Skip to content


The Governor-general in Council Vs. Bhagwan Sahai - Court Judgment

LegalCrystal Citation
CourtPunjab and Haryana
Decided On
Reported inAIR1948P& H61
AppellantThe Governor-general in Council
RespondentBhagwan Sahai
Cases ReferredIn Bashir Ahmad v. Mrs. Mary Minck A.I.R.
Excerpt:
.....interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a..........a party, but it does not follow therefrom that because the pleader possesses the right to, cross-examine witnesses produced by the opposite side and lead the evidence of his own side, a recognised agent must be denied these rights for this reason alone.4. so far as the second part is concerned, it appears to me that the learned judge of the court below did not apply the law correctly. it is laid down in rule 1, order 3, civil p.c., that 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).....
Judgment:
ORDER

Teja Singh, J.

1. This revision petition is directed against the decree of the Judge of Small Cause. Court, Delhi. The plaintiff in the case, belongs to Delhi. He brought a suit for recovery of Rs. 316-11-0 against the Governor General in Council on the allegations that he was the consignee of the two bags of brass cooks that were despatched through the North Western Railway from Rahwali to Delhi on 6th August 1944, and since the bags were not delivered to him by the Railway and were lost by them he was entitled to the price of the cocks together with profits that he could have made out of them. The defendant resisted the suit on various grounds. He denied that the plaintiff was the consignee of the bags in question or that he had any Zooms standi to maintain the action. He also denied that any valid notice had been given under Section 80, Civil P.C., or that the suit was within time. Last of all he denied that the plaintiff was entitled to recover anything from him. The issues framed by the trial Court read as follows:

(1) Is the suit within limitation?

(2) Did plaintiff serve the defendant with a valid notice under Section 80, Civil P.C.?

(3) Has plaintiff a locus standi to sue?

(4) Is defendant not liable to pay the price of the missing consignment? and

(5) To what amount is the plaintiff entitled?

The first four issues were found for the plaintiff. As regards the last issue, the Court came to the conclusion that the plaintiff was entitled only to recover from the defendant the price of the cocks which was Rs. 255 and accordingly decreed the suit to that extent. The defendant has now put in this revision petition against the decree.

2. The first point raised by Mr. Naranjan Singh Keer on behalf of the petitioner was, that the defendant was not allowed sufficient opportunity to conduct his case in the Court below. Now what happened was that a Litigation Inspector of the North Western Railway appeared in the lower Court to conduct the case on behalf of the defendant. He held a regular power of attorney from the General Manager of the North Western Railway authorising him inter alia to appear on behalf of the defendant, to represent him in the proceedings and to do everything for the conduct of the case. When the case came to the evidence stage and the Inspector wanted to cross-examine the witnesses produced by the plaintiff the Judge of the Court below did not allow him to do so. He even did not permit the Inspector to examine the witnesses whom the defendant wished to produce with a view to rebut the plaintiff's evidence. It appears that he first passed oral orders disallowing the Litigation Inspector from examining and cross-examining the witnesses. Later on the Litigation Inspector put in an application. On this he made a formal order on 3ist July 1946. After referring to his oral orders he stated as as follows:

There are numerous rulings to the effect that there is no warrant whatever for putting a power-of-attorney given to a recognised agent to conduct proceedings in Court in the same category as a Vakalatnama given to a legal practitioner. The latter power-of-attorney or appointment is confined only to pleaders, that is those who have right to plead in Courts. The Litigation Inspector cannot be allowed to conduct the proceedings in the same way as a recognised pleader. He has got no right of audience on behalf of the defendant and nor is he entitled to plead on behalf of the defendant.3. As regards the first part of the above order it is quite correct that a recognised agent appointed under Order 3, Rule 2, Civil P.C., stands on a different footing from a pleader duly authorised and appointed to conduct a case. It is also true that a pleader in so far as the conduct of the case is concerned, possesses more rights than the recognised agent of a party, but it does not follow therefrom that because the pleader possesses the right to, cross-examine witnesses produced by the opposite side and lead the evidence of his own side, a recognised agent must be denied these rights for this reason alone.

