TaxTMI 
TaxTMI 
2022 (11) TMI 983
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.... various orders by the Trial Court at different stages of proceedings as also to a couple of orders by the High Court in challenge to the orders so passed by the Trial Court. Therein, the Trial Court and the High Court essentially held that merely for the wife of the appellant being an advocate, there was no prohibition in law for her to act on behalf of her husband as a GPA holder but, it was made clear that she would appear in-person as a power agent of her husband and not in her professional capacity as an advocate. The same proposition was iterated by the Trial Court in its orders dated 07.02.2019 in these very proceedings, while rejecting the objection against examination of the witnesses by the wife of the appellant in her capacity as GPA holder. However, in the impugned order dated 28.06.2019, the High Court has held that in view of a Division Bench decision of the same High Court, it was not permissible for a GPA holder to participate in the proceedings and, therefore, while disapproving the orders under challenge, the wife of the appellant has been given liberty to act as an advocate on behalf of her husband, the plaintiff, in these cases. 4. With the outline as aforesa....
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....98 and I.A. No. 1306 of 2011 in O.S. No. 388 of 1997. The Trial Court, by its similar orders dated 19.02.2018, allowed the applications so moved and granted the prayer so made while rejecting the contentions urged on behalf of contesting respondent with reference to Order III Rule 2 CPC. The said order 19.02.2018, as passed in relation to O.S. No. 368 of 1995 reads as under: - "1. This petition is filed under Order 3 Rule 2 Section 151 CPC and Section 32 of Advocates Act, 1961 & Rule 32 and 33 of Civil Rules of practice in A.P. and Evidence Act Sect.120 praying to allow the petitioner to represent her husband the plaintiff in the above suit, before the Hon'ble Court to appear in person, to plead and to all acts necessary in the conduct of above proceedings. 2. The Petitioner who is the authorized GPA holder of the plaintiff in the suit, seeks permission of this Court, to permit her to represent the plaintiff in person. The Petitioner says that, as she is the wife of plaintiff she can protect the best interest of her husband, and as her husband is staying in a far away place and as he cannot attend the court in person she may be permitted to represent her husba....
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....can be withdrawn, if the acts of GPA representing the party in person is in derogative to the interest of the original party, the petitioner herein being the wife of plaintiff, in the opinion of this court can be permitted to represent in person on behalf of her husband. With regard to the other objection of respondent that, service of notice on the petitioner in case of any applications filed, would be difficult as she does not reside at Vijayawada, as the petitioner at the time of arguments submitted that she will stay at Vijayawada, till the suit is disposed off, this court does not find any grounds to disallow her plea. 7. Accordingly petition is allowed." (emphasis supplied) 4.4. The aforesaid orders dated 19.02.2018 were challenged by the contesting respondent in the High Court. The High Court by its common order dated 20.04.2018 in CRP Nos. 1784, 2221 & 2366 of 2018, confirmed the orders of the Trial Court, but while clarifying that the wife of the appellant will appear in person as power agent of the appellant but not in her professional capacity as a lawyer. This order dated 20.04.2018 by the High Court reads as under: - "These three revisions arise....
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.... agent and the second option is to engage an advocate herself. Both cannot be combined in a single order and that is the objection of the learned counsel for the petitioner. That objection is sustainable in law. 8. But in so far as the second objection is concerned, if the 1st respondent is appearing only as a power agent of a party, the question of informing the local address for service does not arise. It is only when a lawyer is engaged, the question of furnishing a local address for service would arise. Therefore, all the Civil Revision Petitions are disposed of confirming the orders of the trial Court and clarifying that Smt. Suryadevara Hemalatha, will appear in person as a power agent of the 1st respondent and will not appear in her professional capacity as a lawyer. As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed." (emphasis supplied) 4.5. Thereafter, another application of similar nature in relation to O.S. No. 445 of 1998 was considered and allowed by the Trial Court by its order dated 24.09.2018, while rejecting similar objection of the respondent and while observing as under: - "The respondent op....
