Bombay High Court
Mrs. Varsha A. Maheshwari vs M/S. Bhushan Steel Limited on 1 February, 2011
Equivalent citations: AIR 2011 BOMBAY 58, 2011 (2) AIR BOM R 352
Author: S.A. Bobde
Bench: S.A. Bobde, V.K. Tahilramani
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
CAZ NO. 93 OF 2011
IN LETTERS PATENT APPEAL NO. 31 OF 2011
IN WRIT PETITION NO. 5364 OF 2010
Mrs. Varsha A. Maheshwari,
proprietor of Parijat Enterprises,
Through Power of Attorney
Mr. Ajay Maheshwari, aged 42
years, occupation - Business,
r/o A-3/41, Vrindavan Apartments,
opposite Hislop College,
Civil Lines, Nagpur. ... PETITIONER
Versus
1. M/s. Bhushan Steel Limited,
having its registered office at
F-Block, 1st Floor, International
Trade Tower, Nehru Place,
New Delhi 110 019 through its
M.D. Shri Neeraj Singhal.
2. Mr. B.K. Sinha, G.M.,
Purchase Department,
Bhushan Steel Ltd., r/o Bhushan
Steel Limited, at Narendrapur,
P.O. - Kusupanga, Via - Meramandali,
District - Dhenkanal, Orissa,
New Address : To
M/s. B.K. Sinha, General Manager,
c/o Ispat Industries Limited,
6th Floor, "Nirmal" Building,
Nariman Point, Mumbai 400 021.
Phone 022-66542222. ... RESPONDENTS
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2
Shri Ajay Maheshwari, In person for the appellant.
Shri Jugal Kishor Gilda, Amicus Curiae.
.....
CORAM : S.A. BOBDE AND
SMT. V.K. TAHILRAMANI, JJ.
FEBRUARY 01, 2011.
ORAL JUDGMENT : (PER S.A. BOBDE, J.)
At the hearing of this appeal, Shri Ajay Maheshwari, holding the Power of Attorney on behalf of the appellant Mrs. Varsha Maheshwari, his wife, claimed to be heard on her behalf.
Shri Maheshwari asserted his right to be heard by this Court on the basis of the Power of Attorney executed by his wife. His contention was that since the Power of Attorney empowered him "to act and appear" on behalf of his wife, it conferred a right of audience before the Court. Since it appeared to us that there was no right of audience conferred to power of attorney before the Court of Law, we decided to go into the issue and requested Shri Gilda, Advocate to assist us as amicus curiae.
2. After hearing amicus curiae and Shri Ajay ::: Downloaded on - 09/06/2013 16:48:43 ::: 3 Maheshwari, the following position emerges.
Shri Maheshwari, Power of Attorney claims the right to be heard in view of holding a power of attorney and being a recognized agent under Order 3 of Civil Procedure Code, which empowers persons holding power of attorney to make and do such appearances, applications and acts on behalf of the parties.
The question is whether such persons are, therefore, entitled to "plead" on behalf of the persons authorizing them to appear and act on their behalf. The question is no more res integra and seems to be settled by long line of decisions in this Country, beginning with the judgment of Calcutta High Court in the case of Ebrahim Saleji vs. Johurmull Khemka, reported at AIR 1916 Calcutta 181(1). The said Division Bench of that Court in a classic one line judgment held as follows :
"A recognized agent as such has no right of audience."
This view was followed by a judgment of learned Single Judge of Calcutta High Court in re, Eastern Tavoy Minerals Corporation Ltd., reported at AIR 1934 Calcutta 563, who relied ::: Downloaded on - 09/06/2013 16:48:43 ::: 4 on the earlier judgment of the Division Bench and observed that he was supported by so high an authority as the late Sir Lawrence Jenkins, C.J. The learned Single Judge held that Order 3, Rule 1 of Civil Procedure Code does not confer on recognized agent a right of audience and, therefore, declined to hear Mr. Harcourt, who claimed the right of audience on behalf of the company by virtue of power of attorney executed in his favour by two Directors of the company.
3. The next decision in which the same view was taken is the judgment of the Full Bench of Madras High Court in the case of M. Krishnammal vs. T. Balasubramania Pillai, reported at AIR 1937 Madras 937, where the Madras High Court observed that the power of attorney which empowered the attorney to swear affidavits, to file necessary petitions and to verify and sign the same, to appear and plead in Court in person on his behalf, to engage advocates if necessary and to sign in their vakalats, to do all acts necessary in the conduct of the above proceedings and in furtherance thereof, did not empower such a person to ::: Downloaded on - 09/06/2013 16:48:43 ::: 5 conduct proceedings in the Court in the same category as a vakalat given to legal practitioner in the following words.
"But quite apart from that difficulty, there is no warrant whatever for putting a power of attorney given to a recognized agent to conduct proceedings in Court in the same category as a vakalat given to a legal practitioner, though probably the latter may also be described as a power of attorney."
4. As far as this Court is concerned, the issue was settled by Chagla, Chief Justice in A.S. Patel vs. National Rayon Corporation, reported at AIR 1955 Bombay 262, where in a similar situation, the learned Chief Justice, considered the Order 3, Rule 1 of C.P.C. and made the following observations :
"The contention put forward by Mr. Bengeri before me is that "pleading" is included in the expression, "appearance, application or act in or to any Court." In my opinion, it is clear that "pleading"
would not be included in any of these expressions. The right of audience in Court, the right to address the Court, the right to examine and cross-examine ::: Downloaded on - 09/06/2013 16:48:43 ::: 6 witnesses, are all parts of pleading with which O. III does not deal at all. It deals with restricted class of acts in connection with the litigation in Court and it is with regard to that restricted class of act that O. III permits recognised agents to be appointed."
