An Analytical Study on Recognised Agents and Pleaders in Light of Decided Cases in India

The paper would analyse the concept and meaning of recognized agents and pleaders in the light of decided cases in India. The paper would firstly define and interpret the definition of Order 3 and understand the concept of agents and pleaders and then would analyse the relevant provisions with the help of decided cases in India. The paper would further demonstrate the summarisation of agents and pleaders and how they have evolved through the course of Indian legislation and landmark judgments. The researcher through the medium of this paper would then by analyzing the judgments would understand whether these cases have either been restricted or increased by the bounds of the definition of recognized pleaders and agents in order to represent various parties in the court of law. The paper would then understand the service of process on both pleaders and recognized agents and then would deal with the appointment of pleader in terms of pleader appointed to act and pleaders engaged to only plead and the position of advocates and their right to practice and rule of the court. The paper would further elucidate upon the agents and their ability to accept service and then would analyse the following research through a statistical analysis. Lastly the researcher would provide plausible suggestions and recommendations which could be incorporated by the courts to reduce the burden upon them and in order to ensure proper and diligent administration of Order 3.

Introduction

A pleader is a person who can plead before the Court in any given matter. The S. 2(15) of CPC defines “pleader” as any person entitled to appear and plead for another in Court, and includes an advocate, a Vakil and an attorney of a High Court. This essentially is the grounds for the legal provisions defined under Order III rules 1-6. These rules clarify the basic requirements for a pleader and who all can be pleaders.

The definition of pleader has been evolving as long as the law has been evolving. Through various judgments, the various Courts have either restricted or increased the bounds of the definition of recognized pleaders and agents to represent various parties in the Court.

The appointment and the valid recognition of rights of the parties can be done by the pleaders. They are an integral part of the delivery of justice. The pleaders can be said to be the voice of the parties in a court proceeding. Therefore, it is of the utmost importance that the parties are represented by a person who is well within his rights and abilities to do so. There are various grounds put forth by statutes as well as the interpretations of the Courts as requirements for a person to be a pleader.

Recognised Agents

The recognized agents of parties by whom such appearances, applications and acts may be done are-

1. persons holding power-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties;
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 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.

High Court Amendments

Bombay (27.11.1936) – Clause (a) shall be amended to read as follows

“(a) Persons holding on behalf of such parties either (i) a general power-of-attorney, or (ii) in the case of proceedings in the High Court of Bombay an Advocate, and in case of proceedings in any district, an Advocate or a Pleader to whom a sanad for that district has been issued,  holding the requisite special power-of-attorney from 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, authorising them or him to make and do such appearances, applications and acts on behalf of such parties.

Gujarat (17.8.1961) – Same as in Bombay with the following modifications

• For the words “Bombay an attorney of such High court or” substitute “Gujarat”,
• For the words “any such attorney or any” substitute “an”.

Madhya Pradesh (16.9.1960) – Same as in Gujarat with the following modifications

For the words “in the High Court of Gujarat an Advocate” substitute “in the High Court of Madhya Pradesh, an Advocate of that High Court” and for the words “in any district, an Advocate”, substitute “in any district, any Advocate.”

Therefore, it can be inferred from this rule that the recognised pleaders are

1. Persons holding power-of-attorney which authorizes them to do so.
2. Agent carrying out business when no other person is specifically appointed to represent the party.

And in addition to this, the various state amendments provide for:

• An advocate practising in the said court, or a pleader with a valid “sanad” to practise in that district.

The main questions of law regarding this rule are the specific powers available to the pleaders.

• POA Signed by any one of the Partners Binds All.

The Hon’ble SC has held in the case Purushottam Umedbhai and Co. v. Manilal and Sons[1]that the POA need not be signed by all the partners as under S. 18 of the Partnership Act, a partner is not only an agent for the firm but also for other partners, as he is the manager of the firm as well.

• Leave Need not be Obtained once again Order III Rule 2 of CPC if the Case is Transferred in view of Pecuniary Jurisdiction.

