TaxTMI 
TaxTMI 
2022 (11) TMI 983
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....ent 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 aforesaid, we may take note of the relevant backgroun....
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.... 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 husband in person to conduct the suit and she in support of her contenti....
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....nterest 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 out of the orders passed by the III Additional Senior Civil Judge, Vijayawada, allowing the applications filed b....
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....unsel 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 opposed the petition stating that, as per Order 3 rule 2 CPC appearance maybe in person or by recognized agent or by a pleader, which is once again is subject to the personal knowled....
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....as 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 General Power of Attorney certainly authorises the holder to plead on behalf of the 1st respondent. 9. Merely because the wife happens to be a lawyer, there is no prohibition in law for her to plead the case of her husband by holding a general power. The bar ....
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....sonal 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 1st 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 both as a GPA and in her professional capacity, but did not say that she cannot in her personal capacity conduct the suit proceedings. Hence, she being the GPA of her husband is competent to do the suit in person that includes the cross examination of witnesses. 4. Heard both sides. 5. Both the pa....
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....spondent was permitted to represent the 1st 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 1st 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 person intending to cross examine the witnesses by herself be curtailed? In fact the principle held under ref.(1) above judgment aptly applies to the case on hand, because in this case also, like in the above referred case, the GPA holder and the plaintiff are husband and wife, as such this court opines that, unless the court opines to withdraw or cancel the ....
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....upon, 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 by the Court below, forcing the first defendant to come up with the above three revisions. The objections of the learned counsel for the petitioner therein, were two fold, namely (i) that the wife-cum-General Power agent of first respondent also happens to be a lawyer, but she can either appear as a counsel or as a power agent and not as both and (ii) that the address for service should be intimated by the first r....
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.... 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 an advocate entered in any roll under the provisions of the said Act. Section 2(15) of the CPC defines "Pleader" to mean any person entitled to appear and plead for another in court. *** *** *** 18. After referring to the provisions of Advocates Act and the Rules made by the High Court and the circulars issued, this Court in Madupu Harinarayana's case (supra) held that all the pleadings in the proceedings should be made by....
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..../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 revisions shall stand closed." (emphasis supplied) 5. A long deal of arguments has been advanced before us in these appeals preferred against the order so passed by the High Court. It has been contended on behalf of the appellant that the High Court has totally misdirected itself and has failed to consider that the issue in question relating to the appearance of wife of the appellant as his GPA holder stood concluded in these proceedings by virtue of the previous orders of the High Cou....
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....) 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 those principles have relevance to the doctrine of precedents but have no application to the doctrine of res judicata. 8. It has, however, been strenuously argued by the learned senior counsel for the contesting respondent that the said orders dated 20.04.2018 and 14.12.2018 cannot operate as res judicata because therein, the Court had misapplied the procedural law and had not taken into consideration the impact of Section 32 of the Act of 1961. In this regard, a 3-Judge Bench decision of th....
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.....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 allowed by law, each citing for this purpose the text of Katyayana, who escribes the plea thus: "If a person though defeated at law sue again he should be answered, 'You were defeated formerly. This is called the plea of former judgment." [See "The Mitakshara(Vyavahara)," Bk. II, ch. I, edited by J. R. Gharpure, p. 14, and "The Mayuka," Ch. I, sec. 1, p. 11 of Mandlik's edition.] And so the application of the rule by the Courts in India should be influenced by no technical consideration of form, but by matter of substance w....
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.... 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 all courts, and it is immaterial in what court the former proceeding was taken, provided only that it was a court of competent jurisdiction, or what form the proceeding took, provided it was really for the same cause" (p. 187, paragraph 362). "Res judicata", it is observed in Corpus Juris, "is a rule of universal law pervading every well regulated system of jurisprudence, and is put upon two grounds, embodied in various maxims of the common law; the one, public policy and necessity, which makes it to the interest of the State that there should be....
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....t 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 issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue...." (emphasis supplied) 9.4. It hardly needs any over-emphasis that but for this doctrine of res judicata, the rights of the persons would remain entangled in endless confusion and the very foundation of maintaining the rule of law would be in jeopardy. Even if this doctrine carries some technical aspects, as explained by this Court in Daryao (supra), it is in the interest of public at large that a finality should attached to the binding decis....
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....e 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, if rendered by a Court of competent jurisdiction. Such a binding decision cannot be ignored even on the principle of per incuriam because that principle applies to the precedents and not to the doctrine of res judicata. 10.1. In true application of these principles, it would appear that the orders passed in these matters by the High Court on 20.04.2018 and 14.12.2018, as regards the issue of participation of the wife of the appellant in these proceedings as a GPA holder of the appellant, remain binding on the parties and cannot be ignored. In other words, this issue concerning the capacity of the wife....
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....er 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 same parties where the cause of action is the same, for the expression "the matter in issue" in Section 11 of the Code of Civil Procedure means the right litigated between the parties i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res j....
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....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 Section 4(1) and the declaration under Section 6 would not arise. Considered from this perspective, original direction itself was erroneous and the later direction with regard to delivery of possession of the land, in consequence, was not valid in law....." (emphasis supplied) 11.3. Thus, in the case of Mathura Prasad (supra), this Court observed that when the earlier decision on the question of jurisdiction was erroneous, it could not be treated as conclusive, else it would assume a special status to rule of law applicable to the parties relating to the jurisdiction, in derogation of the rule declared by the legislature. In All....
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....nt 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 the said orders by the High Court stand at conflict with any statutory bar or prohibition or they relate to any such mandatory provision of law which is going to be violated. 14.2. Apart from the above, we are clearly of the view that even if it be assumed for the sake of arguments that there had been any error in the previous orders dated 20.04.2018 and 14.12.2018, those orders, having been rendered between the same parties and on the same issue of appearance of the GPA holder in the same proceedings, indeed operate as res judicata. 14.3. In the peculiar facts and circumstances of the present case, where the only fortuitous event had been that wife....
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....r 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. If a person practices in any Court without any such authority, and without such an enrolment, it would be committing an offence under Section 45 of the Advocates Act punishable with imprisonment for a term which may extend to six months. Therefore the GPA Sri T.D.Dayal is not entitled to appear and argue for the Appellant. He has no right of audience in this case or any other case." 15.2. With respect, we are unable to endorse the approach of the High Court in this matter, particularly when reliance has been placed on the decision in the case of Madupu Harinarayana (supra) without taking note of the basic facts and the background aspects in which the said decision was ....
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....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 distinction of the points arising in the said case from the point arising before the High Court in the present case. In Madupu Harinarayana (supra), the point for determination was as to whether a GPA holder, who was not enrolled as an advocate, was having a right to appear and plead before the Court, particularly when he has been found to be involved in filing frivolous cases and making reckless remarks against the entire justice delivery system. In contrast, the point for determination in the present case before the High Court was as to whether the wife of the appellant, being his GPA holder and having been permitted to appear as such despite having been enrolled as an advocate during t....
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....he 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 dated 20.04.2018 and 14.12.2018 stopped at observing that the two capacities, of GPA holder and advocate, cannot be combined. However, further to that, in the said orders dated 20.04.2018 and 14.12.2018, the High Court had precisely noticed that the wife of the appellant was appearing only as a power agent and the orders of the Trial Court were confirmed while clarifying that she would appear in-person as a power agent and will not appear in her professional capacity. This later part of the substance of the both the orders dated 20.04.2018 and 14.12.2018 appears to have not gone into the requisite consideration of the High Court. 18. Thus, it is apparent that the High Court has viewed t....