Bombay High Court
Rajendra Vinayak Mehta vs Mrs.Veena Jaswant Shah 2. Jaswant ... on 28 April, 2016
Bench: S.C. Dharmadhikari
APP25.11.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 25 OF 2011
WITH
CRIMINAL APPLICATION NO. 426 OF 2010
SPEAKING TO THE MINUTES OF ORDER DATED
02.09.2010
WITH
CRIMINAL APPLICATION NO. 399 OF 2010
SPEAKING TO THE MINUTES OF ORDER DATED
02.09.2010
WITH
CRIMINAL APPLCATION NO.84 OF 2008
WITH
CRIMINAL APPLICATION NO. 125 OF 2008
WITH
CRIMINAL APPLICATION NO.147 OF 2010
WITH
CRIMINAL WRIT PETITION NO. 1468 OF 2003,
WITH
CHAMBER SUMMONS NO. 57 OF 2010
IN
SRP 1/27
::: Uploaded on - 28/04/2016 ::: Downloaded on - 29/04/2016 00:02:04 :::
APP25.11.doc
MISC. PETITION NO. 54 (LODG NO.306) OF 2010
IN
TESTAMENTARY PETITION NO. 237 OF 2009.
WITH
TESTAMENTARY PETITION NO. 282 OF 2010
1. Mr. Rajendra Vinayak Mehta, Adult, a ]
senior U.S. Citizen, aged 68, resident of 2035,]
Meadow Lane Drive, Easton, PA - 18040, ]
presently in Mumbai and through His Power ]
of Attorney, Ms. Smita Ambalal Patel, having ]
her office at 147, M.G.Road, 2nd floor, Fort, ]
Mumbai - 400 001. ig ]
2. Mr. Deepak Vinayak Mehta, Adult, a ]
senior U.S. Citizen, aged 66, residing at 118 ]
South Galaxy Drive, Chandler, AX 85226,PASHA SYED REHMAT
18-MAR-63
REGR HIGH COURT APPELLATE SIDE BOMBAY
PAO MUMBAI
05/2014
03/2015
02/2015
07/2014
11/2014
04/2014
06/2014
10/2014
09/2014
08/2014
12/2014
01/2015
8000
8000
8000
8000
8000
8000
8000
SRP 2/27
::: Uploaded on - 28/04/2016 ::: Downloaded on - 29/04/2016 00:02:04 :::
APP25.11.doc
8000
8000
8000
8000
8000
AJMH/24721
2014-2015
PASHA SYED REHMAT
AJMH/24721
28/04/2016
NIL
NIL
1032552
96000
94356
]
U.S.A. ig ] ... Appellants
Versus
Mrs. Veena Jaswant Shah ]
Flat No.9, 2nd floor, Hari Vijay Cooperative ]
Housing Society Limited, Shahid Bhagat ]
Singh Road, Vile Parle (W), Mumbai-400058 ] ... Respondent
Ms. Smita Patel, Constituted Attorney for the Appellants
present in person.
Mr. B.K. Barve with Mr. Sandeep B. Barve and Ms. Archana Lad
i/b M/s. B.K. Barve & Co. for the Respondent.
CORAM : S.C. DHARMADHIKARI &
G.S. PATEL, JJ.
Reserved on : 3 rd MARCH, 2016
Pronounced on : 28 th APRIL, 2016
JUDGMENT . : [Per S.C. Dharmadhikari, J.]
1. This appeal under Clause 15 of the Letters Patent is
SRP 3/27
APP25.11.doc
directed against an order of a learned single Judge dated 2 nd
September, 2010, in Criminal Application No.84 of 2008 with
Criminal Application No.147 of 2010 with Criminal Application
No. 125 of 2008 in Criminal Writ Petition No. 1468 of 2003,
alongwith Misc. Petition (Lodg) No.306 of 2010 in
Testamentary Petition No. 237 of 2009. The appellants before
us are original respondent Nos.1 and 2. They are both senior
citizens. The respondent Nos.3 and 4 are the original
respondents.
