Civil Procedure Code


It is policy of the Hon’ble Supreme Court to entertain Special Leave Petitions (SLP) and grant leave to appeal under Article 136 of the Constitution in those cases where some substantial question of law in general or public importance is involved or there is manifest injustice resulting from the impugned order or judgment. The Article 136 of the Constitution reads as follows:

         “136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.”

In case of SLP dismissal, the Supreme Court does not comment on the correctness or otherwise of the order from which leave to appeal is sought. What the Court means is that it does not consider it to be a fit case for exercising its jurisdiction under Article 136 of the Constitution. That certainly could not be so when appeal is dismissed though by a non- speaking order. An order dismissing a special leave petition, more so when it is by a non-speaking order, does not result in merger of the impugned order into the order of the Supreme Court. Even otherwise, in case of dismissal of SLP by speaking or reasoned order the Rule of discipline and Article 141 of the constitution is attracted.

In case of Kunhayammed & Ors vs State of Kerala & Anr., the Hon’ble Supreme Court held following:

“Whatever be the phraseology employed in the order of dismissal, if it is a non-speaking order, i.e. it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal.”

In case of FuljiT Kaur vs State of Punjab & Ors in Civil Appeal No. 5292 of 2004, the Hon’ble Supreme Court held following:

“8. There is no dispute to the settled proposition of law that dismissal of the Special Leave Petition in limine by this Court does not mean that the reasoning of the judgment of the High Court against which the Special Leave Petition has been filed before this Court stands affirmed or the judgment and order impugned merges with such order of this Court on dismissal of the petition. It simply means that this Court did not consider the case worth examining for the reason, which may be other than merit of the case. Nor such an order of this Court operates as res judicata. An order rejecting the Special Leave Petition at the threshold without detailed reasons therefore does not constitute any declaration of law or a binding precedent. [Vide The Workmen of Cochin Port Trust Vs. The Board of Trustees of the Cochin Port Trust & Anr. AIR 1978 SC 1283; Ahmedabad Manufacturing & Calico Printing Co. Ltd. Vs. The Workmen & Anr. AIR 1981 SC 960; Indian Oil Corporation Ltd. Vs. State of Bihar & Ors. AIR 1986 SC 1780; Supreme Court Employees’ Welfare Association Vs. Union of India & Ors. AIR 1990 SC 334; Yogendra Narayan Chowdhury & Ors. Vs. Union of India & Ors. AIR 1996 SC 751; Union of India & Anr. Vs. Sher Singh & Ors. AIR 1997 SC 1796; V.M. Salgaocar & Bros. (P) Ltd. Vs. Commissioner of Income Tax AIR 2000 SC 1623; Saurashtra Oil Mills Assn., Gujrat Vs. State of Gujrat & Anr. AIR 2002 SC 1130; Union of India & Ors. Vs. Jaipal Singh (2004) 1 SCC 121; and Y. Satyanarayan Reddy Vs. Mandal Revenue Officer, Andhra Pradesh (2009) 9 SCC 447].”

In case of State of Punjab vs Davinder Pal Singh Bhullar & Ors. etc, in Criminal Appeal No. 753-755 of 2009, the Supreme Court reiterated following:

“77. The submission advanced on behalf of the respondents that as the Special Leave Petition filed against the impugned judgment by some other party, stood dismissed by this Court, these matters also have to be dismissed at the threshold without entering into merit, is not worth acceptance. 

The issue as to whether the dismissal of the special leave petition by this Court in limine, i.e., by a non-speaking order would amount to affirmation or confirmation or approval of the order impugned before this Court, has been considered time and again. Thus, the issue is no more res integra………”

In Meghmala & Ors vs G.Narasimha Reddy & Ors, Civil Appeal Nos. 6656-6657 of 2010, the Supreme Court stated following:

“13. In Kunhayammed & Ors. Vs. State of Kerala & Anr. AIR 2000 SC 2587, a three Judge Bench of this Court reconsidered the issue and all above referred judgments and came to the conclusion that dismissal of special leave petition in limine by a non-speaking order may not be a bar for entertaining a review petition by the court below for the reason that this Court may not be inclined to exercise its discretion under Article 136 of the Constitution. The declaration of law will be governed by Article 141 where the matter has been decided on merit by a speaking judgment. In that case doctrine of merger would come into place and lay down the following principles:-………”

Further, in case of Kunhayammed & Ors vs State of Kerala & Anr., the Hon’ble Supreme Court held following: 

“The review can be filed even after SLP is dismissed is clear from the language of Order 47 Rule 1(a). Thus, the words “no appeal” has been preferred in Order 47 Rule 1(a) would also mean a situation where special leave is not granted. Till then there is no appeal in the eye of law before the superior court. Therefore, the review can be preferred in the High Court before special leave is granted, but not after it is granted. The reason is obvious. Once special leave is granted the jurisdiction to consider the validity of the High Court’s order vests in the Supreme Court and the High Court cannot entertain a review thereafter, unless such a review application was preferred in the High Court before special leave was granted.”

