Karnataka High Court
Malike Saba vs Sameer Hamsa Ramla on 29 July, 2024
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NC: 2024:KHC:31338
WP No. 9623 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 9623 OF 2024 (GM-FC)
BETWEEN:
MALIKE SABA,
AGED ABOUT 41 YEARS,
W/O. SAMEER HAMSA RAMLA,
REP BY GPA HOLDER
EHTASHAMUL HAQUE,
S/O. MOHAMMED YUSUF,
R/AT. APARTMENT NO.3067,
PRESTIGE SHANTINIKETAN,
ITPL ROAD,
WHITEFIELD,
BANGALORE - 560 048.
...PETITIONER
(BY SMT. MALIKE SABA REP. BY GPA HOLDER, SRI.
EHTASHAMUL HAQUE, PARTY IN PERSON)
Digitally
signed by AND:
MEGHA
MOHAN
Location: SAMEER HAMSA RAMLA,
HIGH COURT AGED ABOUT 39 YEARS,
OF S/O. LATE ALIYARU KUNJU HAMSA,
KARNATAKA R/AT. C/O. RAMLABEEVI ABDUL KHARIM,
"HASAM" TC.7/966(2),
ULSOOR BHASINAGAR,
KOCHULLOOR,
MEDICAL COLLEGE P.O.,
THIRUVANANTHAPURAM,
KERALA - 695 011.
RESIDING AT:
1161, COLFAX AVENUE,
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NC: 2024:KHC:31338
WP No. 9623 of 2024
DES PLAINES,
USA - 60016.
...RESPONDENT
(BY SRI. DEEPA. J., ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ORDER/DIRECTION
SETTING ASIDE THE IMPUGNED ORDER DATED 20.03.2024
PASSED BY THE HON'BLE VI ADDL. DISTRICT AND SESSIONS
JUDGE, BENGALURU RURAL UPON MEMO DATED 18.03.2024 IN
G AND WC.NO.24/2021 CASE PRODUCED HEREIN AS
ANNEXURE-A WHICH DIRECTS GPA TO REMAIN OUT OF COURT
HALL THEREBY DEPRIVING LEGAL ASSISTANCE OF GPA/
PLEADER TO PETITIONER AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL ORDER
The present Writ Petition is filed questioning the orders on memo dated 18.03.2024 filed by the respondent on the file of the VI Addl. District and Sessions Judge, Bengaluru Rural District, Bengaluru dated 20.03.2024 whereby sought a direction to the GPA holder not to be present in the Court hall or in the in-camera proceedings during the cross examination of PW2.
2. The Trial court by order impugned had allowed the said memo and GPA holder of the petitioner was directed not to be -3- NC: 2024:KHC:31338 WP No. 9623 of 2024 present in the in-camera proceedings during the cross examination of PW2. Aggrieved thereby the GPA holder is before this Court.
3. The G and WC proceedings are filed by the petitioner/ wife and she had given GPA to her father to represent her case. He was examined as PW1 and he was fully cross examined by the learned counsel for the respondent. Thereafter, the matter was posted for the cross examination of PW2 that is the petitioner herein. When she appeared for the cross examination, the present memo was filed by the husband seeking a direction to the GPA holder not to be present in the court hall or in the in-camera proceedings during the cross examination of his daughter that is PW2. Further, they have filed a petition requesting the Trial Court to conduct the proceedings in-camera and the same was allowed vide order dated 06.01.2024. It is the grievance of the respondent that the presence of GPA holder may hamper the recording of the cross examination as some personal questions may have to be posed to PW2. The Trial court had observed that the petitioner i.e., daughter of the GPA holder is not a minor child witness, she is an adult woman and she can independently answer the -4- NC: 2024:KHC:31338 WP No. 9623 of 2024 questions posed to her by the learned counsel for the respondent. Moreover, the proceedings are conducted in- camera and the Trial Court will be monitoring the cross examination of PW2. If there is any irrelevant questions the Court will monitor the same. The Trial Court had observed that earlier when the application is filed i.e., I.A.No.1 seeking permission of the Court to be represented through the GPA holder that is her father. The said application was allowed and the GPA holder of the petitioner was permitted to represent the matter before the Trial Court on behalf of the petitioner. When she herself is present before the Trial Court for her cross examination, the GPA holder of the petitioner cannot act as an advocate or a pleader to represent the petitioner. Permission was granted to the GPA holder to represent her in her absence. Both the petitioner and the GPA holder cannot appear simultaneously before the Court to conduct the case. Furthermore, the dispute between the parties is the family dispute and the present petition has been filed against the respondents seeking custody of the minor child. The petitioner had made certain allegations in the pleadings against the respondent. When the petitioner herself had appeared before -5- NC: 2024:KHC:31338 WP No. 9623 of 2024 the Court to give evidence, then GPA holder cannot