Published on: August 08,2021 11:35 IST
By K. Manoggnya Reddy
Introduction
Order I and Order II of Code of Civil Procedure, 1908 discussed the parties of a suit and frame of suit respectively. Before proceeding to the next order regarding the filing of Suit and Institutions of a suit, Order III talks about recognized pleaders and agents.
Rule 1 of Order III of Code of Civil Procedure, 1908 first and foremost states about who can make an appearance in the court of law. It reads as:
“Appearances, etc., may be in person, by recognized agent or by pleader— Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf.”
- “Except where otherwise expressly provided”– This term has been classified as a key term of Order III as it has been noted by the court that these particular words refer to other laws that are not contained in the Code of Civil Procedure. However there have also been instances such as in the case of Nadella Satyanarayana Vs. Yamanoori Venkata Subbiah[1], where, as inclusive as the provision is stated, there have been some instances and orders which were found to be exceptions.
Explanation – Any act or appearance made in or to any court may have been made in person, or by a person who is authorized by the party to act on his behalf.
- Appearance, Application, or Act: The words “duly appointed to act” which were in the original rule were substituted by ‘appearance, application or act’. The word ‘appearance’ simply implies the appearance of the advocate, and the word act, which is used in the opposite sense than the words “Appearance” and “Application”, i.e. whereas these are used in a technical sense ‘act’ is used in a literal or in an ordinary sense referring to any type of action performed by the party.
What is the opinion of Supreme Court in this case?
The Supreme Court has held that a person holding the power of attorney is only acting on behalf of the principal so it makes no sense to bring him down instead of the principle according to the provisions of Rule 1 and 2 of Order 3 of the Code of Civil Procedure, 1908.
Here, the powers of the term “Acts” are only that which are mentioned under the provisions granted to the holder of the power of attorney.
Another noteworthy point is the word ‘act’ does not imply that the power of attorney holder can dispose of the principle. Since the presence of the principle will be needed in case of cross-examination and the sense of personal knowledge.
When or how is the Appearance by the party asked for?
The court cannot ask or is not justified to call for the party to appear personally in the court, except with exceptional reasons, under Rule 1, Order III of the Code of Civil Procedure, 1908.
Also, it is stated that the party is not bounded to personal appearance unless specifically directed. Having said that, the court has the power to call the parties when there is a requirement of their signatures or handwriting for the fulfillment of the provisos of Evidence Act.
Who can be called a Recognized Agent?
Under Rule 2, Order III of Code of Civil Procedure, 1908 states that –
“The recognized agents of parties by whom such appearances, applications, and acts may be made or done are—
- Persons holding power of attorney, authorizing them to make and do such appearances, applications, and acts on behalf of such parties.
- Persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications, and acts.”
Basically, under this rule it has been stated who can be a recognized agent:
- A person who holds the power of attorney,
- A person who is running the business or trade of the parties; which in turn authorizes them to represent the parties only when the parties are not resident within the jurisdiction of the court of law where the case is under the trial.
What is the Service of process of Agents?
The service process of an agent or pleader is a process that involves giving a party a notice of legal action to enforce jurisdiction. Although the Code of Civil Procedure 1908 did not deal with the meaning of a recognized agent, Order 3 Rule 2 does provide a broad guideline on who can be considered as such.
It says that anyone who is authorized and holds a Power of Attorney to act on behalf of a person can be considered a recognized agent of that person.
This is very straightforward as a person who has a power of attorney is bound by law to the extent of its powers. Sub Clause (b) of Order 3 Rule 2 states that anyone carrying out any trade or business under the name of another without being a resident of the place where the trade or business is carried out is not a recognized agent of the other.
Order 3 Rule 3(1)
“(1) Processes served on the recognized agent of a par ty shall be as effectual as if the same had been serve d on the party in person, unless the Court otherwise directs.”
This process is similar to the service of process on a pleader. The service of process on a recognized agent is the effective communication with the party otherwise directed by the court of law.
