Allowed

Lakshmi Suri, v. the Unon of India, rep. by its Secretary

Telangana HC24 Jun 2013WP/25865/2005

Case brief

AI extract

What is this about?

This order permits the General Power of Attorney holder of the petitioner to appear and address arguments in the writ petition, holding that Section 32 of the Advocates Act allows the court to grant such permission based on the individual's capabilities and the facts of the case.

What did the court decide?

The Writ Petition Miscellaneous Application (WPMP.No.23775 of 2006) is allowed, permitting the G.P.A. holder to appear and act on behalf of the petitioner.

Lakshmi Suri, Vs the Unon of India, rep… — Pension and Retirement Benefits | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE G.CHANDRAIAH

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%21.12.2010

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WPMP.NO.23775 OF 2006 IN WP.NO.25865 OF 2005 OF 2008

LAKSHMI SURI,

PETITIONER

And

THE UNIONOF INDIA REPRESENTED BY ITS SECRETARY, MINISTRYOF CONSUMER AFFAIRS, FOOD AND PUBLIC DISTRIBUTION, NEW DELHI AND TWO OTHERS.

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RESPONDENTS

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Counsel for the petitioner: T.D.Dayal, G.P.A. holder.

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Counsel for the respondents : Sri A. RamaKrishna Rao,

< Gist

Ø Head Note. Ø

?Cases Referred:

1. AIR 2000 SC 735 2. AIR 1990 AP. 340 3. AIR 1978 SC 1019 4. (1999)3 SCC 614

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THE HON’BLE SRI JUSTICE G.CHANDRAIAH

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WPMP.NO.23775 OF 2006 IN W.P.NO.25865 OF 2005

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O R D E R

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Heard both the counsel.

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2. This petition is filed to permit one Sri T.D.Dayal, holder of General Power of Attoney of the writ petitioner – Lakshmi Suri, to appear and act before the court on behalf of the writ petitioner.

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3. (Brief facts and history of the case)

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The writ petitioner is alleged to be the second wife of one late Amarnath Suri, who retired as Assistant Manager, Food Corporation of India Limited, Sanathnagar Office, Hyderabad. Her case is that the first wife – Smt. Santoshi Kumari had no issues. Late Amarnath Suri had married her on 18.4.1983 according to Hindu rites and begot three children whose names ar Raghunath Suri, Srinath Suri and Sainath Suri. The said Amarath Suri expired on 18.12.1997 and since then, the first wife Santhoshi Kumari, is receiving entire family pension. The further case of the petitioner is that as per the judgment of the Apex Court in RAMESHWARI DEVI vs. STATE OF BIHAR^[1] , the children of the second wife are also entitled to receive appropriate share in the family pension. As the same is not being paid to her children, she filed representations to the authorities concerned and eventually filed writ petition before this court in W.P.No.22212/2000 seeking a direction to grant appropriate share in the family pension. By order dated 3.7.2001 a learned single Judge of this court disposed of the writ petition with the following direction:

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“This court cannot go into the details of the marriage of the petitioner. Hence, the respondent authorities are

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directed to dispose of the representation of the petitioner and dispose of the same in accordance with law.”

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4. Aggrieved by the same, the writ petition carried the matter in writ appeal before this court in W.A.No.2266/2003. By judgment dated 4.12.2003, the writ appeal was disposed of with the following direction:

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“We dispose of this writ appeal modifying the order passed by the learned single Judge, with a direction to the respondents that on the appellant submitting a fresh representation addressed to the newly added respondent viz., Regional Direction (Food), Southern Region, 5/54, Greams Road, Chennai, the same will be dealt with expeditiously and necessary enquiry/investigation will take place at the Regional Office at Hyderabad after notice to the appellant. Necessary action on the representation of the applicant shall be taken within four months from the date of receipt of representation from the appellant. Liberty is reserved to the appellant to produce all the records etc., during the course of enquiry.”

