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RECOGNIZED AGENTS AND PLEADERS.

RECOGNISED AGENTS AND PLEADERS

SUBMITTED BY

DEEPALI SINGH, ROLL NO-1408, 5th SEMESTER, B.B.A.LLB

SUBMITTED TO

B.R.N SHARMA, FACULTY OF CIVIL PROCEDURE OF CODE.

FINAL DRAFT SUBMITTED IN FULFILLMENT OF THE COURSE OF CPC FOR


THE COMPLETION OF THE B.B.A.LLB. (Hons.) COURSE.

OCTOBER, 2017

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR PATNA-800001, BIHAR

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RECOGNIZED AGENTS AND PLEADERS.

TABLE OF CONTENTS

ACKNOWLEDGEMENT ................................................................................................................................... 3

DECLARATION ............................................................................................................................................... 4

CONCEPT ....................................................................................................................................................... 5

ISSUES ........................................................................................................................................................... 5

RESEARCH METHODOLOGY .......................................................................................................................... 5

Sources of Data: ........................................................................................................................................ 6

Survey of data ........................................................................................................................................... 6

LIMITATIONS ................................................................................................................................................. 6

1. INTRODUCTION ......................................................................................................................................... 7

2. PROVISION OF ORDER 3 OF CPC, 1908. .................................................................................................. 10

3. ANALYSIS OF PROVISION OF ORDER 3 OF CPC....................................................................................... 13

4. CASE LAWS ON ORDER 3 ......................................................................................................................... 15

5. CONCLUSION ........................................................................................................................................... 18

BIBLIOGRAPHY :- ......................................................................................................................................... 19

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RECOGNIZED AGENTS AND PLEADERS.

ACKNOWLEDGEMENT

The researcher take this opportunity to express her profound gratitude and deep regards to her
guide B.R.N SHARMA SIR for his exemplary for his exemplary guidance, monitoring and
constant encouragement throughout the course of this project. The blessing, help and guidance
given by him time to time shall carry the researcher a long way in the journey of life on which
the researcher is about to embark. Lastly, the researcher would like to thank almighty, her
parents, brother, sisters and friends for their constant encouragement without which this
assignment would not be possible.

THANK YOU,
DEEPALI SINGH.

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RECOGNIZED AGENTS AND PLEADERS.

DECLARATION

I hereby declare that the work reported in the B.B.A.LL.B (Hons.) Project Report entitled
“RECOGNIZED AGENTS AND PLEADERS” submitted at Chanakya National Law
University, Patna is an authentic record of my work carried under the supervision of B.R.N
SHARMA SIR. I have not submitted this work elsewhere for any other degree or diploma. I am
fully responsible for the contents of our project report.

DEEPALI SINGH
CHANAKYA NATIONAL LAW UNIVERSITY, PATNA
OCTOBER, 2017

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RECOGNIZED AGENTS AND PLEADERS.

CONCEPT

A pleader is a person who is entitled to appear and plead for another in court and includes an
advocates, a vakil or an attorney of high court. He represents his client in various stages of the
litigation and takes necessary steps for properly presenting the case of the client before the court.
Any appearance, application or act in or to any court may be made or done by the party in
person, or by his recognized agent, or by a pleader or his behalf.
Recognized agents are : (1) persons holding power of attorney (2)persons carrying on trade
or business for and in the name of parties not restraint within the local limits of the jurisdiction of
the court and (3 )persons specially appointed by government to prosecute or defend on behalf of
foreign rules.

ISSUES

There is confusion regarding the proper definition of agent and pleader. There are numerous
cases where these are two words were misinterpretated.

RESEARCH QUESTIONS

The researcher has formulated the following research questions:

1. What is recognized agent?


2. What is pleader?
3. What are the provisions regarding the recognized agents and pleaders?

HYPOTHESIS

The researcher has formulated the following hypothesis, the validity of which has been tested in
the course of research.

1. There is a difference between recognized agent and pleader.

RESEARCH METHODOLOGY

The researcher has used only doctrinal method of research.

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RECOGNIZED AGENTS AND PLEADERS.

