AGENTS AND PLEADERS

SUBMITTED BY: NISHITHA BANDA

4th YEAR, BA.LLB (Hons.)

ROLL NO: BA0130041

7th SEMESTER

SUBMITTED TO: PROF. K. GOVINDA RAJAN

ASSISTANT PROFESSOR OF LAW
CODE OF CIVIL PROCEDURE

THE TAMIL NADU NATIONAL LAW SCHOOL

DINDIGUL HIGHWAY, NAVALUR KUTTAPATTU, SRIRANGAM TALUK,

TIRUCHIRAPALLI 620009

2016
 CONTENTS

1. INTRODUCTION

2. AGENTS AND PLEADERS

2.1SCOPE AND APPLICABILITY

2.2R.2 RECOGNIZED AGENTS

2.3R. 3. SERVICE OF PROCESS ON RECOGNIZED AGENT

2.4R. 4. APPOINTMENT OF PLEADER

2.5R. 5. SERVICE OF PROCESS ON PLEADER

2.6R. 6. AGENT TO ACCEPT SERVICE

3. CONCLUSION
 DECLARATION

I do hereby declare that the research titled Agents and Pleaders submitted to the Tamil Nadu

National Law School is partial fulfillment of the requirement of the award of the decree of

B.A.LL.B. (Hons.,) done by NISHITHA BANDA under the supervision and guidance of Prof. K.

Govinda Rajan and that has not formed the basis for award of any degree or diploma or

fellowship or any other title to any candidate of any university.

Place: Tiruchirappalli

Date: 29th October 2016

NISHITHA BANDA

(CODE OF CIVIL PROCEDURE)

 AGENTS AND PLEADER

CHAPTER I: INTRODUCTION

Civil procedure is the body of law that sets out the rules and standards that courts follow
when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules
govern how a lawsuit or case may be commenced, what kind of service of process (if any) is
required, the types of pleadings or statements of case, motions or applications,
and orders allowed in civil cases, the timing and manner of depositions and discovery or
disclosure, the conduct of trials, the process for judgment, various available remedies, and how
the courts and clerks must function.

As it is evident from its name, it mainly lays down the procedure to be adopted in civil courts,
and its principles may be applicable in other courts, like writ courts, and Tribunals to the extent
the enactments establishing the Tribunals provide for it. It provides for a fair procedure for
redressal of disputes. The other party may know what is the dispute about, what defence it can
take, and how both the parties may proceed to prove their respective cases. Some of its
provisions are substantive in nature and not procedural at all, like Sections 96, 100, 114 and 115
providing for a right of appeal, review and revision. The other provisions are generally
procedural in nature. The purpose of the Civil Procedure Code, 1908 (hereinafter referred to as
Code) is to provide a litigant a fair trial in accordance with the accepted principles of natural
justice. The Code is mainly divided into two parts, namely, Sections and Orders. While the main
principles are contained in the Sections, the detailed procedures with regard to the matters dealt
with by the Sections have been specified in the Orders. Section 122 of the Code empowers the
High Court to amend the Rules, i.e., the procedure laid down in the Orders and every High Court
had amended the procedure from time to time making the amendments in the said Orders. The
Code is a codification of the principles of natural justice. Natural justice means justice to be
done naturally which is adopted naturally by the habits of every individual. It does not mean
godly-justice or justice of nature. It simply means an in built habit of a person to do justice. As
these principles are inbuilt-habit of everyone to ask others for furnishing the explanation of
anything done by them, the same are known as principles of natural justice.
CHAPTER II: SCOPE & APPLICABILITY

As to scope and object of rule, it contemplates appearance not as man but as a party with the
intention of acting as a party in suit. The language of this rule means no more than that a
recognized agent can appear, make applications and take such steps as may be necessary in the
course of the litigation for the case of the principal being properly laid before the court. It cannot
justify his being allowed to argue and plead.

In Satyanarayana v. Venkatasubbayya,1 the words except where otherwise expressly provided

were construed as including provisions of the Code of Civil Procedure, and O 33, r 3, and O 44, r
1 were accordingly held to be exceptions to this rule.

This rule has not the effect of authorizing an attorney of a High Court to file an appearance for a
limited purpose only in an ordinary cause under the original civil jurisdiction of the high court.
For the purpose of appointing a recognized agent to take some steps in a suit, the next friend of
the minor-plaintiff is to be regarded as a party to the suit. The right of audience in court, the
right to address the court, the right to examine and cross-examine witnesses are all parts of
pleading, and that is not included in the expression appearances, application or act in or to any
court. Appearance would include appearance by an advocate. A vakalatnama duly executed by a
party in favor of his advocate entitles the latter to file an application under his own signature.
Such an application does not require the signature of the party.

