2019 (4) TMI 1

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ow deceased) as the joint executor along with his son Amiya Kanti Das, the plaintiff no.1. It was specified in the last Will that in the event of the death of Ushabari, she shall be substituted by Jyotsna Das, the wife of Amiya Kanti Das for discharging the duty of an executor. After the death of Usha Kanta Das, the plaintiff, on coming to know of the existence of the Will dated 3rd October 1975, applied for grant of probate with the consent of both Shefalika Ash and Prativa Nandy. Shefalika Ash (defendant) and Prativa Nandy are the daughters of the deceased, Usha Kanta Das. After a considerable delay of about 5 years thereafter, the plaintiffs came to know that Shefalika Ash had filed an affidavit in support of a caveat on 19th December, 2012. The application for grant of probate being P.L.A no. 53 of 2010 was thereafter converted into the present testamentary suit. Issues were framed in the suit and after examination of the plaintiffs' first witness (Amiya Kanti Das), the claim of the plaintiffs was dismissed by a judgment dated 8th November, 2016. An appeal was preferred therefrom by the plaintiffs and by an order dated 26th April, 2017, the suit was remanded for adducing the ev....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....agents" to appearing and making applications and generally acting as a holder of a power of attorney on behalf of the person who has authorized the recognized agent. Counsel submits that Order III does not include the right of audience or examination of witnesses, which Mr. Nandy seeks to do in this case. Counsel relies on Ashwin Sambhuprasad Patel Vs. National Rayan Corporation Limited reported in AIR 1955 Bombay 262 and on P. Thayarammal Vs. Pitty Kuppuswamy Naidu reported in AIR 1937 Madras 937. She further relies on Section 8 of the Indian Bar Councils Act, 1926 which provides for the following. "8. Enrolment of advocates.- (1) No person shall be entitled as of right to practise in any High Court, unless his name is entered in the roll of the advocates of the High Court maintained under this Act: Provided that nothing in this sub-section shall apply to any attorney of the High Court. (2) The High Court shall prepare and maintain a roll of advocates of the High Court in which shall be entered the names of (a) all persons who were, as advocates, vakils or pleaders, entitled as of right to practice in the High Court immediately before the date on which this section come....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....cularly when the power of attorney authorized him to plead in the court. The judgment delivered by Sir Owen Beasley, C. J, upon considering Order III Rules 1 and 2 of The Code of Civil Procedure, 1908 (CPC), held that the said provisions do not give a recognized agent any right to plead on behalf of his principal either in the Appellate or Original Side of this court. The court further relied on Section 119 of the CPC which provides the following: "119. Unauthorized persons not to address Court.- Nothing in this Code shall be deemed to authorize any person on behalf of another to address the Court in the exercise of its original civil jurisdiction, or to examine witnesses, except where the Court shall have in the exercise of the power conferred by its charter authorized him so to do, or to interfere with the power of the High Court to make rules concerning advocates, vakils and attorneys." The second issue considered by the court was whether a power of attorney holder stands in the same footing as that of an Advocate holding a Vakalat wherein upon examining Chapter I of the Original Side Rules, the court held that an agent under a power of attorney has no right of audience in a....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....arty or by a recognized agent or by an Advocate. Under Rule 1 (i) (b), a person qualifies as an "advocate" if covered within the meaning of The Advocates Act, 1961. Rule 5 provides, inter alia, that an advocate shall not be entitled to appear and plead before a court unless he has filed a Vakalatnama or is instructed by an advocate who has filed a Vakalatnama. The rights granted under Order III Rule 1 is further clarified by sections 8 and 29 of The Advocates Act, 1961 which provide, inter alia, that no person shall be entitled as of right to practice in any High Court unless his name is entered in the Roll of advocates of the High Court (Section 8) and that there is only one class of persons entitled to practice of law namely, "advocates" (Section 29). Section 119 further prohibits unauthorized persons from addressing court and mentions examination of witnesses in particular. 9. On a conjoint reading of the aforesaid provisions, three propositions emerge; first, Order III Rule 1 specifically excludes the expression "plead" from the purview of "appearing" or "acting". The expression plead, on the other hand, arises from the definition of "Pleader" under section 2 (15) of the CPC. ....