Pleading by an agent

Without pleadings, a party can not claim to be a mere agent of somebody.

Civil Procedure Code, 1908, Order 8 Rule 2.

Appellant cannot be permitted to say that though all the rights vested in it but it merely remained the agent of the Central Government. Acceptance of such a submission would require interpreting the expression `vesting’ as holding on behalf of some other person. Such a meaning cannot be given to the expression `vesting’.

It is a settled legal proposition that an agent cannot be sued where the principal is known. In the instant case, the appellant has not taken plea before either of the courts below. In view of the provisions of Order VIII Rule 2 CPC, the appellant was under an obligation to take a specific plea to show that the suit was not maintainable which it failed to do so. The vague plea to the extent that the suit was bad for non-joinder and, thus, was not maintainable, did not meet the requirement of law. The appellant ought to have taken a plea in the written statement that it was merely an `agent’ of the Central Government, thus the suit against it was not maintainable. More so, whether A is an agent of B is a question of fact and has to be properly pleaded and proved by adducing evidence.

[Source: National Textile Corp.Ltd vs Nareshkumar Badrikumar Jagad, decided by Sup Ct. on 5 September, 2011]
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Necessary and proper parties under Or. 1 R. 10 of CPC.

Question of necessary and proper parties is a vex question of law.

 Civil Procedure Code, 1908: Order 1 Rule 10(2).

The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo moto or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject 1 to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice. This Court in Ramji Dayawala & Sons (P) Ltd. vs. Invest Import – [1980] INSC 196; 1981 (1) SCC 80, reiterated the classic definition of `discretion’ by Lord Mansfield in R. vs. Wilkes – [1770] EngR 32; 1770 (98) ER 327, that `discretion’ when applied to courts of justice, means sound discretion guided by law.

Discretion to add parties must be governed by rule, not by humour;
it must not be arbitrary, vague, and fanciful, `but legal and regular’. 

Some illustrations regarding exercise of discretion to add parties under the said Sub-Rule.

1) If a plaintiff makes an application for impleading a person as a defendant on the ground that he is a necessary party, the court may implead him having regard to the provisions of Rules 9 and 10(2) of Order I. If the claim against such a person is barred by limitation, it may refuse to add him as a party and even dismiss the suit for non-joinder of a necessary party.
2) If the owner of a tenanted property enters into an agreement for sale of such property without physical possession, in a suit for specific performance by the purchaser, the tenant would not be a necessary party.
But if the suit for specific performance is filed with an additional prayer for delivery of physical possession from the tenant in possession, then the tenant will be a necessary party in so far as the prayer for actual possession.
3) If a person makes an application for being impleaded contending that he is a necessary party, and if the court finds that he is a necessary party, it can implead him. If the plaintiff opposes such impleadment, then instead of impleading such a party, who is found to be a necessary party, the court may proceed to dismiss the suit by holding that the applicant was a necessary party and in his absence the plaintiff was not entitled to any relief in the suit.
4) If an application is made by a plaintiff for impleading someone as a proper party, subject to limitation, bonfides etc., the court will normally implead him, if he is found to be a proper party. On the other hand, if a non-party makes an application seeking impleadment as a proper party and court finds him to be a proper party, the court may direct his addition as a defendant; but if the court finds that his addition will alter the nature of the suit or introduce a new cause of action, it may dismiss the application even if he is found to be a proper party, if it does not want to widen the scope of the specific performance suit; or the court may direct such applicant to be impleaded as a proper party, either unconditionally or subject to terms.

Example for impleadment of parties:

For example, if `D’ claiming to be a co-owner of a suit property, enters into an agreement for sale of his share in favour of `P’ representing that he is the co-owner with half share, and `P’ files a suit for specific performance of the said agreement of sale in respect of the undivided half share, the court may permit the other co-owner who contends that `D’ has only one-fourth share, to be impleaded as an additional defendant as a proper party, and may examine the issue whether the plaintiff is entitled to specific performance of the agreement in respect of half a share or only one-fourth share; alternatively the court may refuse to implead the other co-owner and leave open the question in regard to the extent of share of the vendor-defendant to be decided in an independent proceeding by the other co-owner, or the plaintiff; alternatively the court may implead him but subject to the term that the dispute, if any, between the impleaded co-owner and the original defendant in regard to the extent of the share will not be the subject matter of the suit for specific performance, and that it will decide in the suit, only the issues relating to specific performance, that is whether the defendant executed the agreement/contract and whether such contract should be specifically enforced. In other words, the court has the discretion to either to allow or reject an application of a person claiming to be a proper party, depending upon the facts and circumstances and no person has a right to insist that he should be impleaded as a party, merely because he is a proper party.

Source:  MUMBAI INTERNATIONAL AIRPORT PVT. LTD. v. REGENCY CONVENTION CENTRA & HOTELS & ORS [2010] INSC 447 (6 July 2010)

Scope of Review of judgement by Civil Court

Review of an order or judgement by Civil Court:

What is Review:

The dictionary meaning of the word “review” is “the act of looking; offer something again with a view to correction or improvement. It cannot be denied that the review is the creation of a statute.

The power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. If cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of Justice. Law has to bend before Justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error.

