Andhra HC (Pre-Telangana)
Ismath Ahmedizade Mahmoodi Abidi vs Kurshidunnisa Begum on 13 September, 2002
Equivalent citations: 2002(6)ALD101, 2002(6)ALT215
Author: G. Rohini
Bench: G. Rohini
ORDER G. Rohini, J.
1. This civil revision petition is directed against the order dated 17th February 2000 in IA No.90 of 2000 in OS No. 1007 of 1993 on the file of the Court of II Senior Civil Judge, City Civil Court, Hyderabad. Revision Petitioner, who is the defendant, is the petitioner in IA No.90 of 2000. Respondent is the plaintiff in the suit. For the sake of convenience, the parties shall be referred to as they were arrayed in the suit.
2. OS No.1007 of 1993 was filed seeking a decree against the defendant for recovery of possession of the suit schedule premises. According to the plaintiff, she is the absolute owner of the suit schedule premises, which has been let out to the father of the defendant under an oral agreement. After the death of her father, defendant continued as a tenant and has been carrying on hotel business under the name and style of Tehran Cafe. Since the defendant failed to pay the agreed rent in spite of the repeated requests, plaintiff has been constrained to file OS No. 1007 of 1993 seeking recovery of possession.
3. After the evidence on the side of the plaintiff was closed and while the suit was coming up for the evidence of defendant, the General Power of Attorney holder of the defendant filed IA No. 90 of 2000 under Rule 32 of the Civil Rules of Practice seeking permission to act, appear and depose on behalf of the defendant. In the affidavit filed in support of the said petition, one Smt. Naima Ismaili W/o. Syed Ali Asgar Ismaili stated that she is the General Power of Attorney holder of the defendant and in terms of the General Power of Attorney executed in her favour, she has been managing the business of the defendant and managing all the affairs including payment of rents to the plaintiff, and, therefore, she may be permitted to depose on behalf of the defendant. The said application has been opposed by the plaintiff. She filed a counter contending that the General Power of Attorney holder of the defendant is not a citizen of India and that under the provisions of Foreign Exchange Regulation Act, 1973 (for short 'FERA') a foreigner cannot carry on business in India unless necessary permission is obtained from the Reserve Bank of India, and, therefore, the General Power of Attorney holder has no locus standi to present the case or to conduct the same on behalf of the defendant. The Court below by order dated 17.2.2000 dismissed the petition holding that since the defendant as well as her General Power of Attorney holder did not file any permission from the Reserve Bank of India to hold any property in India, the suit cannot be defended through the General Power of Attorney holder of the defendant, who is a foreign national. Aggrieved by the said order, the defendant has come up with the present civil revision petition.
4. I have heard Sri Bajrang Singh Thakur, learned Counsel appearing for the petitioner, who contended that in the facts and circumstances of the case, the Court below ought to have permitted the General Power of Attorney holder of the defendant to act, appear and depose on behalf of the defendant. He also vehemently contended that at this stage it is not open to the Court below to go into the issue relating to the alleged permission under the provisions of the FERA; and that the order under revision virtually amounts to granting a decree in favour of the plaintiff. Accordingly he contended that the order under revision is erroneous and cannot be sustained.
5. On the other hand, the learned Counsel for the respondent submitted that under Rule 32 of the Civil Rules of Practice granting permission to the General Power of Attorney holder to represent a party to the suit is the discretion of the Court, which has to be exercised on the basis of the facts and circumstances of the case; and that, in the present case, the Court below has rightly refused to grant permission since the defendant failed to produce necessary permission from the Reserve Bank of India.
6. Having regard to the rival contentions raised by the parties, the question that arises for consideration is whether the order under Revision suffers from any illegality or material irregularity in exercise of jurisdiction vested under law warranting interference under Section 115 of CPC.
7. I have perused the order under revision and other material on record. As can be seen, the Court below dismissed the application in question on the ground that the General Power of Attorney holder of the defendant has not obtained any permission from the Reserve Bank of India to hold any properly on lease or to do any business in India. The Court below concluded that since the defendant and her General Power of Attorney holder are foreign nationals, they cannot be permitted to do any business or to hold any leasehold rights in India without the permission of the Reserve Bank of India as prescribed under Section 31 of the FERA.
