C.M. Visalakshi and Others vs K. Kuppusamy and Others

Ramalingam, J.—Applicants 1 to 4 who, are plaintiffs 2 to 5 in CS. 251/87 have filed this application u/s 32 of the Advocates Act read with

Order XIV, Rule 8 of the O.S. Rules, seeking permission for Mr. A. V. Raman a family friend and Power of Attorney Agent of the Plaintiffs, to

appear and plead on their behalf in the suit, under the, following circumstances:

Sethulakshmi, the sole respondent herein, is the second defendant in the suit. She filed O.S. No. 1681/67 on the file of the City Civil Court,

Madras, against one C.M. Balusamy, first plaintiff in the suit, for declaration of certain property described in ''B'' Schedule to the plaint. She also

asked for delivery of possession of portions of properties marked as red and green forming part of ''B'' Schedule property and for other

consequential reliefs. The suit was decreed as prayed for and the appeal, AS. 7/75 filed by Balusamy was dismissed on 21-10-1975. The second

appeal, SA. 510/76 preferred by him was also dismissed on 18-11-1977. Sethulakshmi filed EP. 259/78 on 24-1-78 to execute the decree. The

legal representatives of the judgment-debtor, Balusamy, obstructed delivery of possession. Sethulakshmi filed EA. 3497/81 for removal of

obstruction and the same was objected to by the legal representatives of the judgment-debtor viz. Vijaya Baluswamy and Thirunavukkarasu.

Eventually, the objections were overruled and the petition was allowed on 19-2-1985. Against the said order C.M.A. 59/86 was filed by the

aforesaid obstructors. They had also filed EA. 1023/83 u/s 47, C.P.C., contending that O. S. 1681/67 was filed seeking recovery of possession of

portions marked red and green measuring 12'' x 10'' and 12'' x 8'' and the measurement of ''B'' Schedule in which the red and green marked

portions form part, has been given fraudulently as 3 grounds 544 sq.ft. and that the court has no j urisdiction to pass a decree for anything

more''than the prayer that is asked for. The obstructors also contended that the E.P. itself is barred by limitation. Sethulakshmi filed a counter in the

C.M.A. and contended that the obstructors are abusing the process of Court, and that similar obstructions were raised earlier and dismissed by the

Executing Court. One such application was EA. 2007/78 filed u/s 47, C.P.C. and that was dismissed on 2-2-1980. They then filed EA. 1475/80

and it was dismissed on 5-8-1980. Then E.A. 1023 of 1983 was filed and it was dismissed on 19-12-1985 on proper grounds. The obstructions

preferred C.R.P. 1505/85. While disposing of CR.P. 1505/85 and C.M. A. 59/86, M. A, Sathar Sayeed, J., in his common order dated 9-4-

1986, had occasion to refer to an order dated 6-12-1983 passed by Mohan, J. in C.R.P. Nos. 3100, 3199, 3120, 3121 and3122 of 1983 and

CMA. 831/83, wherein all the facts of this case have been narrated and as to hdw application after application had been filed either by the

judgment-debtor or by his legal representatives or by third parties, to prevent the decree-holder from executing the decree, and finally the learned

Judge observed that the decree-holder is unable to reap the fruits of the decree in view of the attitude adopted not only by the petitioners before

him but also by third parties. It was also brought to the notice of M. A. Sathar Sayeed. J., that the legal representatives of the judgment-debtor

have filed O.S. 765/81 before the City Civil Court, Madras, to set aside the decree dated 30-7-74 obtained by Sethulakshmi in O.S. 1681 of

1967. With reference to the same, the learned Judge observed as follows : --

A person, who has obtained a decree in 1974, after facing all sorts of litigations which have ended in second appeal, is still unable to get

possession of the property on the several allegations raised by the petitioners herein. As stated already, the respondent (Sethulakshmi) has to again

face a litigation in O.S. 763/81 which is pending before the City Civil Court, Madras. As stated already the order of Mohan, J. dated 6-12-1983

gives a picture as to how the respondent faced litigation after litigation and is still unable to reap the fruits of the decree obtained in 1974. Since the

suit O. S. 765/81 is now pending before the City Civil Court. Madras it is for the respondent herein to face the allegations levelled therein.

Having observed thus, the learned Judge found no merits in the C.M.A. as well as in the C.R.P. and dismissed them, directing the executing Court

to dispose of E.P. 239/78 expeditiously. The learned Judge made it clear that Sethulakshmi sought for a warrant for delivery of vacant possession

of the two portions marked red and green in the plan annexed to the decree, and dismissed the contention of the obstructors that Sethulakshmi is

trying to interfere with other portions not connected with the decree.

Thereafter, one A.V. Raman, styling himself as Power of Attorney Agent of the legal representatives of the judgment-debtor Balusamy, filed

Application No. 4144 of 1986 for transfer of O. S. 763/81 from the file of the City Civil Court, Madras, to the file of this Court. The legal

representatives of the deceased judgment-debtor also filed Application 1323/87 to stay E.P. 259/78. Stay has been granted and OS. 765/81 has

been transferred and re-numbered as C.S. 251/87. Then the decree-holder, who is the second defendant in C.S. 251/87 filed Application

1596/87 for an order directing A.V. Raman, the Power of Attorney Agent of the plaintiffs in C. S. 251 /87 not to appear and plead for the

plaintiffs inasmuch as he has not obtained the prior permission of this court as contemplated u/s 32 of the Advocates Act, 1961, since he is not an

Advocate or entitled to practise as an Advocate. Mr. A.V. Raman, representing plaintiffs 2 to 5 in C.S. 251/87 filed Application No. 1808/87

seeking permission of this Court to plead for the plaintiffs as their power of attorney agent by virtue of the power given to him by the plaintiffs. He

also filed application 1809/87 for stay of further proceedings in E.P. 259/78 in O.S. 1681/67 on the file of the VIII Assistant Judge. City Civil

Court. Madras.

