IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29/11/2002
CORAM
THE HONOURABLE MR. JUSTICE A. KULASEKARAN
C.R.P. No. 1232 of 2002
and
C.M.P.No. 10503 of 2002
Pavithra, rep. by Power Agent
S. Rajkumar Kalingarayar ... Petitioner
-Vs-
Rahul Raj ... Respondent
Revision under Article 227 of the Constitution of India against the
return of interloctuary applications in HMOP No. 193 of 2002 on the file of
Family Judge, Coimbatore dated 10-07-2002.
!For Petitioner : Mr. B. Ramamoorthy
^For Respondent : Mr. T. Sivagnanam
:ORDER
The petitioner herein is the respondent in HMOP No. 193 of 2002 on
the file of Family Court, Coimbatore. The respondent/husband has filed the
above HMOP under Section 13 (1) (ia) of the Hindu Marriage Act, 1955 praying
for dissolution of the marriage solemnised on 17-05-200 0.
2. Due to misunderstanding, the petitioner herein stayed with her
parents, later she left India to pursue her studies in United States of
America. In the meanwhile, she has executed a registered power of attorney
dated 14-12-2001 in favour of her father, who is representing this case. The
respondent/husband has filed HMOP after she has left India. The court below
issued summons to the petitioner herein directing her to appear before the
court on 20-05-2002, which was received by her mother. On 20-05-2002, the
petitioner’s father filed an application under Order III Rule 2 and Section
151 of CPC seeking permission of the Court to defend the HMOP NO. 193 of 2002
on behalf of the petitioner. The said application was returned by the court
below and the petitioner herein was set ex-parte on 20-05-2002 itself. The
petitioner’s father has re-presented the above petition on 21-05-2002 with an
endorsement that the petitioner has executed a power of attorney in his favour
and in virtue of the same the application has been filed. Again, the said
application was returned by the family court relying upon the unreported
Judgment of this Court in a Transfer CMP that the presence of the parties on
each date of hearing is mandatory. Aggrieved by the same, the present
revision is filed.
3. The point for consideration in this petition is whether the
petitioner can take advantage of Order III Rule 1 or 2 of CPC or Section 1 32
of CPC?
4. Mr. Ramamoorthy, learned counsel appearing for the petitioner
submitted that the lower court failed to take note of the prevailing
circumstance that the petitioner has left India well before filing of HMOP No.
193 of 2002; that the petitioner herein has executed a registered power of
attorney to defend all the court proceedings in favour of her father; that the
family court ought to have granted permission to the petitioner’s father to
defend her case in virtue of the power of attorney; that the court below ought
not to have returned the application filed by the petitioner’s father under
Order III Rule 2 and Section 151 of CPC; that the trial court ought not to
have set the petitioner ex-parte on the first hearing itself despite an
application filed by her father seeking permission of the court to defend the
suit.
5. Mr. Sivagnanam, learned counsel appearing for the respondent
argued that the power of attorney was executed by the petitioner only to
manage her assets but not to contest the cases; that the petitioner cannot
take advantage of the provisions of Order 3 Rule 1 and 2 of CPC or Section 132
of CPC; that under Section 10 (3) of the Family Court Act, the court is
empowered to lay down its own procedures notwithstanding the provisions of
Section 10 (1) (2) of the Family Courts Act and prayed for dismissal of the
revision.
6. The learned counsel appearing for the petitioner relied on a
decision of this Court reported in 1996-1-Law Weekly 222 (S. Venkataraman Vs.
L. Vijayasaratha) wherein the Division Bench of this Court held that there is
no bar for the paties to have assistance through counsel, however, it is the
discretion of the family courts to allow legal assistance, such discretion may
be exercised by the court in the interest of justice and after taking into
consideration of the nature of the case and on the condition under which the
parties are placed. The division bench further held that Section 13 of the
Family Courts Act does not prescribe a total bar for representation by a legal
practitioner which bar would itself be unconstitutional. However, the
division bench held that the intentment of the legislature obviously was that
the problems or grounds for matrimonial breakdown or dispute being essentially
of a personal nature, that it may be advisable to adjudicate these issues as
far as possible by hearing the parties themselves and seeking assistance from
counsellors. Here, the issue is as to whether the father of the petitioner in
the capacity of a power of attorney could represent the petitioner or not.