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5. Pursuant to the above direction, the writ petitioner made representations and eventually the Department of Pension and Pensioner’s Welfare, by the impugned memorandum No.1/16/96 dated 2.12.1996 though acknowledged the legitimacy of children born out of void married, at paragraph no.4, clarified that such children will have no claim whatsoever to receive family pension as long as the legally wedded wife is the recipient of the same. The said paragraph no.4 of the impugned memorandum is extracted as under for better appreciation:

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“The right of such children (children of the second wife) require to be protected and will accrue accordingly. It is, therefore, clarified that pensionary benefits will be granted to children of a deceased Government servant/pensioner from such type of void marriages, when their turn comes in accordance with Rule 54(8) of CCS (Pension) Rules. It may be noted that they will have no claim whatsoever to receive family pension as long as the legally wedded wife is in receipt of the same.”

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6. Challenging the above portion in the impugned order, the present writ petition is filed.

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7. This court by order dated 24.1.2006 disposed of the writ petition and the relevant portion of the order is as under:

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“Even according to the petitioner, she is the second wife of late Amarnath Suri. It is true that the Supreme Court held in the Judgment referred to above that though the second wife, as such, may not be entitled for any share in the retirement benefits of a deceased employee, the illegitimate children born to the said second wife are entitled for the same. The question as to whether the petitioner was married at all, to the said employee is a matter, which needs to be decided in proper proceedings initiated before appropriate Court. This court cannot undertake adjudication of such disputed questions of fact.

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Hence, the writ petition is disposed of leaving it open to the petitioner or her children to approach the Civil Court and seek necessary relief in the form of succession certificate or declaration as regards their rights to be paid part of pension or other death-cum-retirement benefits of late Amarnath Suri. It is needless to observe that respondents 1 and 2 shall be under obligation to enforce the decree that may be granted in such proceedings. There shall be no order as to costs.”

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8. Aggrieved by the above order, the petitioner filed writ appeal in W.A.No.153/2006. By judgment dated 28.7.2006 while setting the aside the order of the learned single Judge, the Division Bench allowed the appeal and remitted the matter back. The relevant portion is extracted as under:

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“In our opinion, dismissal of the writ petition filed by the appellant is legally unsustainable and the order under challenge is liable to be set side, because the learned single Judge did not go into the legality of paragraph 4 of the Office Memorandum No.1/16/96, dated 2-121996, the validity of which was specifically challenged in the writ petition. Whether or not the appellant’s challenge to paragraph 4 of the office memorandum is legally tenable and whether she is entitled to seek a direction on behalf of her children for apportionment of family pension and other retrial benefits payable to the family of late Amarnath Suri are questions which ought to have been gone into and decided by the learned single Judge in the light of the judgment of the Supreme Court in Rameshwari Devi v. State of Bihar (AIR 2000 SC 735). Non-adjudication of these important issues by the learned single Judge has resulted in failure of

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justice.

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We are further of the view that the Civil Court cannot adjudicate on the legality and vires of office memorandum dated 2-12-1996 and, therefore, the appellant should not have been non-suited on the ground of availability of alternative remedy of civil suit.

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We would ourselves have gone into the legality of paragraph 4 of Office Memorandum No.1/16/96, dated 2-12-1996 and other issues raised in the writ petition, but keeping in view the fact that adjudication by the Division Bench would deprive either party of its legitimate right to avail the remedy of appeal, we have though it proper to refrain from adopting that course.

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In the result, the appeal is allowed. The order of the learned Single Judge is set aside with the direction that Writ Petition No.25865 of 2005 be listed for fresh adjudication before the learned Single Judge.

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As a sequel to disposal of the appeal, all the miscellaneous applications filed by the appellant in the writ appeal shall stand disposed of.”

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9. Accordingly, the writ petition is listed for disposal.

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10. Only questions that fall for consideration are (1) whether the sons of second wife are entitled to proportionate share in the family pension of deceased Amarnath Suri, who worked in the respondent – corporation, when the first wife is receiving the family pension and whether such a challenge to paragraph no.4 of the impugned order is tenable and (2) whether the second wife is entitled to file an application on behalf of her children, seeking apportionment of family petitioner and other retrial benefits payable to the family of late Amarnath Suri?

