Res judicata and power of attorney capacity: prior procedural order binding, and an enrolled advocate may act as power agent

A final inter partes order on a procedural capacity issue in the same proceedings binds the parties at later stages and cannot be reopened unless a recognised jurisdictional or statutory exception applies; the earlier orders permitting the plaintiff's wife to appear as his general power of attorney holder were therefore binding. A general power of attorney holder is not disqualified from cross-examining witnesses merely because she is also an enrolled advocate, where she acts only as power agent and not in a professional legal capacity; the distinction between appearance as agent and appearance as counsel remains material. The High Court's common order was set aside and the trial court's orders were restored.

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Issues: (i) whether the earlier orders permitting the plaintiff's wife to appear as his general power of attorney holder in the same proceedings operated as res judicata and barred reopening of that question; and (ii) whether a general power of attorney holder who is also an enrolled advocate could be prevented from cross-examining witnesses when acting only as power agent and not in professional capacity.

Issue (i): whether the earlier orders permitting the plaintiff's wife to appear as his general power of attorney holder in the same proceedings operated as res judicata and barred reopening of that question.

Analysis: The previous orders between the same parties had finally determined the wife's capacity to appear in the very same proceedings. The doctrine of res judicata applies not only to separate later proceedings but also to later stages of the same proceedings. A concluded inter partes decision of a court of competent jurisdiction remains binding even if said to be erroneous, unless the case involves jurisdictional illegality or a statutory prohibition of the kind recognised in the limited exceptions to the doctrine.

Conclusion: The earlier orders were binding and the issue could not be reopened; the objection was untenable.

Issue (ii): whether a general power of attorney holder who is also an enrolled advocate could be prevented from cross-examining witnesses when acting only as power agent and not in professional capacity.

Analysis: The wife had been permitted to appear only as the plaintiff's power agent and not as an advocate. Section 32 of the Advocates Act, 1961 does not create a prohibition against such appearance merely because the power agent later became an advocate. The prior orders had already preserved the distinction between acting as a power agent and acting as counsel, and the later challenge incorrectly treated her conduct as if she were appearing in her professional capacity.

Conclusion: She could continue to act as power agent and cross-examine witnesses in that capacity.

Final Conclusion: The common order of the High Court was set aside and the trial court's orders permitting the wife to represent the plaintiff as his general power of attorney holder were restored.

Ratio Decidendi: A final inter partes order on a procedural capacity issue in the same proceedings binds the parties at later stages, and a power of attorney holder is not disqualified from acting in that capacity merely because the holder is also an enrolled advocate, so long as the person is not appearing as counsel.

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