4. So far as the second part is concerned, it appears to me that the learned Judge of the Court below did not apply the law correctly. It is laid down in Rule 1, Order 3, Civil P.C., that 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. Rule 2 refers to recognised agents and lays down that such agents by whom appearances, applications and acts mentioned in Rule 1 may be made or done are:

(a) person holding powers-of-attorney, authorising 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 etc., is made or done, in matters connected with such trade or business only, where no other agent is expressly authorised to make and do such appearance, etc.

Rule 5 deals with the appointment of pleaders.

5. There can be no doubt that the case of the Litigation Inspector falls within the ambit of Clause (a) of Rule 2 and since he held a proper power-of-attorney he was the recognised agent of the defendant and accordingly by virtue of Rule 1 he had the same right of putting in appearance in the case or making applications or acting as the defendant himself had. Counsel for the respondent contended that 'acting' does not include the right to examine and cross-examine witnesses and in order to support this contention of his the respondent's counsel referred me to a number of cases.

6. In re Eastern Tavoy Minerals Corporation Ltd. ('34) 21 A.I.R. 1934 cal. 324 was a case on the original side of the High Court. One of the Directors of the Company, who was a party to the case, claimed the right of audience on behalf of the company by virtue of a power-of-attorney. The other side objected. The learned Judge upheld the objection and observed that to plead was not to make or do an appearance, or an application or an act, and was not within Order 8, Rule 1.

7. In Thayarammal v. Kuppuswami Naidu A.I.R.1937 Mad.937 the following was one of the three questions referred to the Full Bench:

Whether an agent with a power-of-attorney to appear and conduct judicial proceedings has the right of audience in Court.The question was answered in the negative and Beasley C.J. who delivered the judgment of the Full Bench after referring to an unreported case of this Court and Harchand Ray v. B.N. Ry Co. A.I.R.1916 Cal.181 and In re Eastern Tavoy Minerals Corporation Ltd. A.I.R.1934 cal.324 made the following observations:

It is plain from these three cases that Rules 1 and 2 of Order 3, Civil P.C., do not give the recognised agent any right to plead in Court on behalf of his principal either in the appellate or Original Sides of the High Court and, even if it could be contended successfully that Order 3 gives a right to a recognised agent to plead in Court on the appellate side, it is clear that he can have no such right of audience on the Original Side because of Section 119 which provides that:

Nothing in this Code shall be deemed to authorise any person on behalf of another to address the Court in the exercise, of its original civil jurisdiction, or to examine witnesses, except where the Court, shall have in the exercise of the power conferred by its Charter authorised him to do, etc, (Section 119 appears in Part 9, Civil P.C., which lays down special provisions relating to the Chartered High Courts.)

8. In Jaivanlal v. Ram Ratan A.I.R.1936 Oudh.261 one of the appellants applied that his special agent be allowed to argue the appeal on his behalf. The learned Judges rejected the application and held that the words of Order 3 Rule 1, Civil P.C., viz. 'any appearance, application, or act' meant no more than that the recognised agent could appear, make applications and take such steps as might be necessary in course of the litigation for the purposes of the case of his principal being properly laid before the Court and that they could not justify a recognised agent being allowed to argue and plead.

9. In Bashir Ahmad v. Mrs. Mary Minck A.I.R.1938 Lah.698 the question was whether, a pleader who has not been regularly appointed by a document in writing signed by a party or by his recognised agent or by some other person duly authorised by or under a power-of-attorney to make such appointment, as required by Rule 4(1) of Order 3 could make an application on (his behalf. The words of the Sub-rule are, that no pleader shall act for any per-son unless he has been appointed for the purpose by such person by a document in writing signed by him or by his recognised agent, etc. It was held that the pleader had no right to make the application. The learned Judges remarked:

