 7
[1997] 1 SCR 118
relied on
Para 7
[2010] 2 SCR 586
relied on
Para 7
[1969] 3 SCR 447
referred to
Para 11.2
[1996] 5 Suppl. SCR 435
referred to
Para 8
[1970] 3 SCR 830
referred to
Para 8
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 76917694 of 2022.
From the Judgment and Order dated 28.06.2019 of the High Court
of Andhra Pradesh at Amaravathi in CRP Nos.758, 759, 760 and 761 of
2019.
Guru Krishnakumar, Sr. Adv., K. Parameshwar, Ms. A.
Sregurupriya, Prasad Hegde, Advs. for the Appellant.
S. RAMACHANDRA RAO v. S. NAGABHUSHANA RAO &
ORS.
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Ms. Menaka Guruswamy, Sr. Adv., D. Bharat Kumar, Tadimalla
Bhaskar Gowtham, Aman Shukla, Yash S. Vijay, M. Chandrakanth
Reddy, Gopal Jha, Advs. for the Respondents.
The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
Leave granted.
2. These appeals are directed against the common order dated
28.06.2019 in Civil Revision Petition Nos. 758, 759, 760 & 761 of 2019,
as passed by the High Court of Andhra Pradesh at Amaravathi, whereby
the High Court has not approved the similar orders dated 07.02.2019, as
passed by the Court of III Additional Senior Civil Judge at Vijayawada
in four separate civil proceedings between the same contesting parties.
3. Put in a nutshell, the issue involved in the matter is concerning
the capacity in which the plaintiff-appellant's wife, who is the General
Power of Attorney1 holder of the appellant and is also an enrolled
advocate, could appear and act on his behalf in the said civil proceedings.
Even before passing of the orders which form the subject-matter of
present appeals, this issue had led to various orders by the Trial Court at
different stages of proceedings as also to a couple of orders by the High
Court in challenge to the orders so passed by the Trial Court. Therein,
the Trial Court and the High Court essentially held that merely for the
wife of the appellant being an advocate, there was no prohibition in law
for her to act on behalf of her husband as a GPA holder but, it was made
clear that she would appear in-person as a power agent of her husband
and not in her professional capacity as an advocate. The same proposition
was iterated by the Trial Court in its orders dated 07.02.2019 in these
very proceedings, while rejecting the objection against examination of
the witnesses by the wife of the appellant in her capacity as GPA holder.
However, in the impugned order dated 28.06.2019, the High 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.
1 'GPA', for short.
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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
1st 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 appellant executed another General Power of
Attorney dated 25.01.1997 in favour of his wife. Thereafter, on behalf
of the appellant, I.A. No. 634 of 1997 was filed in the said O.S. No. 368
of 1995 by his new GPA holder (his wife) for recalling the judgment and
decree passed in the suit. This apart, the appellant instituted three more
civil suits, being (i) O.S. No. 388 of 1997, for declaration of title,
possession, partition, and mesne profits; (ii) 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 (iii) O.S. No. 445 of 1998, for partition and mesne profits.
4.2. While the said four civil proceedings remained pending, the
GPA holder of the appellant, i.e., his wife, graduated in law and she was
enrolled as an advocate in the year 2011.
4.3. On 27.09.2011, an application, being I.A. No. 1308 of 2011,
was filed in said I.A. No. 634 of 1997 in O.S. No. 368 of 1995 under
Order III Rule 2 read with Section 151 of the Code of Civil Procedure,
19082 read with Section 32 of the Advocates Act, 19613 read with Rules
32 and 33 of the Civil Rules of Practice in Andhra Pradesh read with
Section 120 of the Evidence Act, 1872 with the prayer that the GPA
holder of the appellant be permitted to appear in person; and to plead,
argue and do all necessary acts for conduct of proceedings. Similar
applications were filed in two of the aforesaid civil suits, being I.A No.
1307 of 2011 in O.S. No. 104 of 1998 and I.A. No. 1306 of 2011 in O.S.
No. 388 of 1997. The Trial Court, by its similar orders dated 19.02.2018,
2 'CPC', for short.
3 'the Act of 1961', for short.
S. RAMACHANDRA RAO v. S. NAGABHUSHANA RAO &
ORS. [DINESH MAHESHWARI, J.]
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[2022] 17 S.C.R.
allowed the applications so moved and granted the prayer so made while
rejecting the contentions urged on behalf of contesting respondent with
reference to Order III Rule 2 CPC. The said order 19.02.2018, as passed
in relation to O.S. No. 368 of 1995 reads as under: -
"1. This petition is filed under Order 3 Rule 2 Section 151 CPC
and Section 32 of Advocates Act, 1961 & Rule 32 and 33 of Civil
Rules of practice in A.P. and Evidence Act Sect.120 praying to
allow the petitioner to represent her husband the plaintiff in the
above suit, before the Hon'ble Court to appear in person, to plead
and to all acts necessary in the conduct of above proceedings.