[Source: Lily Thomas v. Union of India. (Supreme Court of India)]

 

Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice.

[Source: S. Nagaraj v. State of Karnataka, 1993 Supp.(4) SCC 595. (Supreme Court of India)]

 

Power of review in writ jurisdiction:

All proceedings in a civil Court terminate in a decision being given by the Judge and that decision constitutes the order of the Court. It is an order within the meaning of Section 2(14) which defines “order” as the formal expression of any decision of a civil Court which is not a decree. This is not a decree because it is not the formal expression of an adjudication in a suit. If it be the formal expression of the adjudication by the Court in a civil proceeding, the formal expression must take the shape of an order, and, therefore, it is clear beyond doubt that the decision of this Court on the writ application was an order within the meaning of the Civil Procedure Code. If that is so, let us turn to Section 114 to see what the effect of this view is with regard to the power of the High Court to review an order made on a writ application.

A review lies under Section 114 from a decree or order from which an appeal is allowed by the Court, but from which no appeal has been preferred. When we turn to Section 109, an appeal is allowed against an order if the High Court certifies the order to be a fit one for appeal, and although an appeal is allowed no appeal admittedly has been preferred from this order and therefore if the other conditions laid down by Order XLVII are satisfied, then it is difficult to understand why the High Court has no power to review an order passed on a writ application. Such an order is one which clearly falls under Section 114(a).

[Source: Appa Ramgonda Patil v. Dattatraya Vinayak Tengshe, (1958) 60 Bom LR 1312]

Scope of Review and distinction with correction of mistake:

Relevant Code: Civil  Procedure Code, 1908, Section 114, 151, 152,153 read with Order 47 Rule 1.

[R]eview of a judgment or decree lies inter alia where a mistake or an error apparent on the face of the record can be shown or where some new and important evidence has been uncovered. From a bare reading of the aforesaid provisions, it is clear that a review would lie where a party is able to show that the court has failed to consider a plea made by it or record a finding on the same or where the court has omitted to consider a relevant piece of evidence or new evidence has arisen subsequently which was not before the court at the time of hearing, inspite of due diligence on the part of such a party. It is evident that the court’s power of review envisages an enquiry into the merits of the case, which the court has omitted to take notice of in the first instance. The said power of review is quite distinct from the inherent powers of the court under Section 152 and 153 read with Section 151 to correct an accidental arithmetic or clerical mistake or error. It is relevant to note that both the powers are mutually exclusive, and cannot tread into each other’s realm. Any other interpretation would amount to overstepping the parameters laid down in the provisions. It is settled law that in the garb of correction of mistakes arising out of accidental slips or typographical errors, the judgment itself cannot be altered or modified by a Court in exercise of its inherent power.

[Source: MAJOR GENERAL KAPIL MEHRA v. UNION OF INDIA (Delhi)]

 

The Federal Court which preceded the Supreme Court of India, prior to independence, had no express power of review. Federal Court however, observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords.

[Source: Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai (AIR 1941 FC 1,2 : 1940 FCR 78 : (1941) 1 MLJ Supp 45)]

 

An order made by the Court was final and could not be altered …neverthless, if by misprision in embodying the judgments, by errors have been introduced, these Courts possess, by Common Law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in….The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.

[Source: Rajunder Narain Rae v. Bijai Govind Singh (1836) 1 Moo PC 117]

It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.

[Source: R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No.2)’s case, 1999 (1) All ER 5770]

The role of judiciary merely to interpret and declare the law was the concept of bygone age. It is no more open to debate as it is fairly settled that the courts can so mould and lay down the law formulating principles and guidelines as to adapt and adjust to the changing conditions of the society, the ultimate objective being to dispense justice. In the recent years there is a discernable shift in the approach of the final courts in favour of rendering justice on the facts presented before them, without abrogating but by-passing the principle of finality of the judgment.

Almighty alone is the dispenser of absolute justice – a concept which is not disputed but by a few. We are of the view that though Judges of the highest Court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such case it would not only be proper but also obligatory both legally and morally to rectify the error. After giving our anxious consideration to the question we are persuaded to hold that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment as though it is essentially in public interest that a final judgment of the final court in the country should not be open to challenge yet there may be circumstances, as mentioned above, wherein declining to reconsider the judgment would be oppressive to judicial conscience and cause perpetuation of irremediable injustice.

[Source: Rupa Ashok Hurra vs Ashok Hurra]
Thus rectification or review of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality.

Witness in court through attorney

Is power of attorney holder, a competent witness to depose on behalf of the principal?

Attorney is a mere legal representative or an agent. Without anything more s/he can not have personal knowledge of the acts done by the principal, directly. Can such an attorney be competent witness?

Agent/ attorney under Civil Procedure code 1908, Order 3 Rule 1 & 2.

There was a divergence of opinion in different High Courts on the above question which was settled by Supreme Court as under:

The question whether the appellants have any independent source of income and have contributed towards the purchase of the property from their own independent income can be only answered by the appellants themselves and not by a mere holder of power of attorney from them. The power of attorney holder does not have the personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal. Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts” employed in Order III, Rules 1 and 2 CPC, confines only in respect of “acts” done by the power of attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some “acts” in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.
[Source: Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217.]