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....wer of Attorney holder is an Advocate enrolled in the Bar Council of Andhra Pradesh. 4. Therefore, the 1st respondent has appointed his own wife as General Power agent. This fact is not disputed. 5. When an attempt was made by the G.P.A. holder to act in dual capacity, both as a General Power of Attorney and as an advocate for her husband, this Court directed that she can only opt for one. 6. Therefore, the 1st respondent filed I.A.No.556 of 2018 seeking permission for the G.P.A. holder to plead, present and argue his case in person. This application has been allowed by the trial Court by an order dated 24-09-2018. It is against the said order that the revision has been filed. 7. The contention of Mr. V.S.R. Anjaneyulu, learned counsel for the petitioner is that G.P.A. holder, having a personal interest, cannot plead on behalf of the party. Reliance is placed upon the clause contained in the deed of a General Power of Attorney. 8. But clauses 2 and 3 of the deed of General Power of Attorney authorises the G.P.A. holder to sign and verify plaints, written statements, affidavits etc., and also to appear in all courts. Therefore, the Genera....
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....cate as she is enrolled in bar, and as GPA. The petitioner says that, when the 1st respondent nowhere stated that, the GPA in her name was cancelled, and she was authorized to make personal appearance on behalf of the plaintiff, the respondent has to only engaged a counsel represent in her personal capacity. Hence, the 1st respondent cross examining the witnesses in person is against the orders of Hon'ble High Court in CRP 1784/2018. Hence, this petition to declare that the 1^st respondent who is GPA holder is not authorized to participate in the cross examination of the witnesses. 3. The 1st respondent opposed the petition stating that, she as a GPA of her husband/plaintiff is appearing in person, after obtaining permission from this Court, and though she is enrolled in bar council, she is not appearing in her professional capacity, in this matter and thus she is appearing in person, as such, she is entitled to cross examine the witnesses and that petitioner cannot direct the plaintiff, as to how she has to conduct the case i.e., either through a counsel or in person. The Hon'ble High Court in CRP No.1784/2018 stated that the GPA holder cannot represent the court ....
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....ng for the respondent and there is no remark noticed by the Court below. It is always open for the Court to withdraw or cancel permission if the Power of Attorney Holder is unworthy or reprehensible. 8. This Court considering the arguments submitted by either side and the principle held in the above referred judgments opines that, when once the respondent was permitted to represent the 1^st plaintiff who is no other than her husband, in person opining that no person can protect the Interest of the spouse, and act in the best Interest of the spouse other than the wife/husband, herself/himself, permitted the respondent, who is the wife of 1^st plaintiff, and also GPA to represent the suit proceedings in person and because she was permitted and representing the suit in person, now she wants to cross examine the witnesses also, by herself, as rightly put forth by the respondent what locus standi does the petitioner have in objecting the respondent, in cross examining the witnesses on behalf of the plaintiff, and her husband? when there is no bar for a party to cross examine the witnesses, the respondent who is representing the plaintiff as a GPA and permitted to represent in p....
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.... and stand of the respective parties, stated the point for determination in the following terms: - "9. The short point that arises for consideration is "Whether the G.P.A. holder of the plaintiff can be permitted to act like a counsel and cross-examine the witnesses?" 4.8.2. Thereafter, the High Court took note of the previous applications moved in these matters and the orders passed thereupon, while stating its construction of such previous orders, inter alia, in the following terms: - "12. The said order came to be passed in the month of December, 2018. As stated above, earlier to this order, a common order was passed in C.R.P.Nos.1784, 2221 and 2366 of 2018, wherein, the applications filed under Order III Rule 2 of C.P.C., read with Section 32 of the Advocates Act were disposed of clarifying that Smt.S.Hemalatha will appear in-person as a power of agent to the first respondent and will not appear in her professional capacity. The said applications came to be filed under Order III Rule 2 of C.P.C., for the following relief, to represent her husband; to appear in person to plead and conduct the above proceedings. 13. The said applications were allowed....