If a pleader does not conduct the case on behalf of his principal, his mere presence in court is not
an appearance in the suit within the meaning of r 6 or r 8 of O 9. Also, a person who is not an
advocate cannot be allowed to address the court on the basis of a power-of-attorney. Order 3 is
subject to the provisions of ss32 and 33 of Advocates Act, 1961.

A court is not justified in ordering a party to appear in person under this rule except for some
good reason. One of the reasons allowing such an attendance would be where there is an issue as
to lunacy of one of the parties where it would be necessary in determining such an issue to put
questions to the concerned party.

1
AIR 1957 AP 171 (FB)
Order 3, r 1, proviso codifies the inherent jurisdiction in the court to direct a party to put in an
appearance in person, though this jurisdiction has to be exercised rarely or in exceptional
circumstances. Therefore, unless expressly directed, a party is not bound to attend in person even
in the original court, much less in the Appellate court. If one party desires the appearance of the
opposite party for examination as a witness, he should take out a witness summons under O 16.

An application for leave cannot be made by a recognized agent.

R. 2. RECOGNIZED AGENTS

Recognized agents are:

1. Persons holding power of attorney;

2. Persons carrying on trade or business for an in the names of parties not resident within
the local limits of the jurisdiction of the court.

The Supreme Court has held that a plaint signed and verified by an agent appointed under a
power-of-attorney executed by the managing partner of a firm is valid as the partner is the agent
of the firm. Order 29, r 1, provides that in case of a corporation, the secretary, director or any
principal officer may sign the pleadings. It has been held in All-India Reporter Ltd. v.
Ramchandra2 that O 3, rr 1 and 2 have no application to the matter because a signature on the
plaint is not an act in or to a court.

It has been held that an objection that the institution of a suit is not within the authority conferred
by a power-of-attorney, should be taken at the earliest possible opportunity and before issues are
framed and that even when an objection is so taken and sustained, the court should not reject the
plaint but give an opportunity to the parties to rectify the defect.

Although, a power-of-attorney must be strictly construed as giving only such authority as it

expressly or by necessary implication creates, the court cannot decline to recognize an implied
authority that every agent has to do whatever is necessary or ordinarily incidental to the effective
execution of the express authority conferred on him by the power-of-attorney.

2
AIR 1961 Bom 292
The right to practice is different from the right of appearance in a particular case. The right of
practice is a right of advocates to practice the profession of law before all courts, tribunals,
authorities, etc, but the right of appearance to appear in a particular case on the permission
granted by the court under u/s 32 of the Advocates Act, 1961 is an exception to the right of
practice by advocates.

Thus, where permission is granted to a holder of a general power of attorney to appear and
prosecute a particular case, the said permission cannot be withdrawn unless it is shown that he
has created an unhealthy atmosphere or indisciplined situation or has exchanged words in as
much as the power-of-attorney holder was the husband of the respondent.3 However, where
permission to appear is given to a recognized agent, he cannot be permitted to act the role of a
pleader.4

Clause (b) Where a plaint is signed and presented by the plaintiffs clerk who has no authority
from the plaintiff to carry on business in the plaintiffs name, the plaint cannot be said to have
been signed by the plaintiffs recognized agent. In such a case, the court may rightly dismiss
the suit.5

R. 3. SERVICE OF PROCESS ON RECOGNIZED AGENT

Processes served on the recognized agent of a party shall have the same effect as if the same had
been served on the party in person, unless the Court otherwise directs. The provisions for the
service of process on a party to a suit shall apply to the service of process on his recognized
agent.

A person holding a power-of-attorney is not bound to accept service of summons; he may refuse
to do so, for he is not bound to act under the power.

R. 4. APPOINTMENT OF PLEADER

1. Unless he has been appointed: Before a pleader can act for a party, he must, firstly, have
been authorized by him to do so, and secondly, that authorization must be in writing. Although,

3
Surendra Raj Jaiswal v. Vijaya Jaiswal, AIR 2003 AP 317.
4
Jaymal Thakore v. Gujarat State Charity Comr, Ahmedabad, AIR 2001 Guj 279.
5
Uttamram v. Thakoredas, AIR 1922 Bom 113
performance of legal work such as giving opinions, sending notices, drafting petitions or other
documents are not legal duties of a lawyer but obtaining a signed vakalatnama by the lawyer
from his client is essential when it is to be filed in law courts. Where the pleader has been
authorized and he acts without filing a proper warrant of authority that is only an irregularity
which can be cured by the production of a proper document later on. Despite a court order, a
proper vakalatnama is not produced and the defect is not rectified, the court is justified in
imposing costs. Also the leave of the court is necessary for terminating the appointment of a
pleader. Such leave is not a mere formality. A concession made by the govt. is not binding on its
instrumentality as it is a separate legal entity.

