Is Permission of Court Mandatory when a Power of Attorney Holder Files Suit

Jojy George Koduvath, Kottayam.

Introduction

Civil Procedure Code (CPC) and Civil Rules of Practice (CRP) are the important procedural laws in the Civil field. CRP is formulated by each High Court in the respective State, under Art. 227 of the Constitution. There is subtle difference between the CPC and CRP with regard to the provisions as to signing pleadings through an agent. Though CPC does not specifically requires ‘permission of the court’, CRP requires it apparently.

“Any person duly authorised” Can sign Pleadings, under Order VI, Rule 14

The ‘signing of pleadings’ is governed by Order VI Rule 14 CPC. As per this rule, Pleading is not ‘required to be signed or verified’ by “a party” itself. It reads as under:

14. Pleading to be signed.- Every pleading shall be signed by the party and his pleader (if any):
Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf.

Under Order VI Rule 14, production of a power of attorney or written authorisation is not compulsory; but, it must be shown, to the satisfaction of the court, that the agent has sufficient authority to represent. Even an oral authorisation will be sufficient.

CRP Requires Permission

But, CRP in various States manifest that the permission must be obtained from the Court where any agent, other than an advocate, appears on behalf of a party. For example, Rule 22 of the Kerala CRP reads as under:

“22. Party appearing by agent.
(1) When a party appears by an agent other than a pleader, the agent shall, before making any appearance or application, or doing any act before the Court, file in Court the power of attorney, or other written authority thereunto authorising him or a properly authenticated copy thereof: or, in the case of an agent carrying on a trade or business on behalf of a party without a written authority, an affidavit stating the residence of his principal, the trade or business carried on by the agent on his behalf and the connection of the same with the subject-matter of the suit, and that no other agent is expressly authorised to make such appearance, or application or do such act.
(2) The Judge may thereupon record in writing that the agent is permitted to appear and act on behalf of the party; and until the said permission is granted, no appearance, application or act of the agent shall be recognised by the Court.

“23. Signing or verification by agent –
If any proceeding which under any provision of law or these rules, is required to be signed or verified by a party, is signed or verified by any other person on his behalf, a written authority in this behalf signed by the party, except in the case of persons under disability, shall be filed in Court, with an affidavit by such person verifying the signature of the party, and stating the reasons for the inability of the party to sign or verify the proceeding.”

Rule 22 requires Power of Attorney and Permission only when the agent appointed is authorised to “appear” in court .

The first limb of Rule 23 is not attracted with respect to signing pleadings inasmuch as Order VI Rule 14 CPC does not require signing and verifying by the party (the first limb of Rule 23 reads: “if any proceeding which under any provision of law or these rules, is required to be signed or verified by a party”).

CRP requires PoA and Permission only when agent is authorised to “appear”

In Janab Syed Kazim Sahab v. Janab Sayeed Bakaram Sahab: (1990 (1) An. WR 256), the AP High Court observed as under:

“From the provisions made in rule 32 (corresponding to Rule 22 of Kerala Rules) it is manifest that the rule envisages permission to be obtained from the Court in a case where any agent, other than an advocate, appears on behalf of a party. It is not in dispute that the GPA has been annexed under Item 11 of the list of documents, to the plaint. Further an advocate – not the power of attorney holder – appeared for the 2nd plaintiff to act or argue on his behalf. Therefore, Rule 32 has no place. Consequently permission from the Court is not postulated under such circumstances.”

It is pointed out by the AP High Court (DB) in Natubhai Chotabhai Patel v. Patnam Shakuntala: 2012-4 ALD 553: 2013 (4) ALT 24, (i) that this Rule is introduced to discourage the parties to appoint an agent, other than the legal practitioners, to ‘represent’ them in Courts; (ii) that the filing of a PoA or an affidavit was not mandatory if the authorisation was only to sign pleadings and/or to give evidence as a witness; and (iii) that this Rule applies only when the authorisation includes advancing arguments by the duly authorised agent “instead of an advocate”. (It is referred to in Aruna Sagar v. Shrushti Infrastructure Corporation, 2016-2 ALD 403; 2016-5 ALT 133.)