2. It is the case of the appellants that they had presented an
application on an affidavit dated 5th April 2010 to the then
Hon'ble the Chief Justice to take immediate measures to control
grant of ex-parte orders, take immediate corrective measures
and provide speedy justice to the appellants and consolidate
three matters to be heard together, namely, Criminal Writ
Petition No.1468 of 2003 of the Appellate Side, Misc. Petition
(Lodg) No.306 of 2010 in Testamentary Petition No. 237 of
2009 on the Original Side and Testamentary Petition No. 282 of
2010 on the Original Side. All the three matters were filed by
SRP 4/27
APP25.11.doc
the original respondent No.1 to this appeal and others. An order
was passed on 24th August, 2010, clubbing these three matters
and assigning them to the learned single Judge. On 30 th August,
2010, all three matters were listed on the Board of the learned
single Judge for directions. They were adjourned to 1 st
September, 2010, with a direction to the Constituted Attorney
Ms. Smita Patel to satisfy the Court about her authority to
argue the matter. It is the appellants' case that they had
appointed her as their Constituted Attorney. On that date,
namely, on 1st September, 2010, she placed before the Court
several authorities in support of her submission that she has
been duly authorized in law by these appellants. It is then
claimed that on 2nd September, 2010, the impugned order has
been passed and we are concerned with the correctness and
legality of this order.
3. The sequence of events and the essential controversy can
very well be appreciated if one reproduces an order passed by
this Court on 30th September, 2013, in these very proceedings :
"2. The facts of the case, briefly stated are as under:-
SRP 5/27
APP25.11.doc
2.1 Mr. Rajendra Vinayak Mehta was granted a
probate of the Will dated 7 August 2995 executed by
Shrimati Vinayak Mehta, as per order dated 4 September
2009 of the learned single Judge in Probate Petition
No.237 of 2009.
2.2 Mrs.Veena Jaswant Shah and others filed
Misc.Petition (Testamentary) No.54 of 2010 (Initially
Misc.Petition (L) No.306 of 2010) for revocation of the
above probate on the ground that Mr.Rajendra Vinayak
Mehta had played a fraud on the Court by concealing the
Will dated 14 May 1992 executed by mother/parents of
Mr.Rajendra Vinayak Mehta in favour of Mrs.Veena
Jaswant Shah.
2.3 Mr.Rajendra Vinayak Mehta and his Constituted
Attorney Ms.Smita Patel filed a criminal complaint
against Mrs.Veena Jaswant Shah, her husband
Mr.Jaswant Shah and their son Mr.Sameer Shah alleging
that the accused had forged the Will dated 14 May 1992
for obtaining the flat in question and also forged
signatures to obtain Rs.16 lacs and odd standing in the
name of parents of Mr.Rajendra Vinayak Mehta. The
Metropolitan Magistrate, Mumbai ordered an
investigation under section 202 of Cr.P.C. and after police
submitting the report of inquiry on 25 September 2002,
the Metropolitan Magistrate took cognizance of the
report and issued process against the accused,
Mrs.Veena Jaswant Shah, aged 74 years, Mr.Jaswant
Shah, aged 78 years and their son Mr.Sameer Shah, aged
44 years. All the three accused filed Criminal Writ
Petition No.1468 of 2003 challenging the order of the
Metropolitan Magistrate issuing process.
3. On 2 September 2010, learned Single Judge
(Coram: Hon'ble Mrs.Justice Roshan Dalvi) passed three
separate orders:
(A) By the first order dated 2 September 2010, learned
Single Judge dismissed Criminal Writ Petition No.1468 of
2003 and directed the continuance of criminal
investigation in accordance with law.
(B) By the second order dated 2 September 2010,
SRP 6/27
APP25.11.doc
learned Single Judge stayed the hearing of the
Misc.Petition (Testamentary) No.54 of 2010, which was
filed for revocation of the probate sine-die till disposal of
the criminal complaint filed by Mr.Rajendra Vinayak
Mehta against Smt.Veena Shah and ors.
Appeal No.311 of 2011 (initially Appeal (L) No.
343 of 2012) filed by Mr.Rajendra Mehta against the
above order has been allowed by another Division Bench
by judgment dated 5 April 2013. The Division Bench has
set aside the above order dated 2 September 2010 and
has directed that the application for probate shall be
heard and decided in accordance with law, as
expeditiously as possible.
