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IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.T. ASHA, J.
A. Sarojinidevi Represented by her Authorized Power Agent, A. Raja @ Rajaram - Petitioner
Versus
R. Arumugam - Respondent
CRP.Nos. 3326 & 3327 of 2018 & CMP.No. 18858 of 2018
Decided On : 25-03-2019
Civil Procedure Code,1908 - Orders III and 7 - Rules 1,2,14(1) and 16 - Section 151 - Advocates Act,1961 - Section 32 - Bar Councils Act, 1926 - Constitution of India,1950 - Article 227 - Challenge - Suit for partition and separate possession - Respondent in these Civil Revision Petitions had originally filed a Suit on file of Sub Court Attur - Thereafter matter has been transferred to III Additional District Judge Salem and re-numbered as - Suit was filed for partition and separate possession of schedule property into three equal shares and to allot one share of property to plaintiff and schedule property into two equal shares and to allot one separate share to plaintiff - Initially sisters of plaintiff were not made parties to partition suit and was instituted only against first and second defendants who are brothers of respondent herein - Thereafter revision petitioner herein who is one of sisters on coming to know about said suit and who has filed revision petition got herself impleaded in suit and thereafter filed a counter claim - Counter claim has been numbered as - It is seen that trial had commenced on itself - When evidence has commenced an application has been filed in by respondent/plaintiff for seeking leave to file documents under provisions of Order 7 Rule 14 (1) and Section 151 of Code of Civil Procedure - Whether a private person who is not an advocate has right to argue for a party - Whether agent has any interest adverse to party and if so not to grant permission - Held, Court should bear in mind that any person who is not an Advocate cannot as of right force himself to appear before a Court and claim to plead for another - Permission may however be granted by a Court taking into consideration several factors for such non-professional representation - In this connection Supreme Court while dealing with a criminal proceedings had occasion to consider this aspect - Supreme Court observed that If person who seeks to represent has poor antecedents or irresponsible behaviour or dubious character chance of receiving counter-productive service from such person cannot be ruled out - Judges may fail if a knave were to represent a party - Judges may suffer if quarrelsome ill-informed or blackguardly private representatives file arguments at Court - Likewise parties may suffer if their private representatives deceives them or destroys their case by mendacious or meaningless submissions and with no responsibility or respect for Court - Antecedents relationship reasons for requestioning services of private person and a variety of other circumstances must be gathered before refusal of permission - Ultimately permission was granted to third party to appear on behalf of party - In Judgment and another Vs District and Sessions Judge reported in Honourable Supreme Court following earlier Judgment and another reported in permitted a non Advocate to appear and plead on behalf of party - Full Bench Judgment of Madras High in Judgment in reported in was also considered - A reading of above Judgments would clearly indicate that following Rule 16 of Civil Rules of Practice Honourable Supreme Court as well as this Court has recognized and permitted a party appearing through a non Advocate provided permission of Court has been sought for - Only caution that has been sounded by Honourable Supreme Court is to verify whether agent has any interest adverse to party and if so not to grant permission - Judgment given on side of respondent namely and other reported in Rajasthan had taken a diametrically opposite view where it that power of attorney cannot be allowed to plead and argue before Court of law which right is exclusively vest with a person who has entered his names in Roll of Advocates of High Court maintained under Bar Councils Act - Judgment of Honourable Supreme Court in and another reported in quoted supra has been pronounced thereafter and has been quoted as a precedent as late as in year - However considering provisions of Order 3 Rule 1 any appearance by a party-in-person either by themselves or through power agent has been recognized by Code of Civil Procedure - Further Advocates Act also recognize this deviation from usual rule - Section 32 of Advocates Act reads as follows Power of Court to permit appearances in particular case - Notwithstanding anything contained in this chapter any Court authority or person may permit any person not enrolled as an advocate under this Act to appear before it or him in any particular case - Matter pertained to proceedings emanating under Criminal Procedure Code - Civil Revision Petitions Allowed
ORDER :
(Common Prayer: These Civil Revision Petitions filed under Article 227 of the Constitution of India to set aside the common fair order and decreetal order dated 10.08.2018 made in I.A.Nos.418 and 419 of 2018 in counter claim suit No. 152A of 2013 in O.S.No.152 of 2013 on the file of the learned III Additional District Court, Salem.)
The above Civil Revision Petitions are filed challenging the order passed by the learned III Additional District Judge, Salem in I.A. Nos. 418 and 419 of 2018 in counter claim suit No. 152A of 2013 in O.S. No. 152 of 2013 by the revision petitioner through her son her authorized power agent.
2. The facts in brief are as follows:
The respondent in these Civil Revision Petitions had originally filed a Suit in O.S. No. 149 of 1999 on the file of the Sub Court, Attur. Thereafter, the matter has been transferred to the learned III Additional District Judge, Salem and re-numbered as O.S. No. 152 of 2013. The suit was filed for partition and separate possession of the “A”schedule property into three equal shares and to allot one share of the property to the plaintiff and the “B” schedule property into two equal shares and to allot one separate share to the plaintiff.
3. Initially, the sisters of the plaintiff were not made parties to the partition suit and was instituted only against the first and second defendants, who are the brothers of the respondent herein. Thereafter, the revision petitioner herein, who is one of the sisters, on coming to know about said suit and who has filed the revision petition got herself impleaded in the suit and thereafter filed a counter claim. The counter claim has been numbered as O.S. No 152A of 2013. It is seen that the trial had commenced on 10.01.2018 itself. When the evidence has commenced, an application has been filed in I.A. No. 34 of 2018 by the respondent/plaintiff for seeking leave to file 8 documents under the provisions of Order 7 Rule 14 (1) and Section 151 of the Code of Civil Procedure.
4. In the affidavits filed in support of the said petition, the respondent/plaintiff had stated that all these documents had got mingled with ancestral documents and that he was unable to trace the same at the time of filing of the suit and only now the same has been traced. Therefore, he has come forward to seek permission to file the same. The suit was filed in the year 1999, whereas, the documents particularly at serial Nos. 6, 7 and 8 had come into existence much after the suit had been filed.
5. Despite this the said application was allowed, the matter was not challenged by the respondent. Thereafter, the trial continued and when the matter was posted for cross examination of the 9th defendant, the respondent/plaintiff had come forward with the two applications I.A.Nos.418 and 419 of 2018 on 10.08.2018. The said applications have been filed for reopening and recalling the evidence of PW1, stating that three documents had to be filed. In the affidavit filed in support of said petition, the only reason given is that these documents are germane to the issue on hand and is important for the case and therefore, he must be permitted to mark the documents and that apart in the affidavit, the respondent/plaintiff would also submit that he wanted to cross examine the scribe of the Will, of his father. In the plaint, there is no mention about any Will that his father had executed. The said application was opposed by the revision petitioner/9th defendant (incidentally the son of the 9th defendant and her power of attorney had argued before the learned District Judge) stating that it is only a mode of protracting the proceedings and the intention of the respondent/plaintiff was to ensure that the revision petitioner/9th defendant does not get any share in the property. Further, these documents have come into existence much after the suit and that the counter claimant is not a party to the documents. The revision petitioner/9th defendant had pointed out that the format in which the
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