The City Civil Court of Madras, in the case J.V. Corporation v. Grinder Care Enterprises P. Ltd.[2], has held that the leave of the Court need not be obtained again if the case is transferred due to pecuniary jurisdiction. The leave once obtained for the maintainability of suit through power agent it is enough for all actions further.

• The Consumer Protection Act, 1986 read with Order III Rule 2 of CPC

The Hon’ble SC in Ethiopian Airlines v. Ganesh Narain Saboo,[3] has held that the CPA permits for the parties to be represented by agents to ensure that the parties are not burdened with the heavy professional fees of lawyers.

• Powers of Advocate with Valid POA

The HC of Bombay in Performing Right Society Ltd. v. Indian Morning Post Restaurant[4] held that: an attorney of the High Court holding a general or a special power-of-attorney is a recognised agent of the party under Order III, Rule 2(a), and can act for him.

• Advocate and Power of Attorney

In Oil and Natural Gas Commission v. Offshore Enterprises Inc.[5], the Hon’ble HC of Bombay has held that:

“Practice prevailing in the Court in case of foreign or non-resident clients whereby the Advocates’ firm acts in a professional capacity and one or two partners of the same firm obtain power of attorney with authorisation to sign pleadings and affidavits is opposed to law. A constituted attorney of a party cannot appoint himself or his co-partner or his own firm of Advocates as Advocate on record for purpose of acting in professional capacity in the same cause or matter.”[6]

The Court stated that firm representing the person cannot hold the POA for signing the affidavits or pleadings on behalf of the client. Therefore the valid pleader and the POA holder cannot be from the same firm.

• Special POA and General POA

The Hon’ble HC of Bombay in the case Ganpati Nana Powar v. Jivanabai Kom Subanna,[7] has held that w.r.t. S. 99[8] of the CPC, a suit cannot be dismissed on the grounds that the POA holder has special POA, not general. The court held that:

“The view that it is a merely technical objection not affecting the merits is incorrect, for as was laid down by West J. in Venkat Rao Raje Ghorpade v. Madhavrav Ramchandra,[9] the decision did affect the merits as between Baburao and the defendant’s. The decision in Charles Palmer v. Sorabji Jamshedji,[10] does not touch the point that there is no institution of the suit at all according to law.”

• Distinction Between Special and General POA

The HC of Madras in the case, Basile Irou v. International Ayurvedic Health Centre[11], has held the attorney given complete power to commence and defend all actions, claims, demands on behalf of Principal is a General POA and not a special one. The action of the POA to file Applications in connection with eviction of tenant is valid.

• Sub-agent and Institution of Suit

In the case K. Santhanam v. S. Kavitha[12]the Hon’ble HC of Madras has held that a suit instituted by a sub-agent, is a valid suit as long as it is ratified by the plaintiff on whose behalf it is being instituted. The signing of a second POA ratifying the actions of the sub-agents, thus corrected the defects of the plaint. The Court referred to Jugraj v. Jaswantsingh,[13] concluding that it is well settled in the law that it was always open to the Principal to ratify the act of the agent by producing an authenticated POA.

Introduction to Appearance and Recognized Agents

Rule 1 of Order III of The Civil Procedure Code, 1908 deals with “appearance etc. may be in person by recognized agents and pleader.” It reads as:

“Any appearance, application or act in or to any Court, required or authorized 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 recognized 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.”

The term “except where otherwise expressly provided” is a key element in Order III. In the case of KC Majumdar v. Suraj Singh[14], it was noted that these words refer to any laws other than the laws that is contained in the Code of Civil Procedure. But later in the case of Satyanarayana v. Venkatasubbayya[15], it was stated to be provided as including in the provisions of CPC and also some rules and orders were found to be exception to this rule.

