Andhra HC (Pre-Telangana)
Natubhai Chotabhai Patel vs Smt. Patnam Shakuntala And Anr. on 28 July, 2006
ORDER G. Yethirajulu, J.
1. This is a reference made by a learned single Judge of this Court to answer the following questions:
Whether the procedure contemplated under Rules 32 and 33 of the Civil Rules of Practice is mandatory or it is curable which can be cured by moving an appropriate application and whether the Court depending upon the facts and circumstances can rectify the same.
2. A suit was filed for declaration of title and delivery of possession of the suit schedule property and also to rectify the entries in the revenue records etc. The suit was filed by the GPA holder, but they have not obtained the orders of the court permitting the GPA holder to represent on their behalf under Rule 32 (1) of the A.P. Civil Rules of Practice & Circular Orders, 1980 (for short "Civil Rules of Practice"), therefore, it is contended that the said suit is non-est in the eye of law. Since the presentation itself is invalid presentation, the lower Court totally erred in dismissing the application instead of allowing the same as prayed for.
3. After reference, the counsel representing both parties advanced arguments, therefore, the question whether the suit filed by the General Power of Attorney, without prior permission of the Court, is maintainable and whether Rules 32 and 33 of the Civil Rules of Practice are mandatory.
4. Rules 32 and 33 read as follows:
32. Party appearing by Agent:
(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 authorizing 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 authorized 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 recognized by the Court.
33. Signing or verification by Agent:
If any proceeding, which under any provision of law or these rules, is required to be signed or verified by a party, is signed or verified by any person on his behalf, a written authority in this behalf signed by the party shall be filed in court, together with an affidavit verifying the signature of the party, and stating the reason of his inability to sign or verify the proceeding, and stating the means of knowledge or the facts set out in the proceeding of the person signing or verifying the same and that such person is a recognized agent of the party as defined by Order III Rule 2 of the Code and is duly authorized and competent so to do.
5. The learned Counsel for the petitioner placed reliance on the following Judgments:
Mohd Hasnuddin and Anr. v. Dontagari Sathamma 2002 Suppl. (2) ALD 867, G.M. Uruj v. Anwar Hussain , Secretary to Government of India, Ministry of Defence, New Delhi v. Indira Devi and Janab Sayeed Kazim Saheb v. Janab Sayeed Bakaran Saheb 1990 (1) AWR 256, wherein a learned single Judge of this Court held as follows:
the presentation of the plaint signed and verified by the power of attorney holder coupled with the very power of attorney executed in his favour filed in the court, does not require any permission from the court, for an advocate duly appointed by the said power of attorney holder, duly authorizing him in this behalf, entered appearance in the court. The absence of an affidavit (under Rule 33) however does not invalidate the suit resulting in dismissal thereof.
6. The learned Counsel for the petitioner contended that this view expressed by the learned single Judge cannot be sustained in view of the provisions of Rules 32 and 33 of the Civil Rules of Practice and the language employed therein is mandatory and is not a curable irregularity. He also contended that an application filed subsequently cannot cure the defect, therefore, the very registration of the plaint itself can be said to be without jurisdiction, therefore, it has to be considered whether the provisions are mandatory. The following decisions are helpful in resolving the issue in question:
7. In Indira Devi's case (3 supra), a Division Bench of this High Court held as follows:
The requirement is that when GPA-holder is representing the party, the Judge is required to record in writing that he is permitted to appear and act on behalf of the party. In the instant case, the procedure prescribed under Rule 32 of the Civil Rules of Practice has been followed. When once a person files a suit on behalf of the party, as a GPA holder he enters into the shoes of that party and except to the extent of personal knowledge, he is entitled to depose on other facts. In the instant case, what was relied upon by the plaintiffs is entirely documentary evidence, which are public documents and no personal knowledge was required to be pressed into service to establish the case of Plaintiff.
8. In G.M. Uruj v. Anwar Hussain (2 Supra), a learned single Judge of this Court held that under Rule 32 of the Civil Rules of Practice if a party appears by any agent other than an Advocate, he should file before the Court the power of attorney authorizing him to act with authenticated document together with an affidavit that the said authority was still subsisting. Thereupon the Judge will permit the person to act on behalf of the party. The authenticated document together with an affidavit filed by the agent for permission of the Court to act on behalf of the party, certified copy of GPA properly notorised filed with application for permission, the objection raised by other side that they identified the person who is said to have executed the document is in doubt is not sustainable.
9. In Hari Om Rajender Kumar v. Chief Rationing Officer of Civil Supplies, A.P. , a learned single Judge of this Court while dealing with the scope of Order 3 Rule 1 held that:
It has to be noticed that Section 33 of the Act uses the word 'practice' while Section 32 uses the word 'to appear' in the Courts etc. The word 'practice' means appear, act, and plead, unless there is anything in the subject or context to limit its meaning. Therefore, the word 'appear' is only one aspect and does not take in the concept of 'pleading' without which, it cannot be equated to 'practising'. The right to appear in Court and plead for a principal as also the right to practise in Courts have to be distinguished from the other acts, which a power of attorney can perform under Order 3, Rule 1, C.P.C. So far as the signing or verifying or doing other acts are concerned, these could be done by the power of Attorney duly authorized therefore but so far as appearing or practicing in Court are concerned, they are subject to the provisions of Sections 32 and 33 of the Advocates Act. As such the power-of-attorney holder cannot plead or practise in Court for a principal unless special authority by the Courts in that behalf under Section 32 of the Advocates Act (1961).