(C) Learned Single Judge passed the third order dated
2 September 2010, in respect of controversy whether
Ms.Smita Patel has a right to represent Mr.Rajendra
Vinayak Mehta and his brother in the revocation
proceedings/criminal proceedings. Dispute in the above
proceedings is about the property left by the parents of
Mr.Rajendra Vinayak Mehta and his brother Mr.Deepak
Mehta. Mr.Deepak Mehta's wife is stated to be cousin of
Ms.Smita Patil ( who is not a lawyer), in whose favour the
two brothers, settled in USA, have executed separate
Power of Attorney. Ms.Smita Patel, the Constituted
Attorney, claims to know family for last 20 years and
claims to have the confidence of the two brothers, who
are settled in USA. Learned Single Judge held that
Ms.Smita Patel should not be allowed to seek the right of
audience as Constituted Attorney. This order is
challenged in Appeal No.25 of 2011.
4. The discussion hereinafter is with reference to the
said last order dated 2 September 2010. Learned Single
Judge (Hon'ble Mrs.Justice Roshan Dalvi) considered the
provisions of C.P.C., Cr.P.C. , Advocates Act, judgments of
the Supreme Court, Bombay High and other High Courts
and after culling out principles from those decisions,
referred to the conduct of Constituted Attorney in the
other proceedings including the proceedings covered by
the decision of the Supreme Court in Vipin Pandya Vs.
Smita Ambalal Patel (2007) 6 SCC 750 and proceedings
before the Co-operative Court, and concluded:
SRP 7/27
APP25.11.doc
"This Court would, therefore, do well in not
exercising the discretion in favour of the
Constituted Attorney (Ms.Smita Patel) to
represent them (Mr.Rajendra Vinayak Mehta
and his brother) as their pleader and to seek
the right of audience."
This order was passed in Criminal Application
No.84 of 2010 as well as in notices of motion in the
revocation petition.
4A. The learned Single Judge referred to the conduct of
Constituted Attorney Ms.Smita Patel in paragraph 23 of
the aforesaid order dated 2 September 2010 in following
terms:
"23. Mr. Madon, Sr. Counsel on behalf of the
Respondents drew my attention to the judgment
of the Supreme Court in the case of Vipin
Pandya Vs. Smita Ambalal Patel (2007) 6 S.C.C.
750 showing strictures passed against the
Constituted Attorney and exemplary costs of
Rs.5 lakhs imposed upon her not upon the
demerits of her case, but upon her conduct of the
proceedings. It would do well to reproduce the
observations of the Court with regard to the
impeccability or otherwise of her behaviour,
which runs thus:
21. It is indeed disgusting to see a
litigant attempting to intimidate the
Supreme Court and two of its Judges in
such a crude and obnoxious manner.
22. A resume of the facts clearly reveals
the incorrigible and recalcitrant attitude
of the respondent. We could perhaps
condone her errant conduct if she was
merely a highly strung and impetuous
lady oversensitive to her case and
unaware of the nuances of the law and
the decorum to be maintained in court
but we are satisfied that no ignorance
nor mental imbalance is discernible
SRP 8/27
APP25.11.doc
which can be pleaded in extenuation of
her behaviour. The record reveals that
she is well aware of the conduct of the
judicial process and the law and facts
relating to her case, but she has evolved
a strategy which has thus far kept her in
good stead as it has been designed to
filibuster the proceedings in case she
finds that they are not taking the
direction that she has chalked out and
that despite her conviction for contempt
of court on two occasions and numerous
admonitions and warnings
notwithstanding, she has remained
unfazed and has in a most unbecoming
manner relentlessly and ruthlessly
pursued the litigation. We also quote yet
again from the judgment of the Division
bench dated 16112000:
"It may also be possible that she has
lost her mental balance because of
the said facts. (Though, considering
the manner in which the contemner
coolly argued the appeal before us,
we are not inclined to believe that
she has really lost her mental
balance)"
We completely endorse this observation."
Mr. Madon also drew my attention to the order of
the Cooperative Court at Bombay in Misc.
Application No.222/2009 in Dispute No.12/2007
between the Respondents and the Secretary of the
Society which was a party to that dispute showing
how the fracas ensued resulting in the arrest of the
Constituted Attorney of the Respondents to bring
peace in the Court room.
