Karnataka High Court
Vimalabai W/O. Dayarama Dandi vs Siddappa A/F Kariyappa Poojar on 6 September, 2012
Author: Jawad Rahim
Bench: Jawad Rahim
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 6TH DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE JAWAD RAHIM
WRIT PETITION NO. 62921/2012(GM-CPC)
BETWEEN:
Smt. Vimalabai W/o. Dayarama Dandi,
Age : 70 years, Occ : Household,
R/o. Belgaum, Dist: Belgaum
Represented by her P.A. holder,
Raju S/o. Balkrishna Kolhapur,
Age : 50 years, Occ : Service,
R/o. Haveri, Dist : Haveri.
... PETITIONER
(By Sri. Vijayendra S. Bhimakkanavar, Adv.)
AND:
1. Siddappa A/F Kariyappa Poojar,
Age : Major, Occ : Agriculture,
R/o. P.B. Road, Haveri-5981110.
2. Smt. Anita W/o. Siddappa Honnappanavar,
Age : Major, Occ : Advocate,
R/o. P.B.Road, Haveri-581110,
Dist : Haveri.
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3. Basavaraj S/o. Puttappa Gorappanavar,
Age : Major, Occ : Agriculture,
R/o. P.B. Ro;accused, Haveri-581110,
Dist : Haveri.
... RESPONDENTS
(By Sri. Aravind D. Kulkarni, Adv. for R1 & R2
Sri. Chetan G.S. Adv. for R3)
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THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDA
PRAYING TO QUASH THE IMPUGNED ORDER ON
I.A.NO.8 VIDE ANNEXURE-G DATED: 01/03/2012
PASSED BY THE COURT OF CIVIL JUDGE (JR.DN.)
AND JMFC HAVERI, IN O.S.NO.248/2008 AND THE
I.A.NO.8 MAY KINDLY BE ALLOWED.
THIS PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Plaintiff/plaintiff in O.S.No.248/2008 is in writ action seeking quashing of the order dated 01.03.2012 rejecting his application filed under Order VII Rule 14 read with Section 151 of CPC to produce documents.
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2. From what the learned counsel for the petitioner and respondent have urged, it is apparent that the plaintiff could not personally appear to conduct the proceedings in O.S.No.248/2008. She had appointed one Muralidhar Vaidya authorising him by deed of General Power of Attorney to appear on her behalf to tender evidence, sign pleadings and applications as may be necessary for proper conduct of the proceedings. He did so by virtue of that power, but later expressed inability to fulfil the assignment. Thus the authorization issued was cancelled by her. She executed another deed of power of attorney appointing one Sudeendra Kolhapur to represent her and apply to the Court. He also could not oblige her and expressed his inability, consequent to which the power of attorney issued in his favour was cancelled/withdrawn by a registered notice to him. 4
Subsequent events show, she appointed one Raju Kolhapur as her attorney to represent her and he filed application before the trial Court numbered as I.A.No.VIII under the Provision of Order VII Rule 14 read with Section 151 of CPC. Appended to the application are some documents like deed of Attorney in his favour and copy of the notice to the earlier General Power of Attorney.
The application was opposed by the petitioners resulting in compelling the Court to pass detailed order.
The learned trial Judge, reporting to the provision invoked by the application and the relief sought, opined, the applicant/plaintiff has not been diligent in prosecution of the proceedings. In para 6 of the impugned order, the learned trial Judge opined, the power of attorney in favour of so many persons 5 has been issued by the plaintiff and she has also produced copy of the notice issued recalling power of attorney in favour of Muralidhar. Accepting the objection of the defendant that, if the plaintiff is allowed to change her attorney frequently, it may impede the process of disposal of the suit and cause them harassment, application is rejected by trial Court. Referring to relief/permission sought by plaintiff, the learned trial Judge has opined, unless permission is sought by the plaintiff under provision of Order III Rule 2 of CPC to appoint attorney to represent her, the person who has filed the application has no legal competence. In other words, the learned trial Judge had opined the plaintiff has to first file an application under Order III Rule 2 seeking permission of the Court to appoint an attorney /cancel appointment of attorney and only if permission granted on such application, the person claiming to be 6 attorney can pursue further action to represent the plaintiff.
3. Such opinion is erroneous. For clarity it is necessary to refer to the provisions of the Order III Rule 1, which clearly envisages as follows:
"Rule 1) Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf:
Provide that any such appearance shall, if the Court so directs, be made by the party in person."
4. The provision of Order III Rule 1 spells out that, statutory right has been conferred on the person 7 who is a party in the proceeding either to appear and do all that is required to be done in law by himself personally or through any authorized person. This right having been recognized by Order III Rule 1 of CPC, there is no gain saying that the party to the suit shall seek permission of the Court to be represented by an attorney. This opinion is further verified from the language of Rule 2 of Order III of CPC, which describes recognized agent. Order III Rule 2 reads thus:
"Rule 2) The recognized agent 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 8 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."
5. Therefore, Rule 2 not only recognizes agent, but defines agent. Rule 2 (a) in unequivocal terms refers to persons holding power of attorney who is recognized by Rule 2 as agent for the party in suit. Therefore, all that is required is a person who claims to be an attorney must produce authorization at relevant time, but this does not require application of Order XIII. Order XIII deals with different fact situation.
" Order XIII. Production, impounding and return of documents 9
1. Original documents to be produced at or before the settlement of issues (1) The parties or their pleader shall produce, on or before the settlement of issues, all the documentary evidence of in original where the copies thereof have been filed along with plaint or written statement.
(2) The Court shall receive the documents so produced, Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs."
This provision has been omitted by the amendment of CPC brought into effect by 01.07.2002. Therefore, the effect of non-production, which was one of the impediment created for production of document has been taken away by the amendment of the CPC. Order XIII deals with a situation different from the one at hand. It refers to stage, before the issues are framed, parties are required to produce 10 documentary evidence so as to enable the Court to frame the evidence based on material propositions in the pleading as required under Order XIV.
6. The learned trial Judge has misconstrued the scope of Order III Rule 2, may be because the petitioner has mislead herself in filing the application under Order VII Rule 14 of the CPC.
7. Be that as it may, as discussed in the para supra, for a person to represent the plaintiff as her agent recognized by Order III Rule 2, he need not seek permission of the Court, nor he is required to seek permission of the Court for production of document.
8. In this view, the impugned order is quashed. The application filed by the plaintiff as being irrelevant, the trial Court is directed to permit the 11 applicant in the application representing the plaintiff and receive the power of attorney in proof of such authorisation. The plaintiff need not seek permission of the Court to produce any document.
The petition is disposed of in terms of the order.
Sd/-
JUDGE gab/-