Sources of Data:

Secondary Sources - Books, magazines, journals and websites.

Survey of data

Library of CNLU, Patna.

LIMITATIONS
The researchers lack monetary and other resources. The research will be confined to a time-limit.
The research will be only doctrinal. For the doctrinal work the researcher will be confined to
library of CNLU and internet sources.

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RECOGNIZED AGENTS AND PLEADERS.

1. INTRODUCTION

Before proceeding to the stage of the suit, viz., filing of written statement by the defendant to
controvert the plaint allegations, a few words may be said about pleaders and recognized agents.
A pleader is a person who is entitled to appear and plead for another in court, and includes an
advocate, a vakil or an attorney of a High Court. He represents his client in various stages of the
litigation and takes necessary steps for properly presenting the case of the client before the court.
Any appearance, application or act in or to any court may be made or done by the party in
person, or by his recognized agent, or by a pleader on his behalf.

Recognized agents are: (1) persons holding powers of attorney, (2)


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 in matters connected with such trade or business only,
where there is no other agent authorized to make and do such appearances, applications and acts
[Order III, Rule 2], and (3) persons specially appointed by Government to prosecute or defend on
behalf of foreign rulers. (S. 85 of CPC, 1908).

Appointment of pleader:

No pleader shall act for any person in any court, unless he has been appointed for the purpose by
such person by a document in writing, signed by the party, and filed in court, and shall be in
force until the client or the pleader dies, or until all proceedings in the suit are ended so far as
regards the client. [Order II, Rule 4(1-2)].

No mention had been made in the application that the defendant had withdrawn instructions from
his counsel. Therefore, under the provisions of Order III, Rule 4(2), C.P.C., the said counsel
continued to represent the defendant. In view of the provisions of Order III, Rule 4(2), C.P.C.,
therefore even though the counsel for the defendant had written no instructions on the order-
sheet, he continued to represent the defendant as he did not seek any permission in writing from
the court to withdraw from the case and no such permission was granted to him by the Court.

Termination of Authorities of an Advocate by Client— Continuation till then:

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Thus, once an Advocate is engaged as a pleader by a client, the authority of the Advocate to
represent his client continues to remain in force until it is determined with the leave of the Court
in writing signed by the client or the pleader.

In the absence of a written termination of the relationship of the client and the pleader, the
pleader is not absolved of his duty to appear on behalf of his client. Any statements made by him
that he had no instructions does not terminate his authority. Once he has accepted the brief and
the client has paid his fee, he continues to represent the client and be responsible for the conduct
of the case.

He is, no doubt, entitled to terminate his status as a leader of the client but that cannot be done
orally. It must be done in writing with the permission of the Court in the manner laid down by
clause (2) of the Rule 4 of Order III.

Nothing above shall be construed: (a) as extending, as between the pleader and his client, the
duration for which the pleader is engaged, or (b) as authorising service on the pleader of any
notice or document issued by any court other than the court for which the pleader was engaged,
except where such service was expressly agreed to by the client in the document referred to in
sub-rule 1 [Order III, Rule 4(3)].

Implied Authority Conditions—Good faith and precedence:

The actual, though implied, authority of a pleader to act by way of compromising a case in which
he is engaged even without specific consent from his client, must be upheld, subject undoubtedly
to two overriding considerations: (1) he must act in good faith and for the benefit of his client;
otherwise the power fails; (2) it is prudent and proper to consult his client and take his consent if
there is time and opportunity. In any case, if there is any instruction to the contrary or withdrawal
of authority, the implicit power to compromise in the pleader will fall to the ground.

Standards of Profession and fees and lien: In the absence of any rules relating to the standards of
profession, conduct and etiquette under section 49(l)(c) of the Advocates Act, an advocate has
lien over the papers of his client entrusted to him during the pendency of a case for payment of
his fees.

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The common law right of passive and retaining lien available to a solicitor in England is
accepted by courts in India as part of the law of his country. The said common law right is not
abrogated by section 171, Contract Act.