In Parsion Devi And Ors. vs Sumitri Devi And Ors., Civil Appeal No. 5245 of 1997, the Supreme Court held following with regard to review in general by supreme court:

“It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh (1965 (5) SCR 174 at 186) this Court opined:

“What, however, we are not concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an “error        apparent on the face of the record”. The fact that on the earlier occasion that Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself         might be erroneous. Similarly, even if the statement was wrong, it would not follow that it         was an “error apparent on the     face   of the record”, for there is a distinct which is real, though it might not always be capable of exposition between a mere erroneous decision and a decision which could be characterised as vitiated by “error apparent.” A review is by no means an appeal in disguise whereby an erroneous decision is    reheard corrected. but lies only for patent error.”

(Emphasis ours)

Again, in    Smt. Meera Bhanja Vs.   Smt. Nirmala Kumari Choudhury (1995 (1) SCC 170) while quoting with approval a passage from Aribam Taleshwar Sharma Vs. Aribam Pishak Sharma & Ors. (1979 (4) SCC 389), this Court once again held that review proceedings are not by way of an appeal and have to strictly confined to the scope and ambit of Order 47 Rule 1 CPC.”

The SLP withdrawn or dismissed in limine do not take away the right of alternate remedy from the petitioner.

Rajni Sinha

Advocate Bombay High Court


Civil Procedure Code


In case of Radhey Shyam & Anr vs Chhabi Nath & Ors in Civil Appeal No. 2548 of 2009, after the reference by two-judge bench, the larger bench of Supreme Court held following:

25. Accordingly, we answer the question referred as follows: “(i) Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution;

(ii) Jurisdiction under Article 227 is distinct from jurisdiction from jurisdiction under Article 226.

Contrary view in Surya Dev Rai is overruled.

Earlier, in case of Surya Dev Rai vs. Ram Chander Rai and others, Appeal (Civil) 6110 of 2003 following was held by the Supreme Court:

Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder: –

(1) Amendment by Act No.46 of 1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction – by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction – by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction, the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.”

The two-judge bench of the Supreme Court in case of Radhey Shyam & Anr vs Chhabi Nath & Ors in Civil Appeal No. 2548 of 2009 referred to larger bench on following point:

  1. Now the question is, whether private individuals are amenable to the jurisdiction of writ court in connection with the private disputes relating to property, possession and title between private individuals.


  1. But we are unable to agree with the legal proposition laid down in Surya Dev Rai (supra) that judicial orders passed by a Civil Court can be examined and then corrected/reversed by the writ Court under Article 226 in exercise of its power under a writ of certiorari. 
  1. We are of the view that the aforesaid proposition laid down in Surya Dev Rai (supra), is contrary to the ratio in Mirajkar (supra) and the ratio in Mirajkar(supra) has not been overruled in Rupa Ashok Hurra (supra).”

In case of Naresh Shridhar Mirajkar and others vs. State of Maharashtra, on 3rd March, 1966, the Constitution Bench (9 judge) by majority held following:

“…………………. On these facts, the question which arises for our decision is whether a judicial order passed by the High Court prohibiting the publication in newspapers of evidence given by a witness pending the hearing of the suit, is amenable to be corrected by a writ of certiorari issued by this Court under Art. 32(2). This question has two broad facets; does the impugned order violate the fundamental rights of the petitioners under Art. 19(1)(a), (d) and (g); and if it does, is it amenable to the writ jurisdiction of this Court under Art. 32(2)? Thus, in the present proceedings, we will limit our discussion and decision to the points which have a material bearing on the broad problem posed by the petitions before us…………….