Appearance, Applying or Acting

Appearing, Applying or Acting are the word which was substituted for the word “duly appointed to act” which was contained in the original rule. When the word “Appearance” is taken into consideration, it simply includes the appearance by the advocate. The same was opined in the case of State of West Bengal v. Pranab Ranjan Roy[16]. In the case of The Anglo French Drug Co. v. RD Tinaikar, the word “Act” in contrast with the words “Appearance” and “Application” is used in a technical sense and not with the literal context or ordinary sense which is referred to any action made by the party. 

The full bench of Allahabad High Court in its opinion on appearance, application act and recognized agent has held that, “As per Order III, rule 1 of the Code, an appearance, application or Act in or to any court which is required to be made or done by a party in the court, can be effectively made or done by the party in person or by a recognized agent. A recognized agent, for that purpose, includes a person who holds the power of Attorney. This is thereby a specific application of the provisions contained in sections 1A and 2 of the Powers-of-Attorneys Act, 1882.”

Appearance: It was held in the case of Soonderlal v. Goorprasad[17] that if the pleader does not proceed or conduct the case on behalf of his principal, then his mere presence does not come within the meaning of Rule 6 or Rule 8 of Order IX.

Appearance as a Witness

The Supreme Court has held that the power of attorney holder cannot be brought down in place of and instead of the principal. The power of attorney holder is given the power to “act” on behalf of the principal by the provisions of Order III, rule 1 and 2 of the Code of Civil Procedure. Here, the term “Acts” contains only the power which is granted to the power of attorney holder to act under the provisions of the instrument. It should also be noted that the word “act” does not mean that the power of attorney holder can depose the principal. Similarly, he cannot depose the principal in case where the principal will only have the personal knowledge and only the principal can be cross-examined.

The Madras High Court in the case of Usha Ranganathan v. NKV Krishnan in furtherance of the decision of the Hon’ble Apex Court with regard to the power of the attorney holder held that, “though the power of attorney holder may be permitted to conduct the case on behalf of his principal, while the stage of the case reaches recording of evidence, he is precluded from deposing on behalf of his principal, while the stage of the case reaches recording of evidence, he is precluded from deposing on behalf of his principal as to matters which would be within the personal knowledge of the latter.”[18]

Proviso: Appearance by Party in Person

Under except with very good reasons, the Court is not justified in ordering a party to appear in person under Rule I, Order III of the Code. The party is also not bound to attend in person before the court unless and until specifically directed. Nonetheless, the court can order party to appear the court for collecting signatures or handwriting in order to fulfil the provisions of the Evidence Act. If the Court directs the party for the appearance, then the party is bound to appear before the court in person.

Services of Process on Recognized Agent

The meaning of a recognized agent has not been dealt with in the definition clause of the Code of Civil Procedure, 1908. However, Order 3 Rule 2 gives a broad outlook towards who can be considered as a recognized agent of a party. Sub Clause (a) of Order 3 Rule 2 says that any person holding the power of attorney or authorized otherwise to represent any person can be considered as a recognized agent of that party. This is pretty straight forward as a person holding a power of attorney of other is empowered by law to the extent of such power conferred by the document itself to represent another in the court of law. Sub Clause (b) of Order 3 Rule 2 states in essence that, any person carrying out any trade or business in the name of another within the local-limits of a place where the party is not a resident of and is the same area of jurisdiction of the court where such application is filed only to the extent of representing the party in matters of such trade or business a person can be considered as a recognized agent of another.

Order 3 Rule 3 (1) is in essence the same as the service of process on the pleader in as much as the fact that any process serviced on the recognized agent is effectually the communication made to the party unless otherwise directed by the court. However, Order 3 Rule 3 (2) states that, the provisions of the service of process on the agent is the same as the provisions of the service of process on the party.

What is a process: Service of process is a procedure by which a party to a lawsuit gives an appropriate notice of legal action to another party in an effort to exercise jurisdiction. 