Chagla, C.J. Specifically expressed his disagreement with the judgment of Justice Teja Singh in the case of G.G. in Council vs. Bhagwan Sahai, reported at AIR 1948 EP 61, who had taken a view that a recognized agent had the right on behalf of the party to examine and cross-examine witnesses. The view was answered as follows :
"Therefore, the proviso makes a distinction between appearing, pleading or acting and appearing or acting. Whereas a party may not only appear or act but he may also plead, a recognised agent as defined in R. 2, O. III can only appear or act and not plead. Therefore, as far as the districts are concerned, a recognised agent has no right to plead by reason of the proviso to S. 9, and, as I have already pointed out, right of audience is a natural and necessary concomitant of the right to plead, and therefore if a recognised ::: Downloaded on - 09/06/2013 16:48:43 ::: 7 agent has no right to plead, it follows that he has no right of audience in Court. Therefore, as far as the question that directly arises for my decision as raised by Mr. Bengeri is concerned, there is no doubt that even on a strict construction of O. III, R. 1, and even assuming that the provisions of O. III, R. 1, apply to the High Court, Shambhuprasad has no right of audience in this Court, as the right of audience does not form part of an appearance, application or act in or to any Court."
We see no reason to differ from the view and we are in respectful agreement with the view of Chagla, C.J.
5. The similar views have been taken by other High Courts in the case of Pannalal vs. Deoji Dhanji, reported at AIR 1955 M.B. 109, Samdukhan v. Madanlal, reported at AIR 1959 Raj. 35, Vidyawati Hemchand vs. Fattilal Devidin, reported at 1969 M.P.L.J. 193 and Division Bench judgment of Jammu & Kashmir High Court in the case of Amita Misri & Ors. vs. State of Jammu and Kashmir & Ors, reported at 1988 (2) Current Civil Cases 889. A Division Bench of this Court also followed the view ::: Downloaded on - 09/06/2013 16:48:43 ::: 8 of Shri Chagla, C.J. in the case of Mohan vs. Vachha & Company, reported at 1983 Mh. L.J. 895. The Division Bench observed that it is always open to any Court or any authority to permit a person who is not enrolled as an advocate to appear before that Court or authority and even plead before them when an application for that purpose is moved by the party.
6. As to the circumstances in which a person may be permitted by the Court to appear, act and plead, Shri Gilda, learned amicus curiae referred to a judgment of the Supreme Court delivered by Justice V.R. Krishna Iyer, in the case of Harishankar Rastogi vs. Girdhari Sharma & Anr., reported at AIR 1978 SC 1019, where the Supreme Court held that a private person who not an advocate, has no right to barge into Court and claim to argue for a party. He must get the prior permission of the Court for which the motion must come from the party himself. The Supreme Court further observed that the Court may even after grant of permission withdraw it half-way through if the representative proves himself reprehensible. We might ::: Downloaded on - 09/06/2013 16:48:43 ::: 9 observe that indeed such a permission is contemplated by Section 32 of the Advocates Act, which reads as follows :
"32. Power of Court to permit appearances in particular cases. - Notwithstanding anything contained in this Chapter, any court, authority, or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case."
7. In the later judgment in the case of T.C. Mathai vs. District & Sessions Judge, reported at (1999) 3 SCC 614, the Supreme Court followed the view in Harishankar Rastogi vs. Girdhari Sharma & Anr., (supra) and upheld it. The Supreme Court further approved a judgment of the Full Bench of the Madras High Court in M. Krishnammal vs. T. Balasubramania Pillai, (supra) where the observations made that "though stated sixty years ago, would represent the correct legal position even now".
8. Shri Maheshwari, holder of power of attorney, ::: Downloaded on - 09/06/2013 16:48:43 ::: 10 however, relied upon the judgment of the Supreme Court in the case of Janki Vashdeo Bhojwani & Anr. vs. Indusind Bank Ltd., reported at 2005 SCC 439, where the Supreme Court held that the right of power of attorney is to appear, plead and act on behalf of the party and can state on oath whatever knowledge he has about the case but he cannot become a witness on behalf of the party. He can only appear in his personal capacity. This judgment is of no relevance to the issue before us.
9. In the result, we hold that a person holding a power of attorney on behalf of a party authorizing him to appear, act or plead for him before a Court of law is not entitled to a right of audience before a Court of law and cannot be heard as a representative of the party unless specifically permitted by the Court to do so upon a proper application moved by the party himself. As regards the present application of the appellant Mrs. Varsha Ajay Maheshwari is concerned, having regard to the fact that the person seeking to represent her is her husband who appears to be well versed with the circumstances of the case and ::: Downloaded on - 09/06/2013 16:48:43 ::: 11 being a person who has entered into all transactions relevant for the decision of the present dispute, is hereby permitted to address the Court in the matter. Order accordingly.
10. We are thankful to Advocate Jugal Kishor Gilda, for the able assistance rendered to the Court as amicus curiae.
JUDGE JUDGE
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*GS.
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