The party has right to change his counsel and previous counsel cannot insist on fees till
conclusion of proceedings. One fourth of scheduled fees were directed to be paid by party to
counsel who has worked till settlement of issues and leading evidence on behalf of party. Further
the previous counsel was directed to give unconditional consent to engage another counsel.

Service of process on pleader:

Any process served on the pleader who has been duly appointed to act in court for any party or
left at the office or ordinary residence of such pleader, and whether the same is for the personal
appearance of the party or not, shall be presumed to be duly communicated and made known to
the party whom the pleader represents. (Order III, Rule 5).

Processes served on the recognised agent or a party shall be as effectual as if the same had been
served on the party in person unless the court otherwise directs. (Order III, Rule 4).

Government Advocate Order Xxvii, Rule 8b:

The order passed on concession made by Government contrary to statute is liable to be recalled.
Government advocate cannot make concession that the State would act contrary to the provisions
of the statute.1

1
Retrieved from :- http://www.shareyouressays.com/knowledge/legal-provisions-of-order-iii-of-code-of-civil-
procedure-1908-c-p-c-recognised-agents-and-pleaders/114330.( 27-10-2017; 09:00pm).

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2. PROVISION OF ORDER 3 OF CPC, 1908.

RULE 1 - Appearances, etc., may be In person, by recognized agent or by pleader.- Any


appearance, application or act in or to any court, required or authorised 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 recognised 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 court so directs, be made by the party in person.

RULE 2 - Recognised agents.- The recognized agents of parties by whom such appearance,
applications and acts may be made or done are—

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

(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.

RULE 3 - Service of process on recognised agent.- (1) Processes served on the recognised
agent of a party shall be as effectual as if the same had been served on the party in person,
unless the court otherwise directs.

(2) The provisions for the service of process on a party to a suit shall apply to the service of
process on his recognised agent.

RULE 4 - Appointment of pleader.- (1) No pleader shall act for any person in any court, unless
he has been appointed for the purpose by such person by a document in writing signed by such
person or by his recognised agent or by some other person duly authorized by or under a power
of attorney to make such appointment.

(2) Every such appointment shall be filed in court and shall, for the purposes of sub-rule (1), be
deemed to be in force until determined with the leave of the court by a writing signed by the
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client or the pleader, as the case may be, and filed in court, or until the client or the pleader dies,
or until all proceedings in the Suit are ended so far as regards the client.
Explanation : For the purposes of this sub-rule, the following shall be deemed to be proceedings
in the suit,—

(a) an application for the review of decree or order in the suit;

(b) an application under section 144 or under section 152 of this Code, in relation to any decree
or order made in the suit,

(c) an appeal from any decree or order in the suit, and

(d) any application or act for the purpose of obtaining copies of documents or return of
documents produced or filed in the suit or of obtaining refund of moneys paid into the court in
connection with the suit.

(3) Nothing in sub-rule (2) shall be construed—

(a) as extending, as between the pleader and his client, the duration for which the pleader is
engaged, or

(b) as authorizing service on the pleader of any notice or document issued by any court other
than the court for which the pleader was engaged, except where such service was expressly
agreed to by the client in the document referred to in sub-rule (1).

(4) The High Court may, by general order, direct that, where the person by whom a pleader is
appointed is unable to write his name, his mark upon the document appointing the pleader shall
be attested by such person and in such manner as may be specified by the order.

(5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of
any party, unless he has filed in court a memorandum of appearance signed by himself and
stating—

(a) the names of the parties to the suit,

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(b) the name of the party for whom he appears; and

(C) the name of the person by whom he is authorized to appear:

Provided that nothing in sub-rule shall apply to any pleader engaged to plead on behalf of any
party by any other pleader who has been duly appointed to act in court on behalf of such party.

RULE 5 - Service of process on pleader.- Any process served on the pleader who has been duly
appointed to act in Court for any party or left at the office or ordinary residence of such pleader,
and whether the same is for the personal appearance of the party or not, shall be presumed to be
duly communicated and made known to the party whom the pleader represents, and, unless the
court otherwise directs, shall be as effectual for all purposes as if the same had been given to or
served on the party in person.