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.... and/or argue for his principal. If a person, other than an advocate enrolled on the rolls of the Bar council, appears in court, it is an offence punishable under law. Power of Attorney Act defines "power-of- Attorney" to include any instrument empowering a specified person to act for and in the name of the person executing it. If so empowered, the donor may execute any instrument or do anything in his own name and signature by the authority of the donor of the power. Section 4 of the POA Act casts an obligation on the POA to verify the affidavit, give a declaration or other sufficient proof of the POA, and to deposit the same in the High Court or the District Court within the local limits of whose jurisdiction the instrument may be. Order III C.P.C., deals with recognized agents and pleaders. Rule 1 thereof enables the recognized agent to make appearance, application or act in any court. Rule 2 explains recognized agents as "agents of parties by whom such appearances, applications and acts may be made or done". These are the persons holding POA authorizing them to make an application and act on behalf of such parties. Section 2(a) of the Advocates Act defines, "Advocate" to mean a....
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....e is a lawyer practicing in the said court. 22. Though the judgment in C.R.P.No.6924 of 2018 between the same parties held that there is no bar for the petitioner to participate in the trial, but the Division Bench judgment of this Court prohibits participation by the G.P.A. Holder. The same was not brought to the notice of the learned Judge. As observed by me earlier, the Division Bench of this Court categorically held that the G.P.A. holder cannot plead and/or argue for his principal. If a person, other than an Advocate enrolled on the rolls of the Bar Council, appears in the Court it is an offence punishable under law. 23. It may be true that the respondent herein, who is also an Advocate, is doing the case of her husband as a General Power of Attorney holder. It may also be true that the same may not cause much prejudice to the petitioners. But, in view of the judgment of the Division Bench of the combined High Court, C.R.Ps. are allowed, however, giving liberty to the respondent to conduct the case as an Advocate since she is a practicing Advocate as well. 24. There shall be no order as to costs. Miscellaneous Petitions pending if any in these revisi....
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....ies. The learned counsel has argued that the issue as regards conduct of the case by the wife of the appellant on his behalf and in her capacity as GPA holder has attained finality in these proceedings with the concluded orders dated 20.04.2018 and 14.12.2018 as passed by the High Court and such an issue cannot be reopened at the subsequent stage of these very proceedings. It has been contended, with reference to the several decisions, including that in the case of Gorie Gouri Naidu (Minor) v. Thandrothu Bodemma: (1997) 2 SCC 552, that even an erroneous decision, if rendered between the same parties, binds them if the same had been decided by a Court of competent jurisdiction. The learned counsel has also referred to the decision in Makhija Construction & Engg. (P) Ltd. v. Indore Development Authority: (2005) 6 SCC 304 as regards the distinction between a precedent and the operation of the doctrine of res judicata; and to the decision in S. Nagaraj (Dead) by Lrs. & Ors. v. B.R. Vasudeva Murthy & Ors.: (2010) 3 SCC 353 to submit that the orders as passed in this matter by the High Court on 20.04.2018 and 14.12.2018 cannot be ignored even on the principles of per incuriam because tho....
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....al of public policy reflected in various maxims like 'res judicata pro veritate occipitur', which means that a judicial decision must be accepted as correct; and 'nemo debet bis vexari pro una et eadem causa', which means that no man should be vexed twice for the same cause. The ancient history of this doctrine and its consistent recognition could well be underscored with reference to the following statement of law in the case of Sheoparsan Singh and Ors. v. Ramnandan Prasad Narayan Singh and Ors.: A.I.R. 1916 Privy Council 78: - "...But in view of the arguments addressed to them, their Lordships desire to emphasise that the rule of res judicata , while founded on ancient precedent, is dictated by a wisdom which is for all time. " 'It has been well said,' declared Lord Coke, 'interest reipublicoe ut sit finis litium, otherwise great oppression might be done under colour and pretence of law' ".-(6 Coke, 9 A.) Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators. Vijnanesvara and Nilakantha include the plea of a former judgment among those all....