Appointment of Pleader

Section 54[19]

• 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 his recognized agent or by some other person duly authorised by or under a power-of-attorney to make such appointment.
• Every such appointment shall be deemed to be in force until determined with the leave of the Court by a writing signed by the 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[20] – for the purpose of this sub-rule, he following shall be deemed to be proceedings in the suit:

1. An application for the review of decree or order in the suit
2. An application under Section 144 or 152 of this Code, in relation to any decree or order made in the suit
3. An appeal from any decree or order in the suit
4. 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.
5. Nothing in sub-rule (2) shall be construed[21]–
6. As extending, as between the pleader and his client, the duration for which the pleader is engaged, or
7. 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 in agreement to by the consumer within the document cited in sub-rule (1)
8. 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 manned as may be specified by the order.
9. 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-
10. The names of the parties to the suit
11. The name of the party for whom he appears,
12. The name of the person by whom he is authorised to appear.

Provided that nothing during this sub-rule shall apply to any counsellor-at-law engaged to plead on behalf of any party by any other counsellor-at-law who has been duly and punctually appointed to act in Court on behalf of such party.

In the case of Baru Singh v. Babu Ram Sharma[22] it was held by the court that before a pleader can act for a party, he must have been authorised to do so in writing and obtaining a signed vakalatnama by the lawyer from his client is essential when it is to be filed in the court of law.

Also in the case of Purushottam Umedhbhai & Co. v. Manilal & Sons[23] it was held that where a pleader has been authorised and he acts without filing a proper warrant of authority, it is only an irregularity which can be cured by the assembly of a legitimate document in the future. Similarly, in the case of Shastri Yagnapurushdasji v. Muldas Bhunderdas[24] it was held that this can be done even in an appeal by obtaining the signatures of the pleader on the memorandum of appeal. Also in the case of Bihar State Electricity Board v. Bhowra Kankanee Colliery Ltd.[25] it was stated that the court is justified in imposing costs where despite the court order, a proper Vakalatnama has not been produced and the defect is not rectified. 

It is stated that the leave of the court is necessary for terminating the appointment of a pleader and such a leave is not a mere formality.[26] Similarly, a pleader cannot determine his appointment without the leave of the court and after a reasonable notice to the client.[27] Also in civil matters, the appointment of an advocate by a party would be deemed to continue to represent his client even though he has filed an application to withdraw.[28] A concession made by the Government is not binding on its instrumentality as it is a separate legal entity.[29]

Also in the case of K.S. Pillai v. Mysore Fertilizer Co[30], it was held that the court can suo motu determine the Vakalatnama in case of misconduct on the part of an advocate or where his appearance is likely to embarrass the trial of the suit, as an advocate is not merely an agent of his client but is also an officer of the court.

Further, in the case of Ratnagiri Gas and Power Pvt. Ltd v. RDS Projects Ltd[31] it was held that a concession made by the Government is not binding on its instrumentality as it is a separate legal entity.

Pleader Appointed to Act and Pleaders engaged only to Plead

Under this rule it is said that every pleader had to be appointed in writing signed by the party or by his recognized agent etc. the present rule, a distinction is drawn between:

1. A pleader appointed to act in court
2. A pleader engaged for the purpose of pleading only
3. A pleader engaged to plead by a pleader duly appointed to act in court

Pleader Appointed to Act in Court

Also in the case of Saraswati v. Tulsi[32] it was held that as regards a pleader appointed to act in court, it is provided by sub-rule (1) that he cannot act for any person in any court unless he is appointed by such person by a document in writing signed by such person or by his recognized agent etc. it is only if the appointment is made by a writing signed by the party etc. that he can act, and it is only where he is so appointed that he can be said to be ‘duly appointed to act’.

Similarly, in the case of Ram Narain v. Raghu[33] it was contended that when a suit is instituted by a plaintiff through an agent, the court has the power to enquire into the agent’s authority. Also in the case of Kathiwar and Ahmedabad Banking Corp Ltd. V. Gurdas[34] it was held that a pleader appointed by an official liquidator who has obtained the sanction of the court to institute a suit is ‘duly appointed’ within the meaning of this rule though no sanction has been obtained under the Indian Companies Act for the appointment of the pleader.