10. In Janab Sayeed Kazim Saheb's case (supra), it is seen that the objection has not been taken by the defendant in his written statement nor raised in the lower Court. What all has been averred in the written statement is that the GPA holder must apply to the court seeking permission from it, which is not done so; nor any such objection raised in the evidence. On the basis of this, the learned Counsel for the plaintiffs-respondents argued that the objection must be deemed to have been waived by the defendant, therefore, it will not be proper to allow the defendant to raise this plea at the appellate stage that the plaintiff failed to file an affidavit accompanying the plaint within the meaning of Rule 33, more so when such a defect is mere curable irregularity and does not invalidate the plaint resulting in dismissal.
11. In Md. Munawar Hussain v. Usha Kiran Chit Funds, Sathupalli, Khammam District and Ors. , a learned Judge of Civil court did not follow the procedure contemplated under Rule 32 and only after numbering of the suit, he has decided the issue, that irregularity in proceeding with the suit was held not to go to the roots of the case. Under those circumstances, the High Court held that it is not inclined to accept the contention of the counsel for the petitioner that the Judgment and the decree in the above case are contrary to Rule 32.
12. In G.M. Uruj v. Anwar Hussain (2 supra), in execution proceedings, a lengthy counter affidavit was filed by the defendant contending that the plaintiff has failed to mention categorically that the GPA in question was bogus or fabricated and the averments in the said counter showed that the defendant was absconding and avoiding summons issued by the court below. The High Court held that the GPA holder was not permitted to act and appear on his behalf of the defendant.
13. In Ismath Ahmedizade Mahmoodi Abidi v. Kurshidunnisa Begum , the A.P. High Court held that a 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.
14. In Kamal Silk Mills v. Kuncham Mohana Rao , an order has been passed by the Court below showing that specific contention was raised by the judgment debtor claiming that the decretal amount was already discharged and he need not pay any amount towards the decree, but he failed to place before the Court as proof any receipt to that effect issued by the petitioner, and that no permission was obtained from the original Court under Rule 32 of the Civil Rules of Practice authorizing the General power of Attorney holder to present on behalf of the original decree holder as long as the General Power of Attorney was in force, and that the Court below failed to notice that no such contention was ever raised in the suit, therefore, the High Court held that the Judgment debtor was not to raise such a plea at the stage of execution of the decree.
15. A party generally represented by an Advocate. This provision enables an agent to represent the party. This provision has been introduced to discourage the parties to appoint the agents to represent them in the Courts than the legal practitioners. The wording "when a party appears by any agent other than an Advocate" used in Rule 32 clearly indicates that the authorization is for all purposes including the filing of the pleadings, examination of the witnesses, marking of the documents and advancing of the arguments, which is generally expected to be performed by an Advocate who is a legal expert in the field. If an agent represents the party, he may not know the implications and complications of the issues involved in the matter, thereby it is likely to cause injustice to the party. If the party prepares to take the risk of authorizing an agent, it is an indication that the party is prepared to reap the consequences by appointing an agent. In order to make sure that the party authorized the agent to represent him in the matter, an affidavit is necessary. But in cases of authorizing an agent to sign the pleadings while authorizing a legal practitioner to appear on his behalf, it is sufficient if the court is satisfied that he was authorized to sign and in such a case, the filing of an affidavit is not mandatory, therefore, the defect can be cured at a later stage also by convincing the court that the agent was duly authorized by the respective party in that matter. But if an agent is authorized to undertake the signing of pleadings, adducing of evidence and advancing of arguments, the agent shall be permitted in writing and the party has to file an affidavit that he has duly authorized the agent to represent him instead of an Advocate. In case of a party executing a General Power of Attorney in favour of another person, the General Power of Attorney holder also cannot be permitted to represent the party in the suit for all purposes namely to sign the pleadings, to adduce evidence and to advance arguments unless an affidavit is filed by the party affirming that he has authorized his General Power of Attorney holder to represent his case for the above purposes. But for mere signing of the pleadings on behalf of the party duly represented by an Advocate, permission from the court is not necessary by way of filing an affidavit to that effect. It is sufficient if the court is satisfied that the agent or power of attorney holder is duly authorized to sign the pleadings, after perusal of such authorization, which was filed along with the pleadings.
16. In the light of the decisions rendered by this Court, it is made clear that Rule 32 is not mandatory.
17. In the light of the foregoing discussion, it is made clear that Rule 32 of the Civil Rules of Practice was introduced to discourage the parties to authorize their agents to represent their cases by way of signing the pleadings, adducing evidence and advancing arguments instead of authorizing a legal practitioner. If an agent or a General Power of Attorney holder is authorized to perform the above duties on behalf of the party, the obtaining of permission from the court by filing an affidavit by the party is necessary. If the agent or GPA holder is authorized only to sign the pleadings or to give evidence as a witness, in such circumstances, Rule 32 is not mandatory. The Rule was introduced to discourage the parties to authorize their agents and to engage the legal practitioners to represent their cases and in case of the agent or general power of attorney holder is authorized by the party to sign the pleadings or to give evidence, it is sufficient if the Court is satisfied on verification of such authorization that he is duly authorized by the party for those limited purposes.
18. The Reference is, accordingly, answered.