8. Rule 32 of the Civil Rules of Practice, which provides for party appearing by Agent, runs as follows:
"(1) When a party appears by any agent, other than an advocate, the agent shall, before making of or doing any appearance, application, or act, in or to the Court, file in Court the power of attorney, or written authority thereunto authorising him or a properly authenticated copy thereof together with an affidavit that the said authority still subsisting, or, in the case of an agent carrying on a trade or business on behalf of a party, without a written authority, an affidavit stating the residence of his principal, the trade or business carried on by the agent on his behalf and the connection of the same with the subject-matter of the suit, and that no other agent is expressly authorised to make or do such appearance, application, or act.
(2) The Judge may thereupon record in writing that the agent is permitted to appear and act on behalf of the party; and unless and until the said permission is granted, no appearance, application, or act, of the agent shall be recognised by the Court."
9. It is also relevant to refer to Order 3, Rule 2 of CPC, which provides for recognised agents.
"The recognised agents of parties by whom such appearances, applications and acts may be made or done are-
(a) persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties;
(b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the 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."
10. A plain reading of the above provisions shows that the persons, holding powers-of-attorney authorising them to make and to do such appearances, applications and acts on behalf of the parties, are recognised as agents and they are competent to appear and act on behalf of such parties. The question, whether the word "acts" used in Rule 2 of Order 3 of CPC includes the act of power of attorney holder to appear as a witness on behalf of the party, has been considered by this Court in K. Bharathi v. Labour Officer, , in which it is held as follows:
".....word 'acts' used in Rule 2, Order 3 CPC does not include the act of Power pf Attorney Holder to appear as a witness on behalf of the petitioners. Power of Attorney Holder of a party can appear only as a witness in his personal capacity to speak about the facts which are within his personal knowledge about the case, but, he cannot appear as a witness on behalf of a party in the capacity of that party."
11. However, learned Counsel for the respondent, while relying upon a decision in Salar Jung Museum v. Atiya Talat, , contended that Vaman Rao J, in the said case, dissented from the view expressed in K. Bharathi's case (supra). In Salar Jung Museum's case (supra) the question that arose for consideration was whether the husband, who happened to be the General Power of Attorney holder of the plaintiff, could be examined on her behalf as a witness. Vaman Rao J, followed the view expressed in Bharathi's case (supra) and held that there can be no objection in permitting the plaintiff to examine her husband as a witness on her behalf. However, the learned Judge expressed that Rules 1 and 2 of Order 3 of CPC have nothing to do with the examination of a witness by a party to the proceeding and, therefore, the question in issue has to be determined in the light of the provisions of the Power of Attorney Act, 1882 and the provisions in Chapter-X of Indian Contract Act relating to Agency. Thus, even in Salar Jung Museum's case (supra) it is accepted that a power of attorney holder can appear as a witness in his personal capacity though not on behalf of the party in the capacity of a power of attorney holder. Hence, to that extent, the said decision also lends support to the view expressed in K. Bharathi's case (supra). I respectfully agree with the view expressed in K. Bharathi 's case (supra). The General Power of Attorney holder cannot be permitted to represent the party in the suit and to depose on his/her behalf, but it is always open to the General Power of Attorney holder to appear as a witness in his/her personal capacity to speak about the facts which are in his/her personal knowledge about the case.
12. In the instant case, the General Power of Attorney holder of the defendant seeks permission of the Court to act, appear and depose in the main suit on behalf of the defendant. The power of attorney, under which Smt. Naima Ismaili was appointed to act on behalf of the defendant, was filed into the Court. It is open to the Court to examine whether the same is in conformity with the provisions of Order 3 of CPC and Rule 32 of Civil Rules of Practice and to pass appropriate orders. However, refusing permission to the General Power of Attorney holder to appear and act on behalf of the defendant only on the ground of non-compliance with the requirements of Section 32 of FERA is not permissible. I am of the view that it is premature to express any such opinion while considering the application in question. It would amount to arriving at a conclusion on the merits of the main suit.
13. For the reasons stated above, in my considered opinion, the Court below committed an error in dismissing IA No.90 of 2000 only on the ground that the defendant and her General Power of Attorney holder failed to produce the required permission from the Reserve Bank of India to hold any property of lease or to do any business in India. The order under revision, therefore, suffers from material irregularity in exercise of jurisdiction and cannot be sustained.
14. Accordingly the order under revision is set aside and the matter is remitted back to the Court below for consideration afresh and to pass appropriate orders in IA No.90 of 2000 in the light of the observations made above, within four weeks from the date of receipt of this order.
15. It is made clear that it is open to the Court below to take into consideration the effect of Section 32 and other provisions of FERA while deciding the issues in question in the main suit after affording due opportunity to both the parties to adduce necessary evidence.
16. In the result, the revision petition is allowed. There shall be no order as to costs.