5. Mr. Rajendra Vinayak Mehta has filed Appeal
No.25 of 2011 challenging the said last order dated 2
September 2010 in Criminal Application No.84 of 2010
and other connected matters. It was contended that the
SRP 9/27
APP25.11.doc
signed impugned order dated 2 September 2010 passed
in Criminal Application No.84 of 2010 and other
connected matters was not on record when inspection of
the record was taken by the appellants Mr.Rajendra
Vinayak Mehta and his constituted attorney Ms.Smita
Patel on 11 October 2010. It was alleged that at that time
only unsigned copy of the impugned order dated 2
September 2010 running into twelve pages was on
record. But the unsigned order was uploaded, hence the
impugned order was a nonexistent order."
4. We are not concerned with the other controversy which is
concluded by this order. Suffice it to indicate that the Division
Bench passing the above order in this appeal noted that on 30 th
March 2012, the learned senior counsel appearing on behalf of
the respondents made a concession. That concession is that in
so far as the present appeal is concerned, the respondents have
no objection if the same is allowed to be argued by the
Constituted Attorney of the appellant. In view thereof, the
Division Bench permitted Ms. Smita Patel, Power of Attorney
holder before us to argue this appeal.
5. Accordingly, we have allowed her to argue this appeal.
Mr. Barve appearing on behalf of the respondents stated that
the respondents stand by their concession and have no
objection to the Constituted Attorney / Power of Attorney
SRP 10/27
APP25.11.doc
holder addressing us.
6. Though not an advocate herself, the Power of Attorney
holder has taken us through innumerous documents, papers
and proceedings. We are not concerned with the merits of the
pending proceedings before the learned single Judge. We are
only concerned with the legality and validity of the order under
appeal.
7.
In that regard, the primary contention of the appellants is
that once the Power of Attorney holder has been authorised and
to act and appear on their behalf, then, the Court could not have
curtailed the said power and authority of the Constituted
Attorney or the Power of Attorney holder in the manner done.
It is not open to then probe as to how much authority is
conferred and to what extent. It is submitted that the learned
single Judge had no jurisdiction to pass the impugned order.
She could not have restrained the Power of Attorney holder
from addressing the Court. There is no provision in law
compelling a litigant to engage an advocate. Merely because
some litigant chooses either to conduct his or her case himself /
SRP 11/27
APP25.11.doc
herself, or authorises somebody on their behalf and if that
course is legally permissible, then, the Court cannot insist on
such parties engaging advocates or appointing any advocates
for them. The Power of Attorney holder was critical of the
findings recorded by the learned single Judge. She submits that
the learned Judge was to a great extent influenced by her
alleged misconduct and that is how she has arrived at the
conclusion, but that is not supportable in law. Our attention is
invited to the observations in that regard. It is submitted that
the Power of Attorney holder is not required to be a qualified
lawyer. It is submitted that from paragraph 4 onwards upto 6,
the learned Judge has referred to the legal provisions but has
erroneously concluded that the litigant has a choice to appear
himself or herself or through any person of his confidence who
may be appointed to so appear and plead on his behalf provided,
however, that that person is qualified to appear. The learned
Judge has unnecessarily brought in the qualifications and
required to be fulfilled by an advocate. Those cannot be equated
and the erroneous conclusion that the recognised advocates
are, therefore, essentially qualified lawyers has been arrived at
SRP 12/27
APP25.11.doc
in paragraph 7. There is no requirement of minimal academic
qualifications to be obtained by a Constituted Attorney and the
learned Judge in that regard has not referred to any provision
of Act or Rule. According to the Power of Attorney holder, the
learned Judge has referred to certain judgments, but those are
not dealing with the controversy. The controversy here is
whether the learned Judge was correct in holding that the
present Power of Attorney holder was unfit to appear only
because she is not an advocate or merely because of certain
general observations, viz., the ones which are to be found in
paragraphs 14 to 19 of the impugned order.
