{"id":82804,"date":"2002-11-29T00:00:00","date_gmt":"2002-11-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/pavithra-vs-rahul-raj-on-29-november-2002"},"modified":"2015-06-08T13:43:28","modified_gmt":"2015-06-08T08:13:28","slug":"pavithra-vs-rahul-raj-on-29-november-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/pavithra-vs-rahul-raj-on-29-november-2002","title":{"rendered":"Pavithra vs Rahul Raj on 29 November, 2002"},"content":{"rendered":"
Madras High Court<\/div>\n
Pavithra vs Rahul Raj on 29 November, 2002<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 29\/11\/2002\n\nCORAM\n\nTHE HONOURABLE MR. JUSTICE A. KULASEKARAN\n\nC.R.P. No. 1232 of 2002\nand\nC.M.P.No. 10503 of 2002\n\nPavithra, rep. by Power Agent\nS. Rajkumar Kalingarayar                        ...   Petitioner\n\n-Vs-\n\nRahul Raj                                      ... Respondent\n\n\n        Revision under Article 227 of the Constitution of  India  against  the\nreturn of  interloctuary  applications in HMOP No.  193 of 2002 on the file of\nFamily Judge, Coimbatore dated 10-07-2002.\n\n!For Petitioner :       Mr.  B.  Ramamoorthy\n\n^For Respondent :       Mr.  T.  Sivagnanam\n\n\n:ORDER\n<\/pre>\n
        The petitioner herein is the respondent in HMOP No.  193  of  2002  on
\nthe file  of  Family  Court, Coimbatore.  The respondent\/husband has filed the
\nabove HMOP under Section 13 (1) (ia) of the Hindu Marriage Act,  1955  praying
\nfor dissolution of the marriage solemnised on 17-05-200 0.\n<\/p>\n
        2.      Due to misunderstanding, the petitioner herein stayed with her
\nparents,  later  she  left  India  to  pursue  her studies in United States of
\nAmerica.  In the meanwhile, she has executed a registered  power  of  attorney
\ndated 14-12-2001  in favour of her father, who is representing this case.  The
\nrespondent\/husband has filed HMOP after she has left India.  The  court  below
\nissued  summons  to  the  petitioner herein directing her to appear before the
\ncourt on 20-05-2002, which was received by her mother.    On  20-05-2002,  the
\npetitioner’s  father  filed  an application under Order III Rule 2 and Section
\n151 of CPC seeking permission of the Court to defend the HMOP NO.  193 of 2002
\non behalf of the petitioner.  The said application was returned by  the  court
\nbelow and  the  petitioner  herein was set ex-parte on 20-05-2002 itself.  The
\npetitioner’s father has re-presented the above petition on 21-05-2002 with  an
\nendorsement that the petitioner has executed a power of attorney in his favour
\nand in  virtue  of  the  same the application has been filed.  Again, the said
\napplication was returned by the  family  court  relying  upon  the  unreported
\nJudgment  of  this Court in a Transfer CMP that the presence of the parties on
\neach date of hearing is  mandatory.    Aggrieved  by  the  same,  the  present
\nrevision is filed.\n<\/p>\n
        3.      The  point  for  consideration in this petition is whether the
\npetitioner can take advantage of Order III Rule 1 or 2 of CPC or Section 1  32
\nof CPC?\n<\/p>\n
        4.      Mr.  Ramamoorthy, learned counsel appearing for the petitioner
\nsubmitted  that  the  lower  court  failed  to  take  note  of  the prevailing
\ncircumstance that the petitioner has left India well before filing of HMOP No.
\n193 of 2002; that the petitioner herein has executed  a  registered  power  of
\nattorney to defend all the court proceedings in favour of her father; that the
\nfamily  court  ought  to have granted permission to the petitioner’s father to
\ndefend her case in virtue of the power of attorney; that the court below ought
\nnot to have returned the application filed by the  petitioner’s  father  under
\nOrder  III  Rule  2  and Section 151 of CPC; that the trial court ought not to
\nhave set the petitioner ex-parte  on  the  first  hearing  itself  despite  an
\napplication  filed by her father seeking permission of the court to defend the
\nsuit.\n<\/p>\n
        5.      Mr.  Sivagnanam, learned counsel appearing for the  respondent
\nargued  that  the  power  of  attorney  was executed by the petitioner only to
\nmanage her assets but not to contest the cases;  that  the  petitioner  cannot
\ntake advantage of the provisions of Order 3 Rule 1 and 2 of CPC or Section 132
\nof  CPC;  that  under  Section  10  (3)  of the Family Court Act, the court is
\nempowered to lay down its own procedures  notwithstanding  the  provisions  of
\nSection  10  (1)  (2) of the Family Courts Act and prayed for dismissal of the
\nrevision.\n<\/p>\n
        6.      The learned counsel appearing for the petitioner relied  on  a
\ndecision of this Court reported in 1996-1-Law Weekly 222 (S.  Venkataraman Vs.