Aswini Kumar Ghose v. Arabinda Bose[35] it was held that it has been held by the SC that the word ‘practice’ means both acting and pleading, and that accordingly a Supreme Court advocate is entitled as of right to act and to plead in all the High Courts, in the original as well as the appellate side. Also in ONGC v. Offshore Enterprises Inc[36] it was held that an advocate is not entitled to act in a professional capacity on behalf of a client and also to act as the constituted attorney of that client in the case, as for all practical purposes, the recognized agent of a suitor is at par with the client while an advocate is an independent person and the two roles cannot be combines.

Pleader Engaged for the Purpose of Pleading Only

As held in the case of Saraswati v. Tulsi[37] that a pleader engaged for the purpose of pleading only, has to file a memorandum of appearance signed by himself as provided by sub-rule (5). Also in the case of Re Ram Dayal De[38] it was held that the court expressed the opinion that a pleader can only be engaged under sub-rule (5) without a document signed by the party, when there is a personal appearance in the suit by the party himself or an appearance by a pleader appointed to act.

Pleader Engaged to Plead by Pleader Duty Appointed to Act in Court

In the case of Gauba v. Indo-Swiss Trading Co.[39] it was held that a pleader, who appeals on behalf of another pleader a engaged by a party, can appear for the latter pleader only to plead on behalf of the party without a document in writing, in his favour, executed in the manner prescribed by this rule, hence he cannot present an appeal, as the presentation of an appeal amounts to ‘acting’ and not ‘pleading’.

Position of Advocate

An advocate ‘acting in court’ for his client by ‘practicing the profession of law’ is not a mere agent or a power-of-attorney holder. An advocate cannot refuse to accept a brief, except on the ground of a proper fee, and to that extent a matter of his going out into the market and canvassing for it, but entirely a matter of choice resting with the client.

As held in the case of Jamilbhai v. Shankarlal[40] that the legal capacity of an advocate to practice the profession of law in court and his competency to act in court for his client are not derived from any contract, but from his legally recognized status as an advocate. On account of this status, his duties are threefold- to the client, to the court and to the public. He cannot be compared to an ordinary agent.

Right to Practice and the Rules of Court

The right of a practitioner to appear is not obsolete but subject to the rules of the court, discussing the scope of this right, the Madras High Court summed up the position thus in the case of Rangaswami v. Industrial Tribunal.[41] Also in the case of Laurentius v. Dhuki[42] it was held that the Advocate Act, 1961 now governs the admission of advocates and the undermentioned case. Similarly, in the case of Ambedas v. Vadialal[43] it was held that an advocate enrolled on the original side of the High Court is not required to file any document empowering him to act in any proceeding, civil or criminal, in a mofussil court.

Bombay Pleader’s Act, 1920

Section 10 and Form C in Schedule II of the Bombay Pleader’s Act have been repealed by the Code of Civil Procedure (Second Amendment) Act, 1926.

Delegation of Authority by Pleader

In the case of Shivdayal v. Khetu[44] it was held that where a pleader cannot attend, he has no power to delegate his authority to another pleader.

Duration of Engagement

In the case of Nawabzada Mohd Ishaq Khan v. Delhi Iron and Steel[45] it was held that sub-rule (3) lays down and clarifies the limits of the appointment of the pleader. Also there is no irrevocable duty cast upon a counsel engaged for one court to pursue the case in the entire hierarchy of courts.

Advocate as Witness

In the case of KK Agarwal v. Harsh Chandra Ranjit Singh[46] it was held that where an advocate accepts the brief and conducts the case in a matter in which he fully well knows that he is likely to be cited as a material witness, he cannot subsequently withdraws from the case and appear as a witness.

Rights and Duties of a Pleader

In the State of UP v. UP State Law Officers Association[47] it was held that a pleader has the authority to do all acts that he considers proper, expedient and necessary for the conduct of a suit and the settlement of disputes. A pleader is also an officer of the court and is not expected to act merely as a mouth piece of his client. A pleader can even agree to an adverse verdict. Also in the same case it was held that he ought to consult his client and take his consent when he relinquishes a part of a claim or enters into a compromise.