7. The learned counsel for the petitioner has also relied on a
decision of the Karnataka High Court reported in AIR 1999 Karnataka 427 (
Mrs.Komal S. Padukone Vs. Principal Judge, Family Court at Bangalore City
and another). In the said case, the wife was staying in United States of
America has left India before notice in divorce proceedings were served. She
felt it would be difficult for her to come over to India before a particular
period, hence sought for permission to engage a counsel and exemption from
personal appearance till that period. The Karnataka High Court has held that
there is nothing unreasonable in the said request and ultimately the exparte
order passed on her application by the court below was set aside, since the
court felt that it would cause irreparable injury to her.
8. Yet another decision relied on by the counsel for the
petitioner is 1 (1994) DMC 557 (S.M. Syed Amina Beevi Vs. Thaika Sahib Alim
and another) wherein the wife has sought for dissolution of the marriage which
was performed under the Muslim l said petition was sent by registered post
which was returned by the Court with an endorsement that to be presented in
person by the party. The Court held that the petitioner has absolutely no
right whatsoever on any principle of law or practice recognised in Courts to
claim a right to send the petition in question to the family court by
registered post and therefore the return of papers cannot be said to be
patently illegal or unwarranted or uncalled for. In the said case, this court
expressed the view that prohibition contained in Section 13 of the Family
Courts Act is only vis-a-vis a legal practitioner and not in respect of a
recognised agent permissible under the provisions of Order III Rule 1 of CPC,
which is rendered applicable by the provisions contained in Section 10 of the
Family Courts Act to the extent to which there is no provision otherwise
contained to the contra. In the said judgment, it is also observed that the
petitioner was entitled to have the papers filed or presented before the
Family Court through a recognised agent in terms of order III Rule 1 of CPC
and such a recognised agent at any rate cannot be a legal practitioner and
parties cannot take advantage of the provisions of Order III, Rule 1 or Order
IV Rule 1 to avoid personal appearance once and for all.
9. One another judgment of the Hon’ble Apex Court was relied on
by the learned counsel for the petitioner reported in AIR 1982 SC 710 (A.K.
Roy Vs.Union of India) wherein in Para-95 it was held thus:-
“95. Another aspect of the matter which needs to be mentioned is
that the embargo on the appearance of legal practitioners should not be
extended so as to prevent the detenu from being aided or assisted by a friend
who, in truth and substance, is not a legal practitioner. Every person whose
interests are adversely affected as a result of the proceedings which have a
serious import, is entitled to be heard in those proceedings and be assisted
by a friend.”
In this case the Apex Court observed that embargo on the appearance of
legal practitioners that they should not be extended so as to prevent the
detenu from being aided or assisted by a friend who, in truth and substance,
is not a legal practitioner and denial of legal representation is not a denial
of natural justice per se and therefore if a statute excludes the facility
expressely, it would not be open to the Tribunal to allow it. However, the
Hon’ble Supreme Court observed that the person affected is entitled to be
assisted by a friend, who is not a legal practitioner.
10. Now, we look into the relevant provisions of the Family Courts
Act and Civil Procedure Code touching the subject matter of this case;-
Family Courts Act
“9. Duty of Family Court to make efforts for settlement – (1) In every
suit or proceeding, endeavour shall be made by the Family Court in the first
instance, where it is possible to do so consistent with the nature and
circumstances of the case, to assist and persuade the parties in arriving at a
settlement in respect of the subject matter of the suit or proceeding and for
this purpose a Family Court may, subject to any rules made by the High Court,
follow such procedure as it may deem fit.
(2) If, in any suit or proceeding, at any stage, it appears to the family
court that there is a reasonable possibility of a settlement between the
parties, the Family Courts may adjourn the proceedings for such period as it
thinks fit to enable attempts to be made effect such a settlement.
(3) The power conferred by sub-section (2) shall be in addition to, and
not in derogation of, any other power of the Family Court to adjourn the
proceedings
10. Procedure generally. – (1) Subject to the other provisions of
this Act and the rules, the provisions ofthe Code of Civil Procedure, 1 908 (5
of 1908) and of any other law for the time being in force shall apply to the
suits and proceedings (other than the proceedings under Chapter IX of the Code
of Criminal Procedure, 1973 (2 of 1974) before a Family Court and for the
purposes of the said provisions of the code, a Family Court shall be deemed to
be a civil court and shall have all the powers of such court.
(2) Subject to the other provisions of this Act and the rules, the
provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules
made thereunder, shall apply to the proceedings under Chapter IX of that Code
before a Family Court.
