Summary
The plaintiff's wife held his general power of attorney in four civil proceedings at Vijayawada and enrolled as an advocate while they were pending. In earlier revisions the High Court had allowed her to conduct the cases in person as power agent, but not in her professional capacity. When the defendant later objected to her cross-examining witnesses, the trial court overruled the objection. The High Court, relying on a Division Bench ruling that a GPA holder cannot plead or argue, reversed the trial court. The Supreme Court restored the trial court's orders. Res judicata applies at later stages of the same proceedings, and an inter partes decision binds even if erroneous. Section 32 of the Advocates Act is an enabling provision and creates no bar, so the exceptions for jurisdiction or statutory prohibition did not apply.
Issues
- Whether earlier High Court orders in the same proceedings, permitting the plaintiff's wife to appear only as his GPA holder and not as an advocate, operated as res judicata against a later objection to her cross-examining witnesses.
- Whether Section 32 of the Advocates Act, 1961 bars a GPA holder who becomes an enrolled advocate from being permitted to appear for the party in that capacity.
Provisions considered
- Section 11, Code of Civil Procedure, 1908The principle of res judicata, which Section 11 recognises but does not exhaust, binds the parties at a subsequent stage of the same proceedings. (¶¶ 9, 9.3, 9.5.1, 10)
- Section 32, Advocates Act, 1961An enabling power to permit a non-advocate to appear; it creates no prohibition against permitting an existing GPA holder who later enrolled as an advocate to appear only as GPA holder. (¶¶ 13, 14, 20.2)
- Order III Rule 2, Code of Civil Procedure, 1908The wife appeared as recognised agent under the power of attorney, as permitted by the earlier orders. (¶¶ 4.3, 4.4, 14.3)
Held
- Res judicata applies not only in separate later proceedings but at a later stage of the same proceedings; an inter partes decision of a competent court binds even if erroneous, and cannot be avoided on the per incuriam principle, which concerns precedents. (¶¶ 9.5.1, 9.5.2, 9.5.4, 10)
- The exceptions recognised in Mathura Prasad and Allahabad Development Authority (questions of jurisdiction, or orders defeating a statutory direction or prohibition) did not apply, because Section 32 of the Advocates Act is enabling and the earlier orders violated no statutory bar. (¶¶ 11.3, 12, 14, 14.1, 14.3)
- The earlier orders operated as res judicata on the wife's capacity to conduct the cases as GPA holder; the High Court erred by misframing the issue as her acting like counsel, by misreading the earlier orders and by applying a Division Bench decision rendered on very different facts. (¶¶ 14.2, 15.2, 15.3, 16, 17, 17.1, 18)
- Permission under Section 32 is granted case by case and may be refused on the facts of a particular case or person. (¶ 20.2)
Result
Appeals allowed; the High Court's order of 28.06.2019 set aside and the trial court's orders of 07.02.2019 restored; costs to follow the result of the main proceedings.