Thereafter, the decree-holder viz., the respondent herein, filed Application No. 1596/87 contending that this Court should not allow A. V.

Raman to appear on behalf of plaintiffs 2 to 5 as their agent in O.S. 765/81 which has been transferred to the file of this Court and numbered as

C.S. 251/87, as it is contrary to Section 32 of the Advocates Act and the decision of the Supreme Court rendered in Harishankar Rastogi Vs.

Girdhari Sharma and Another, . The respondent herein also contended that Application No. 1808/87 has been filed only to rectify the legal error

committed by A. V. Raman while appearing in Applications Nos. 4144 of 1986 and 1323 of 1987 in person and as such A. V. Raman is not

entitled to prosecute on behalf of the plaintiffs 2 to 5 in C.S. 251/1987.

On a consideration of the contentions raised in Applications Nos. 1323, 1596, 1808 and 1809 of 1987, I accepted the contention of the

respondent herein and refused permission to Mr. A. V. Raman on the ground that the application filed by Raman for permission to plead on behalf

of the plaintiffs did not emanate from the parties to the suit and as such dismissed Application No. 1808/87 and consequently Application No.

1809/87 was dismissed. Application No. 1596 of 1987 filed by the respondent herein was allowed and application No. 1323/83 was also

dismissed as infructuous.

Thereafter, for rectifying the defect, the present application has been filed by plaintiffs 2 to 5 seeking permission for Mr. A.V. Raman to appear

and plead on their behalf in the proceedings in the interests of justice.

To find out the bona fides of the application. I examined the first applicant Mrs. C.M. Visalakshi. She stated that A.V. Raman is the friend of

her late brother Baluswamy who is the judgment-debtor in O.S. 1681/67 on the file of the City Civil Court, Madras, that she knew that the

respondent has filed the said suit for recovery of possession which was decreed, that the appeal and the second appeal were also dismissed, that

A.V. Raman was assisting her brother Baluswamy in conducting these proceedings, that the decree-holder filed execution petition to realise the

fruits of her decree, that Raman held her (first applicant herein) in that case also, that her brother''s wife and son made objections for delivery of

possession, that Raman helped them also, that Sethulakshmi filed EA. 3497/81 for removal of obstruction and that was allowed, the CMA. 59/86

was preferred by her brother with the assistance of Raman, that EA. 1023/83 and other applications were filed u/s 47, C.P.C. and they were

dismissed, that CRP. 1505/85 filed with the assistance of Raman was also dismissed, that thereafter her brother Baluswamy, herself and her sister

filed O. S. 765/81 before the City Civil Court on the ground that the decree obtained by the respondent herein in O. S. 1681/67 is null and void as

the decree had been obtained by the respondent, by practising fraud, that during the pendency of O. S. 765/81 Balusamy died and his wife and

son were brought on record as his legal representatives, as plaintiffs 4 and 5, that the same has been re-numbered as CS. 251/87 after being

transferred to this Court with the help of Raman, that all further proceedings taken by Raman to prosecute CS. 251/87 was opposed by the

respondent herein, and that the contention of the respondent that Raman should not be allowed to prosecute CS. 251/87 was accepted by this

Court as the application seeking permission has not been filed by one of the parties and that Raman was assisting Balusamy in O.S. 1681/67

throughout, as such he should be allowed to prosecute C.S. 251/87 on behalf of the plaintiffs.

A perusal of the evidence shows that A.V. Raman is the spirit behind the judgment-debtor from the inception and was assisting him in several

proceedings till the dismissal of the second appeal and thereafter filed O. S. 765/81, after the dismissal of the second appeal, contending that the

decree had been obtained by practising fraud on the Court. Such a plea was not taken by the judgment-debtor either in the first appellate Court in

A. S. 7 of 1975 or in the second appeal in S. A. 510/1976.

While dealing with an application like this, a Court should bear in mind that any person, who is not an Advocate, cannot as of right force himself,

to appear before a Court and claim to plead for another. Permission may, however, be granted by a Court, taking into consideration the several

factors for such non-professional representation. In this connection, the Supreme Court, while dealing with a criminal proceedings, had occasion to

consider this aspect in Harishankar Rastogi Vs. Girdhari Sharma and Another, . The Supreme Court observed that:

If the person who seeks to represent has poor antecedents or irresponsible behaviour or dubious character, the chance of receiving counter-

productive service from such person cannot be ruled out. Judges may fail if a knave were to represent a party. Judges may suffer if quarrelsome,

ill-informed or blackguardly private representatives file arguments at the Court. Likewise the parties may suffer if their private representatives

deceives them or destroys their case by mendacious or meaningless submissions and with no responsibility or respect for the Court. The

antecedents, the relationship, the reasons for requestioning the services of the private person and a variety of other circumstances must be gathered

before refusal of permission"".

Mr. A.V. Raman had filed Application Nos. 1323, 1596, 1808 and 1809 of 1987 earlier. I find by allowing him to argue, the proceedings will

become quarrelsome. I also feel that he is exploiting the legal representatives of the judgment-debtor. On another occasion the said Mr. A.V.

Raman was associated with Applications Nos. 2036, 2037, 3235 and 3263 of 1987 on the file of this Court in connection with O. S. 2154/70

pending on the file of the City Civil Court, on behalf of some other parties. By granting permission to Mr. A.V. Raman to represent the applicants

herein, it will end in the abuse of the process of Court and will hamper the judicial process running smoothly. There is no merit in the petition. In the

circumstances, the petition is dismissed.