A writing authorizing an act need not be in any particular form. It has accordingly, been held that
the presentation of a blank paper duly stamped with a card from the party authorizing the pleader
to file the appeal, was sufficient compliance with the requirements of law. The authority of an
advocate is limited to a suit or proceeding in a particular court where such a suit or proceeding is
filed. It does not extend to another court if such a suit or proceeding is transferred to such
another court. If an advocate is duly appointed by a party in a particular proceeding, his authority
to sign papers relating to compromise between the parties cannot be diluted.

2. Until determined with the leave of the court: A pleader cannot determine his appointment
without the leave of the court and after reasonable notice to the client. In civil cases, the
appointment of an advocate by a party would be deemed to be in force until it is determined with
the lease of the court. In the absence of an order of the court discharging an advocate, the
advocate is deemed to continue to represent his client even though the advocate has filed an
application to withdraw.

Under r 4(2) of O 3, the appointment of an advocate can be determined only with the leave of the
court on the written request by the client or if the advocate so wishes to withdraw his appearance,
by written notice to his client and with the permission of the court under r 1(b) of the rules
framed under the Advocates Act, 1961. It was held that the practice of filing no instruction
pursis does not amount to discharge of the advocate.6

6
Dattusing Girdhar Singh Rajput v. Bhagwant Devasthan, Barshi AIR 2005 Bom 86.
An attorneys retainer cannot be revoked by his client by a mere letter; it can only be revoked
with the leave of the court by a writing signed by the client and filed in the court as provided in
this rule. Similarly, a client cannot determine a pleaders appointment without the leave of the
court. Such leave can be subject to such conditions as the court thinks fit.

After the Code of Civil Procedure amendment of 1976, a consent decree is executable in terms
thereof even if it comprehends matters falling outside the subject matter of the suit but
concerning the parties.

3. Until all proceedings in the suit are ended: where a suit is dismissed for default, a pleader
engaged to act in a court does not require a fresh power-of-attorney for the purpose of applying
for the restoration of the case, nor for the purpose of applying to set aside an ex-parte decree.

Explanation to sub-rule 2: The explanation to sub-r 2 corresponds to the unamended sub-r 3.

For the purposes of sub-r 2 there are four categories of proceedings which are deemed to be
proceedings in the suit. However, neither sub-r 2 nor the explanation thereto is to be deemed to
mean to extend the period for which a pleader is engaged or as authorizing service on him of any
notice or document issued by any court other than the one for which he was engaged except
where such service has been agreed to by the client.

4. Pleaders appointed to act and pleaders engaged only to plead: Under the rule, as it stood
originally, every pleader had to be appointed by a writing signed by the party or by his
recognized agent, etc. Under the present rule, a distinction is drawn between

(i) a pleader appointed to act in court;

(ii) a pleader engaged for the purpose of pleading only;

(iii) a pleader engaged to plead by a pleader duly appointed to act in court.

As regards a pleader appointed to act in court, it is provided by sub-rule that he cannot act for
any person in any court unless he is appointed by such person by a document in writing signed
by such person or by his recognized agent, etc. It is only if the appointment is made by a writing
signed by the party, etc, that he can act, and it is only where he is so appointed that he can be
said to be duly appointment to act.
Where a suit is instituted by a plaintiff through an agent, the court has the power to inquire into
the agents authority. A pleader appointed by an official liquidator who has obtained the sanction
of the court to institute a suit is duly appointed within the meaning of this rule, though no
sanction has been obtained under the Indian Companies Act for the appointment of a pleader.

Where a party to a suit authorizes an agent by a special power-of-attorney to appoint a pleader to

sign execution petitions, a pleader appointed by the agent to support a petition verified by the
agent is a pleader duly appointed to act on the partys behalf.

Where a party has granted a power-of-attorney to his agent and the agent appoints an advocate,
the principal can revoke the appointment and have an advocate of his choice. A document
appointing an agent is of a different nature from a vakalatnama.

Further it has been held by the Supreme Court that the word practise means both acting and
pleading, and that accordingly a Supreme Court advocate is entitled, as of right, to act and to
plead in all the High Courts, in the original as well as appellate side.