act as an advocate or pleader to assist the petitioner/PW2 during her cross examination. Hence, both the petitioner and the GPA holder cannot appear simultaneously before the Trial Court for conducting the matter. The Trial Court had relied on the judgment of a Coordinate bench of this court in case of R.Narasimha Vs. S.P. Sridhar1 wherein it was observed that a power of attorney holder, who is not an Advocate cannot be placed on the same footing as an Advocate. A non-Advocate cannot be permitted to address the Court on behalf of a party on the strength of the Power of Attorney. For that purpose, the party has to seek the leave of the Court. Grant of such leave is governed by Section 32 of the Advocates Act, 1961 and a private person who is not an Advocate, has no right to argue for a party without the prior permission of the Court, for which the motion must come from the party himself. It is open for the Court to grant or withhold permission in its discretion. The Trial Court had also relied on the another judgment of the High Court in case of Moulasab Vs. Mohammad Hasim and others2 wherein it is held that the power of attorney holder cannot have 1 ILR 2014 Kar 84 2 2003 1 KCCR 239 -6- NC: 2024:KHC:31338 WP No. 9623 of 2024 right of audience before the Court. That the recognized agent holding GPA cannot be allowed to plead and argue. He can only appear and conduct the judicial proceedings and has no right of audience. Power to plead on behalf of a party in judicial proceedings vests only with the pleader and in view of the same, the Trial Court had directed the GPA holder not to be present in the in-camera proceedings during the cross examination of PW2.
4. Aggrieved thereby the GPA holder has appeared before this Court. The GPA holder submits that he being the father and as the daughter who is a single mother has to take care of the child and also she has to take care of her job, as such a GPA was given to him to represent her and the same was accepted by the Trial Court. It is submitted that the findings of the Court that the GPA holder cannot act as an Advocate or pleader to represent the petitioner or to assist the petitioner during her cross examination is not correct. He submits that Sub Section 15 of Section 2 of CPC defines: "pleader" means any person entitled to appear and plead for another before the Court and includes an advocate, a Vakil and an attorney of a High Court. Further, Section 2(q) of CrPC., defines: "pleader" when used -7- NC: 2024:KHC:31338 WP No. 9623 of 2024 with reference to any proceedings in any Court, means a person authorized by or under any law for the time being in force, to practice in such Court and includes any other person appointed with the permission of the Court to act in such proceedings. Then, he had relied on Section 32 of the Advocates Act, 1962 which deals with the power of the Court to permit appearance in the particular case and basing on that he submits that the Court may permit any person not enrolled as an advocate under the Act to appear before it or him in any particular case. He had relied on the judgment of the Hon'ble Apex Court in case of Harishankar Rastogi Vs. Girdhari Sharma and another3 where the Court had observed that a pleader by definition includes any person other than the one authorized by law to practice in a Court if he is appointed with the permission of the Court to act in a particular proceedings. Then, he had also relied on the judgment of the Hon'ble Supreme Court in case of T.C. Mathai and another Vs. District and Sessions Judge, Thiruvananthapuram, Kerala4 wherein the Hon'ble Apex Court observed as below:
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AIR 1978 SUPREME COURT 1019 4 AIR 1999 SUPREME COURT 1385 -8- NC: 2024:KHC:31338 WP No. 9623 of 2024 "Pleader, when used with reference to any proceeding in any Court, means a person authorised by or under any law for the time being in force, to practise in such Court, and includes any other person appointed with the permission of the Court to act in such proceedings". The definition envelopes two kinds of pleaders within its ambit. The first refers to legal practitioners who are authorised to practice law and the second refers to any other person. If it is the latter its essential requisite is that such person should have been appointed with the permission of the court to act in such proceedings. This is in tune with Section 32 of the Advocates Act 1961 which empowers a Court to permit any person, who is not enrolled as an advocate to appear before it in any particular case.
