Karnataka High Court
Sri C.V. Jayaram vs Sri A.M.R Reddy on 11 July, 2014
Author: Dilip B.Bhosale
Bench: Dilip B Bhosale
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11th DAY OF JULY 2014
BEFORE
THE HON'BLE MR. JUSTICE DILIP B BHOSALE
W.P.NO.29062/2014 (GM-CPC)
BETWEEN
SRI C.V. JAYARAM
S/O LATE C.K.VENKATACHALIAH
AGED ABOUT 52 YEARS AND
PARTNER IN M/S SRI.VENKATESHWARA
ENGINEERING WORKS
NO.23, TANK BUND ROAD
BANGALORE-560 002
AND ALSO RESIDING AT NO.23
MAVALLI TANK BUND ROAD
J.C.ROAD CROSS, JOURNALIST COLONY
BANGALORE-560002 ... PETITIONER
(BY SRI M.VEERABHADRAIAH, ADV.,)
AND
SRI A.M.R REDDY
S/O LATE MUNISWAMY REDDY
AGED ABOUT 57 YEARS
R/AT NO.1345, 1ST MAIN ROAD
YESHWANTHPURA, BANGALORE-560022
NOW RPT IN VIEW OF THE TRIAL COURT ORDER
BY HIS GPA HOLDER
SRI.SURYA PRASAD
S/O NANJAPPA
AGED ABOUT 56 YEARS
R/A NO.1228, FIRST MAIN, 3RD CROSS
YESHWANTPURA, BANGALORE-22 ... RESPONDENT
(BY SRI SURYA PRASAD, GPA HOLDER FOR R-1 (PARTY IN PERSON)) 2 THIS W.P. FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 7.6.2014 PASSED IN O.S. NO.3789/2013 BY THE XXXIX ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE VIDE ANN-A CONSEQUENTLY ALLOW THE APPLICATION FILED BY THE PETITIONER U/S 151 OF CPC VIDE ANN-P AND ETC., THIS W.P. COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
PC:
Heard learned counsel for the petitioner and Mr.Surya Prasad, General Power of Attorney of the respondent.
2. This writ petition is directed against the order dated 7th June 2014 passed by the court below on an application filed by the petitioner under Section 151 of CPC seeking an order of injunction restraining Mr.Surya Prasad from appearing in the suit on behalf of defendant on the basis of General Power of Attorney.
3. Learned counsel for the petitioner at the outset submits that if it is made clear that the General Power of Attorney should act within the parameters, as indicated by this Court in R.Narasimha vs. S.P.Sridhar, ILR 2014 Kar. 84, he has no objection for allowing Mr.Surya Prasad to act as General Power of Attorney or to step into the shoe 3 of the plaintiff, except for the purpose of adducing oral evidence, provided he holds a valid power of attorney. He further submits that under any circumstances, on the basis of the General Power of Attorney, Mr.Surya Prasad cannot be allowed to act like an Advocate for the plaintiff in the case. In other words, he submits that he cannot be allowed to address the Court like an advocate. This Court in R.Narasimha (supra) in paragraphs 5, 6 and 7 observed thus:
"5.There is no impediment in law for a party to prosecute his case through his Power-of- Attorney holder. Rules 1 & 2 of Order III of the Code of Civil Procedure permit a Power of Attorney holder of a party to appear, apply and act on his behalf in Court. This does not ipso facto mean that an attorney-holder could be examined as a witness in the case to give evidence or that he could address the Court. Both these matters are regulated by the Indian Evidence Act, 1872 and the Advocates Act, 1961 respectively. Some explanation on these two matters is necessary.
6. Parties to a suit or proceeding are permitted to give evidence within the limits prescribed by S.5 of the Indian Evidence Act, 1872. A Power-of-Attorney holder of a party can be examined as a witness like any other witness, if he is competent in law to testify to the existence or non-existence of any fact in issue in any suit or proceeding or of such other facts as are declared to be relevant under the provisions of the Evidence Act, if such facts are within his personal knowledge, but he cannot appear as a witness in the capacity of that party i.e., himself as the plaintiff or the 4 defendant. When and to what extent a Power- of-Attorney holder could give evidence is explained by the Supreme Court in MAN KAUR vs. HARTAR SINGH SANGHA.
7.Rules 1 and 2 of Order III of the Code of Civil Procedure are subject to the provisions of the Advocates Act, 1961 and in particular Ss.32 & 33. Hence, a Power-of-Attorney holder, who is not an Advocate, cannot be placed on the same footing as an Advocate. A non-advocate cannot be permitted to address the court on behalf of a party on the strength of the Power-of-Attorney. For that purpose, the party has to seek the leave of the Court. Grant of such leave is governed by S.32 of the Advocates Act, 1961. As held by the Supreme court in HARISHANKAR RASTOGI vs. V.GIRDHARI SHARMA, a private person who is not an advocate, has no right to argue for a party without the prior permission of the Court, for which the motion must come from the party himself. It is open to the Court to grant or withhold permission in its discretion."
4. Having regard to the observations made by this Court in the aforesaid judgment and considering the submissions made by learned counsel for the petitioner, Mr.Surya Prasad, General Power of Attorney of respondent submits that he would not seek right of audience before the Court like an advocate on the basis of General Power of Attorney. In other words, he submits that he shall not address the Court like an advocate being a General Power 5 of Attorney of the respondent. His submission is recorded and accepted. In view of thereof, learned counsel for the petitioner does not press this writ petition reserving his right to challenge validity of the General Power of Attorney executed by respondent in favour of Mr.Surya Prasad.
5. Petition is disposed of as not pressed. It is always open to the petitioner to challenge validity of the General Power of Attorney, and if any such challenge is raised, the Court below may consider the same on merits in accordance with law.
With these observations, petition is disposed of.
Sd/-
JUDGE Ia