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11. Now coming to the present petition, the GPA holder of the writ petitioner is seeking permission to appear before this court on behalf of the writ petitioner. The G.P.A. holder appeared before this court and relying on Order 3, Rules 1 and 2, Rule 32 of the Civil of Rules of Practice and Section 32 of the Advocates Act, sought permission to represent on behalf of the petitioner and advance arguments on the merits of the case. He further bringing to the notice of this court, copy of the order dated 15.6.2006 passed

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by the Division Bench in WAMP.No.684/2006 in WA.No.153/2006,submitted that he was permitted by the Division Bench in the appeal to appear on behalf of the appellant.

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12. The senior standing counsel for the respondents had taken an objection with regard to the audience being given to the G.P.A. holder. Relying on the judgments reported in HARI OM RAJENDER KUMAR v. CHIEF RATIONING OFFIER OF CIVIL SUPPLIES, A.P .^[2] , HARISHANKAR v. GIRDHAR I^[3] and T.C.MATHAI v. DISTRICT & SESSIONS JUDGE^[4] the learned counsel contended that unless the court grants permission to appear and argue, on being satisfied with regard to the level of equipment of such a person for pleading on behalf of the party, the G.P.A. holder cannot argue the matter before the court.

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13. This court earlier by order dated 21.4.2008 requested the senior counsel Sri D.V.Sitarama Murthy to assist the court on the issue “Whether person who is not the petitioner nor a party to the proceedings, can plead on behalf of another, who is such a party, and the scope and ambit of Order 3, Rule 1,CPC and Sections 32 and 33 of the Advocates Act, 1961.” Subsequently, Sri D.V.Sitarama Murthy, is appointed as Advocate General. The counsel appearing on his behalf bringing to the notice of this court an unreported decision of a Division Bench of this court in C.R.P.NO.3228/2003 dated 28.7.2006 submitted that unless the G.P.A. holder, who is alleged to have been authorized by the writ petitioner to appear and put forth the arguments on her behalf, obtains permission from the court by filing an affidavit by the party, he cannot be permitted to appear and argue the matter.

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14. Before considering the above rival contentions, certain facts relating to the interlocutory orders needs to be noticed.

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15. As already noted above, this court by order dated 21.4.2008 passed the following docket order:

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“Sri D.V.Sitarama Murthy, the learned counsel, is requested to assist the court on the issue Whether person who is not the petitioner nor a party to the proceedings, can plead on behalf of another, who is such a party, and the scope and ambit of Order 3, Rule

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1,CPC and Sections 32 and 33 of the Advocates Act, 1961.”

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16. Challenging the above docket order, the G.P.A. holder of the petitioner filed writ appeal in W.A.No.657/2008. By order dated 7.7.2008 this court dismissed the writ appeal for default. The said order is as under:

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“When the appeal was called out for hearing twice today, the appellant-party-in-person was not present on both the occasions.

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In the circumstances, the appeal is dismissed for default with no order as to costs.”

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17. Aggrieved by the same, the writ petitioner filed writ petition before the Apex Court in W.P.(C).No.57/2009. By order dated 16.3.2009, writ petition was disposed of and the order is as under:

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“We decline to entertain the Writ Petition filed under Article 32 of the Constitution of India. However, we permit the petitioner to make appropriate application before the Division Bench of Andhra Pradesh High Court in Writ Appeal No.630 of 2008 to recall the order passed on 07.07.2008 and hear the appeal on merits. If and when such an application is filed, we hope and trust, the Division Bench would consider the same in accordance with law. The writ petition is disposed of accordingly. No order as to costs.”

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18. Pursuant to the above directions of the Apex Court, it appears that the writ petitioner/ appellant in W.A.No.657/2008, has not filed any application before the Division Bench, before whom she challenged the docket order of the learned single Judge dated 21.4.2008 in W.P.No.25865/2005. Therefore, the docket order of the learned single Judge dated 21.4.2008 stands.

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19. Apropos to the above issue sought to be clarified by the leaned single Judge by docket order dated 21.4.2008 and the submissions of the counsel on behalf of the learned Advocate General Sri D.V.Sitarama Murthy and the Senior Counsel Sri Ramakrishna Rao and the submissions of the G.P.A. holder who is seeking permission under the present WPMP, it is necessary to note Order 3 Rules 1 and 2 and Sections 32 and 33 of the

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Advocates At, 1961. The same are extracted as under for better appreciation:

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Order III of CPC Recognized Agents and Pleaders

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1. Appearances, etc., may be in person, by recognized agent or by pleader

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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:

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

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2. Recognized agents

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The recognized agents of parties by whom such appearance, applications and acts may be made or done are-

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

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(b) 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.

