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Jane Chakuprakal represented by Her Power of Attorney Holder, Roshan Nirmal Felix & Another v/s Max George

    OP (FC) No. 615 of 2016

    Decided On, 02 February 2017

    At, High Court of Kerala


    For the Petitioners: C.S. Dias, N.K. Subramanian, B. Bindu, Glory Tharakan, Advocates. For the Respondent: -----------

Judgment Text

Shaffique, J.

1. Petitioners challenge Exts.P6 and P7 orders passed in IA Nos.1449/2016 and 1450/2016 by which application filed by the petitioners to set aside the ex parte order had been rejected on the ground that the Power of Attorney has never appeared and obtained leave of court and that there is non compliance of Order III of the Code of Civil Procedure read with Rule 22 of the Civil Rules of Practice.

2. The main contention urged by the petitioners is that the petitioners were declared ex parte and a decree had been passed in OP No.292/16 by which direction had been issued for recovery of money from the petitioners.

3. The matter had come to the notice of the petitioners only subsequently and accordingly, they being parties residing at Germany has given a Power of Attorney in favour of Sri.Roshan Nirmal Felix to file application to prosecute OP NO.292/16. When an application was filed seeking leave of Court to appear through Power of Attorney and to set aside ex parte order, the same came to be dismissed by the impugned orders.

4. The main contention urged by the petitioners is that the Power of Attorney holder was entitled to file application for setting aside an ex parte order and to prosecute the matter on behalf of the principal as ordered under Order III Rule 1 and 2 of the Code of Civil Procedure. Learned counsel for the petitioners also placed reliance upon the judgments of this Court in K.A.Pradeep v. Branch Manager, Nedungadi Bank Limited (2007 (4) KLT 57) and Kunhi Purayil Mukundan Naveen v. Anjalika Dinesh (2011 (3) KLT 175) to substantiate the fact that Power of Attorney holder is entitled to file necessary application before the Courts as well as the Family Courts for appearing and pleading on behalf of the principals.

5. Order III Rule 1 and 2 reads as under:-

'Order III

Recognized Agents and Pleaders

1. Appearance, etc., may be in person, by recognized agent or by pleader - 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.

2. Recognized agents- The recognized agents of parties by whom such appearances, applications and acts may be made or done are -

(a) persons 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, application or act 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 appearances, applications and acts.'

6. Rule 22 of the Civil Rules of Practice 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.'

7. In so far as provision had been made to permit any person to appear or file application before any Court, unless otherwise specifically provided by any other law for the time being in force through a recognised agent, the same has to be permitted by a Court. Recognized agents are specified under Rule 2 of Order III which includes Power of Attorney holder. The only requirement to be verified is that the Attorney should be authorised to make and do such appearances, applications and acts on behalf of the party whom he or she represents. In the present case, the petitioners had filed an application seeking for permission to contest the matter as Power of Attorney holder. When a Power of Attorney is produced and the Power of Attorney clearly permits the Attorney to file necessary application and to appear before the Court, the Courts are bound to allow the same. Appearance of parties is required only if the Court so directs as provided in the proviso to Order III Rule 1. Therefore, there is no restriction for the Power of Attorney holder to file an application to set aside the ex parte order or to file an application seeking leave of court for the parties to appear through Power of Attorney holder. In Kunhi Purayil Mukundan Naveen (supra), the Division Bench held at paragraph 10 as under:-

'There has been illegality committed in refusing to entertain the application to allow the petitioner to be represented by a power of attorney holder on the ground that it is a matrimonial case. As observed by the Division Bench of this Court in Abdul Salam v. Mariyumma (2007 (1) KLT 713) and the Single Bench of this Court in Karunakaran v. Vasanthi (2009 (1) KLT 768) we would think that subject to the power of the Family Court to direct appearance of parties at any stage, the Family Court ought to have permitted the petitioner in this case to be represented by the power of attorney holder. We also notice that the power of attorney is not an Advocate as such. We also make it clear that permitting the peti

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tioner to institute proceedings by a power of attorney will not detract from the power of the Court to insist on personal appearance at any subsequent stage as contemplated in law.' Under such circumstances, we are of the view that the impugned orders are liable to be set aside and we do so. OP(FC) is therefore disposed of as under:- (i) Exts.P6 and P7 orders are set aside. (ii) IA No.1450/16 is allowed. (iii) Power of Attorney holder is permitted to appear on behalf of the petitioners. (iv) The Family Court shall consider IA No.1449/16 on merit and pass appropriate orders in accordance with the procedure prescribed.