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....nder Art. 32. (10) In considering the essential elements of res judicata one inevitably harks back to the judgment of Sir William B. Hale in the leading Duchess of Kingston's case, 2 Smith Lead Cas. 13th Ed. pp. 644, 645. Said Sir William B. Hale "from the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: First, that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question in another court; Secondly, that the judgment of a court of exclusive jurisdiction, directly upon the point, is in like manner conclusive upon the same matter, between the same parties, coming incidentally in question in another court for a different purpose." As has been observed by Halsbury, "the doctrine of res judicata is not a technical doctrine applicable only to records; it is a fundamental doctrine of all courts that there must be an end of litigation", Halsbury's Laws of England, 3rd Ed., Vol. 15, Paragraph 357, p. 185. Halsbury also adds that the doctrine applies equally in....
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....s recognised, is conceived in larger public interest and is founded on equity, justice and good conscience. These aspects were tersely put by this Court in the case of Lal Chand (dead) by L.Rs. and Ors. v. Radha Krishan: (1977) 2 SCC 88 in the following words: - "19. ... The fact that Section 11 of the Code of Civil Procedure cannot apply on its terms, the earlier proceeding before the competent authority not being a suit, is no answer to the extension of the principle underlying that section to the instant case. Section 11, it is long since settled, is not exhaustive and the principle which motivates that section can be extended to cases which do not fall strictly within the letter of the law. The issues involved in the two proceedings are identical, those issues arise as between the same parties and thirdly, the issue now sought to be raised was decided finally by a competent quasi-judicial tribunal. The principle of res judicata is conceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. The principle is also founded on equity, justice and good conscience which require that a party which has once succeeded on an....
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....- "19. ...A precedent operates to bind in similar situations in a distinct case. Res judicata operates to bind parties to proceedings for no other reason, but that there should be an end to litigation." 9.5.4. In S. Nagaraj (supra), it was also made clear by this Court that binding decisions cannot be ignored even on the principles of per incuriam because those principles have relevance to the doctrine of precedents but have no application to the doctrine of res judicata. 10. For what has been noticed and discussed in the preceding paragraphs, it remains hardly a matter of doubt that the doctrine of res judicata is fundamental to every well regulated system of jurisprudence, for being founded on the consideration of public policy that a judicial decision must be accepted as correct and that no person should be vexed twice with the same kind of litigation. This doctrine of res judicata is attracted not only in separate subsequent proceedings but also at the subsequent stage of the same proceedings. Moreover, a binding decision cannot lightly be ignored and even an erroneous decision remains binding on the parties to the same litigation and concerning the same issue, i....
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....Greater Bombay. The Trial Judge rejected this application essentially on the consideration that the matter had already been decided between the same parties in the earlier proceedings for fixation of rent. The High Court affirmed the order so passed and hence, the matter was in appeal before this Court. 11.1.1. In the aforesaid context, various features of the doctrine of res judicata were explained by this Court in the relied upon passage as follows: - "11. It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the ....
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....Section 17 where possession had already been taken and the land stood vested in the State. In the given context and while referring to a decision in the case of Municipal Committee v. State of Punjab: (1969) 1 SCC 475, this Court held as under: - "6. In view of the above ratio, it is seen that when the legislature has directed to act in a particular manner and the failure to act results in a consequence, the question is whether the previous order operates as res judicata or estoppel as against the persons in dispute. When the previous decision was found to be erroneous on its face, this Court held in the above judgment that it does not operate as res judicata. We respectfully follow the ratio therein. The principle of estoppel or res judicata does not apply where to give effect to them would be to counter some statutory direction or prohibition. A statutory direction or prohibition cannot be overridden or defeated by a previous judgment between the parties. In view of the fact that land had already stood vested in the State free from all encumbrances, the question of divesting does not arise. After the vesting has taken place, the question of lapse of notification under Se....