The Division Bench of the AP High Court held in Secretary to Government of India, Ministry of Defence, New Delhi vs. Indira Devi, AIR 2003 AP 329, as under:

“In order to make sure that the party authorised the agent to represent him in the matter, an affidavit is necessary. But in cases of authorising an agent to sign the pleadings while authorising a legal practitioner to appear on his behalf, it is sufficient if the Court is satisfied that he was authorised to sign and in such a case, the filing of an affidavit is not mandatory, therefore, the defect can be cured at a later stage also by convincing the Court that the agent was duly authorised by the respective party in that matter. But if an agent is authorised to undertake the signing of pleadings, adducing of evidence and advancing of arguments, the agent shall be permitted in writing and the party has to file an affidavit that he has duly authorised the agent to represent him instead of an Advocate.” (Quoted in Ruhina Khan Vs. Abdur Rahman Khan, 2019 AIR AP 117.)

The Madras High Court observed in K. Santhanam v. S. Kavitha: 2011-1 CTC 286; 2011-1 LW 66; 2011-3 MLJ 34, as under:

“16. Thus, it is seen that while Order III, enables the holder of a power of attorney to appear, apply and act on behalf of a party to a suit, as his recognised agent, Order VI, Rule 14 (pleading to be signed), enables any person duly authorised by a party to sign the pleading if the party pleading is, by reason of absence or for other good cause, unable to sign the pleading. Thus, it appears from Order VI, Rule 14, that even in the absence of a power of attorney, a party to a suit is entitled to have the pleading signed on his behalf, by any person duly authorised by him to sign. This inference is inevitable on account of the difference in the expressions used in Order III, Rule 2, vis-a-vis Order VI, Rule 14. While Order III, Rule 2, uses the expressions “recognised agents” and “persons holding powers of attorney”, Order VI, Rule 14, uses the phrase “any person duly authorised by him“. Rule 15(1) of the Order VI (verification of pleadings), goes one step further and empowers “some other person” to verify the pleadings, if it is proved to the satisfaction of the Court that he is acquainted with the facts of the case.”

Scope of O. VI R. 14 is not to be curtailed by unduly reading of CR P into it.

The Kerala High Court (KT Thomas, J., as he then was) dealt with this matter in Narayanan Nair v. John Kurien [1988 (1) Ker. LT 673]. He observed as under:

“The said rule (Rule 23) need not be imported to a case where plaint or written statement can be signed, as sanctioned by the substantive law, by any other person duly authorised by the party concerned. Order VI Rule 14 permits such a course to be adopted in making the pleadings. The scope of Order VI Rule 14 is not to be curtailed or restricted by unduly reading of Civil Rules of Practice into it. Nor could the sanction offered by the substantive law be stultified by resort to the rules framed under such law. The proviso in Rule 14 (of Order VI) does not insist on production or even creation of a power of attorney or written authorisation. There is nothing in the said provision suggesting that a written authorisation is indispensable for the proper compliance thereof. Case law seems to be very much in support of the view that even oral authorisation would be sufficient to constitute due authorisation. (Vide Bengal Jute Mills Vs. Jewraj Heeralal, AIR 1943 Cal. 13; Subbiah Pillai Vs. Sankarapandiam Pillai, AIR 1948 Mad. 369; Sarju Prasad Vs. Badri Prasad, AIR 1939 Nag. 242; and Netram Vs. Bhagwan, AIR 1941 Nag. 159). Those decisions were referred to and discussed in detail by a Division Bench of the Bombay High Court in All India Reporter Ltd. Vs. Ramachandra (AIR 1961 Bom. 292). The Bombay High Court, in concurrence with the preponderant view held that oral authorisation is good enough to constitute a valid authorisation under Order VI Rule 14 of the Code. In Iyakku Mathoo Vs. Julius (AIR 1962 Ker. 19) absence of a written authority was considered to be a defect in constituting due authorisation, but the said decision can be distinguished on facts since the suit was instituted on behalf of a plaintiff residing abroad permanently. Raman Nayar, J (as he then was) has observed in the said decision that in such cases the proviso to Order VI Rule 14 does not apply. The upshot of the discussion is that there is compliance with the requirements in Order VI Rule 14 of the Code if there is satisfactory material to show that the signatory in the plaint had the authority of the plaintiff to sign the plaint on behalf of the plaintiff and such authority need not necessarily be in writing.”