A pleader, who appears on behalf of another pleader engaged by a party, can appear for the latter
pleader only to plead on behalf of the party but has no power to act on his behalf without a
document in writing in his favor executed in the manner prescribed by this rule. Hence, he
cannot present an appeal, as presentation of an appeal amounts to acting and not pleading. An
advocate duly appointed by a party to act on his behalf can authorize another advocate to act and
plead on behalf of such party such other advocate need not file a memorandum of appearance.

There is no bar on a pleader duly authorized by a party under a Vakalatnama to engage another
pleader to plead the case on his or her behalf. The power to plead would include within its
scope and ambit, the right to examine witnesses, to conduct admission and denial, to seek
adjournments and to address arguments etc., as may be authorized. Court can permit a junior
counsel to appear on behalf of the counsel as and when the Counsel himself is not in a position to
appear. Such pleader would not have the power to compromise a case, withdraw a case or do any
other act which may compromise the interest of his or her client.

5. Sub-rule 3, the duration for which a pleader is engaged: the new sub-rule (3) lays down the
limits of the appointment of the pleader, under sub-rule (1)(a) of the sub-rule provides that the
appointment shall be only for the duration for which the pleader is engaged and that nothing in
sub-r(2) shall be construed as extending beyond such duration. Clause (b) provides that nothing
in sub-r(2) shall be construed as authorizing service on the pleader of any notice issued by any
court other than the court for which the pleader has been engaged, unless such a service has been
expressly agreed to in the document by which the pleader is engaged. Except for such terms, the
service on the pleader binding on the client is the service by the court for which the pleader is
appointed.

6. Rules of Court: Rule 4 does not give an absolute right to any practitioner to appear in any
court in any matter he chooses. It is subject to the rules governing the admission of different
classes of practitioners in different courts and to rules framed by the High Court.

The nature of the right of a practitioner to appear before a court or tribunal was considered in
Rangaswami v. Industrial Tribunal7 and summed up as, the position is that a person who has
obtained the requisite legal qualifications is not entitled on the ground alone to a right to
audience in courts. He must, further, be admitted to the Bar before he could practice. That is a
matter which is regulated by statutes and the extent of the right to practice must depend on the
terms of those statutes. This right is also a privilege as it is limited to those who are admitted to
the bar.

7. Delegation of authority by Pleader: Where a pleader cannot attend, he has no power to

delegate his authority to another pleader.

R. 5. SERVICE OF PROCESS ON PLEADER

Notice to Counsel: The alteration merely makes clear that the pleader upon whom any process is
served must be the pleader who has been appointed to act in court for a party. The alteration
appears to have been adopted from the amendment made in this rule by the High Court of
Bombay. The rule lays down a presumption of communication of the service and is rebuttable by
appropriate evidence.

7
AIR 1954 Mad 553.
The Supreme Court has held that an oral intimation of the filing of an award given to the counsel
representing the party is due service of notice within s 14(2) of the Arbitration Act, 1940 (now
replaced by Arbitration and Conciliation Act, 1996).

The Supreme Court has held that the principles embodied in this rule is applicable only in cases
where the counsel acts on behalf of his client and where the counsel in representative capacity
represents his client. Thus, in a case where the counsel was acting as a representative of the
arbitrator and was not acting as a representative of the appellant, it was held that the presumption
envisaged by the rule cannot be stretched to situations where the pleader is not acting on behalf
of the party.

R. 6. AGENT TO ACCEPT SERVICE

Sub-r (2) mandates that the appointment of any person, besides recognized agents, residing
within the jurisdiction of the shall be made by an instrument in writing. In a case, in the absence
of an instrument in writing as provided in sub-r (2), the husband of the petitioner was held not to
be her agent for accepting service of process within the rule. The new sub-r (3) has been added to
facilitate the service of the courts process. It empowers the court to have an agent appointed by
a party residing outside its jurisdiction. Even if there is a procedural non-compliance by a party,
the court may allow the defect to be rectified if the other party can be compensated by cost.8

CHAPTER III: CONCLUSION

Generally any appearance, application or act in or to any court may be made or done (i) by party
in person; (ii) by his agent; or (iii) by a pleader appearing, applying or acting on his behalf. No
doubt, a court can direct any party to appear in person. Except for good reasons, however, a court
will not direct the party to appear in person. But once such a direction is issued by a court and
even then the party fails to appear, the court may dismiss the suit or proceed ex parte.

8
Bihar State Electricity Board v. Bhowra Konkanee Collieries Ltd., (1984) Supp SCC 577.