RULE 6 - Agent to accept service.-

(1) Besides the recognised agents described in rule 2 any person residing within the jurisdiction
of the court may be appointed an agent to accept service of process.

(2) Appointment to be in writing and to be filed in court—Such appointment may be special or


general and shall be made by an instrument in writing signed by the principal, and such
instrument or, if the appointment is general, a certified copy thereof shall be filed in court.

(3) The court may, at any stage of the suit, order any party to the suit not having a recognised
agent residing within the jurisdiction of the court, or a pleader who has been duly appointed to
act in the court on his behalf, to appoint, within a specified time, an agent residing within the
jurisdiction of the court to accept service of the process on his behalf. 2

2
CPC,1908 BAREACT.

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3. ANALYSIS OF PROVISION OF ORDER 3 OF CPC

RULE 1 - Appearances, etc., may be In person, by recognized agent or by pleader.- Any


appearance, application or act in or to any court, required or authorised 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 recognised 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 court so directs, be made by the party in person.

LEGISLATIVE CHANGES – The amendment of 1976 made no changes to this rule.

SCOPE AND OBJECT OF THE RULE – The right of party to a judicial proceeding to be
represented by an advocate is not a general right, but must be given by a statute.3 This rule enacts
that an appearance, application or act in or to any court may, except where otherwise expressely
provided by any law for the time being in force, be done –

in person, or.

by his recognized agent or,

by a pleader appearing, applying, or acting on his behalf.4

The primary object of the rule appears to be to afford greater facility to a party and to enable him
to perform certain acts which he would have been otherwise required to do in person, through his
recognized agent and pleader and the other object appears to be t prevent perpetration of fraud by
an unauthorized person taking steps without the consent or knowledge of the party concerned.5
The purpose of order 3 of cpc is not for appearance of the recognized agent or pleader as witness
in place of principle.6

“APPEARANCE, APPLICATION OR ACT” –“These words have a well-defined and well


known meaning. To appear for a client in court is to be represent him in the various stages of the
litigation at which it is necessary that the client should be present in court by himself or by some

3
AIR 1968 ALL 270(271,272).
4
AIR 1955 Bom 262 ( 264).
5
AIR 1957 Andh Pra 172(173) (FB).
6
AIR 2011 Raj 99.

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representative.7 Thus acting includes applying ; so that a pleader who makes an application on
behalf of a litigant ‘äcts’ for him and cannot do so unless he is authorized in writing under rule
4 of this order.8 The words appearance and act do not include pleading and a recognized agent
who is entitled to appear and act for a party is not entitled to a right to audience.9

POWER TO DEPOSE INSTEAD OF PRINCIPLE – Power of attorney holder cannot depose in


place and instead of principle order 3 rule 1 & 2 empowers the holder of power of attorney to act
on behalf of principle.10

APPEARANCE OF PARTY IN PERSON - The mere presence of a party in court at the hearing
is sufficient to constitute “appearance”. The purpose for which he appeared or the action which
he took on appearance is immaterial.11

7
AIR 1955 Bom 262(265).
8
AIR 1975 Goa 26(26).
9
AIR 1971 Delhi 110 (128).
10
AIR 2005 SC 439.
11
AIR 1924 Nag 26 (27).

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4. CASE LAWS ON ORDER 3

Many a times Power of Attorneys enter the witness box on behalf of their Principals and depose
facts, either based on their personal knowledge or knowledge derived from records. Questions
have often been raised about the evidentiary value of depositions by such Attorneys, more so in
cases where they do not possess personal knowledge of the facts of a case.

The Supreme Court in Janki Vashdeo Bhojwani v. Indusind Bank Ltd.12 , held as follows:

"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, confines
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 of 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."

In the case of Shambhu Dutt Shastri v. State of Rajasthan13 it was held that a general power
of attorney holder can appear, plead and act on behalf of the party but he cannot become a
witness on behalf of the party. He can only appear in his own capacity. No one can delegate the
power to appear in witness box on behalf of himself. To appear in a witness box is altogether a
different act. A general power of attorney holder cannot be allowed to appear as a witness on
behalf of the plaintiff in the capacity of the plaintiff.