It is not necessary that the "pleader" so appointed should be the power of attorney holder of the party in the case. What seems to be condition precedent is that his appointment should have preceded by grant of permission of the court."
5. It is submitted that as per the said judgment of the Hon'ble Apex Court, a GPA holder, once he is permitted by the Trial court, can act as a pleader by protecting the best interest of the petitioner. Coming to the findings of the Trial Court that the GPA holder has been granted permission to represent the -9- NC: 2024:KHC:31338 WP No. 9623 of 2024 petitioner/mother in her absence, it is submitted that on 04.08.2021, when the Court had permitted the GPA holder to represent, the Court had not passed any such restrictions while granting the permission. It is submitted that the Court had given a finding that the GPA holder and the petitioner cannot appear simultaneously. It is submitted that such an observation is contrary to law and precedents and it is the order passed by the Court while granting permission to him. It is submitted that as per the order sheet of the Court itself both the witness and the GPA holder were permitted by the Court for examination-in-
chief on 10.03.2023, 16.11.2023 and 04.11.2023. In the earlier proceedings no objections were raised by the respondent and the said issue had attained finality between the parties. According to the GPA holder those proceedings operates as res- judicata and creates a bar for raising the issue at a later stage. He further submits that the Trial Court had also not shown any reasonable cause to departure from its previous decision. On res-judicata, he had relied on the judgment of the Hon'ble Apex Court in case of S. Ramachandra Rao Vs. S. Nagabhushana Rao and others5. The GPA holder submits that PW2 appeared as 5 2022 SCC ONLINE SC 1460
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NC: 2024:KHC:31338 WP No. 9623 of 2024 witness for her cross examination whereas the GPA holder appeared to conduct the matter on behalf of the party. He submits that the role of a witness and a party are different and distinct. Witness is a person who appears before the Court to depose, substitute a statement or claim orally or to produce evidence. Whereas conducting a case by a party in person or GPA means acting, pleading and raising objections before the Court and assisting the Court.
6. The GPA holder/party in person had relied on Order 2 Rule 1 of the CPC which deals with recognized agents and pleaders. He submits that there is no bar under any of the substantive or procedural law whereby the GPA holder and the party cannot appear simultaneously. It is submitted that the Trial Court erred in allowing the memo filed by the respondent. It is submitted that the respondent/husband is represented by four advocates and will be assisted by them during his cross examination. He submits that by virtue of this order, the Court is taking away the right of legal assistance to PW2 during her cross examination through her GPA who is handling the cases, who knows the legal aspects of the case and assisting the Trial Court with the permission of the Court. Even the finding of the
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NC: 2024:KHC:31338 WP No. 9623 of 2024 Court that she is a adult women and she do not require any assistance is also contrary to law. It is submitted that the Hon'ble Apex Court in of case Ekene Godwin and another vs. State of Tamilnadu6 had observed that, "When the examination-in-chief of a material prosecution witness is being recorded, the presence of the Advocate for the accused is required. He has a right to object to a leading or irrelevant question being asked to the witness. If the trial is conducted in such a manner, an argument of prejudice will be available to the accused".
7. The GPA holder/party in person submits that the witness cannot be deprived of legal assistance during her cross examination that is given by the GPA holder on the ground of being an adult. It is submitted that all the judgments that are relied on by the Trial Court have no relevance to the facts of the case. It is submitted that the order impugned is liable to be set aside.
