Difference between Vakalatnama and Power of Attorney in Indian Law.

VAKALATNAMA

As per Advance Law Lexicon Vakalatnama includes memorandum of appearance or any other document by which an advocate is empowered to appear or plead before any court, tribunal or other authority.

A Vakalatnama is not defined either in the Power -of- Attorney Act, 1882 or in the Civil Procedure Code, 1908. A Vakalatnama is the document empowering a lawyer to act for and on behalf of his client. A Vakalatnama under which a lawyer is empowered to act may be general. it may specifically confer wide authority upon a lawyer.

A lawyer holding a Vakalatnama can hardly be said to be a person without authority. The rule of construction a document appointing an agent is different from that of construing a Vakalatnama appointing a counsel.

A pleader is defined under section 2(15) of the Civil Procedure Code, 1908, as follows-

“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.

Though in a sense a Vakalatnama is a power-of-attorney, in the matter of construction, courts have drawn a distinction between the two and in the application of the principles of construction, most of the courts while interpreting a power-of-attorney strictly have interpreted a Vakalatnama liberally so as to infer the conferment of large and wide powers on the counsel.

POWER-OF-ATTORNEY

Section 1A – Definition in The Power of Attorney Act, 1882, includes any instrumentals empowering a specified person to act for and in the name of the person executing it.

Osborn’s Concise Law Dictionary, a ‘Power- of – Attorney’ means a formal instrument by which one person empowers another to represent him, or act in his stead, for certain purpose, usually in the form of a deed poll, and attest by two witnesses. The donor of the power is called the principal or constituent; the donee is called the attorney. The latter is not entitled to exercise his powers for this own benefit, e.g. draw cheques on the former’s account to pay his own debts.

Jowitt in his Dictionary of English Law-

Power-of-Attorney, is a formal instrument by which one person empowers another to represent him or act in his stead for certain purposes.

Wharton’s Law Lexicon,1 the person authorised to do any lawful act instead of another is called the attorney or done of the power-of –attorney.

Stroud’s judicial Dictionary  a ‘Power-of- Attorney’ is an authority whereby on is ‘said in turn, stead, or place of another’ to act for him.

Mitra’s Legal Dictionary, a ‘Power-of-Attorney’ includes any instrument (not chargeable with a fee under the law relating to court-fees for the time being in force) empowering a specified person to act for and in the name of the person executing it. This is the definition that we get in the Indian Stamp Act, 1899.

Scope of Vakalatnama and power of attorney

Baru Singh V/s Babu Ram Sharma, 1997 All L J 842

“Signed Vakalatnama is required to be obtained by a lawyer from his client when it is to be filed in Law Court or Tribunal to plead on behalf of his client. No Vakalatnama is needed for performing other legal work viz. giving opinion, sending notices, drafting petition or other documents. No lawyer is under legal duty to obtain a signed Vakalatnama from his client for performing any legal work, say, giving opinion, sending notices, drafting petitions or other documents. A signed Vakalatnama, however, is required to be obtained when it is to be filed in Law Courts or Tribunals where the law requires such documents to be filed to enable the lawyer to appear and plead cases in Courts and Tribunals on behalf of his client executing the Vakalatnama is his favour”

Oil & Natural Gas Commissioner vs Offshore Enterprises Inc. AIR 1993 Bom 217

“Section 30 is as follows- 14. Constituted attorney has no right to plead- A constituted attorney is merely entitled to ‘act’ and ‘appear’ for a party but has no right to ‘ plead’ in a Court. The expressions’ ‘act’ and ‘appear’ do not mean “right to plead’ as such.”

Jaymal Thakore vs Gujrat State Charity Commissioner, Ahmadabad AIR 2001 Guj 279.

“The provisions of Order III Rule 1 and 2 repeatedly came for construction and application before law Courts in civil proceedings. For the purpose of this case reference to one of the earlier decisions of Chhagla C.J. in Aswin Shambhuprasad Patel v. National Rayon corporation Ltd., AIR 1955 Bombay 262 would be profitable. Construing the provisions of Order III Rule 1, it was held that the expression “appearance, application or act” in or to any Court in Order III Rule of C.P.C. does not include pleadings. The recognized agent under power of attorney from the party in his favour may appear, file an application or act on behalf of the party in the proceedings as “recognised agent” of the party. Such power or Authority to appear, file application and act is also available to a “pleader”, but to plead in the case, that is to do something for the party in the case other than what the ‘recognised agent’ can do, that is to practice law or plead for the client, is the monopoly right only of a pleader or a registered advocate, A ‘recognised agent’  appointed by a party may be holding a duly executed power of attorney cannot be said to be a ‘pleader’ and can have no right to plead, The provisions of Advocates Act, 1961 confers a monopoly right of pleading and practicing law only on enrolled or registered advocates.

Goa Antibiotics & Pharmaceuticals Ltd. vs. R.K. Chawla [2011]  (3) KLT 499 (SC)

“A natural person can, of course, appear in person and argue his own case personally but he cannot give a power of attorney to anyone other than a person who is enrolled as an advocate to appear on his behalf. To hold otherwise would be to defeat the provisions of the Advocates Act.”

 Shree Chem V/s The Rajasthan Financial Corporation, Jaipur

“The power of attorney holder cannot, unless he is an enrolled Lawyer, appear in the Court on behalf of anyone unless permitted by any Court under Section 32 of the Act.”

Nimbaram Bora V/s Union of India AIR 1992 All 185 Gau.54

“A person cannot habitually represent parties in public interest litigations and conduct case. They said that it would be a violation of s 32 of Advocates Act, 1961. The court observed that ‘practise’ means repeated action or habitual performance or succession of acts of a similar kind. A person in whose favour a power-of-attorney has been given. It is absolutely clear that anyone who is not an advocate cannot, as of right, claim to plead for another”.

 

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s