An advocate cannot appear in person as power of attorney holder

Kerala High Court: Deciding upon the question as to whether an advocate could be permitted to appear in person as a power of attorney holder in the absence of a vakalat, the Court held that an advocate holds an exalted position as an officer of the court who should not identify with the cause of his client whom he represents in the lis.

A practising lawyer of the Madras High Court sought to plead the case on behalf of the appellants as a power of attornery holder on the  contention that he was not appearing in the robes of an advocate and that any person could function as such for the parties.

The Bench of  Chitambaresh and Ramakrishnan, JJ. held that any appearance, application or act in or to any court, required by law to be made by a party in such  court, may be made or done by the party in person, or by his recognised agent or by a pleader. The recognised agent by whom such appearance, application or act may be made or done can as well be a person holding power of attorney of the party which is evident from a conjoint reading of Rules 1 and 2 of Order 3 of the Code of Civil Procedure, 1908. The appointment of a power of attorney holder has nevertheless to be preceded by the grant of permission by court, as held in T.C. Mathai v. Sessions Judge, (1999) 3 SCC 614. However there is an embargo for a person enrolled as an advocate under the Advocates Act, 1961 to appear before any court, authority or person in any particular case under Section 32 thereof.

The Court observed that there is also an inbuilt limitation for a power of attorney holder in the matter of presentation of proceedings or to plead and argue on behalf of the principal in court. All petitions, appeals and other proceedings shall be presented in person by the party, or his advocate or the advocate’s registered clerk as per Rule 32 of the Rules of the High Court of Kerala. Decisions are legion that the power of attorney holder can only appear and conduct the judicial proceedings and would not normally be permitted to plead and argue on behalf of the principal. The power of attorney holder in the instant case has no interest in the subject property.

Declining the relief, the Court observed that an advocate cannot escape from the rigorous provisions of the Advocates Act by opting to plead and argue the case as power of attorney holder of the parties. [Brenda Barbara Francis v.  Adrian Mirinda, 2016 SCC OnLine Ker 8173,  order dated July 8, 2016]

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