6 2024 SCC ONLINE SC 337
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NC: 2024:KHC:31338 WP No. 9623 of 2024
8. The respondent/husband had filed his objections before this Court, wherein it is stated that the petitioner herself had moved an application to conduct the proceedings in-camera and the Trial Court had rightly observed that the GPA holder has no right of audience before the Court unlike a practicing advocate to assist in cross examination. The Trial Court had rightly observed that PW2 is an adult woman of 42 years old and she's a highly educated lady, who has done her Bachelors in Engineering and thereafter she went to Los Angeles for Masters in Electrical Engineering from California State University and she has the ability to answer. Just because the GPA holder was permitted to appear and represent the petitioner it doesn't mean that a power of attorney holder can act as an advocate. The GPA holder, who is not an advocate cannot be placed on the same footing as an advocate. When the petitioner herself is present before the Court, the GPA holder of the petitioner cannot act as an advocate to represent the petitioner. It is also stated that the Court had assured in the order that the Court will monitor the cross examination of PW2 and will intervene and assist the petitioner, if there are any irrelevant questions. It is also stated that he has made
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NC: 2024:KHC:31338 WP No. 9623 of 2024 multiple representations against the learned Judges, Court staff and learned Advocates and had filed multiple memos, transfer petitions, complaints and escalations to the Hon'ble Supreme Court of India, Chief Justice of India, Ministry of Law stating that the Hon'ble Judges are not doing justice and furnished the list of complaints given by him. It is stated that the respondent had to put personal questions relating to the events of the marriage, relating to the petitioner and respondent while in USA and the minor child while in USA to PW2. The presence of GPA holder will hamper the recording of the cross examination based on his past behavior of planning criminal conspiracy and escalations to the Court against the learned Judges, Court staff and the Advocates are repeatedly disturbing and interfering with the process. It is stated that the GPA holder and the petitioner on 16.09.2018, while in Chicago planned a criminal conspiracy. It is stated that he is in the habit of making all frivolous allegations and he feels that the Court of first instance are not created and always makes submission that the Hon'ble Supreme Court of India is superior and higher in judiciary and he do not have to abide by any rules of the Court and he also makes statement like "I know so many Lords in Supreme Court
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NC: 2024:KHC:31338 WP No. 9623 of 2024 of India and go on appeal to the Hon'ble Supreme Court". Time and again the GPA holder and the petitioner had insisted the Court and made inappropriate remarks against the learned counsel like no one know anything in law and the learned counsel appearing for the respondent and the judge in this Court is no exception. On multiple occasions, GPA holder had also made comments like "You pass any order, I will take it to the highest Court of the Country and I will deal with it". The GPA holder even submits in the Court that he has numerous Senior Counsels numbers and if he makes one call he will be attended to and he is well connected to. It is stated that all the judgments that he is relying on do not apply to the facts of the case and the order that is passed by the Court is perfectly legal and valid and the learned counsel relied on the judgment in case of R. Narasimha Vs. S.P.Sridhar7 stated supra, where this Court had held that there is no impediment in law for a party to prosecute his case through his power of attorney holder, but it does not exo-facto mean that an attorney could be examined as a witness in the case to give evidence or that he could address the Court. It is submitted that simultaneously both of 7 ILR 2014 Kar 84
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NC: 2024:KHC:31338 WP No. 9623 of 2024 them cannot be permitted to appear before the court. The GPA holder has filed the rejoinder reiterating the contentions and written submissions are placed before this court.
9. Having heard the party in person and the learned counsel for the respondent, perused the material placed on record. The present G and WC is filed by the wife seeking custody of the child. It is her case that she has to take care of the child and she is also a working mother. The Trial Court considering the same had permitted the GPA holder i.e., her father to represent her by order dated 04.08.2021. He has been representing the case and he has been taking care of all the affairs pertaining to the case. He has been examined as PW1, now the mother is going to be examined as PW2 and she wanted the proceedings to be conducted in-camera and when the in-camera proceedings were to be conducted, at that point of time, this memo came to be filed stating that the GPA holder shall not be present before the Court while PW2 is giving the evidence. It is the contention that as he is a GPA holder, when the petitioner herself is present, the GPA holder is not an Advocate and his presence is not required and certain personal questions would be asked and it won't be right on the part of
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NC: 2024:KHC:31338 WP No. 9623 of 2024 the GPA holder to be present. Without going into any of the legal aspects the first and foremost thing is that the GPA holder is permitted to represent and he has been submitting the case in-person and that was never objected, on several occasions both the GPA holder and the petitioner were also present. Now, when the in-camera proceedings have to be conducted, as submitted by the GPA holder, the respondent will be represented by four advocates. It is submitted that when PW2 is present, the petitioner/power of attorney holder, who has been pursuing the matter on her behalf, who is acquainted with the case on the day to day basis shall not be present. What was not a problem for them all through, has become a problem for them if he is present in the in-camera proceeding and this Court is not able to understand the same. As rightly submitted by the GPA holder, there should be some parity and equal opportunity to both the sides and when the respondent is able to get assistance of four advocates, when the GPA holder who has been appearing before the Courts on behalf of the daughter and has been pursuing the matter, why he should not be there and what would happen if simultaneously both of them are present, this Court is not able to understand. When they are
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NC: 2024:KHC:31338 WP No. 9623 of 2024 putting any personal questions to the daughter, when the advocates on the opposite side can be there and what is the difficulty if the father is present is not put forth before this Court by the respondent/husband. As rightly argued by the GPA holder, there was no restriction imposed when the permission was granted by the Court to represent the daughter and to appear on behalf of her, but objection is raised she is there in the Court he shouldn't be present. It appears that on several occasions both of them appeared before the Court.