However, Order 3 Rule 3(2) states that the provisions of process on the agent are the same as those on the party.
“(2) The provisions for the service of process on a part y to a suit shall apply to the service of process on his recognized agent.”
Who is defined as a pleader?
A pleader is defined as someone who can plead in a court of law regarding another in any argument or a case.
Section 2(15) of Code of Civil Procedure, 1908 defines Pleader:
(15) “pleader” means any person entitled to appear and plead for another in Court, and includes an advocate, a vakil and an attorney of a High Court.”
He is the one who, during litigation, on various stages proceeds to represent his client to properly present his case to the court of law. The definition of a pleader has been evolving as the law has changed.
Through various decisions, the courts have restricted or increased the scope of the recognition of certain individuals as pleaders of various parties in court.
The appointment and recognition of the rights of the parties are the responsibility of the pleaders. The role of the pleaders is to represent the parties during a court proceeding.
The importance of having a person who is well-equipped to handle the duties of a pleader is paramount. There are various grounds on which a person must be qualified to be a pleader. Which will be discussed in the following topics.
What is the Service of process of Pleader?
A pleader as according to Section 2(15) of Code of Civil Procedure, 1908 is a person who is entitled to plead in a court of law is called a pleader. In India, advocates and certain other individuals can also qualify as pleaders.
Section 2(7) of Code of Civil Procedure, 1908 states –
“(7) “Government Pleader” includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader;”
Which means that any person who is appointed by the state for the duties of a pleader is a government pleader, and the same will be considered for a pleader working under a government pleader.
Usually, the party is served in person. This means that the person providing the service, i.e., the party should be present at the time of the proceedings.
However, Order 3 Rule 5 of Code of Civil Procedure, 1908, specifies that if any process is serviced to the pleader will indicate that the communication has been effective.
How do you appointment a Pleader?
As a part of the general rule, someone cannot act on his own unless he has been assigned to do so, or until he is authorized. And coming to the termination, one cannot be freed from his obligations until he has completed or performed his obligations.
Under Section 4(5) of Order III of Code of Civil Procedure, 1908:
‘(5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in court a memorandum of appearance signed by himself and stating— (a) the names of the parties to the suit, (b) the name of the party for whom he appears, and (c) the name of the person by whom he is authorised to appear: Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party.”
No pleader shall act for a person in any court unless he has been appointed for that purpose by a document in writing and under a power of attorney.
Every appointment shall be deemed to be final until the leave of the Court has been decided. The case may be filed in Court, or until death, or until all proceedings in a suit have been concluded.
With a Sub-Section directing the pleader, saying that he is deemed to follow during the proceedings of a suit. And it has also provided a proviso saying that anything regarding the sub-rule will not be applied to any counselor-at-law who is pleading on his party or for any pleader/counselor-at-law who is appointed by the court to act on behalf of a party.
In the case of Baru Singh Vs Babu Ram Sharma[2] it was held that before a pleader can act for a client, he or she must first have been authorized to do so by a lawyer. This is done in writing and obtain a signed vakalatnama when it is to be submitted in a court of law.
When it was of Purushottam Umedhbhai & Co. Vs Manilal & Sons[3], in this case, the pleader did not file a proper warrant of authority. This is only an irregularity that can be cured by the submission of a legitimate document in a future resolution.
Sub-rule (3) of Section 4 of Order III states –
“(3) Nothing in sub-rule (2) shall be construed— (a) as extending, as between the pleader and his client, the duration for which the pleader is engaged, or (b) as authorising service on the pleader of any notice or document issued by any Court other than the Court for which the pleader was engaged, except where such service was expressly agreed to by the client in the document referred to in sub-rule (1).”
It was held in the case of Nawabzada Mohd IshaqKhan Vs Delhi Iron and Steel[4] that the sub rule (3) clarifies and provided the limits on the appointment of the pleader.
How can a termination take place?
To terminate the appointment of a pleader the leave of the court is a necessary element, and such cannot be considered as a mere formality.
