Case BriefsHigh Courts

Kerala High Court: Deciding upon the question as to whether an advocate could be permitted to appear in person as a power of attorney holder in the absence of a vakalat, the Court held that an advocate holds an exalted position as an officer of the court who should not identify with the cause of his client whom he represents in the lis.

A practising lawyer of the Madras High Court sought to plead the case on behalf of the appellants as a power of attornery holder on the  contention that he was not appearing in the robes of an advocate and that any person could function as such for the parties.

The Bench of  Chitambaresh and Ramakrishnan, JJ. held that any appearance, application or act in or to any court, required by law to be made by a party in such  court, may be made or done by the party in person, or by his recognised agent or by a pleader. The recognised agent by whom such appearance, application or act may be made or done can as well be a person holding power of attorney of the party which is evident from a conjoint reading of Rules 1 and 2 of Order 3 of the Code of Civil Procedure, 1908. The appointment of a power of attorney holder has nevertheless to be preceded by the grant of permission by court, as held in T.C. Mathai v. Sessions Judge, (1999) 3 SCC 614. However there is an embargo for a person enrolled as an advocate under the Advocates Act, 1961 to appear before any court, authority or person in any particular case under Section 32 thereof.

The Court observed that there is also an inbuilt limitation for a power of attorney holder in the matter of presentation of proceedings or to plead and argue on behalf of the principal in court. All petitions, appeals and other proceedings shall be presented in person by the party, or his advocate or the advocate’s registered clerk as per Rule 32 of the Rules of the High Court of Kerala. Decisions are legion that the power of attorney holder can only appear and conduct the judicial proceedings and would not normally be permitted to plead and argue on behalf of the principal. The power of attorney holder in the instant case has no interest in the subject property.

Declining the relief, the Court observed that an advocate cannot escape from the rigorous provisions of the Advocates Act by opting to plead and argue the case as power of attorney holder of the parties. [Brenda Barbara Francis v.  Adrian Mirinda, 2016 SCC OnLine Ker 8173,  order dated July 8, 2016]

Case BriefsHigh Courts

Kerala High Court: The bench comprising of Justice Shaji P. Chaly, allowed the writ petition and issued a mandamus directing the Kerala State Housing Board and others to ensure that various flats constructed under a housing scheme for residential purposes at the Chinnakkada Housing Accomodation Scheme Site II of the Housing Board, Kollam, are not being used for other commercial purposes.

The Housing scheme in question was meant for residential purposes. Further, Clause 19 of the Hire Purchase Agreement for those who opted for hire purchase also restricted use to residential purposes as does Regulation 6 (1) of the Kerala State Housing Board (Formation of Allottees Associations) Regulations, 2000). Nevertheless, various flats in the complex for being used as offices, godowns, training centres etc. Earlier alottees had raised the issue with the Board, whose inaction triggered O.P. No. 28612/2000 before the same court, wherein respondents 1 to 3 had been directed to see that flats were not used for any purpose other than those mentioned under the scheme and clause 19 of the Hire Purchase Agreement.

This Court characterized as undeniable  fact that owners and representatives-in-interest would be bound to obey the restrictive clause, and the housing scheme. The Court noted R.K. Mittal v. State of Uttar Pradesh  (2012) 2 SCC 232, wherein the Supreme Court held that a scheme which comprised a master plan and zoning plan specified as residential by the allotment by the Delhi Development Authority under the Industrial Development Area Act of 1976, must be implemented strictly.

The Court thereby held the Respondents bound to ensure the residential character of the flats and remove all commercial ventures within a period of three months, excepting an advocate who resided and maintained his office in the same flat because it is  not exactly constituting a commercial venture.  [Darelene Carmelita D’Cruz v. Kerala State Housing Board, 2016 SCC OnLine Ker 5341, decided 08-04-2016]

High Courts

Bombay High Court:  In a case of appeal against a family court order, a bench comprising of Revati Mohite Dhere, J observed that if an advocate, who had represented a woman in her earlier divorce proceedings, later represents her second husband against her, it cannot be said that the advocate switched sides in the “same proceedings”.  The ruling came as a relief to advocate Edith Dey who had represented the respondent in her first divorce and was now representing the respondent’s second husband in the ongoing divorce case. Earlier, the family court had set aside the advocate’s appointment and directed the second husband to appoint another advocate to represent him. Advocate Dey appealed against this decision arguing that there was no conflict of interest and that the two proceedings were distinct and unconnected. On the other hand, the wife’s advocate Taubon Irani emphasized that advocates must maintain their clients’ confidentiality.

After listening to arguments on both sides, the Court noted that nowhere had the wife contended that the said advocate was aware of any confidential information. The Court also observed that the family court had failed to take into consideration that  the divorce case where the Advocate Dey had represented the respondent-wife was converted into a petition for divorce by mutual consent in the first hearing itself. The Court also clarified that the said family court order did not decide on whether the advocate can or cannot appear for the second husband; instead, the judge held merely observed that under Section 13 of the Family Court Act, 1984, there is no inherent right in an Advocate to appear. After discussing Rule 23 of Bar Council of India rules, Section 34(1); of Advocate Act, 1961 and a related judgment of Andhra Pradesh High Court, the Court came to a conclusion that an advocate cannot switch sides and appear for the opposite side in the same proceedings but  in this case it cannot be said that the proceedings in which the advocate  was now appearing were the “same proceedings.” Rajiv Hiranandani vs. Namrata Zakaria, Civil Writ Petition No.11135 of 2013, decided on July 31, 2014