(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family
Court from laying down its own procedure with a view to arrive at a settlement
in respect of the subject matter of the suit or proceedings or at the truth of
the facts alleged by one party and denied by the other.
13. Right to legal representation.- Notwithstanding anything contained in
an law, no party to a suit or proceeding before a Family Court shall be
entitled, as of right, to be represented by a legal practitioner.
Provided that if the Family Court considers it necessary in the
interest of justice, it may seek the assistance of a legal expert as amicus
curiae.
Code of Civil Procedure
Order III – Rule 1 of CPC – Appearances, etc., may be in person, by recognised
agent or by pleader – Any appearance, application or act in or to any Court,
required or authorised 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 recognised agent, or
by a pleader (appearing, applying or acting, as the case may be) on his
behalf.
2. Recognised Agents – The recognised agents of parties by whom such
appearnces, applications and acts may be made or done are –
(a) persons holding powers-of-attorney, authorising them to make
and do such appearances, applications and acts on behalf of such parties;
(b) persons carrying on trade or business for and in the names of
parties not resident within the local limits of the jurisdiction of the Court
within which limits the appearance, application or act is made or done, in
matters connected with such trade or business only, where no other agent is
expressly authorised to make and do such appearances, applications and acts.
11. It is evident from various provisions of the Family Courts Act
and Rules that the Family Courts have been established to adopt different
approach to dispose the cases expeditiously, besides for taking reasonable
efforts for settlement before commencement of trial.
12. As per the provisions of Section 9, in every proceedings, at
any stage, endeavour shall be made by the Court in the first instance to
persuade the parties in arriving at a settlement and if it appears to the
Court there is a reasonable possibility of settlement, may adjourn the
proceedings to enable attempts to be made to effect such a settlement.
12. In Section 10 (3) it is contemplated that “Nothing in
subsection (1) or sub-section (2) shall prevent a Family Court from laying
down its own procedure with a view to arrive at a settlement in respect of the
subject matter of the suit or proceedings or at the truth of the facts alleged
by one party and denied by the other.” Similar provisions are seen in Order 32
A Rule 3 and 4 of CPC for conciliation. The said provisions of Order 32 A
were incorporated by C.P.C. Amendment Act 1976 with effect from 01-02-1997,
however operate retrospectively to all pending cases. It is evident that
Parliament has been consistent in speedy disposal and settlement of Family
Cases. It is the onerous duty of the family courts to make endeavour for
conciliation and it is not right to say that the opposite party did not appear
in person and no scope for reconciliation. Even in such a case, the court is
required to again issue notice to the party to appear.
14. Order 3 Rule 1 of CPC empowers a party in a suit or
proceedings to be represented by a pleader, but so far as the proceedings in
the Family Courts are concerned, the right of representation by the pleader
does not exist. The operation of Order 3 Rule 1 is subject to any law for the
time being in force. In addition to the said exclusion in the code, Section
13 of Family Courts Act prohibits the operation of Order 3 Rule 1 to the
extent that the case being represented by the legal practitioner. The
recognised agent appointed under Order 3 Rule 2 stands on a different footing
from pleader. However, recognised agent cannot be a legal practitioner. The
embargo on the appearance of legal practitioners should not be extended to
recognised agent. There is no prohibition in the Act or Rules a petition
being filed by an authorised agent who is not legal practitioner. The
recognised agent can prosecute or defend or represent until Family Court
passes specific order directing the party to appear in person, depending upon
the facts and stage of the case. Personal appearance of the parties is
inevitable to comply with mandatory provisions of the Act. In this case, the
authorised agent has filed a petition seeking permission to defend the case on
the ground that she is not able to come to India and contest the case. Such a
permission cannot be granted. Hence, the said petition is liable to be
rejected and rejected accordingly.
15. A reasonable opportunity to defend the case essential is a
fundamental principles of natural justice. The Family Court has hastily set
the petitioner exparte in the first hearing despite representation by
authorised agent / father was made. The Family Court has returned the
petition without passing order on merits and simultaneously passed ex-parte
order against the petitioner when there was no neglect on her part. Hence,
the ex-parte order dated 20-05-2002 is set aside. Considering the facts and
circumstance of the case, it would be more appropriate to afford reasonable
opportunity to the petitioner by ordering fresh notice by the Family Court.
The revision is ordered to the extent indicated above. No costs.
Connected CMP is closed.
rsh
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