So, the pleader has no grounds for the determination of his appointment, and that it shall take place after a reasonable and justified notice sent to the client.
When it comes to the case of civil suits such as Ratnagiri Gas and Power Pvt. Ltd Vs RDS Projects Ltd[5], the Court will deal with the appointment of an advocate by a party as a representative even after he submitted a termination of his appointment to the court. In case of a government forfeit, it is not binding since the court is a separate legal entity.
How are the distinctions made in the case of pleaders?
In the present rule, there has been a distinction made between pleaders, such as:
- Pleader appointed to act in the court of law,
- Pleader appointed for pleading only,
- Pleader appointed to plead by a pleader who was appointed to act in the court of law.
Pleader appointed to act in court:
In the case of Saraswati Vs Tulsi,[6] It is stated that a pleader cannot act for any person in court unless he is appointed by that person or his recognized agent.
It is only if the person has been appointed by a party by writing and is signed by will he be ‘duly appointed’.
Pleader engaged for Pleading only:
In case of Saraswati Vs Tulsi,[7] It was held that- A pleader engaged for the sole purpose of pleading is required to submit a Memorandum of Appearance signed by himself.
Pleader engaged to plead by a pleader duly appointed to act in court:
The Supreme court said that:
A pleader may appear for a party to appeal on behalf of another pleader, but he cannot do so with no written document in the manner prescribed by this Rule.
Also, he cannot present an appeal unless he has a written document in his favour implemented in a way prescribed by the rule, so he won’t be able to present an appeal as that action amount to ‘acting’ and not that of ‘pleading’.
What are the amendments made by the Court of law up until now?
The following amendments were made by the high courts of Bombay in the case of Oil and Natural Gas Commission Vs Offshore Enterprises Inc.[8], and under Order III of Code of Civil Procedure the High courts of Gujarat and Madhya Pradesh respectively from which the inference was that the recognized pleaders are:
- Someone who holds the power of attorney of the party they are representing.
- If a person is carrying out the business of the party when no one is specifically appointed to represent them, he can be an agent.
Now let’s discuss the specific powers of pleaders according to few decided case laws:
What is the relation between The Consumer Protection Act, 1986 and Order III?
In the order given by SC for the case of Ethiopian Airlines Vs Ganesh Narain Saboo, 2004[9] it has held that ‘Consumer Protection Act,1986 allows its parties to be represented by agents’, This has been taken into consideration so that the parties can be ensured to not have any problems with any fees which are usually high of to hire a lawyer.
What is the distinction between Special and General Power of Attorney?
The Madras HC has held in the case of Basile Irou Vs International Ayurvedic Health Centre[10], that – The attorney has complete power to execute and defend all actions, claims, and demands made on behalf of the principal is a general power of attorney, not a special one.
The action of a power of attorney in connection with an eviction case is valid.
Does a transfer case by pecuniary Jurisdiction need to obtain leave again?
The City Civil Court of Madras has held in the case M/S. J.VS Corporation Vs Grinder Care Enterprises P. Ltd.[11], that if a case is transferred due to availing pecuniary jurisdiction, the leave of the Court need not be obtained again.
The leave obtained by the agent holding power of attorney for maintainability of a suit is more than enough for further actions required.
Up until now are few of the case laws giving insights into the powers inferred by the pleader. The next topic will be dealing with the appointment of pleader and his services process etc.
What is the position of an Advocate when around a pleader or agent?
An advocate is not a mere agent or power-of-attorney, just by acting in court and by practicing the profession of law. He also cannot decline to accept a brief without a proper reason, such as on the grounds of the fee. It is entirely dependent on the client and his choice.
It was held in the case of Jamilabai Abdul Kadar Vs Shankerlal Gulabchand & Ors,[12] – An advocate’s legal capacity to practice law in court and represent his client is not derived from any contract. Instead, it is based on his status as an advocate. His duties are tripled, which includes the client, the court, and the public. He is not an ordinary agent.