In the case of Archies Greetings Gifts Ltd v. Garg Plastic[48] it was contended that in case of infringement of trademark, where a compromise application was drafted and exchanged between the parties, the defendant took the plea that his rights were abandoned by his erstwhile counsel without prior and proper consultations. It was held that the action taken by the counsel was proper.

There is no bar on a pleader duly authorized by a party under a vakalatnama to engage another pleader to plead the case on his or her behalf. In the case of Vimaleshwar Nagappa Shet v. Noor Ahmed Sheriff[49] the Supreme Court held that a concession made by a counsel on a question of fact is binding on the client, but if it is on a question of law, it is not binding. Thus, where the counsel made the statement before the HC and the same was recorded by the HC in the judgment, it was held that it cannot be challenged in the SC.

In the case of Bakshi Dev Raj v. Sudheer Kumar[50] it was held by the SC that the power of the Counsel to make statements before court extends to withdrawl of appeal or modification of decree appealed against. Thus, where an appeal was disposed of on the basis of statement made by counsel of parties and the same was challenged on the ground that the statement was not based on the instruction of parties, the SC rejected the plea. It was observed that no letter or notice or any other material was produced disputing the stand taken by the counsel.

Change of Counsel

In the case of CS Venkatasubramaniam v. State Bank of India[51], where it was contended that when there is a change of counsel, the previous counsel cannot insist that his fees must be paid before the change of counsel is permitted. Therefore, in a certain case as he had done part of the work, the court directed the payment of one-fourth of the scheduled fees.

Service of Process on Pleader

A pleader according to Section 2(13) of the Code of Civil Procedure, 1908 means any person who is entitled to plead for anyone in the court of law. In the Indian context a ‘vakil’ and an advocate can qualify as a pleader. In the normal legal context, a pleader is someone who represents the other party and essentially is the person who communicates to and fro from the party and the court. Section 2(7) of the code says that any person appointed by the state government in relation to the duties of a pleader is a ‘Government Pleader’ also, any pleader working under guidance of a government pleader qualifies as one.

Order 3 Rule 5 reads as follows

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 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 be served to the party in person

Oftentimes, the party is served in person, this means that the service is made directly to the party and the pleader is not involved in the process. Also, the party is supposed to be present in the court during the proceedings. However, Order 3 Rule 5 of the Code of Civil Procedure, 1908 stipulates that, any process serviced to the pleader directly or delivered to his office or official residence will effectually connote that the said process has been communicated to the party.

To understand this more in depth we can take help of an example, if the court requires the party to be present with certain documents for verification at the next hearing the court official will serve the process on the pleader of that party, once that is done it will be presumed that the process has been serviced to the party as well. It is then the onus of the party to prove otherwise.  This however is not absolute. The rule also states that it is so ‘unless otherwise’ provided for by the court. This means that it is at the discretion of the court to whether qualify the serving of the process on the pleader as the service to the party.  

Agent to Accept Service

• ‘Besides the recognized agents as given under Rule 2, any other person who is residing within the jurisdiction of the court can be appointed as an agent to accept the service of processes. This clause states that other than all the agents recognized under law; a person can become an agent to the concerned party if he/she is residing within the jurisdictional limits of the court then he/she can be appointed as the agent to accept the service of process.
• ‘The Appointment must be in writing and shall be filed in the 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 the court’. According to this clause, for any appointment as prescribed under sub clause(1) of Rule 6 to be valid, there must be an appointment in writing which has the principal’s signature giving his approval of the agent and if the appointment general then the certified copy must be submitted to the court.
• ‘The court may at any stage of the suit, order any party to the suit not having a recognized 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’[52]. This clause provides extra power to the court for appointing an agent to any party of the suit not residing within the local jurisdiction of the court, if they do not have a recognized agent nor a pleader on their behalf, then the court appoints an agent who is residing within the jurisdiction of the court to act on behalf of the concerned party.