8. The Power of Attorney holder submits that she has relied
upon several judgments and they have been erroneously
distinguished or brushed aside by the learned single Judge. The
Power of Attorney holder then criticized the findings in
paragraphs 22 and 23 of the impugned order to submit that
none of them have any relevance to the issue raised by the
learned Judge herself. Thus, without indicating any specific
wrongful act or a incident of indecent or reprehensible
SRP 13/27
APP25.11.doc
behaviour, the learned Judge could not have concluded that the
conduct of the Power of Attorney holder is such that no
discretion should be exercised in her favour. The learned Judge
also erred in not upholding the Power of Attorney holder's right
of audience sought on behalf of the principal or the donor. She
was, therefore, equally critical of the observations in paragraph
24 of the impugned order. Thus, the learned Judge has
wrongfully and erroneously rejected the application seeking the
Court's intervention so as to permit a right of audience by a
Constituted Attorney on the appellants' behalf. The Power of
Attorney holder submits that so long as the Power of Attorney
was valid and subsisting, the learned Judge could not have
prevented her from appearing and pleading the case on behalf
of the appellants. For these reasons, she would submit that the
order be set aside.
9. On the other hand, Mr. B.K. Barve submits that conceding
the right of audience in the Power of Attorney holder as far as
the present appeal is concerned would not mean that the
respondents do not object to her appearance or have conceded
SRP 14/27
APP25.11.doc
to it, much less acquiesced in the same. He would submit that
the conduct of the Power of Attorney holder was such that the
learned Judge even otherwise was justified in terminating the
Power of Attorney. For these reasons, he would submit that on
broad principles, the course adopted by the learned Judge is
correct.
10. Mr. Barve also relied upon the order of another learned
single Judge of this Court (M.L. Tahiliani, J.) dated 17 th
September 2014, in Criminal Application No. 7 of 2014 in
Criminal Application No.1196 of 2013. He would submit that
the Constituted Attorney has not been allowed to appear in the
proceedings as the prayer to allow appearance by Power of
Attorney holder has been rejected. The learned Judge has also
set aside the order dated 24th December 2013, of this very
Court and held that it was obtained by suppression of facts.
Then, reliance is placed upon the order of a learned single
Judge of this Court who, on one occasion, had removed certain
matters pertaining to the above parties in the light of the
conduct of the Power of Attorney holder. For these reasons, he
SRP 15/27
APP25.11.doc
would submit that the impugned order be sustained.
11. We have carefully considered the submissions of both
sides. We have perused the bulky record. We have clarified to
the Power of Attorney holder that in this appeal we are
concerned with a limited issue and that is with regard to the
correctness of the order dated 2nd September, 2010,
terminating the Power of Attorney in favour of the appellant -
Ms. Smita Patel. We are not concerned with the other orders
passed from time to time in the proceedings. For us and when
the Power of Attorney holder herself terms this as "an open and
shut" case, the issue is extremely narrow and limited.
12. The law has, as far as appearance of parties is concerned,
been more or less crystallized in Order III of the Code of Civil
Procedure, 1908. Order III is titled as Recognized Agents and
Pleaders. Since the learned Judge has referred to Order III Rule
1 and 2 we reproduce them.
"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
SRP 16/27
APP25.11.doc
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 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 an n the
names of parties, non 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, application and acts."
13. A bare perusal of Order III would indicate that 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. The words initially
appearing as "duly appointed to act" are now substituted by Act
22 of 1926 with the words "appearing, applying or acting, as
the case may be". Thus, if there is a provision otherwise, an
SRP 17/27
APP25.11.doc
appearance, application or act in Court required or authorized
by law to be made or done by a party in such Court may be by
the party in person or by his recognized agent. The word
"recognized agent" has not been defined in the Code of Civil
Procedure, 1908, though the word "pleader" is defined in
section 2, clause 15. Therefore, the word "recognized agent"
takes its colour from the ordinary and plain meaning of that
word or term. The word "recognized agent" has been
understood as formal acknowledgment conveying approval or
sanction. It is not mere acquiescence but something more. It
shows that a person, entity or thing has a particular status. The
word "agent" as understood in law is a fiduciary relationship
created by expression or implied contract or by law in which
one party may act on behalf of another and bind that other
party by words or actions. It is a device to enable a person
through the services of another to represent him. That is a
contractual agreement by which one party agrees to represent
another, the agent becoming as binding in the affairs of the
other as if the latter had acted on his or her behalf [See Law
Lexicon, P. Ramanatha Aiyar, 3rd Edition, Reprint 2007].