Similarly in the case of Hirabai Gendalal Vs Bhagirath Ramchandra and Company, [13] It was held that an advocate who was on the original site of the high court is not required to file a document empowering him to act in a mofussil court if he so chooses.
Conclusion
The Code of Civil Procedure, 1908, Order III deals with both pleaders and recognized agents. The rules are divided into 6 sections.
- The first rule talks about the appearances by principle, agents, or pleaders. The rule talks about the various elements that make up an act, appearance, and execution/application. It also explains about agents and pleaders along with the procedure involved in appointing the agents and leaders.
- The second rule deals with the concept of a recognized agent. This rule provides a detailed explanation of the agent’s status.
- The third rule is called ‘service of process on appointed agent’. This rule talks about the various aspects of the process of service process on an appointed agent.
- The fourth rule provides a set of criteria for the appointment of a pleader.
- The fifth rule talks about the service process of the pleader,
- The sixth rule talks about the agents who can take up service even though they are not appointed as one.
This rule talks about the duties and powers of a leader, an agent, or both. It also states the duties and responsibilities of these individuals. This rule is a mini rulebook that the advocates and pleaders follow. It has been interpreted by case laws to give a more precise meaning.
Order III of the Code of Civil Procedure states that a court has the power to appoint a party’s agent if the party cannot do it on their behalf, and the order also asked the agents to accept service.
But the rule does not specify the process of choosing the agent and it tends to have a lot of issues in day-to-day application. If the court appoints an incompetent agent, then the parties will suffer. Moreover, this would be considered as injustice on the part of the court.
For this one of the recommendations would be to add a system where there would be monitoring of the pleadings and a system where the cases would be kept in check so that the pleaders would take the case seriously.
References
- Ramachandran, VS (1979). Journal of the Indian Law Institute, 21(4), 600-607. Retrieved August 3, 2021, from .jstor.org
- Tupper, L. (1908). The Indian Code of Civil Procedure. Journal of the Society of Comparative Legislation, 9(1), 69-78. Retrieved August 3, 2021, from jstor.org
- Nadella Satyanarayana Vs. Yamanoori Venkata Subbiah, AIR 1957 AP 172. ↑
- Baru Singh (Deceased By L.R.) And … Vs Babu Ram Sharma on 22 August 1996, AIR 1997 AII 185 ↑
- Purushottam Umedhbhai & Co. Vs Manilal & Sons, AIR 1961 SC 32, 1961 SCR (1) 982 ↑
- Nawabzada Mohd IshaqKhan Vs Delhi Iron and Steel, AIR 1979 All 366 ↑
- Ratnagiri Gas and Power Pvt. Ltd Vs RDS Projects Ltd, (2013) 1 SCC 524 ↑
- Saraswati Vs Tulsi AIR 1971 Del 110 ↑
- Saraswati Vs Tulsi AIR 1971 Del 110 ↑
- Oil and Natural Gas Commission Vs Offshore Enterprises Inc., AIR 1993 Bom 217, 1993 (2) BomCR 618, (1993) 95 BOMLR 396, 1993 (1) MhLj 243 ↑
- Ethiopian Airlines Vs Ganesh Narain Saboo, Civil Appeal No. 7037 of 2004 ↑
- Basile Irou Vs International Ayurvedic Health Centre, 2012 SCC OnLine Mad 190 : (2012) 1 MWN (Civil) 809 : (2012) 1 LW 545, on 12 January 2012. ↑
- M/S. J.VS Corporation Vs Grinder Care Enterprises P. Ltd., 2011 SCC OnLine Mad 942 : (2011) 3 MWN (Civil) 361 : (2011) 4 LW 755 at page 362, on 28 July 2011 ↑
- Jamilabai Abdul Kadar Vs Shankerlal Gulabchand & Ors AIR 1975 SC 2202, 1975 SCR 336 ↑
- Hirabai Gendalal Vs Bhagirath Ramchandra and Company AIR 1946 Bom 174 ↑