Power Of Attorney Holder Can Continue To Represent Party Even If She Gets Enrolled As Advocate Meanwhile, Sec 32 Advocates Act No Bar : Supreme Court

A bench for the Supreme Court consisting of: Justice Dinesh Maheshwari and Justice Aniruddha Bose noted that Section 32 of the Attorney Act, 1961 does not prohibit a holder of a general power of attorney from appearing on behalf of a plaintiff simply because the GPA was registered as an attorney.

The issue arose in a division dispute over the capacity in which the plaintiff’s wife, who was the Attorney General and also a registered lawyer, was allowed to appear and act on his behalf in the said civil proceedings. Initially, the Trial Court and the Andhra Pradesh High Court held that only for the plaintiff’s wife who is a lawyer, there was no legal prohibition on her from acting on behalf of her husband as a holder of a GPA, but it was made clear that she would appear personally as her husband’s power agent and not in her professional capacity as a lawyer. Subsequently, the High Court ruled that, in light of a decision by Division Bench of the same High Court, a GPA holder was not allowed to participate in the proceedings. This decision of the High Court was challenged in the Apex Court.

Respondents argued that Section 32 of the 1961 Act prohibited attorneys from seeking permission from the Court and that this provision only gave the non-attorneys the right to seek such permission to plead on behalf of a party. Article 32 provides that – “any court, authority or person may authorize a person, not registered as a lawyer under this Actto appear before him or him in a particular case.

However, the bank noted:

We cannot appreciate the contention suggesting that the said Section 32 creates a barrier for the appellant’s wife to seek permission from the court to appear on behalf of her husband in her capacity as a GPA holder because she is a registered attorney. The enabling provision of Section 32 of the 1961 Act, according to which a court, authority or person may permit a non-attorney to appear before him or him in a particular case, is difficult to read as a corresponding impediment to giving of consent to a GPA holder of a party to represent that party as such, if said GPA holder is registered as a lawyer during the pending proceedings in the Court.”

In other words, the court found that there was no legal prohibition to operate in the situation like that of the present case, where a party’s existing GPA holder could not be allowed to appear only as a GPA holder, even if he/she was registered as a lawyer. The court added:

In the particular facts and circumstances of the present case, in which the only fortuitous event was that the appellant’s wife, who was already acting as his proxy general, later obtained a law degree and registered as a barrister, the High Court had carefully considered the requirements of the Act, in particular the requirements of the CPC, the Civil Rules of Practice in the State and the 1961 Act, as well as the rules established under the 1961 Act by specifically determine that the appellant’s wife will appear only as his GPA holder and not as a lawyer.”

Accordingly, the wife was allowed to appear as a GPA holder on behalf of the claimant.

S Ramachandra Rao vs S Nagabhushana Rao | 2022 LiveLaw (SC) 861 | CA 7691 – 7694 FROM 2022 | October 19, 2022 | Judges Dinesh Maheshwari and Aniruddha Bose

top notes

Code of Civil Procedure, 1908; Article 11 – Res judicata – The doctrine of res judicata is not only raised in separate follow-up proceedings, but also in the next stage of the same proceedings. Furthermore, a binding decision cannot be lightly disregarded and even an erroneous decision remains binding on the parties to the same dispute and on the same matter, if given by a court of competent jurisdiction. Such a binding decision cannot even be ignored on the per incuriam principle, because that principle applies to the precedents and not to the doctrine of res judicata. (Paragraph 10)

Lawyers Act, 1961; Section 32 – The enabling provision of Section 32, whereby any court, authority or person may permit a non-attorney to appear before him or him in a particular case, can hardly be read as a corresponding barrier in giving permission to a GPA holder of a party to represent that party as such, if said GPA holder registers as a lawyer during the pending proceedings in the Court. (Para 14)

Click here to read/download the judgment

Leave a Reply

Your email address will not be published. Required fields are marked *