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20. Section 32of Advocates Act, 1961;

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32. Power of Court to permit appearances in particular cases--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.

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33. Advocates alone entitled to practice- - Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practice in any court or before any authority or person unless he is enrolled as an advocate under this act.

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21. From a reading of Rule 1 of Order 3 of C.P.C. it is clear that appearances, application or act in or to any court, required or authorized by law to be made or done by a party in a court, except otherwise expressly provided by any law for the time being in force, can be made or done either by the party-in-person or by his recognized agent, or by a pleader appearing or acting, as the case may be, on his behalf. Rule 2 of Order 3, defines who are recognized agents, and under clause (a) of Rule 2, the persons holding power of attorney is a recognized agent. A reading of Rule 1 of Order 3, it is further clear that such appearance by person or recognized agent, or by a pleader is subject to any other law, which includes the Advocates Act, 1961, where under Section 32 empowers to court to permit a person other than an Advocate to ‘appear’ before the court in any particular case and Section 33 prohibits any person other than an advocate to ‘practice’.

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22. A learned single Judge of this court in the decision reported in HARI OM RAJENDR KUMAR v. CHIEF RATIONING OFFICER OF CIVIL SUPPLIES (2 supra) considering Sections 32 and 33 of the Advocates Act, 961 and Order 3 Rules 1 and 2 held at paragraph no.11 of the judgment as under:

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“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 authorized by the Courts in that behalf. It has to be noticed that Sec. 33 of the Act uses the word ‘practice’ while Sec. 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 O.3, Rr.1 and 2, C.P.C. Order 3, Rule 1 says that any appearance, application or act in 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 Courts so directs be made by the party in person. Order 3, Rule 2, C.P.C. refers to the class of persons who could be treated as recognized agents of parties by whom such

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appearances, applications and acts may be made or done and includes persons holding power of attorney. It is, therefore, clear that the provisions of O.3, R.1 which permit appearance, applications or acting in any Court are subject to any other law and this includes the provisions of the Advocates Act, 1961 and in particular, Ss.32 and 33. It is further clear that so far as the singing or verifying or doing other acts are concerned, these could be done by the Power of Attorney duly authorized therefore but so far as appearing or practicing in Court are concerned, they are subject to the provisions of Ss.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 O.3, R.1, C.P.C. 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 Ss.32 and 33 of the Advocates Act.”

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23. From the above judgment it is clear that the Rule 1 of Order 3, is subject to Sections 32 and 33 of the Act. In the present case, the G.P.A. holder of the petitioner is seeking permission to appear on behalf of the petitioner. Therefore, the aspect that is to be looked into is whether in exercise of discretionary jurisdiction under Section 32, can he be permitted to appear in this particular case on behalf of the petitioner.

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24. The Apex Court in the decision reported in HARISHANKAR v. GIRDHARI (3 supra) held as under:

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“4. Having regard to this conspectus of considerations I hold that a private person, who is not an advocate, has no right to barge into Court and claim to argue for a party. He must get the prior permission of the Court, for which the motion must come from the party himself. It is open to the Court to grant or withhold permission in its discretion. In fact, the Court may, even after grant of permission, withdraw it half-way through if the representatives proves himself reprehensible. The antecedents, the relationship, the reasons for requisitioning the services of the private person and a variety of other circumstances must be gathered before grant or refusal of permission.. . .”

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25. In another judgment reported in T.C.MATHAI v. DISTRICT & SESSSIONS JUDGE (4 supra), the Apex Court observed as under:

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“8. The work in a court of law is a serious and responsible function. The primary duty of a criminal court is to administer criminal justice. Any lax or wayward approach, if adopted towards the issues involved in the case, can cause serious consequences for the parties concerned. It is not just somebody representing the party in the criminal court who becomes the pleader of the party. In the adversary system which is now being followed in India, both in civil and criminal litigation, it is very necessary that the court gets proper assistance from both sides.