The aforesaid judgment was quoted with the approval in the case of Ram Prasad v. Hari
Narain 14. It was held that the word "acts" used in Rule 2 of Order III of the CPC does not
include the act of power of attorney holder to appear as a witness on behalf of a party. Power of
attorney holder of a party can appear only as a witness in his personal capacity and whatever
knowledge he has about the case he can state on oath but be cannot appear as a witness on behalf

12
2005 (2) SCC 217.
13
1986 2 WLN 713 (Raj).
14
AIR 1998 Raj 185.
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of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a
commission for recording his evidence may be issued under the relevant provisions of the CPC.

In a recent decision, Man Kaur (dead) by LRS. v. Hartar Singh Sangha, the Supreme Court has
summarised the above position, as follows;

12. We may now summarise for convenience, the position as to who should give evidence in
regard to matters involving personal knowledge:

(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal
knowledge of the transaction can only give formal evidence about the validity of the power of
attorney and the filing of the suit.

(b) If the attorney holder has done any act or handled any transactions, in pursuance of the
power of attorney granted by the principal, he may be examined as a witness to prove those acts
or transactions. If the attorney holder alone has personal knowledge of such acts and
transactions and not the principal, the attorney holder shall be examined, if those acts and
transactions have to be proved.

(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done
by the principal or transactions or dealings of the principal, of which principal alone has
personal knowledge.

(d) Where the principal at no point of time had personally handled or dealt with or participated
in the transaction and has no personal knowledge of the transaction, and where the entire
transaction has been handled by an attorney holder, necessarily the attorney holder alone can
give evidence in regard to the transaction. This frequently happens in case of principals carrying
on business through authorized managers/attorney holders or persons residing abroad
managing their affairs through their attorney holders.

(e) Where the entire transaction has been conducted through a particular attorney holder, the
principal has to examine that attorney holder to prove the transaction, and not a different or
subsequent attorney holder.

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(f) Where different attorney holders had dealt with the matter at different stages of the
transaction, if evidence has to be led as to what transpired at those different stages, all the
attorney holders will have to be examined.

(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to
establish or prove something with reference to his 'state of mind' or 'conduct', normally the
person concerned alone has to give evidence and not an attorney holder. A landlord who seeks
eviction of his tenant, on the ground of his 'bona fide' need and a purchaser seeking specific
performance who has to show his 'readiness and willingness' fall under this category. There is
however a recognized exception to this requirement. Where all the affairs of a party are
completely managed, transacted and looked after by an attorney (who may happen to be a close
family member), it may be possible to accept the evidence of such attorney even with reference to
bona fides or 'readiness and willingness'. Examples of such attorney holders are a husband/wife
exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the
affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a
son/daughter living abroad.15

15
Retrrieved from : http://www.legalblog.in/2010/10/power-of-attorney-evidence-law.html.( 29-10-2017; 08: 00
pm).

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5. CONCLUSION

Any appearance, application or act in or to any court, required or authorised 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 recognised agent, or by
a pleader appearing, applying or acting, as the case may be, on his behalf.

The primary object of the rule appears to be to afford greater facility


to a party and to enable him to perform certain acts which he would have been otherwise
required to do in person, through his recognized agent and pleader and the other object appears
to be t prevent perpetration of fraud by an unauthorized person taking steps without the consent
or knowledge of the party concerned.16 The purpose of order 3 of cpc is not for appearance of the
recognized agent or pleader as witness in place of principle, and the definition of recognized
agent and pleader, the dutites and responsibility of pleader.

16
AIR 1957 Andh Pra 172(173) (FB).

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BIBLIOGRAPHY :-

1. C.K. Takwani ‘s Civil Procedure .


2. B. M. Prasad & S. K. Sarvaria, Mulla’s Code of Civil Procedure (17th ed., 2007).
3. MANOHAR & CHITALEY, CODE OF CIVIL PROCEDURE, AIR NAGPUR, 11TH
EDITION.

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