The power and jurisdiction of this Court is so narrow that nothing on the merits of a controversy of a civil case        can ever come up before it under Art. 32. It is unlikely that this Court will torture cases to fit them into Art. 32. A person may try but he will find this a Sisyphean task. It cannot be brought here by pleading breach of fundamental rights. It is only when a Judge directly acts in some collateral matter so as to cause a breach of a fundamental right that the ordinary process of appeals being unavailable or insufficient a case under Art. 32 can be made out.         If there is a decision in a civil proceeding, an appeal is the only appropriate remedy…………………

The High Court was competent to pass the impugned orders, but assuming that it exceeded its jurisdiction, the order does not infringe Art. 19 (1) (a). The High Court has jurisdiction to decide if it has jurisdiction to restrain the publication of any document or information relating to the trial of a pending suit or concerning which the suit is brought. If it erroneously assumes on this matter, a jurisdiction not vested in it by law, its decision may be set aside in appropriate proceedings, but the decision is not open to attack on the ground that it infringes the fundamental right under Art. 19 (1) (a)………” 

In Jacky Vs Tiny @ Antony and Ors, Civil Appeal No. 4453 of 2014, the Supreme Court held following:

“17. A petition under Article 226 or Article 227 of Constitution of India can neither be entertained to decide the landlord-tenant dispute nor it is maintainable against a private individual to determine an intense dispute including the question whether one party harassing the other party. The High Court under Article 227 has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them within the bounds of their authority but it was not the case of the 1st respondent that the order passed by the Munsiff Court was without any jurisdiction or was so exercised exceeding its jurisdiction. If a suit is not maintainable it was well within the jurisdiction of the High Court to decide the same in appropriate proceedings but in no case power under Articles 226 and 227 of Constitution of India can be exercised to question a plaint.”  

In one of the earliest case with regard to writ against decision of Election Tribunal, the Supreme Court in case of Hari Vishnu Kamath vs Syed Ahmad Ishaque And Others (decided on 9th December, 1954), following issue was framed:

“The first question that arises for decision in this appeal is whether High Courts have jurisdiction under article 226 to issue writs against decisions of Election Tribunals. That article confers on High Courts power to issue appropriate writs to any person or authority within their territorial jurisdiction, in terms absolute and unqualified, and Election Tribunals functioning within the territorial jurisdiction of the High Courts would fall within the sweep of that power. If we are to recognise or admit any limitation on this power, that must be founded on some provision in the Constitution itself. The contention of Mr. Pathak for the first respondent is that such a limitation has been imposed on that power by article 329(b), which is as follows:……..” 

It was answered in following manner in said case by the Supreme Court:

It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned Counsel on either side were unable to suggest any clear-cut rule by which, the boundary between the two classes of errors could be demarcated. Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla, C. J. in Batuk K. Vyas v. Surat Municipality(3) that no error could be said to be apparent on the face of the record if it was not self-evident, and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases.”

It is now established law that Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution.

Rajni Sinha

Advocate High Court

Mobile No.:7738080174

Civil Procedure Code


Power of Attorney means a formal instrument by which one person empowers another to represent him, or act in his stead, for certain purposes. The donor of the power is called the principal or constituent; the donee is called the attorney or agent. The latter is not entitled to exercise his powers for his personal benefit at any point of time.

In the case of Associated Cement Co. Ltd. v. Keshvanand ((1998) 1 SCC 687), it has been held by Supreme Court that the complainant has to be a corporeal person who is capable of making a physical appearance in the court. If a complaint is made in the name of an incorporeal person (like a company or corporation) it is necessary that a natural person represents such juristic person in the court. It is held that the court looks upon the natural person to be the complainant for all practical purposes. It is held that when the complainant is a body corporate it is the de jure complainant, and it must necessarily associate a human being as de facto complaint to represent the former in court proceedings.

Thus body corporate or incorporeal person necessarily has to act through the power of attorney holder for filing the complainant or civil cases in terms of Order III, rule 2 of the CPC, 1908.

The Supreme Court in Janki Vashdeo Bhojwani v. Indusind Bank Ltd. 2005 (2) SCC 217, held as follows:

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 of 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.

In A.C. Narayanan vs State Of Maharashtra & Anr (Criminal appeal no. 73 of 2007 and Criminal appeal no. 2724 of 2008), the Hon’ble Supreme Court laid following rule after reconciling the various conflicting decision:

26) While holding that there is no serious conflict between the decisions in MMTC (supra) and Janki Vashdeo Bhojwani (supra), we clarify the position and answer the questions in the following manner:

(i) Filing of complaint petition under Section 138 of N.I Act through power of attorney is perfectly legal and competent.

(ii) The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint. However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions.

(iii) It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case.

(iv) In the light of section 145 of N.I Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the N.I. Act.

(v) The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person.

The Hon’ble Apex Court in the case of S. Kesari Hanuman Goud Vs. Anjum Jehan & Ors reported in (2013) SCCR 420 wherein it has been held as under:

  1. It is a settled legal proposition that the power of attorney holder cannot depose in place of the principal. Provisions of Order III, Rules 1 and 2 CPC empower the holder of the power of attorney to “act” on behalf of the principal. The word “acts” employed therein is confined only to “acts” done by the power-of-attorney holder, in exercise of the power granted to him by virtue of 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 preferred any “acts” in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for acts done by the principal, and not by him. Similarly, he cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled to be cross-examined. (See: Vidhyadhar v. Manikrao & Anr., AIR 1999 SC 1441; Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217; M/S Shankar Finance and Investment v. State of A.P & Ors., AIR 2009 SC 422; and Man Kaur v. Hartar Singh Sangha, (2010) 10 SCC 512).