There have been a few amendments made to Rule 6 Order III by different High Courts. The Bombay, Dadra and Nagar Haveli High Court –  that in Order III Rule 6, the marginal note and the sub rule (3) has been replaced in 1983 – Maharashtra Government Gazette., 15-9-1983.

The High Court of Gujarat – In Order III Rule 6, except the marginal note, the sub rule (3); shall be added as a new sub rule. In the Case of Kinhibi vs. Land Acquisition Officer[53] the court held that, a husband cannot become an agent of his wife for the purposes given under this rule unless the wife has appointed the husband as an agent to accept service of process.

In the case of Raveendran vs. Ramakrishna Nambiar[54] the court held that, while examining the witnesses, the court should take note of difficulties experienced by the litigants especially those who are employed in foreign countries and give evidence, a petition for expert evidence can be considered as after the closure of evidence of the plaintiff.

Statistical Analysis

Suggestions & Recommendations

1. Order III Rule 6 of the Code of Civil Procedure talks about the agents to accept service and within this rule as per sub rule (3) the court has the power to appoint an agent to a party, if the party does not have a recognized agent or a pleader to act on their behalf within the local jurisdiction of the court. But the rule does not specify about the process of choosing the agent by the court and moreover this sub rule tends to have a lot of problems in day to day application as no one knows as to how competent is the agent appointed by the court. If the agent appointed by the court is not competent enough then the parties will be the ones who will suffer. Moreover the court which should provide justice to people will be providing injustice if they appoint an incompetent agent to a non – resident party.

• Order III Rule 2 of the Code of Civil Procedure talks about the recognized agents in a civil suit and it states that all the agents who are carrying out business in the names of the concerned parties who are not residing within the local limits of the court’s jurisdiction, then these agents appearance or act is limited unless it has been authorized by the concerned party. It would have been better if the court recognized the agents of the parties who have been acting on their behalf in business transactions, because if these agents do not have the power to represent on their behalf on the basis that they are not recognized agents then it will cause a lot of problem to the parties as they had agents who were acting on their behalf till date.

The Order III is the most basic yet a very complex order that has been mentioned in the Code of Civil Procedure, it is very difficult to point the mistakes made by the writers as the code has been in existence for nearly 110 years. It is a given that the Code of Civil Procedure, 1908 is definitely the bulkiest procedural law code in India. A very scientific and meticulous collection of rules and regulations that need to be followed to achieve the end result, i.e. Justice. However, the intricacies leave a lot to the imagination and a lot of loop-holes that can be activated through a simple circumvention of regulation, maybe unknowingly and in good faith.

In case of service of process on the recognized agents and pleaders, the rule that once the process has been served on them, it effectually means that the service has been made to the parties too can sometimes put a party at the wrong end of the stick. The authors here would like to make the following recommendations:

1. Add a clause to Order 3 Rule 4 and 5 which, in essence which allows the parties to provide sufficient grounds to provide for a reasonable justification for not receiving the process served on the recognized agent or pleader as the case may be.
2. Add a clause to Order 3 Rule 5 which, puts a warning system in the official record of the pleader to make the pleaders more responsible in cases where they do not due to a want of certain efficiency serve the process on the parties.
3. Add a clause to Order 3 Rule 4 and 5 which, inculcates a receipt system that has to be filled by the pleaders and the recognized agents as the case may be along with the parties.

The aforementioned recommendations will surely ease the process of accessing justice for the parties and disseminating justice for the courts.