SRP 18/27
APP25.11.doc
14. Once the concept is understood as above, then we must
find any provision by which the Court can terminate the agency
and refuse to permit the Power of Attorney holder to act and
appear in certain legal proceedings. In the present case, the
controversy is not about the extent of the authority in the
Power of Attorney holder, but whether generally the Court can
prohibit appearance by the Power of Attorney holder. The
learned single Judge, with great respect, has without adverting
to any specific act of infamous or indecent conduct of the Power
of Attorney holder, as a broad and sweeping measure,
terminated the agency. That we do not find to be permissible.
If the conduct of any party before a Court is such that it
becomes impossible for the Court to conduct the proceedings
before it in an orderly and decent manner consistent with its
dignity and status, then none can dispute the Court's power to
prevent or stop any party or litigant from addressing the Court
in such manner. The Court can take suitable action as
permitted in law so as not only to deplore the conduct but to
prevent its recurrence and persistence. That power in the
Court is inherent as all Courts are meant to dispense justice. In
SRP 19/27
APP25.11.doc
the present case, we do not find anything in order III Rule 1 and
2 which would permit termination of the agency and
displacement of the Power of Attorney holder or recognized
agent without any material of the above nature. The learned
Judge has not referred to any materials as is apparent from the
record. The reference that the learned Judge makes to the
judgment of the Hon'ble Supreme Court reported in the case of
Vipin Pandya Vs. Smita Ambalal Patel (2007) 6 SCC 750, has
absolutely no application. It is a behaviour of the respondent -
Smita Ambalal Patel in the Court which compelled the Supreme
Court to take a very serious view and impose exemplary costs
on her. The Hon'ble Supreme Court cautioned all concerned
about growing tendency on the part of some litigants to misuse
the latitude granted to them and to deliberately create a
situation whereby the function of the Court becomes an
impossibility. It is stultifying the entire judicial process. The
Hon'ble Supreme Court found that consistently the conduct and
over three days before the Hon'ble Supreme Court of this very
Power of Attorney holder was such that she did not heed to any
counsel or advice from the Court. She insisted on arguing the
SRP 20/27
APP25.11.doc
matter in her own way and sometimes she crossed the limits of
decency. She did not keep her arguments within the bounds.
She did not address the Court as desired by it on merits. The
Court has recorded as to how at times she was agitated and
shouted back at the Court. Therefore, the Court was
constrained to close the arguments.
15. It is this conduct and pattern emerging from it for
continuously three days that led the Court to pass an order not
only imposing exemplary costs but concluding as under :
"21. It is indeed disgusting to see a litigant attempting
to intimidate the Supreme Court and two of its Judges in
such a crude and obnoxious manner.
22. A resume the facts clearly reveal the incorrigible
and recalcitrant attitude of the respondent. We could
perhaps condone her errant conduct if she was merely a
highly strung and impetuous lady over-sensitive to her
case and unaware of the nuances of the law and the
decorum to be maintained in Court but we are satisfied
that no ignorance nor mental imbalance is discernible
which can be pleaded in extenuation of her behaviour.
The record reveals that she is well aware of the conduct
of the judicial process and the law and facts relating to
her case, but she has evolved a strategy which has thus
far kept her in good stead as it has been designed to
filibuster the proceedings in case she finds that they are
not taking the direction that she has chalked out and that
despite her conviction for contempt of court on two
occasions and numerous admonitions and warnings
notwithstanding, she has remained unfazed and has in a
SRP 21/27
APP25.11.doc
most unbecoming manner relentlessly and ruthlessly
pursued the litigation. We also quote yet again from the
judgment of the Division Bench dated 16th November,
2000:
"It may also be possible that she has lost her mental
balance because of the said facts. (Though, considering
the manner in which the contemner coolly argued the
appeal before us, we are not inclined to believe that she
has really lost her mental balance)."
We completely endorse this observation.
23. We must emphasize that a Court is not a forum
which can be used for spewing venom and vitriol on the
opposite party, and even more alarmingly, on the Judge
hearing the case and the counsel representing that party.
The written arguments that the respondent has filed in
court betray her purpose. The new demands clearly
reveal her intention to extort as much as she can from
the appellant, who, it must be presumed, is exhausted
and drained by the huge number of court proceedings
that have been going on for the last 11 years."
