Permission of advocate to represent in family court
Law Querier
(Querist) 11 September 2015
This query is : Resolved
The petitioner executed and notarized power of attorney for divorce proceeding in India and then after the petitioner left to foreign country. The petitioner lives in foreign country.In one of the sentences of the power of attorney deed the petitioner states,” I have given power of attorney to my father to appoint, engage on my behalf pleaders, advocates and solicitors and to discharge or terminate such appointments”. Then the P.O.A. holder of the petitioner obtained the permission of the family court to engage/appoint the advocate, appointed/engaged an advocate, put the vakalatnama of the advocate and signed & filed the divorce petition u/s.13(1)(ia) of the Hindu Marriage Act in the family court of India.
Que 1: If the petitioner wants to represent by an advocate for family court proceedings, is it mandatory to obtain permission of the family court again though the POA holder obtained permission of the family court earlier to engage/appoint the advocate and for the reason that the power of attorney deed is executed only to engage/appoint the advocate and not to represent by the advocate?
Que 2: If yes in question 1, is it mandatory that the petitioner have to appear in person in family court of India and then obtain leave of the family court to represent by an advocate for family court proceedings?
Que 3: If yes in question 1, Can P.O.A. holder (behalf of the petitioner) obtains the permission of the family court to represent by an advocate for the family court proceedings?
G D Srinivas
(Expert) 13 September 2015
Yes it is Mandatory that You have seek Permission of the court to engage Advocate ( In Family Court Matter Only ) to assist you in court proceeding. In the event if you are familiar with court proceeding yourself can run the case without Advocate.
Secondly, You can give GPA or SPA anyone other than Advocate to represent your case on your behalf , but You have appear Personally during Evidence.
Order III Rules 1 and 2 CPC, empowers the holder of Power of Attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III Rules 1 and 2 CPC, confine only in respect of "acts" done by the Power of Attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the Power of Attorney holder has rendered some "acts" in pursuance to Power of Attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.
and on S. Padmavathamma v. S. Sudha Rani , where it is held that a General Power of Attorney holder of a party in a suit can give evidence deposing to the facts which are only within his personal knowledge but cannot speak about the facts within the exclusive knowledge of his principal and contended that the well reasoned order of the trial Court needs no interference.
T. Kalaiselvan, Advocate
(Expert) 20 September 2015
I am sorry to interfere in the opinion of expert Mr. G.D. Srinivas to the query raised by the author. A careful relook into the question will summarise that the author is seeking to clarify that whether despite authorising his POA agent to engage an advocate to assist him in the matrimonial dispute running in the family court, the petitioner need to be present before the court to obtain permission of the court in person seeking permission to engage a counsel on his behalf?
Well, the answer is not necessary, the POA agent himself can engage an advocate by signing a vakalatnama, and seek the permission of court for engaging the said advocate to assist the proceedings, however the petitioner needs to depose the evidence by himself either in person before the court or by an arrangement of video conference too from a remote location.
Therefore the POA can also obtain permission from the court to engage an advocate to assist in the case
Law Querier
(Querist) 28 January 2016
@Mr.T. Kalaiselvan,
Do you know any judgement which confers that the POA agent can seek permission of court for engaging the advocate?
Please provide me that judgement, if you have.
Law Querier
(Querist) 09 April 2016
Supreme Court of India
Harishankar Rastogi vs Girdhari Sharma And Anr on 13 March, 1978
Equivalent citations: 1978 AIR 1019, 1978 SCR (3) 493
Author: V Krishnaiyer
Bench: Krishnaiyer, V.R.,
According to my understanding from the above judgment of Supreme Court of India, the power of attorney holder of the petitioner cannot seek permission to engage advocate from court.
In the last paragraph of this judgment it mentioned that,
"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 d party. He must get the prior permission of the Court, for which the motion must come from the party himself."
Please correct me if I am wrong.
T. Kalaiselvan, Advocate
(Expert) 10 April 2016
It appears that you have misinterpreted this judgement to your query asked here. I believe this judgment may not be relevant to your question.
The question is about engaging an advocate by the POA on behalf of the principal for conducting the case, my answer was Yes and the provision of law can be found in the Order III Rule 1 and 2 of CPC.
Please revert if further clarification needed on this, there are many experts in this forum to give you a satisfactory and correct position of law in this regard.
Law Querier
(Querist) 23 August 2016
From the below Judgments I believe that the POA holder appointed by the petitioner cannot seek permission to engage advocate for the petitioner.
Judgments:
1.Supreme Court of India
Goa Antibiotics & ... vs R.K.Chawla And Anr on 4 July, 2011
Citation: (2011) 15 SCC 449
2. Supreme Court of India
HARISHANKAR RASTOGI VS. V.GIRDHARI SHARMA, AIR 1978 SC 1019
3.T.C. Mathai vs. District & Sessions Judge, reported at (1999) 3 SCC 614,
4. Allahabad High Court
Smt. Madhulika Sameer Azad vs Sri Sameer Mohan Azad
Citiaton: 2012 (11) ADJ 678.