2. The Petitioner who is the authorized 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 Power of Attorney holder is 'unworthy or reprehensible. Hence
sought permission to allow her to represent her husband/plaintiff
in the suit.
4. The objection of respondent was that as per Order 3 Rule 2
appearance may be in person or by recognized agent or by pleader,
which is once again subject to the person knowledge of the
transactions, but never empowers to argue on behalf of the
executant, as such the above provisions are not correct for asking
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to plead in the court on behalf of plaintiff. He further opposed the
petition stating that, the petitioner is not resident of Vijaywada, as
such, it would be difficult for them to serve notice on the petitioner
in case of any applications filed in the suit. Hence, opposed the
petition.
5. However this court having considered the petition and counter
averments opines that, when the petitioner was permitted by this
court at the inception of the suit itself, to represent as GPA, now
the permission is sought by her to represent her husband in person,
instead of by a pleader. Moreover, she states to be the wife of the
original plaintiff, who in the opinion of this court can protect the
best interest of her spouse and as held by his lordship, in the above
reported judgment that, the permission cannot be withdrawn at
the instance of petitioners. More so, when there is nothing on
record to show that, the GPA holder has created an unhealthy
atmosphere on indiscipline situation or exchanged words.
6. So when the Hon'ble High Court held that, when once the
permission so granted can be withdrawn, if the acts of GPA
representing the party in person is in derogative to the interest of
the original party, the petitioner herein being the wife of plaintiff,
in the opinion of this court can be permitted to represent in person
on behalf of her husband. With regard to the other objection of
respondent that, service of notice on the petitioner in case of any
applications filed, would be difficult as she does not reside at
Vijayawada, as the petitioner at the time of arguments submitted
that she will stay at Vijayawada, till the suit is disposed off, this
court does not find any grounds to disallow her plea.
7. Accordingly petition is allowed."
(emphasis supplied)
4.4. The aforesaid orders dated 19.02.2018 were challenged by
the contesting respondent in the High Court. The High Court by its
common order dated 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: -
S. RAMACHANDRA RAO v. S. NAGABHUSHANA RAO &
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"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. Even in the disposed of suit,
some applications have been filed.
4. In the meantime, the wife of the 1st respondent filed
applications in all the three suits, under Order III Rule 2 of CPC
for representing her husband and to appear in person, to plead
and to conduct the above proceedings. These applications were
allowed by the Court below, forcing the 1st defendant in two suits
and the sole defendant in the third suit to come up with the above
revisions.
5. The objections of the learned counsel for the petitioner
to the orders impugned in these revisions are two fold namely (i)
that the wife-cum-General Power Agent of the 1st 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 1st respondent in Vijayawada
to enable the petitioners to serve notices and summons.
6. The power agent of the 1st respondent, who appeared in
person before me, stated that she is not seeking to appear as an
advocate for the 1st respondent but she is seeking to appear only
as the power agent of the 1st respondent. There can be no
objection to a party to a proceeding to appear through the power
agent. Order III Rule 2 of CPC provides for the same and to that
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extent the order of the trial Court allowing the applications cannot
be found fault with. Once an application under Order III Rule 2
CPC is allowed, the power agent has two options, first option is to
appear in person as a power agent and the second option is to
engage an advocate herself. Both cannot be combined in a single
order and that is the objection of the learned counsel for the
petitioner. That objection is sustainable in law.
8. But in so far as the second objection is concerned, if the
1st respondent is appearing only as a power agent of a party, the
question of informing the local address for service does not arise.
It is only when a lawyer is engaged, the question of furnishing a
local address for service would arise.
Therefore, all the Civil Revision Petitions are disposed of
confirming the orders of the trial Court and clarifying that Smt.
Suryadevara Hemalatha, will appear in person as a power agent
of the 1st respondent and will not appear in her professional
capacity as a lawyer.
As a sequel thereto, miscellaneous petitions, if any, pending
shall stand closed."
(emphasis 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
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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 particular case, petitioner being the
authorized agent of plaintiff in the suit, seeking permission to appear
in person and conduct the suit on behalf of her husband seems
reasonable.
Moreover, when the permission granted can be withdrawn
by the Court, if the acts of GPA representing the party, in person
in derogative to the interest of the original party. So, the petitioner
being the wife of plaintiff in the suit seeking permission to represent
in person on behalf of her husband seems justice and necessary.
Hence, for the reasons stated above, I am inclined to allow the
application. Accordingly, the petition in allowed."
