Neelam Dadasaheb Shewale vs Dadasaheb Bandu Shewale (Bombay HC) (Writ Petition No. 8954 of 2009)
11. What is appearance, application or act has been considered by Chief Justice Chagla, as he then was, in the case of Aswin Shambhu
prasad Patel and others Vs. National Rayon Corporation Ltd. (AIR 1955 BOMBAY 262).
The provision of the aforesaid order was considered taking into account the Bar Councils Act and the Bombay Pleaders Act. It has been held that the aforesaid rule would not apply where a law for the time being
in force otherwise expressly provided. It is held that pleading is not included
in the expression “appearance, application or act in or to any Court”. This is so because, the right of audience in Court, the right to address the Court, the right to examine and crossexamine the witnesses are dealt with in other parts of the Civil Procedure Code and not under Order 3. It was further held the right of audience in Court is a part of pleading in Court and not “acting” as provided under Order 3. It is further observed that a party in person would have a right of
audience in Court and not his recognized agent who would be
“appearing, applying or acting” on his behalf.
12.Further the right of pleaders to plead in a Court of law under authority of the client and to have a right of audience in Court as a member of Bar is not dealt with under Order 3. The members of the Bar have a right in clause 10 of the Letters Patent as they are qualified to plead in Court as required by
specific legislation and rules. Under that clause no person except Advocates, Vakils or Attorneys would be allowed to act or
plead for and on behalf of any suitor except the suitor himself. Considering Section 8 of the Bar Councils Act under which
no person was entitled to practice as an Advocate unless his name was entered in the roll of Advocates, it was observed
that the expression “practice” is wider than the expression “plead”. Similarly Section 9 of the Bombay Pleaders Act, which was similar to the above section, was considered. The proviso to that section allowed a party to appear, plead or act on his own behalf but a recognized agent of the party was allowed to only appear or act (and not plead). It was therefore observed that proviso made a distinction between appearing, pleading or acting and appearing or acting. Whereas the party could do all three of the above her/his constituted attorney could do only the above two. Consequently it was held that in the District Courts a recognized agent had no right to plead by relying
on provision 9 of the Bombay Pleaders Act. It was observed that the right of audience is a natural and necessary concomitant of the right to plead and as the recognized agent had
no right to plead, it follows that he has no right of audience in Court.
13.The law that is laid down in the aforesaid judgment holds true and
good till now and even within Section 13 of the Family Courts Act.
The object of Section 13 of the Family Courts Act
is to allow a party to represent her/his case and consequently right of the lawyer
to plead, appear and have audience in Court is limited but the right given to the party to appear is not extended to that parties’ constituted attorney. Hence, the general law of procedure under Order 3 Rule 1 as also the special laws contained in the Bar Councils Act and the Bombay Pleaders Act would apply even in a Family Court.
The object of that provision is that only qualified persons are entitled to appear in Courts and represent the case of their parties. The qualification is of the knowledge of the law and the enrollment under the Act.
If constituted attorneys of all the parties are allowed to appear, the Court would be overrun by any number of unqualified, unenrolled persons. Since Civil Procedure
Code would generally apply to a Family Court under Section 10 of the Act,
the restraint upon appearance under Order 3 of the Code must hold good.
14. In the case of Pavithra Vs. Rahul Raj (AIR 2003 MADRAS 138 it has been held that the recognized agent of the party in a Family Court proceedings cannot be allowed to prosecute it. Considering the various provisions of the Family Courts Act which follow the procedure different from the Civil Courts,
it is observed that the parties themselves can be heard.
Some times legal assistance can be provided. However,
personal appearance of the parties is inevitable to comply with the mandatory provisions of the Family Courts Act. Though the authorized agent,
who is not a legal practitioner can file a petition,
he can only prosecute or defend it or represent the party only until the Family Court passes an order directing the party to appear in person depending upon the facts and stage of the case.
In that case the constituted attorney sought permission to defend the
case on the ground that she was not able to come to India to contest the case.
Such a permission, it was held, could not be granted
15. In the case of Sudha Kaushik Vs. Umesh prasad Kaushik (AIR 2005 GUJARAT 244)
upon considering the law under normal circumstances as aforesaid
it was held since that case the petitioner’s life was in danger his father was allowed to represent his son in the interest of justice though it was held that
in normal circumstances any citizen or party is not allowed to be represented by his power of attorney unless he is an Advocate of the Court.