SURENDER RAJ JAISWAL Vs. VIJAYA JAISWAL

JUDGEMENT

(1.) The petitioners herein are defendant Nos. 2 to 7 in suit O. S. No. 281/2001 on the file of the XIII Additional Chief Judge, City Civil Courts, Hyderabad, filed by the respondent for partition of the joint family properties. The petitioners herein filed I. A. No. 42/2002 in the said suit under S. 151 Code of Civil Procedure to direct the respondent herein to engage an advocate to represent her or to appear personally and conduct the case by herself personally and cross-examine DW-1 and other witnesses that may be produced on behalf of the petitioners herein by prohibiting PW-1 the husband of the respondent who is her Power of Attorney Holder from doing such acts.

(2.) It is stated in the affidavit filed in support of the said Interlocutory Application that the respondent herein originally appointed an advocate to represent her case and the husband of the respondent herein was examined as PW-1 in the capacity of Power of Attorney Holder of the respondent and he was also cross-examined. After the death of the previous advocate namely, Sri Shankar Rao Bilolokar, she engaged another advocate namely, Sri T. V. S. Sastry and changed him and another advocate namely, Sri A. L. Raju was appointed. The vakalath given to her advocate was withdrawn and the respondent appointed her husband as her Power of Attorney to conduct the trial and to cross-examine the defendants. The husband of the respondent cross-examined the 1st petitioner herein. It is stated that since the dispute is of a partition suit, unhealthy atmosphere has been created during the cross-examination and the said Power of Attorney holder is not entitled to cross-examine under Order III, Rule 2 of Code of Civil Procedure. It is further stated that under Rules 32 and 33 of Civil Rules of Practice, when a party appears by an agent other than the advocate, the agent shall file an application before the court along with a copy of Power of Attorney with an affidavit permitting the person to appear and the court thereupon until and unless permission is granted, no appearance, application or act of the agent shall be recognized by the court. It is stated that the Power of Attorney holder of the respondent cannot be permitted to cross-examine PW-1 and he cannot do the act of an advocate. The Power of Attorney holder can only appoint an advocate and the advocates alone are entitled to practise and the Power of Attorney holders cannot be permitted to appear and play the role of an advocate in any case.

(3.) A counter has been filed by the husband of the respondent who is her General Power of Attorney stating that the application filed by the petitioners herein under S. 151 Code of Civil Procedure is not maintainable and the all other allegations contained therein are incorrect. It is stated that the advocate can be substituted by an agent of a party and the Power of Attorney holder is equally entitled to conduct the trial and also can cross-examine the witnesses. It is stated that Sri A. L. Raju, advocate, who is recently engaged by the respondent, is not totally acquainted with the facts and the respondent thought it fit to appoint her husband as her Power of Attorney to prosecute the case and accordingly she has given the Power of Attorney to her husband and the Court below granted permission to the Power of Attorney to cross-examine the witness (DW-1). Accordingly, the Power of Attorney cross-examined DW-1. It is stated that no unhealthy atmosphere or no indiscipline situation was created and there was no exchange of words during the course of cross-examination by the said Power of Attorney. The permission was granted to cross-examine the witness by the court and, therefore, the Power of Attorney holder is entitled to cross-examine and the said permission cannot be withdrawn without any reason whatsoever. It is stated that the Power of Attorney holder is a competent person to prosecute the ongoing case without any interruption, delay or loss of time and if the Power of Attorney Holder is not permitted to cross-examine the witnesses, the respondent will suffer serious and irreparable loss.