\nL.  Vijayasaratha) wherein the Division Bench of this Court held that there is
\nno  bar  for the paties to have assistance through counsel, however, it is the
\ndiscretion of the family courts to allow legal assistance, such discretion may
\nbe exercised by the court in the interest of justice  and  after  taking  into
\nconsideration  of  the nature of the case and on the condition under which the
\nparties are placed.  The division bench further held that Section  13  of  the
\nFamily Courts Act does not prescribe a total bar for representation by a legal
\npractitioner which  bar  would  itself  be  unconstitutional.    However,  the
\ndivision bench held that the intentment of the legislature obviously was  that
\nthe problems or grounds for matrimonial breakdown or dispute being essentially
\nof  a  personal nature, that it may be advisable to adjudicate these issues as
\nfar as possible by hearing the parties themselves and seeking assistance  from
\ncounsellors.  Here, the issue is as to whether the father of the petitioner in
\nthe capacity of a power of attorney could represent the petitioner or not.\n<\/p>\n
        7.      The  learned  counsel  for the petitioner has also relied on a
\ndecision of the Karnataka High Court reported in  AIR  1999  Karnataka  427  (
\nMrs.Komal S.   Padukone  Vs.   Principal Judge, Family Court at Bangalore City
\nand another).  In the said case, the wife was  staying  in  United  States  of
\nAmerica has  left India before notice in divorce proceedings were served.  She
\nfelt it would be difficult for her to come over to India before  a  particular
\nperiod,  hence  sought  for  permission to engage a counsel and exemption from
\npersonal appearance till that period.  The Karnataka High Court has held  that
\nthere  is  nothing unreasonable in the said request and ultimately the exparte
\norder passed on her application by the court below was set  aside,  since  the
\ncourt felt that it would cause irreparable injury to her.\n<\/p>\n
        8.      Yet  another  decision  relied  on  by  the  counsel  for  the
\npetitioner is 1 (1994) DMC 557 (S.M.  Syed Amina Beevi Vs.  Thaika Sahib  Alim
\nand another) wherein the wife has sought for dissolution of the marriage which
\nwas  performed  under  the  Muslim l said petition was sent by registered post
\nwhich was returned by the Court with an endorsement that to  be  presented  in
\nperson by  the  party.    The Court held that the petitioner has absolutely no
\nright whatsoever on any principle of law or practice recognised in  Courts  to
\nclaim  a  right  to  send  the  petition  in  question  to the family court by
\nregistered post and therefore the return  of  papers  cannot  be  said  to  be
\npatently illegal or unwarranted or uncalled for.  In the said case, this court
\nexpressed  the  view  that  prohibition  contained in Section 13 of the Family
\nCourts Act is only vis-a-vis a legal practitioner and  not  in  respect  of  a
\nrecognised  agent permissible under the provisions of Order III Rule 1 of CPC,
\nwhich is rendered applicable by the provisions contained in Section 10 of  the
\nFamily  Courts  Act  to  the  extent  to which there is no provision otherwise
\ncontained to the contra.  In the said judgment, it is also observed  that  the
\npetitioner  was  entitled  to  have  the  papers filed or presented before the
\nFamily Court through a recognised agent in terms of order III Rule  1  of  CPC
\nand  such  a  recognised  agent at any rate cannot be a legal practitioner and
\nparties cannot take advantage of the provisions of Order III, Rule 1 or  Order
\nIV Rule 1 to avoid personal appearance once and for all.\n<\/p>\n
        9.      One  another  judgment of the Hon’ble Apex Court was relied on
\nby the learned counsel for the petitioner reported in AIR 1982  SC  710  (A.K.