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....permission of the Court to appear on behalf of her husband in her capacity as GPA holder because of she being an enrolled advocate. The enabling provision of Section 32 of the Act of 1961, whereby any Court, authority or person may permit any non-advocate to appear before it or him in any particular case is difficult to be read as creating a corresponding bar in giving permission to a GPA holder of a party to represent that party as such, if the said GPA holder, during pendency of the proceedings in the Court, gets enrolled as an advocate. In other words, there does not appear any statutory prohibition operating in the situation like that of present case, for which the existing GPA holder of a party cannot be given permission to appear only as the GPA holder, even if he/she has been enrolled as an advocate. 14.1. As noticed, the meaning, purport and effect of the previous concluded orders of the High Court dated 20.04.2018 and 14.12.2018 had been clear and unambiguous that in these cases, wife of the appellant would be entitled to appear only as the GPA holder and not as an advocate. We are unable to accept the submissions made on behalf of the contesting respondent that th....
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...., have to make an appointment in writing (vakaltnama) duly authorizing the advocate to appear and argue the case. Only an advocate entered on the rolls of the Bar Council of Andhra Pradesh, who has been given vakalat and which has been accepted by such advocate, can have the right of audience on behalf of the party, or his recognized agnet, who engaged the advocate. Sections 29 and 30 of the Advocates Act make it clear that advocates are the only recognized class of persons entitled to pract5ise law, and such an advocate should have been enrolled as such under the Advocates Act. Section 32 of the Advocates Act empowers the court to permit any non-advocate to appear in a particular case. This only means that any person has to seek prior permission of the Court to argue a case if he is not an advocate enrolled under the Advocates Act. Further, it is an offence for a non-advocate to practice under the provisions of the Advocates Act. Section 45 prescribes a sentence of six months imprisonment. 31. The statutes and precedents are clear on the point. It is only advocates, whose names are entered on the rolls of the state Bar Council, who have the right to practice in any Court.....
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....ion by an interloper and being a gross abuse of the process of Court while observing at the very beginning of the judgment as follows: - "2. After giving a very patient hearing to Mr. T.D. Dayal, and perusing various provisions of the Advocates Act, 1961 as well as the decisions of the Supreme Court and of this Court in which he himself figured either as a social activist or a GPA for parties to the proceedings in the writ petitions, we are convinced that this is vexatious litigation. This is yet another instance of busybodies and meddlesome interlopers resorting to filing frivolous cases before the highest Court of the State due to perceived injustice to the community, or to the cause of a few gullible individuals whom they represent......." 15.3. The High Court also issued a slew of directions, including that of debarring the said alleged GPA holder from taking up any proceedings in the Court and also registering Suo Motu Contempt case for making unfounded and scurrilous remarks. We need not go into all those details for the purpose of the present case; suffice it to observe that the said decision proceeded on its own peculiar facts and there had been a marked distinc....
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.... holder, was not entitled to cross-examine the witnesses, as captured by the Trial Court in paragraph 5 of its order dated 07.02.2019. The Trial Court had also noticed the objections of the contesting respondent that the wife of the appellant, being a GPA holder, could only engage a lawyer but could not participate in the Trial Court and examine the witnesses or argue the matter. It was contended that though she was permitted to attend the suit proceedings in-person, it did not confer her with the authority of doing any such act which only a legal practitioner would do. The Trial Court had rightly overruled such objections, particularly with reference to the previous orders passed by the High Court. 17.1. Moreover, the errors on the part of the High Court in this case are not confined to the erroneous framing of the point for determination and erroneous application of the decision in Madupu Harinarayana (supra). In fact, reference to the previous orders dated 20.04.2018 and 14.12.2018 by the High Court in the background narrative had also been incomplete and rather incorrect. It is noticed that in paragraph 13 of the order impugned, the High Court read as if the previous orders ....