2024 CLS 10

Other citations: 2022 LHC 2578 = 2024 CLC 550

[Lahore High Court]

Before Abid Aziz Sheikh, J

Mst. Sana Aslam—Applicant

versus

Ali Imran and others—Respondents

Review Application No. 18987 of 2022 in Writ Petition No. 54935 of 2020, decided on 5^th April, 2022.

HEADNOTE

Civil Procedure Code (V of 1908) —

— O. III, Rr. 1, 2 & 4 — Limitations of recognized agents — Recognized agent cannot plead — Scope — Plain reading of Rule 1 of Order III, CPC shows that a recognized agent can appear, file applications or act in or to any Court on behalf of any party — Rule 2 of Order III, CPC refer to class of persons, who could be treated as recognized agents of parties, which include person holding power of attorney authorizing him to make and do such appearance, application and act on behalf of the parties — The words “appearance”, “application” and “act” used in Rules 1 and 2 of Order III, CPC are not defined therein — However, applying ordinary meaning to these words, the word “appear” means, to be present and to represent the party at various stages of litigation — The words “application” or “act” means necessary steps, which can be taken on behalf of the parties in the Court or in the offices of the Court in the course of litigation — However, the words “appearance”, “application” and “act” under Rules 1 and 2 ibid do not include pleadings — Thus, the recognize agent is entitled to appear, file application and act for party but he is not entitled to plead in Court — Such right is only available to pleader under Order III, Rule 4, CPC — When right of pleading is not available to a recognized agent, it follows that he has no right of audience in Court, as such right is a natural and necessary concomitant of the right to plead — The right to plead is within the exclusive domain of enrolled Advocates subject to rule of admission under the Legal Practitioners and Bar Councils Act, 1973 — The right to audience, right to address the Court, right to examine and cross-examine the witnesses are part of pleading with which Rules 1 and 2 of Order III, CPC does not deal at all — These rules are restricted to appearance, application and acts in connection with the litigation in Court, therefore, there is no manner of doubt that a recognized agent or Attorney of the applicant has no right to plead or audience before the Court. [Para. No. 5, 7 & 8]

Saleem Khan, Special Attorney of the applicant (Mst. Sana Aslam), in person.

Barrister Tayeeb Jan, Assistant Advocate-General, Punjab.

ORDER

Abid Aziz Sheikh, J:—This review application under Order XLVII, Rule 1 read with Section 114 of Code of Civil Procedure, 1908 (CPC) has been filed by applicant (Mst. Sana Aslam) through her real brother as Special Attorney (hereinafter referred to as Attorney) against the consolidated judgment dated 08.03.2022, passed by this Court.

2.           Relevant facts are that in family matter, this Court vide consolidated judgment dated 08.03.2022, upheld the concurrent findings of the learned two courts below and consequently dismissed Writ Petition No.54935/2020 (filed by applicant) and Writ Petition No.78269/2019 (filed by respondents). The applicant being aggrieved has filed this review application through her brother as her Special Attorney.

3.           The Attorney of the applicant insisted that he does not want to engage legal counsel but will argue the review application himself. Submits that Exh.P-6 is not a certified copy of Exh.D-1 or Mark-DA and it also does not show that dowry articles are received by the applicant, therefore, the impugned judgment being the result of patent error on the face of record, is liable to be set-aside. On the question that whether Special Attorney can appear in Court and argue the matter, he submits that being an Attorney of the applicant he has authority not only to file/present but also argue this review application before this Court.

4.           Heard. Before touching the merits of the case, first I would like to decide the legal question that whether the Attorney of the applicant has right of audience before this Court. Order III of CPC deals with “Recognized Agents and Pleaders”. For convenience, Rules 1 and 2 of Order III CPC are reproduced hereunder:-

“1. 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:

Provided that any such appearance shall, if the Court so directs, be made by the party in person.

2. Recognized agents.– The recognized agents of parties by whom such appearances, applications and acts may be made or done are—

(a) persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties;

(b) persons carrying on trade or business for and in 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.”

5.           Plain reading of Rule 1 of Order III CPC shows that a recognized agent can appear, file applications or act in or to any Court on behalf of any party. Rule 2 of Order III CPC refer to class of persons, who could be treated as recognized agents of parties, which include person holding power of attorney authorizing him to make and do such appearance, application and act on behalf of the parties. The words “appearance”, “application” and “act” used in Rules 1 and 2 of Order III CPC are not defined therein. However, applying ordinary meaning to these words, the word “appear” means, to be present and to represent the party at various stages of litigation. The words “application” or “act” means necessary steps, which can be taken on behalf of the parties in the Court or in the offices of the Court in the course of litigation. However, the words “appearance”, “application” and “act” under Rules 1 and 2 ibid do not include pleadings. Thus, the recognize agent is entitled to appear, file application and act for party but he is not entitled to plead in Court. Such right is only available to pleader under Order III, Rule 4 CPC. When right of pleading is not available to a recognized agent, it follows that he has no right of audience in Court, as such right is a natural and necessary concomitant of the right to plead.