\nRoy Vs.Union of India) wherein in Para-95 it was held thus:-\n<\/p>\n
        “95.    Another  aspect  of  the matter which needs to be mentioned is
\nthat the embargo on the  appearance  of  legal  practitioners  should  not  be
\nextended  so as to prevent the detenu from being aided or assisted by a friend
\nwho, in truth and substance, is not a legal practitioner.  Every person  whose
\ninterests  are  adversely affected as a result of the proceedings which have a
\nserious import, is entitled to be heard in those proceedings and  be  assisted
\nby a friend.”\n<\/p>\n
        In this case the Apex Court observed that embargo on the appearance of
\nlegal  practitioners  that  they  should  not be extended so as to prevent the
\ndetenu from being aided or assisted by a friend who, in truth  and  substance,
\nis not a legal practitioner and denial of legal representation is not a denial
\nof  natural  justice  per  se and therefore if a statute excludes the facility
\nexpressely, it would not be open to the Tribunal to allow it.    However,  the
\nHon’ble  Supreme  Court  observed  that  the person affected is entitled to be
\nassisted by a friend, who is not a legal practitioner.\n<\/p>\n
        10.     Now, we look into the relevant provisions of the Family Courts
\nAct and Civil Procedure Code touching the subject matter of this case;-\n<\/p>\n
Family Courts Act
\n“9.     Duty of Family Court to make efforts for settlement  \u2013  (1)  In  every
\nsuit  or  proceeding, endeavour shall be made by the Family Court in the first
\ninstance, where it is possible  to  do  so  consistent  with  the  nature  and
\ncircumstances of the case, to assist and persuade the parties in arriving at a
\nsettlement  in respect of the subject matter of the suit or proceeding and for
\nthis purpose a Family Court may, subject to any rules made by the High  Court,
\nfollow such procedure as it may deem fit.\n<\/p>\n
(2)     If,  in any suit or proceeding, at any stage, it appears to the family
\ncourt that there is a reasonable  possibility  of  a  settlement  between  the
\nparties,  the  Family Courts may adjourn the proceedings for such period as it
\nthinks fit to enable attempts to be made effect such a settlement.\n<\/p>\n
(3)     The power conferred by sub-section (2) shall be in  addition  to,  and
\nnot  in  derogation  of,  any  other  power of the Family Court to adjourn the
\nproceedings<\/p>\n
10.     Procedure generally.  – (1)     Subject to  the  other  provisions  of
\nthis Act and the rules, the provisions ofthe Code of Civil Procedure, 1 908 (5
\nof  1908)  and of any other law for the time being in force shall apply to the
\nsuits and proceedings (other than the proceedings under Chapter IX of the Code
\nof Criminal Procedure, 1973 (2 of 1974) before a  Family  Court  and  for  the
\npurposes of the said provisions of the code, a Family Court shall be deemed to
\nbe a civil court and shall have all the powers of such court.\n<\/p>\n
(2)     Subject  to  the  other  provisions  of  this  Act  and the rules, the
\nprovisions of the Code of Criminal Procedure, 1973 (2 of 1974)  or  the  rules
\nmade  thereunder, shall apply to the proceedings under Chapter IX of that Code
\nbefore a Family Court.\n<\/p>\n
(3)     Nothing in sub-section (1) or sub-section (2) shall prevent  a  Family
\nCourt from laying down its own procedure with a view to arrive at a settlement
\nin respect of the subject matter of the suit or proceedings or at the truth of
\nthe facts alleged by one party and denied by the other.\n<\/p>\n
13.     Right  to legal representation.- Notwithstanding anything contained in
\nan law, no party to a suit or  proceeding  before  a  Family  Court  shall  be
\nentitled, as of right, to be represented by a legal practitioner.\n<\/p>\n
        Provided  that  if  the  Family  Court  considers  it necessary in the
\ninterest of justice, it may seek the assistance of a legal  expert  as  amicus
\ncuriae.\n<\/p>\n
Code of Civil Procedure
\nOrder III \u2013 Rule 1 of CPC \u2013 Appearances, etc., may be in person, by recognised
\nagent  or  by pleader \u2013 Any appearance, application or act in or to any Court,
\nrequired or authorised by law to be made or done by a party in such Court may,
\nexcept where otherwise expressly provided by any law for  the  time  being  in
\nforce,  be made or done by the party in person, or by his recognised agent, or
\nby a pleader (appearing, applying or acting,  as  the  case  may  be)  on  his
\nbehalf.\n<\/p>\n
2.      Recognised  Agents  \u2013  The  recognised  agents of parties by whom such
\nappearnces, applications and acts may be made or done are –\n<\/p>\n
        (a)     persons holding powers-of-attorney, authorising them  to  make
\nand do such appearances, applications and acts on behalf of such parties;\n<\/p>\n
        (b)     persons  carrying on trade or business for and in the names of
\nparties not resident within the local limits of the jurisdiction of the  Court