Conclusion

Order III of the Code of Civil Procedure, 1908 deals with pleaders and recognized agents. It basically has 6 rules included within. The first rule basically speaks about appearance etc. which may be in person, by pleader or a recognized agent. The rule explains in detail what appearance, application and act is. It also speaks about recognized agents and pleaders. There are also decided case laws which have interpreted the same. The second rule deals with ‘recognized agent’, giving detailed explanation on what and who recognized agent is. The third rule is ‘service of process on recognized agent’. This rule speaks about applicability and other aspect of ‘service of process on recognized agent’. The fourth rule states the criteria and requirements for appointment of a pleader. The fifth rule deals with the service on process of pleader and the sixth and final rule talks about the agents who can accept the service besides the recognized agent. The rule in detail and in precise manner speaks about the powers, duties and responsibility of a pleader, recognized agent or other agents. It also list down service and appearance criteria for the same.  This rule is a mini rulebook which the advocates and pleaders are supposed to follow. There have been case laws that has interpreted the various rules in the order to give more precise and contextual meaning.

Questions

1. Who are the recognised agents and pleaders in light of the decided cases in India?
2. What are the essential elements to be recognised as agents and pleaders under Order 3?
3. What are the various provisions under Agents and Pleaders?
4. Do these provisions under recognised agents and pleaders fall in the light of decided cases in India?
5. What are some of changes that can be introduced to order 3?

References

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[2] 2011 SCC OnLine Mad 942 : (2011) 3 MWN (Civil) 361 : (2011) 4 LW 755 at page 362

[3] (2011) 8 SCC 539 : (2011) 4 SCC (Civ) 217 at page 564

[4] 1938 SCC OnLine Bom 53 : ILR 1939 Bom 295 : (1939) 41 Bom LR 530 : AIR 1939 Bom 347

[5] 1992 SCC OnLine Bom 497 : (1993) 1 Mah LJ 243 : (1993) 2 Bom CR 618 : AIR 1993 Bom 217 : (1993) 95 Bom LR 396

[6] Supra note at page 249, para 8

[7] 1922 SCC OnLine Bom 63 : ILR (1923) 47 Bom 227 at page 230

[8] No decree shall be reversed or substantially varied, nor shall any case be remanded in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.

Provided that nothing in this section shall apply to non-joinder of a necessary party.

[9]  (1886) 11 Bom. 53.

[10] (1886) P.J 83.

[11] 2012 SCC OnLine Mad 190 : (2012) 1 MWN (Civil) 809 : (2012) 1 LW 545

[12] 2010 SCC OnLine Mad 6009 : (2011) 1 CTC 286 : (2011) 1 LW 66 : (2011) 3 Mad LJ 34 : (2011) 2 ICC 52 : (2011) 99 AIC 561

[13] AIR 1971 SC 761

[14] AIR 1942 Nag 205

[15] AIR 1956 AP 172

[16] AIR 1998 SC 1887

[17] AIR 2016 ALL 52

[18] AIR 2007 Mad 178

[19] Ins. By Civil Procedure (Amendment) Act, 1976, S. 54

[20] Ins. By Civil Procedure (Amendment) Act, 1976, S. 54

[21] Subs by ibid, for sub-rule (3), (w.e.f. 1-2-1977)

[22] AIR 1997 AII 185

[23] AIR 1961 SC 325

[24] AIR 1966 SC 1119

[25] (1984) Supp SCC 597

[26] Damodardas v. Badrilal AIR 1987 AP 254

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[31] AIR 2013 SC 200

[32] AIR 1971 Del 110

[33] (1892) ILR 19 Cal 678

[34] (1924) ILR 5 Lah 414

[35] AIR 1952 SC 369

[36] AIR 1993 Bom 217

[37] AIR 1971 Del 110

[38] AIR 1932 Cal 1

[39] AIR 1936 Lah 500

[40] AIR 1975 SC 2202

[41] AIR 1954 Mad 553

[42] AIR 1926 Pat 73

[43] AIR 1946 Bom 174

[44] (1896) ILR Bom 293

[45] AIR 1979 AII 336

[46] AIR 1996 Bom 117

[47] (1994) 2 SCC 204

[48] AIR 2003 Del 468

[49] AIR 2011 SC 2057

[50] AIR 2011 SC 3137

[51] AIR 1997 SC 2329

[52] Ins. By Act 104 of 1976, Sec. 54 ( w.e.f 1.2.1977)

[53] AIR 1962 Ker. 226

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