6.           The learned Division Bench in the case of JOGESH CHANDRA MUKHERJEE (PLD 1953 Dacca 104) held that “a recognized agent is entitled to appear and act for a party but he is not entitled to a right of audience”. Same view was also expressed in the case of Abdul Wadud versus The State (PLD 1964 Dacca 543), where it is held as under:-

“It has thus been laid down therein that “a recognized agent can make an appearance or an application or act on behalf of a party but cannot plead in a Court and that under rule 4 of Order III of the Code of Civil Procedure he can appoint a Pleader but he has no right of audience”. This is binding upon me and I cannot accept the petitioner’s contention contrary thereto that he was entitled under the law to plead also on the strength of the power-of attorney held by him.”

7.           The right to plead is within the exclusive domain of enrolled Advocates subject to rule of admission under the Legal Practitioners and Bar Councils Act, 1973 (Act). The powers and duties of Advocates have also been prescribed under Volume V, Chapter 6, Part-B of Rules and Orders of the Lahore High Court, Lahore. In the case of Hari Om Rajender Kumar and others versus Chief Rationing Officer of Civil Supplies, A.P., Hyderabad (1990 AIR (A.P.) 340), Andhra Pradesh High Court while recognizing the exclusive right to plead and practice by Advocates, subject to law, held as under:-

“11. From the aforesaid provisions, it is clear that the ‘practice’ before the Courts, Tribunals and Authorities can be only by advocates and not by other persons unless specially authorised by the Courts in that behalf. It has to be noticed that Section 33 of the Act uses the word ‘practice’ while Section 32 uses the word ‘to appear’ in the Courts etc. The words ‘practice’ or ‘appear’ have not been defined in the Act. The special significance of the above words can be understood if one refers to the provisions of Order 3, Rules 1 and 2, Civil Procedure Code Order 3 Rule 1 says that any appearance, application or act in any Court required or authorised 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, a made or done by the party-in-person or by his recognised agent or by a pleader appearing, applying or acting, as the case may be, on his behalf provided that any Such appearance shall, if the Courts so directs be made by the party in person. Order 3, Rule 2 Civil Procedure Code refers to the class of persons who could be treated as recognised agents of parties by whom such appearances, applications and acts may be made or done and includes persons holding powers of attorney. It is, therefore, clear that the provisions of Order 3, Rule 1 which permit appearance applications or acting in any Court are subject to any other law and this includes the provisions of the Advocates Acts 1961 and in particular, Sections 32 and 33. It is further clear that so far as the signing or verifying or doing other acts are concerned, these could be done by the Power of Attorney duly authorised therefor but so far as appearing or practising in Court are concerned, they are subject to the provisions of Sections 32 and 33 of the. Advocates Act. The right to appear in Court and plead for a principal as also the right to practice in Courts have to be distinguished from the other acts, which a power of attorney can perform under order 3 Rule 1, Civil Procedure Code. So far as the right to appear and plead for a principal in Court as also the right to practice are concerned, these are governed by Sections 32 and 33 of the Advocates Act.”

8.           The right to audience, right to address the Court, right to examine and cross-examine the witnesses are part of pleading with which Rules 1 and 2 of Order III CPC does not deal at all. These rules are restricted to appearance, application and acts in connection with the litigation in Court, therefore, there is no manner of doubt that a recognized agent or Attorney of the applicant has no right to plead or audience before this Court.

9.           Though the Attorney of the applicant has no right of audience or to plead before this Court, however, this Court has carefully examined the contents of the review application. On merits I have noted that this Court vide consolidated judgment dated 08.03.2022 held that claim of the applicant in the suit for recovery of dowry articles was that dowry articles are in the custody of the respondents. In written statement, the respondents claimed that as a result of settlement between the parties through agreement dated 11.06.2017, dowry articles were returned. The respondents also produced an agreement dated 11.06.2017 as Exh.D-1 and Mark-DA. The applicant during cross-examination denied the said agreement, however, in her separate suit for dissolution of marriage, she herself produced agreement dated 11.06.2017 as additional evidence during the appeal, which was exhibited as Exh.P-6, to claim that no dower was paid at the time of marriage. In said Exh.P-6, it was also recorded that dowry articles were already received back and there is nothing due between the parties in this regard.

10.         In view of above, the learned courts below, as well as this Court held that once the applicant herself relied upon a document (Exh.P-6) to claim 50% of dower amount, then she cannot deny the other part of the same document dated 11.06.2017 to the effect that dowry articles were returned and nothing is due between parties. Mere fact that the agreement dated 11.06.2017 (which was produced as Exh.P-6), is not the certified copy of Exh.D1 or Mark “DA” but copy of Mark “A”, will not change the fate of the case, as in Exh.D6 also it is recorded that dowry articles are received back with no claim outstanding in this regard. No doubt the agreement dated 11.06.2017, produced by applicant as Exh.P6, is not signed by her but under the principle of estoppel when she herself produced said agreement in support of her claim for dower, the other part of the same agreement cannot be denied by her, which supports claim of respondent in agreement dated 11.06.2017 (Exh.D1 and Mark-DA), according to which dowry articles are returned and nothing is due between the parties in this behalf. Therefore, there is no error apparent on the face of record to review the impugned judgment dated 08.03.2022.

11.         In view of above discussion, this review application being meritless is dismissed.

Application dismissed