In Nandhini vs M/S.Vinayaga Textiles, (CRL.R.C.No.1233 of 2011 and M.P.No.1 of 2011), the Hon’ble Madras High court has held that:

  1. In the light of the decisions of the Hon’ble Supreme Court stated supra, power of attorney can adduce evidence on the facts relating to issuance of cheque, dishonour, issuance of notice and filing of complaint, and these facts can be deposed with documents. He comes into picture, only after all the legal requirements for instituting a complaint, are met and authorised to speak about the above said facts. Power of attorney is given to institute a complaint under Section 138 of the Negotiable Instruments Act, 1881, and to conduct the case. It cannot be contended that, whatever transpired between the parties is within the personal knowledge of the power of attorney. On the facts of this case, he cannot speak as to what transpired in the Crime Branch Police Station, Tiruppur, regarding payment, stated to have been made by the drawer, towards the cheque amount. The above said fact can be spoken to, only by the complainant and not by the power of attorney.

In Oil and Natural Gas Commission vs. Offshore Enterprises Inc. AIR 1993 Bombay 217, the Hon’ble Bombay High Court observed as follows:

  1. It is unfortunate that a totally wrong practice has grown up in our Court where one or the other partner of a solicitors’ firm signs pleadings and affidavits on behalf of a foreign client in pursuance of authorisation contained in the power of attorney and the same firm of Advocate/Solicitors acts, appears and pleads in a professional capacity. The said practice is not sanctioned by law. To my mind such a practice is opposed to law.

Baker Oil Tools (India) Pvt. Ltd. vs Baker Hughes Ltd. & Anr., 2011 (47) PTC (Del), the Hon’ble Delhi High Court had raised the following two issues beside others:

  1. Whether the respondents succeeded in proving the authority of Mr. Sameer Oberoi to sign, file, verify and institute the suit on behalf of the respondents based on the two Power of Attorneys filed by him?
  2. Whether the respondents had duly proved the execution and authentication of two Power of Attorneys by notary public so as to claim raising of presumption in their favour under Section 85 of the Indian Evidence Act?

It was answered in following manner:

  1. It would be thus seen from all the aforesaid judicial pronouncements that the Courts have been consistently taking a view that once the execution and authentication of the Power of Attorney by a Notary Public is proved on record, then Section 85 mandates the Court to draw a presumption in favour of due and valid execution of such a Power of Attorney. The Courts have also taken a view that the use of expression “authentication” in Section 85 of the Evidence Act must be accorded its due meaning, not merely comparing the same with the expression “attestation”. The authentication of a Power of Attorney or any document by the Notary Public necessarily would mean that Notary Public has duly satisfied himself about the competence of the Officer and his authority to execute such a Power of Attorney or other document. The purpose of Section 85 has thus been rightly held to eliminate the cumbersome evidence which in the absence of the said provision on the statute book would be required to prove the minutes book and Board Resolution etc. for proving the due and valid execution of the Power of Attorney. Looking into the growing international trade and the world economy, any other interpretation of Section 85 of the Evidence Act would unnecessarily burden the parties to bring the witnesses from abroad just to prove the Board Resolutions and minute books etc. However, having said that, one cannot lose sight of the fact that such presumption is not a conclusive presumption as the same being rebuttable. Once a party who seeks to take advantage of Section 85 of the Evidence Act proves the Power of Attorney, its due execution and authentication by the Notary Public with due affixation of necessary seals on such a document then the onus would shift on the other party to disprove or rebut such a presumption arising in favour of the first party.

Principal Agent’s Agent (sub-Agent):

The Order III rule 1 and 2 of the CPC, 1908 reads as follows:

  1. Appearances, etc., may be in person, by recognized agent or by pleader— Any appearance, application or act in or to any Court, required or authorized 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 recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf:

Provide that any such appearance shall, if the Court so directs, be made by the party in person.

  1. Recognized agent— The recognized agent of parties by whom such appearances, applications and acts may be made or done are—

(a) persons holding powers-of-attorney, authorizing 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 authorized to make and do such appearances, applications and acts.

