Non-Advocate Power Of Attorney Can Be Permitted To Address The Court In Case Of Close Relative: Calcutta HC

The Calcutta High Court has observed that there is discretion in the court in the case of a close relative to permit the power of attorney to address the court.

The Division bench comprising Justice Soumen Sen and Justice Ravi Krishan Kapur said that this discretion can be exercised when the court is assured that the relative appearing on behalf of the petitioner is conversant with the law, the facts and is in a position to address and assist the Court.

The bench was considering the appeal against the Single bench order which had dismissed the application filed by one Radha Nath Nandy who claimed to be a power of attorney of the defendant in a testamentary suit, seeking to argue the matter on behalf of the defendant.

The bench observed that 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 Section 32 of the Advocates Act 1961 is an exception to the right of practice by advocates. In its judgment, the bench referred to decisions of various High Courts and observed:

"While we are in agreement with the views expressed by various High Courts that the power of attorney has no right to address the court, however, at the same time we are of the opinion that there is discretion in the court in the case of a close relative to permit the power of attorney to address the court. This discretion can be exercised when the court is assured that the relative appearing on behalf of the petitioner is conversant with the law, the facts and is in a position to address and assist the Court. In other words he must inspire confidence in the Court of his ability to address the Court on the issues which arise in the matter"

However, in this case, the bench affirmed the single bench order, observing that Nandy does not appear to be well-versed with the subject and the law and would not be in a position to assist the court in the matter. In other words he does not inspire confidence in the court of his ability to address the court on the issue which arise in the matter, the court said.

The bench summarized the principles laid down in various judgments of the High Courts.

A non-advocate, when he seeks permission to 'appear' cannot be permitted to 'address' the Court on the strength of the power-of-attorney. The provision of Order 3 Rule 1 which permit appearance, applications or acting in any Court by a power-of-attorney holder on behalf of a principal are subject to the provisions of the Advocates Act 1961 in particular, Sections 32 and 33.

In view of legal and professional ethics and conducts and etiquette at the Bar a party cannot conduct his case himself without discharging his counsel appearing for him in the case. The words 'appearance' and 'acting' do not include 'pleading' and a recognised agent who is entitled to appear and act for a party is not entitled to a right of audience [see AIR 1971 Delhi 110, (1969)1 Madras Law Journal 207].

A right to examine and cross-examine witnesses is, acting and not pleading. Order 3 does not deal with pleading at all. It deals with a restricted class of acts in connection with the litigation in Court and it is with regard to that restricted class of acts that Order 3 permits recognised agents to be appointed. The power of attorney holder cannot depose in place and stead principal.

The provision of Order 3 Rules 1 and 2 of the Code empowers the holder of the power of attorney to 'act' on behalf of the principal. The word 'acts' mention in Order 3 Rules 1 and 2 is confined only to 'acts' done by a power of attorney holder in exercise of power granted to him by virtue of the instrument. The term 'acts', hence does not include deposing in place and stead of the principal.