\nwithin  which  limits  the  appearance, application or act is made or done, in
\nmatters connected with such trade or business only, where no  other  agent  is
\nexpressly authorised to make and do such appearances, applications and acts.\n<\/p>\n
        11.     It is evident from various provisions of the Family Courts Act
\nand  Rules  that  the  Family  Courts have been established to adopt different
\napproach to dispose the cases expeditiously,  besides  for  taking  reasonable
\nefforts for settlement before commencement of trial.\n<\/p>\n
        12.     As  per  the provisions of Section 9, in every proceedings, at
\nany stage, endeavour shall be made by the  Court  in  the  first  instance  to
\npersuade  the  parties  in  arriving  at a settlement and if it appears to the
\nCourt there is  a  reasonable  possibility  of  settlement,  may  adjourn  the
\nproceedings to enable attempts to be made to effect such a settlement.\n<\/p>\n
        12.     In  Section  10  (3)  it  is  contemplated  that  “Nothing  in
\nsubsection (1) or sub-section (2) shall prevent a  Family  Court  from  laying
\ndown its own procedure with a view to arrive at a settlement in respect of the
\nsubject matter of the suit or proceedings or at the truth of the facts alleged
\nby one party and denied by the other.” Similar provisions are seen in Order 32
\nA Rule  3  and  4  of CPC for conciliation.  The said provisions of Order 32 A
\nwere incorporated by C.P.C.  Amendment Act 1976 with effect  from  01-02-1997,
\nhowever operate  retrospectively  to  all  pending  cases.  It is evident that
\nParliament has been consistent in speedy disposal  and  settlement  of  Family
\nCases.   It  is  the  onerous  duty of the family courts to make endeavour for
\nconciliation and it is not right to say that the opposite party did not appear
\nin person and no scope for reconciliation.  Even in such a case, the court  is
\nrequired to again issue notice to the party to appear.\n<\/p>\n
        14.     Order  3  Rule  1  of  CPC  empowers  a  party  in  a  suit or
\nproceedings to be represented by a pleader, but so far as the  proceedings  in
\nthe  Family  Courts  are concerned, the right of representation by the pleader
\ndoes not exist.  The operation of Order 3 Rule 1 is subject to any law for the
\ntime being in force.  In addition to the said exclusion in the  code,  Section
\n13  of  Family  Courts  Act  prohibits  the operation of Order 3 Rule 1 to the
\nextent that the case  being  represented  by  the  legal  practitioner.    The
\nrecognised  agent appointed under Order 3 Rule 2 stands on a different footing
\nfrom pleader.  However, recognised agent cannot be a legal practitioner.   The
\nembargo  on  the  appearance  of legal practitioners should not be extended to
\nrecognised agent.  There is no prohibition in the  Act  or  Rules  a  petition
\nbeing filed  by  an  authorised  agent  who  is  not  legal practitioner.  The
\nrecognised agent can prosecute or  defend  or  represent  until  Family  Court
\npasses  specific order directing the party to appear in person, depending upon
\nthe facts and stage of the case.    Personal  appearance  of  the  parties  is
\ninevitable to  comply with mandatory provisions of the Act.  In this case, the
\nauthorised agent has filed a petition seeking permission to defend the case on
\nthe ground that she is not able to come to India and contest the case.  Such a
\npermission cannot be granted.  Hence,  the  said  petition  is  liable  to  be
\nrejected and rejected accordingly.\n<\/p>\n
        15.     A  reasonable  opportunity  to  defend the case essential is a
\nfundamental principles of natural justice.  The Family Court has  hastily  set
\nthe  petitioner  exparte  in  the  first  hearing  despite  representation  by
\nauthorised agent \/ father was  made.    The  Family  Court  has  returned  the
\npetition  without  passing  order on merits and simultaneously passed ex-parte
\norder against the petitioner when there was no neglect on her  part.    Hence,
\nthe ex-parte  order  dated 20-05-2002 is set aside.  Considering the facts and
\ncircumstance of the case, it would be more appropriate  to  afford  reasonable
\nopportunity to the petitioner by ordering fresh notice by the Family Court.\n<\/p>\n
        The revision  is  ordered  to  the  extent indicated above.  No costs.
\nConnected CMP is closed.\n<\/p>\n
rsh<\/p>\n
Index :  Yes
\nInternet :  Yes<\/p>\n
To
\nThe Family Judge<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Pavithra vs Rahul Raj on 29 November, 2002 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-82804","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nPavithra vs Rahul Raj on 29 November, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/pavithra-vs-rahul-raj-on-29-november-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Pavithra vs Rahul Raj on 29 November, 2002 - 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