It is true that, while Rule 1 of Order 3 mentions three functions of a pleader, viz. 'appearing, 'applying' or 'acting', Sub-rule (1) and Sub-rule (5) of Rule 4 merely deal with 'acting' and 'pleading' respectively; but that does not indicate that 'applying' is not covered by 'acting'. 'To apply' is to do something more than 'to appear' or 'to plead'. It is to take some active step on behalf of a person and thus to Act for him. 'Applying' therefore is included in 'acting' and this is why no separate provision has been made by the Legislature in relation to this function of a pleader. To hold otherwise would lead to absurd results. Rule 4 of Order 3 being silent on the point of applying, any pleader without any authority from a litigant and without putting in any memorandum of appearance would be in a position to present any application on his behalf. This obviously could not be the intention of the Legislature. It is a recognised principle of law that statutes should be interpreted in a reasonable manner so as to avoid all absurd interpretations, and the only reasonable interpretation in these circumstances is the one that we propose to put on the Rule.It will thus be seen that all that was held in the cases other than the Lahore case, was that 'pleading' is quite different from 'acting' and since the law allows a recognised agent to act, he has no right to plead on behalf of his principal. In the case before me, there was no question of pleading. What the recognised agent merely wanted to was to cross-examine the witnesses for the other side and then to examine the witnesses of his principal and I find it difficult to hold that this was tantamount to pleading. The Lahore case does not help the respondent either. On the other hand it helps the petitioner inasmuch as it was held therein that the term 'acting' was wide enough to include 'applying'. By applying the analogy I am inclined to think that it should also include all acts which one is expected to take for the proper conduct of the case. The reasons why 'pleading' stands on a different footing from 'acting' are given in the cases mentioned above and the most important of them is that it is regarded as a special privilege of pleaders and the intention of the Legislature appears to be that they should not be usurped by private persons. No such considerations can apply in case of the right to cross-examine or examine witnesses. I, therefore, hold that the Judge of the Court below acted wrongly in not permitting the Litigation Inspector of the North Western Railway to cross-examine and examine the witnesses.

10. In the view, that I take the natural course for me was to send back the case for retrial with the direction that the petitioner be allowed to cross-examine the plaintiff's witnesses and to lead his own evidence in defence. But after hearing the petitioner's counsel on some of the other points my opinion is that there will be no use in doing so. As I have already mentioned one of the pleas raised by the petitioner was that the plaintiff had no locus standi to bring the suit. The trial Judge decided this point in the plaintiff's favour. While doing so he appears to have ignored the standi taken by the plaintiff in his plaint. He states in his order:

The plaintiff was the consignee of the goods and had purchased it from the consignor for Rs. 255. There is no evidence in rebuttal.Now the fact that the plaintiff bought the goods from the consignor is mentioned in the plaintiff's statement, but this is not what he alleged in the plaint. All that was stated in the plaint was, that the plaintiff was the consignee of the goods and no evidence at all was examined to prove that the goods were ever assigned to him. The respondent's counsel argued that the plaintiff, while he was in the witness-box, made a positive statement that the consignor endorsed the railway receipt in his favour, but the Judge did not record it, because the case being of the nature of small cause he was not bound to take down every word that the witnesses stated. In the first place there being no affidavit to support the counsel's contention I cannot take any notice, of it. But even if what is urged before me be true, the plaintiff's oral statement on the point could not in law prove the endorsement, because it had to be in writing and the only evidence admissible to prove it was the writing itself. It is significant that the railway receipt bearing the endorsement was never produced in Court and there is no explanation whatever why this was not done. Accordingly, I find that the plaintiff has failed to prove that he was the consignee of the goods and consequently he had no locus standi to sue for the price thereof.

11. The learned Counsel for the petitioner also addressed arguments to show that the suit was barred by time and the requirements of law relating to notice have not been complied with. I do not consider it necessary to go into these points, because the suit must fail on the question of the locus standi. The result is that the petition is allowed and the plaintiff's suit is dismissed with costs throughout.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //