KAMALA BAI Vs. DHANANJAY S NAIK

JUDGEMENT

(1.) The petitioners in both the revision petitions are defendants 2 and 3 in suit O.S.No. 1609 of 1983 pending on the file of the III Additional Judge, City Civil Court, Secunderabad which was filed by the second respondent herein. The first respondent herein is the first defendant in the suit. Originally the petitioner i.e. D2 and D3 were represented by the first defendant as a General Power of Attorney holder. Later they cancelled the General Power of Attorney executed in favour of the first defendant and executed another G.P.A. on13.12.1991 in favour of one Sri Srikrishna Govind Naik. The said General Power of attorney filed an affidavit on 1.4.1992 in the trial court as contemplated under Rule 32 of the Civil Rules of Practice but no orders were passed by the Court granting permission to the said G.P.A. to represent defendants 2 and 3. Later, on 9.7.1992 the first defendant filed an application I.A. 739 of 1992 to restrain the said Srikrishna Govind Naik from representing the second defendant. He has also filed another application T.A.No.420 of 1992 under Order 12 Rule 6 C.P.C. to pass a preliminary decree in terms of the admission made in the pleadings. The lower court disposed of both the applications by a common order on 12.8.1992 by allowing I.A.739 of 1992 filed by the first defendant to restrain the G.P.A. from representing the second defendant and dismissing I.A.No. 420 of 1992. C.R.P.No. 2632 of 1992 is filed against the order in I.A.No. 739 of 1992 whereas C.R.P.No. 2633 of 1992 is filed against I.A. No.420 of 1992.

(2.) The main question that arises for consideration is whether the second G.P.A. holder i.e. Srikrishna Govind Naik is authorised to represent defendants 2 and 3 in the suit. Rule 32 Sub-Rule (1) of Civil Rules of Practice provides that when a party appears by any agent, other than an advocate, the agent shall, before making or doing any appearance, application, or act, in or to the court, file in Court the power of attorney, or written authority thereunto authorising him or a properly authenticated copy therefor toghether with an affidavit of the said authority still subsisting etc. Sub-Rule(2) reads that the Judge may thereupon record in writing that the agent is permitted to appear and act on behalf of the party, and, unless and until the said permission is granted, no appearance, application, or act, of the agent of the agent shall be recongnised by the court. Therefore, two things are contemplated (1) an affidavit must be filed by the agent together with the power of attorney or written authority or an authenticated copy thereof and (2) the Judge may thereupon grant permission in writing. The lower court held that since the G.P.A. did not file an application seeking permission he can not to represent. It is not necessary to file a petition in view of the requirement of Rule 32 of Civil Rules of Practice that an affidavit must be filed along with the original G.P.A. or an authenticated copy thereof must be filed in the court. In this case it is stated that G.P.A. has filed an affidavit but he has filed only a xerox copy of the G.P.A. Since it is not an authenticated copy, the requirement of that rule to that extent is not satisfied. Sub-Rule (2) contemplates that the Judge should record in writing that the agent is permitted to act on behalf of the party and until and unless the said permission is granted, no appearance shall be recognising by the court. In the present case, admittedly, the Judge did not pass any order recognising the agent to appear on behalf of the party. The learned counsel for the petitioners contended that it is only a technical rule of procedure and therefore the court in order to do justice to the parties should not rigidly enforce the Rule. But the object as could be seen from the rule itself is that when a party appears by any agent other than an advocate, he should file an affidavit along with the G.P.A. which is intended to safeguard the right of the party so that the court can ascertain whether the party is represented by G.P.A. Therefore, unless the requirement of the rule is satisfied, the G.P.A. cannot act on behalf of the party.

(3.) The learned counsel for the petitioners further contended that even now the court could give permission to the second G.P.A. to represent the defendants 2 and 3. If the requirements of the rule are satisfied, i.e. filing an affidavit together with a copy of the G.P.A. or an authenticated copy of the G.P.A. It is for the court to grant permission in writing or not to grant the same. It is also represented by the learned counsel for the respondent at another suit is filed challenging the General Power of Attorney executed by the second defendant and third defedant in favour of the present G.P.A. But, unless, the G.P.A. is set aside by the judgment in the suit or any order is passed prohibiting the G.P.A. from representing D2 and D3, the G.P.A. will be competent to act on that, provided the court grants permission under Rule 32 of Civil Rules of Practice after the requirements are satisfied. As I said, it is the discretion of the trial court and the court may pass appropriate orders either permitting the G.P.A. to represent D2 and D3 or not.