(emphasis supplied)
4.6. 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, which may also be usefully reproduced as under: -
"Aggrieved by an order passed by the trial Court permitting the
1st respondent to be represented by his wife as the General Power
of Attorney holder, to act, to appear and to plead, the defendant in
the suit has come up with the above revision.
2. Heard Mr. V.S.R. Anjaneyulu, learned counsel for the petitioner.
The G.P.A. holder of the 1st respondent takes notice.
3. The 1st respondent herein has filed a suit in O.S.No.445 of
1998 for partition. It appears that the 1st respondent is a retired
I.A.S. Officer and his wife who is General Power of Attorney
holder is an Advocate enrolled in the Bar Council of Andhra
Pradesh.
4. Therefore, the 1st respondent has appointed his own wife as
General Power agent. This fact is not disputed.
5. When an attempt was made by the G.P.A. holder to act in dual
capacity, both as a General Power of Attorney and as an advocate
for her husband, this Court directed that she can only opt for one.
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6. Therefore, the 1st respondent filed I.A.No.556 of 2018 seeking
permission for the G.P.A. holder to plead, present and argue his
case in person. This application has been allowed by the trial Court
by an order dated 24-09-2018. It is against the said order that the
revision has been filed.
7. The contention of Mr. V.S.R. Anjaneyulu, learned counsel for
the petitioner is that G.P.A. holder, having a personal interest,
cannot plead on behalf of the party. Reliance is placed upon the
clause contained in the deed of a General 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, miscellaneous petitions, if any, pending
shall stand closed."
(emphasis supplied)
4.7. On the other hand, when the said proceedings were to
progress further, the contesting respondent filed separate applications,
this time contending that the wife of the appellant, who was representing
him as GPA holder, was not entitled to examine the witnesses. The Trial
Court, yet again, rejected the objection of the contesting respondent by
its separate but substantially similar orders dated 07.02.2019. The order
S. RAMACHANDRA RAO v. S. NAGABHUSHANA RAO &
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so passed by the Trial Court in relation to O.S. No. 368 of 1995 reads as
under: -
"1. This petition is filed under Sec.151 CPC by the petitioner
seeking the court to prevent the wife of the plaintiff who is
representing the plaintiff in person, as his GPA from examining
the witnesses.
2. The Petitioner says that, the 1st plaintiff in the suit is being
represented by his wife as GPA holder from 1998 onwards, and
as on the said date the suit was being represented by different
counsel. The 1st respondent who came on record as GPA, of the
plaintiff filed an application under Order 3 Rule 2 CPC seeking
permission to represent the 1st plaintiff in person and the said
application was allowed, against which this petitioner preferred
CRP 1784/2018, which was disposed of on 20-4-2018, directing
the GPA holder not to conduct the suit proceedings both in the
capacity of an advocate as she is enrolled in bar, and as GPA.
The petitioner says that, when the 1st respondent nowhere stated
that, the GPA in her name was cancelled, and she was authorized
to make personal appearance on behalf of the plaintiff, the
respondent has to only engaged a counsel represent in her personal
capacity. Hence, the 1st respondent cross examining the witnesses
in person is against the orders of Hon'ble High Court in CRP
1784/2018. Hence, this petition to declare that the 1st respondent
who is GPA holder is not authorized to participate in the cross
examination of the witnesses.
3. The 1st respondent opposed the petition stating that, she as a
GPA of her husband/plaintiff is appearing in person, after obtaining
permission from this Court, and though she is enrolled in bar
council, she is not appearing in her professional capacity, in this
matter and thus she is appearing in person, as such, she is entitled
to cross examine the witnesses and that petitioner cannot direct
the plaintiff, 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.
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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 proceedings
as GPA of her husband- 1st plaintiff in person, it is for her to
decided, whether she would continue the suit in person or engage
any counsel to represent the suit proceedings and that this petitioner
has no business to direct the respondent as to adopt to which
course in the conduct of the suit proceedings.
7. The 1st respondent in support of her arguments has relied upon
the following two judgments 1) Surender Raj Jaiswal and others
vs. Vijaya Jaiswal, AIR 2003 AP 317; 2) Prabha P.Shenai vs.
Ispat Industries Limited 2016 Law Suit (Bombay) 271. In the said
judgment referred (1) above at paragraph No.13 his Lordship
opined that
I do not see any bonafides on the part of the petitioners
to insist the respondent to prosecute either personally or appoint
an Advocate. The respondent herself no doubt is empowered
to prosecute the particular case but due to the relationship of
herself with her husband and the acquaintance of the case,
she reposed confidence fully in her husband and appointed
him as her Power of Attorney to appear on her behalf in a
particular case and, therefore, the application filed by the
petitioners herein was rightly dismissed by the Court below.
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
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there is no remark noticed by the Court below. It is always
open for the Court to withdraw or cancel permission if the
Power of Attorney Holder is unworthy or reprehensible.
8.