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9. Legally qualified persons who are authorized to practice in the courts by the authority prescribed under the statute concerned can appear for parties in the proceedings pending against them. . . .

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10. But if the person proposed to be appointed by the party is not such a qualified person, the court has first to satisfy itself whether the expected assistance would be rendered by that person. The reason for Parliament for fixing such a filter in the definition clause [Section 2 (q) of the code] that prior permission must be secured before a non-advocate is appointed by the party to plead his cause in the court, is to enable the court to verify the level of equipment of such a person for pleading on behalf of the party concerned.”

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26. A Division Bench of this court in NATUBHAI CHOTABHAI PATEL vs. SMT. PATNAM SHAKUNTALA (C.R.P.NO.3228/2003 dated 28.7.2006) while answering the reference that “Whether the procedure contemplated under Rules 32 and 33 of the Civil Rules of Practice is mandatory or it is curable which can be cured by moving an appropriate application and whether the Court depending upon the facts and circumstances can rectify the same? by considering various judgments of the Apex Court and this court and also on considering Sections 32 and 33 of the Advocates Act, 1961, held as under:

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“17. In the light of the foregoing discussion, it is made clear that Rule 32 of the Civil Rules of Practice was introduced to discourage the parties to authorize their agents to represent their cases by way of signing the pleadings, adducing evidence and advancing arguments instead of authorizing a legal practitioner. If an agent or a General Power of Attorney holder is authorized to perform the above duties on behalf of the party, the obtaining of permission from the court by filing

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an affidavit by the party is necessary. If the agent or GPA holder is authorized only to sign the pleadings or to give evidence as a witness, in such circumstances, Rule 32 is not mandatory. The Rule was introduced to discourage the parties to authorize their agents and to engage the legal practioners to represent their cases and in case of the agent or general power of attorney holder is authorized by the party to sign the pleadings or to give evidence, it is sufficient if the Court is satisfied on verification of such authorization that he is duly authorized by the party for those limited purposes.”

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27. The quintessence of the above judgments is that the agent or the G.P.A. holder who is authorized by the party to appear and represent the case, has to seek the permission of the court and the court after satisfying itself with regard to the level of equipment of such a person for pleading on behalf of the party concerned, can grant permission in exercise of the discretionary jurisdiction under Section 32 of the Advocates Act, 1961.

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28. In the present case, the petitioner has filed an affidavit in support of WPMP.No.23775/2006 in WP.NO.25865/2005 and sought permission to permit the T.D.Dayal, who is her G.P.A. holder to appear and act on her behalf before the court.

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29. From a perusal of the proceedings, as already noted above, a learned single Judge of this court has dismissed the preset writ petition and challenging the same, the petitioner filed writ appeal in W.A.No.153/2006 and in the said writ appeal, the present G.P.A. holder was granted permission to appear on behalf of the petitioner. The said order in WPMP.No.684/2006 in WA.No.153/2006 dated 15.6.2006 is as under:

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“This is an application by Shri T.D.Dayal, General Power of attorney holder of the applicant, Smt. Lakshmi Suri for withdraw of Vakalat of Shri S.Tulasi Das. Advocate since Shri Tulasi Das has given no objection we accept the prayer of the applicant and permit the General Power of Attorney holder to appear on behalf of the applicant.”

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30. Considering the above facts and circumstances and as the said G.P.A. holder is regularly pursuing the litigation of the petitioner and in the

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interest of justice, this court is of the considered view, that for the present, the said G.P.A. holder can be permitted to appear on behalf of the petitioner.

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31. Accordingly, the WPMP is allowed.

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AVS -----------------------------------21—12—2010

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[1] AIR 2000 SC 735 [2] AIR 1990 AP 340 [3] AIR 1978 SC 1019 [4] (1999)3 SCC 614

Lakshmi Suri, v. the Unon of India, rep. by its Secretary

Case brief

What is this about?

What did the court decide?

Lakshmi Suri, v. the Unon of India, rep. by its Secretary

Case brief

What is this about?

What did the court decide?

What the court decided

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