16. We are bound by the judgment of the Hon'ble Supreme
Court and in cases of the nature brought before the Supreme
Court or any Court of law, it would be but its duty and it is not
expected to allow a litigant to get away with indecent conduct,
rude behaviour etc. That is how every Court of law following
this dictum would be justified in making critical observations;
issuing warnings and in some cases, imposing heavy costs
personally on such litigants.
SRP 22/27
APP25.11.doc
17. However, in the present case, we have not found the
learned Judge to be referring to any such act. It may be that
the Power of Attorney holder was at times uncontrollable and
went ahead with a point and made it in a manner not strictly
befitting decency. However, for that itself we cannot uphold the
conclusion of the termination of the Power of Attorney. The
learned single Judge could not have thus terminated it. We
have also found from the record that this very Power of
Attorney holder has argued the instant appeal and on behalf of
the appellants. She relied upon the very Power of Attorney
which was issued in her favour.
18. In the circumstances we are unable to uphold the
conclusion and particularly that the person permitted to appear
before a Court of law should be qualified to appear. There are
no specific qualifications prescribed and indeed we were unable
to find one. In such circumstances, none of the judgments that
the learned Judge relies upon in support of her ultimate
conclusion lay down such a principle. The learned Judge was
possibly disturbed because a non-advocate Power of Attorney
SRP 23/27
APP25.11.doc
holder conducted the proceedings not necessarily in an orderly
manner. It is for the Court to evaluate the level and degree of
assistance rendered by the Power of Attorney holder and if it is
not rendered any assistance on facts and law, it is justified in
making any observations in that behalf; but to direct the
termination of the Power of Attorney or the authority of the
Power of Attorney to address the court or the right to audience
which is otherwise conferred in him or her by the Power of
Attorney and clauses thereof, is not, with respect, legally
tenable. Pertinently, there is nothing on record demonstrating
termination of the Power of Attorney by the appellants. In such
circumstances, the impugned order cannot be sustained. It is
quashed and set aside.
19. However, we clarify that our order passed today should
not be construed as a blanket permission of audience or right to
address the Court under any circumstances and irrespective of
the conduct on a given day and time crossing all limits of
decency and sobriety that is expected of litigants, their agents
and pleaders and advocates in Court. Eventually the Presiding
SRP 24/27
APP25.11.doc
Officer and the learned Judges, including the learned single
Judge who passed the impugned order are anxious to protect
the dignity, status and reputation of the institution of judiciary
and the Courts in general. They would not, and rightly, approve
of any conduct or behaviour which brings the Court of law or
the system as a whole into disrepute. They would not allow
Court proceedings to be dictated by parties, litigants, their
advocates and agents, leave alone undermining the authority of
the Presiding Officer or the Judge whom they address or appear
before. They are duty-bound to regulate the conduct of parties,
their advocates, their agents in order to preserve and maintain
the faith of the common man in the institution of judiciary. The
respect for the same cannot be allowed to be undermined by the
conduct and behaviour of a few in open Court. It is far too
precious and must be upheld at any cost. Parties in person,
litigants and their agents should not forget that Judges and
Presiding Officers are strict in their demeanour and may
appear to be stern and at times far too disciplinarian. However,
that is not to uphold their personal reputation, prestige, leave
alone pride. They have a far larger duty to perform: it is to the
SRP 25/27
APP25.11.doc
institution of the judiciary in whom the common man has
immense faith and trust. That is something which permits the
Presiding Officer and Judges of Courts and Tribunals to take
such measures as are necessary to safeguard the decency and
decorum in the Court and of the proceedings as a whole.
20. Our interference with the impugned order, therefore,
should not send a wrong message and by no means we uphold
the manner in which the present Power of Attorney has
conducted herself on some occasions even before Division
Benches of this Court which were seized of the present appeal.
It is in order to redress a wrong and injustice done to the party
or litigant whom the present agent represents that we have
interfered with the impugned order. Our exercise should not be
construed as upholding or approving any of the acts of the
Power of Attorney holder in the past which may have appeared
to several Courts, including the Hon'ble Supreme Court, as
exhibiting indecent, recalcitrant and rude behaviour. We say
nothing more.
21. The appeal is allowed accordingly, without any order as to
SRP 26/27
APP25.11.doc
costs.
G.S. PATEL, J. S.C. DHARMADHIKARI, J.
SRP 27/27
