Karnataka High Court

Malike Saba vs Sameer Hamsa Ramla on 29 July, 2024

                                        -1-
                                                    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,
                                 -2-
                                              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

NC: 2024:KHC:31338

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

NC: 2024:KHC:31338

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

NC: 2024:KHC:31338

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

ILR 2014 Kar 84

2003 1 KCCR 239

NC: 2024:KHC:31338

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

NC: 2024:KHC:31338

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:

AIR 1978 SUPREME COURT 1019

AIR 1999 SUPREME COURT 1385

NC: 2024:KHC:31338

"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

NC: 2024:KHC:31338

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

2022 SCC ONLINE SC 1460

- 10 -

NC: 2024:KHC:31338

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

- 11 -

NC: 2024:KHC:31338

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.

2024 SCC ONLINE SC 337

- 12 -

NC: 2024:KHC:31338

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

- 13 -

NC: 2024:KHC:31338

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

- 14 -

NC: 2024:KHC:31338

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

ILR 2014 Kar 84

- 15 -

NC: 2024:KHC:31338

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

- 16 -

NC: 2024:KHC:31338

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

- 17 -

NC: 2024:KHC:31338

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

- 18 -

NC: 2024:KHC:31338

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

- 19 -

NC: 2024:KHC:31338

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

- 20 -

NC: 2024:KHC:31338

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.