In Ruhina Khan v. Abdur Rahman Khan (AIR 2019 AP 117) the AP High Court referring various earlier decisions including the Kerala decision stated above, observed as under:

“As long as the said GPA holder is able to demonstrate that he had the authority to sign such pleadings on behalf of his principals, sufficient compliance with Rule 33 (corresponding to Rule 23 of Kerala Rules) of the Civil Rules of Practice is made out.”

Law in Narayanan Nair v. John Kurien is OVERLOOKED in certain subsequent decisions

Without adverting to, or simply avoiding, the law discussed in the Kerala decision, Narayanan Nair v. John Kurien, 1988 (1) KLT 673, and the AP decision in Janab Syed Kazim Sahab v. Janab Sayeed Bakaram Sahab, (1990 (1) An. WR 256), and various other similar earlier decisions, the Kerala High Court opined in the following subsequent decisions that the Power of Attorney should be produced in the court (except in the case of persons under disability), and court-permission should be obtained, as provided in the rule 22 of the CRP; and a written authority of the party (principal) and affidavit verifying the signature as provided in the rule 23, should be filed in court – where pleadings are signed or verified by ‘any other person’.

KR Sooraj Vs. Southern Railway, 2020-6 KHC 343
Madhusoodhanan Vs. Rajesh R Nair: LAWS (KER) 2017-6-328 (allowed to cure defect by filing required petition to grant permission)
Focal Image India Pvt Ltd. Vs. Focal Image Ltd.: LAWS (KER) 2016-8-190: 2016 SCC OnLine Ker 29043. (Went-on even to hold that the institution of a plaint by an unauthorised agent is an inherent and incurable defect which would vitiate the institution of the plaint and a defective plaint, liable to be rejected in limini, could not be allowed to be made valid and perfect by a subsequent act.)
Rajan Vs. Padmavathy Gopalan Nair: 2011-4 Ker LJ 193, 2011-4 KHC 383 (Distinguished Narayanan Nair v. John Kurien observing that an affidavit had been filed by the principal, in that case to the effect that he had authorised his agent)

Defect, if any, Can be cured

Our Apex Court held in Uday Shanker Triyar Vs. Ram Kalewar Prasad Singh, 2006-1 SCC 75, that filing appeal without a vakalatnama or other authority was curable defect. It is observed in Para 16 and 17 as under:

“16. An analogous provision is to be found in Order VI, Rule 14, CPC, which requires that every pleading shall be signed by the party and his pleader, if any. Here again, it has always been recognised that if a plaint is not signed by the plaintiff or his duly authorised agent due to any bona fide error, the defect can be permitted to be rectified either by the Trial Court at any time before judgment, or even by the Appellate Court by permitting appropriate amendment, when such defect comes to its notice during hearing.
17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well recognised exceptions to this principle are:
       (i) where the statute prescribing the procedure, also prescribes specifically the consequence of noncompliance;
       (ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;
       (iii) where the non-compliance or violation is proved to be deliberate or mischievous;
       (iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the Court;
       (v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.”

Quoting the afore-stated passage from Uday Shanker Triyar v. Ram Kalewar Prasad Singh, the Madras High Court observed in K. Santhanam v. S. Kavitha: 2011-1 CTC 286; 2011-1 LW 66; 2011-3 MLJ 34, that non-compliance with the Civil Rules of Practice (Rule 22 and 23) is a curable defect and an error of procedure is merely an irregularity; that it cannot result in rejection of the suit; and that even without a power of attorney, a party to the suit is entitled to have the pleading signed through another if that another person had been duly authorised. This view is taken in the following decisions also:

Bilasraika Sponge Iron Pvt. v. Devi Trading Company: 2011-5 ALD 327; 2011-4 ALT 297 – (Agent did not seek leave of the Court)
Nethra Chits (P) Ltd., v. B. Ramachandra Reddy, 2006 (4) ALT 190, (Foreman of the Company did not obtain permission of the Court.)
M/s. Gold Medal v. Smt. Ameena Begum 2004-5 ALT 542 (Suit instituted on a defective power of attorney; and corrected subsequently)
Kamal Silk Mills v. Kuncham Mohana Rao: 2002 (1) ALD 722 (DB), (Contentions under Rule 32 cannot be raised at the stage of execution)
Abu Taher v. Abdul Majeed: 1995 (1) ALT 57 (Did not obtain permission from the Court)
P.J. Joseph v. Suhara Beevi Hussain: AIR 2000 Ker 60 – There was a power of attorney in favour of the husband of the plaintiff. Husband filed suit on that basis. The defendant contended that the husband was not specifically authorized by the power of attorney to institute the suit. The plaintiff applied to the trial Court for permission to sign the plaint. The High court observed that even if there was any defect, the plaintiff could sign the plaint, as signing of the plaint was only a procedural matter. Sections 99 and 99A of the CPC referred to)

S. 33 Rgn. Act will NOT attract if Power of Attorney himself Executes the Document

Sec. 32(a) of the Registration Act refers to documents presented for registration by a holder of “power of attorney”. The procedure specified under Sec. 33 would be attracted where a document is presented by a person holding “power of attorney”. If power of attorney himself executes the document, Sec. 33 would not be attracted.

It is so laid down in Manik Majumder v. Dipak Kumar Saha, Mad LJ 2022-2 69, 2022-2 SCALE 521, 2022-2 RCR(Civil) 96 in the following words-

“24. The words “executed and authenticated in manner hereinafter mentioned” in Section 32(c) would mean the procedure specified in Section 33. This is clear from the opening words of Section 33 which reads “for the purposes of Section 32, the following power of attorney shall alone be recognised”. Section 32 refers to documents presented for registration by a holder of “power of attorney” in clause (c) and it therefore follows that the procedure specified under Section 33 would be attracted where a document is presented by a person holding “powers of attorney” of the persons mentioned in clause (a) of Section 32.
25. The aforesaid position makes it explicitly clear that Section 32 of the Act requires the documents sought to be registered, to be presented, inter alia by the person executing it. In other words, the said expression requires presence of the actual person executing the document. The basic principle underlying this provision of the Act is to get before the Sub-Registrar the actual executant who, in fact, executes the document in question. In fact, the ratio of the decision in Ram Gopal [AIR 1960 Punj 226] has laid down a similar proposition on the conjoint reading of Section 32 and Section 33 of the Act and after referring to all the judgments noted hereinbefore. Same view has been expressed earlier by the Bombay High Court in Ratilal Nathubhai v. Rasiklal Maganlal [AIR 1950 Bom 326].
26. It is important to bear in mind that one of the categories of persons who are eligible to present documents before the registration office in terms of Section 32 of the Act is the “person executing” the document. The expression “person executing” used in Section 32 of the Act, can only refer to the person who actually signs or marks the document in token of execution, whether for himself or on behalf of some other person. Thus, “person executing” as used in Section 32(a) of the Act signifies the person actually executing the document and includes a principal who executes by means of an agent. Where a person holds a power of attorney which authorises him to execute a document as agent for someone else, and he executes a document under the terms of the power of attorney, he is, so far as the registration office is concerned, the actual executant of the document and is entitled under Section 32(a) to present it for registration and get it registered.”

See Blog: If Power of Attorney himself Executes the Document, S. 33 Registration Act will NOT be attracted

Conclusion:

Re: Rule 22 of the CRP: PoA or written authority of the principal (or affidavit) and court-permission (as provided in Rule 22 of the CRP) are required if only the agent is one “other than a pleader” and authorised to “appear” in court (to act or argue – 1990 (1) An. WR 256 ). Therefore, a PoA or written authority and permission are not needed to prosecute the case by “appearance through” an advocate.

Re: Rule 23 of the CRP: And, no written authority and affidavit (as provided in Rule 23 of the CRP) are needed when an agent places pleadings signed by the agent himself – if he can demonstrate that he had the authority to sign, as provided in Order VI Rule 14 CPC (because, the scope of Order VI Rule 14 is not to be curtailed or restricted by unduly reading of Civil Rules of Practice into it).

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1 Comment

Dr A J SHAIKH says:

October 21, 2022 at 1:47 pm

Please share CRPC topics also, I am from Maharashtra Adv. A J SHAIKH

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Is Permission of Court Mandatory when a Power of Attorney Holder Files Suit

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