The rule 2 of Order III of the CPC, 1908 deals in recognized agent and their empowerment by party and it further elaborate that recognized agent be of party (not of Party’s agent or Power agent)

In case of Mr.K.Santhanam vs Mr.P.Chinniah (CIVIL REVISION PETITION (PD) (MD) NO.745 OF 2010 & MP.NO.1 OF 2010) of Madurai bench of Madras High Court with regard to sub Agent of Power Agent it was held that:

  1. By an order dated 14.8.2007, this Court allowed the said revision petition holding that under Order III Rule 2 (wrongly typed as Order V Rule 2 in the order in CRP(PD)(MD)No.101 of 2007, an agent can be appointed only by means of an instrument signed by the principal and that the principal Mrs.Kavitha (plaintiff in the suit) had not executed any instrument appointing Mr.P.Chinniah as power agent.


  1. Keeping in mind the consistent views expressed by this Court and various other Courts as well as the Supreme Court, let me now turn to the facts of this case. It is no doubt true that the Deed of Power of Attorney with which the suit was originally instituted, was executed by one Mr.A.K.Seerappan, the father and power agent of the plaintiff, in favour of his sub agents Chinniah and Duraiswamy. Since the order of the Trial Court, allowing I.A.No.177 of 2004, permitting Chinniah and Duraiswamy to prosecute the suit on behalf of the plaintiff was reversed by this Court in the previous civil revision petition, the plaintiff Kavitha executed a fresh Deed of Power of Attorney dated 20.11.2007, not only appointing P.Chinniah and C.Duraiswamy, but also ratifying all acts done by them, including the filing of the suits by them. In fact, the plaintiff had also sworn to an affidavit before the Trial Court about the appointment of P.Chinniah and C.Duraiswamy. Therefore, the Trial Court was justified in allowing the application I.A.No.226 of 2007 filed under Order III, Rule 2, CPC, since the principal has specifically ratified the acts done by P.Chinniah and C.Duraiswamy.

The Madurai Bench of Madras High Court in above case considered that the phrase ‘any person duly authorised’ by a party to sign the plaint, as appearing under Order 6 Rule 14 C.P.C. and appearing as power of attorney under Order 3 Rule 2 C.P.C. and ‘some other person’ empowered to verify the pleadings as appearing in Order 15 Rule 1 C.P.C. and held “While Order 3 C.P.C. enables ‘the holder of a power of attorney’ to appear, apply and act on behalf of a party to a suit, as his ‘recognised agent’, Order 6, Rule 14 C.P.C., enables ‘any person duly authorized by a party to sign the pleading’ if the party pleading is, by reason of absence or for other good cause, unable to sign the pleading. While Order 3, Rule 2, uses the expressions “recognised agent” and “persons holding powers of attorney”, Order 6, Rule 14, uses the phrase “any person duly authorized by him”. Rule 15(1) of Order 6 goes one step further and empowers “some other person” to verify the pleadings, if it is proved to the satisfaction of the Court that he is acquainted with the facts of the case. The Court in instant case held that an error of procedure is merely an irregularity and that the plaintiff has a right to rectify the defect and so the plaint shall not be rejected on that score.

Transfer of Immovable Property through GPA:

In Suraj Lamp & Industries Pvt. Ltd Vs. State of Haryana & Anr.( (2012) 1 SCC 656, the Apex Court had concluded following:

  1. Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank – 94 (2001) DLT 841, that the “concept of power of attorney sales have been recognized as a mode of transaction” when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
  2. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of ‘GPA sales’ or ‘SA/GPA/WILL transfers’ do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales.


  1. We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a Power of Attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding ‘SA/GPA/WILL transactions’ are not intended to apply to such bonafide/genuine transactions.

In pursuance of the Supreme Court Order, the Delhi Government issued a circular No. F.1(92)/Regn.Br./Div.Com./2012/298 dated 27/4/2012 prohibiting all GPA sale, which was called  as violative of Fundamental Right in Pace Developers and Promoters Pvt. Ltd. Vs. Govt. of NCT through its secretary And Ors., [2013] 33 99 (Delhi) has held following:

6.2 Quite clearly, the Supreme Court has not said that in no case a conveyance can be registered by taking recourse to a GPA. As long as the transaction is genuine, the same will have to be registered by the Sub Registrar. There is distinctly a specific reference to the fact that, a person may enter into a development agreement with a land developer or builder for development of a parcel of land or for construction of apartments in a building, and for this purpose a power of attorney empowering the developer to execute sale agreements, can be executed.

7. Therefore, in my view, the directions contained in the impugned circular dated 27.04.2012, are quite contrary to the observations made by the Supreme Court in Suraj Lamp & Industries (P) Ltd. Accordingly, the same are set aside.

Rajni Sinha

Advocate, Bombay High Court.