10. Learned counsel for the respondent has stated so many things before this court which are irrelevant for considering this application. All these details were not part of their objections or their memo before the Court and when this Court is exercising the jurisdiction under article 227 of the Constitution of India, all those details are not necessary for this Court and this Court will not consider any of those objections. This Court is of the view that several details and several complaints that are made by the GPA holder, a list of dates were given which are immaterial to consider this application as that was not the basis for the Trial court to pass an order. It appears that only with an intention to prejudice this Court, all
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NC: 2024:KHC:31338 WP No. 9623 of 2024 these facts which are irrelevant for deciding the present application are placed before this Court. If the conduct of the GPA holder is not right towards the Court or Advocate that has to be dealt with in separate proceedings. If at all filed by the respondent/husband that cannot be a basis for this Court to come to the conclusion, what the Trial Court has arrived at. What remains to be adjudicated before this Court is, whether the GPA holder and the petitioner can they be present before the Court simultaneously. This Court finds absolutely no reason why the GPA holder cannot be present when the cross examination of PW2 is going on.
11. At this juncture, it is appropriate to refer to a few provisions which reads thus:
Section 2(15) of the CPC. defines a Pleader, "Pleader means any person entitled to appear and plead for another in Court, and includes an advocate, a vakil and an attorney of a High Court"
Section 2(q) of CrPC. defines the Pleader,
(q)"pleader" when used with reference to any proceeding in any Court, means a person authorised by or under any law for the time being in force, to
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NC: 2024:KHC:31338 WP No. 9623 of 2024 practice in such Court, and includes any other person appointed with the permission of the Court to act in such proceeding;
Section 32 of the Advocates Act, 1961 reads thus, "Power of Court to permit appearances in particular cases. -Notwithstanding anything contained in this Chapter, any court, authority, or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case."
It is also appropriate to look into the Order 3 Rule 1 of CPC which reads thus, "1. Appearances, 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 1 [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"
12. The above referred provisions makes it clear that a pleader by definition includes any person other than the one
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NC: 2024:KHC:31338 WP No. 9623 of 2024 authorized by law to practice in a Court and who is appointed with the permission of the Court to act in a particular proceedings. In this case the GPA holder is permitted by the Court to represent the petitioner as he has been representing the matter on behalf of the petitioner.
13. Considering all these provisions and the fact that he has been appearing independently and simultaneously on several occasions, this Court finds no impediment for the GPA holder to be present before the Court when cross examination of PW2 is taking place. This court is of the view that the order passed by the Trial Court is unsustainable and this Court deems it appropriate to pass the following, ORDER i. The orders on memo dated 18.03.2024 filed by the respondent, on the file of VI Addl. District and Sessions Judge, Bengaluru Rural District, Bengaluru is set aside.
ii. The GPA holder can be present while cross examination of PW2 is going on.
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NC: 2024:KHC:31338 WP No. 9623 of 2024 iii. Accordingly, the Writ Petition is disposed of. iv. All I.As., in the Writ Petition, shall stand closed.
SD/-
(LALITHA KANNEGANTI) JUDGE BN List No.: 1 Sl No.: 54