S. RAMACHANDRA RAO versus S. NAGABHUSHANA RAO & ORS. on 19 October 2022

[2022] 17 S.C.R. 451

S. RAMACHANDRA RAO

v.

S. NAGABHUSHANA RAO & ORS.

(Civil Appeal Nos. 7691-7694 of 2022)

OCTOBER 19, 2022

[DINESH MAHESHWARI AND ANIRUDDHA BOSE, JJ.]

Doctrines/Principles – Doctrine of res judicata – Applicationof – Advocates Act, 1961 – s.32 – High Court held that it was notpermissible for a GPA holder to participate in the proceedings, wifeof the appellant (his GPA holder) was given liberty to act as anadvocate on behalf of her husband, the plaintiff, in these cases –Correctness of – On appeal, held: Doctrine of res judicata is attractednot only in separate subsequent proceedings but also at subsequentstage of the same proceedings – A binding decision cannot lightlybe ignored and even an erroneous decision remains binding on theparties to the same litigation and concerning the same issue, ifrendered by a Court of competent jurisdiction – Such a bindingdecision cannot be ignored even on the principle of per incuriambecause that principle applies to the precedents and not to thedoctrine of res judicata – In the present case, the previous orderspassed in these matters by the High Court on 20.04.2018 and14.12.2018, as regards the issue of participation of the wife of theappellant in these proceedings as a GPA holder of the appellant,remain binding on the parties and cannot be ignored – The issueconcerning the capacity of the wife of the appellant to participatein these proceedings as his GPA holder cannot be agitated overagain in these very proceedings, even if the earlier orders grantingsuch permission to her are suggested to be erroneous – The meaning,purport and effect of the previous concluded orders of the HighCourt dated 20.04.2018 and 14.12.2018 had been clear andunambiguous that in these cases, wife of the appellant would beentitled to appear only as the GPA holder and not as an advocate –Also, the enabling provision of s.32 of the 1961 Act, whereby anyCourt, authority or person may permit any non-advocate to appearbefore it or him in any particular case is difficult to be read ascreating a corresponding bar in giving permission to a GPA holderof a party to represent that party as such, if the said GPA holder,

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Aduring pendency of the proceedings in the Court, gets enrolled asan advocate – In the peculiar facts and circumstances of the presentcase, where the only fortuitous event had been that wife of theappellant, who was already acting as his General Power of Attorneyholder, later on took the degree in law and got herself enrolled asan advocate, the High Court had, in the previous rounds ofBproceedings, cautiously balanced the requirements of law,particularly the requirements of CPC, the Civil Rules of Practice inthe State, and the 1961 Act as also the rules made under it byspecifically providing that wife of the appellant shall appear onlyas his GPA holder and not as an advocate – Further, no suchCquestion like that of jurisdiction or statutory prohibition arises fromthe said orders dated 20.04.2018 and 14.12.2018 for which, theissue concluded thereby could be reagitated at the subsequent stageof these very proceedings by suggesting different interpretations –Impugned common order dated 28.06.2019 is set aside; and theorders passed by the Trial Court dated 07.02.2019 are restored –DPower of Attorney – Code of Civil Procedure, 1908 – s.11.

Doctrines/Principles – Doctrine of res judicata – Object andframework of – ‘res judicata pro veritate occipitur’ - ‘nemo debet bisvexari pro una et eadem causa’ – Discussed.

EAdvocates Act, 1961 – s.32 – Power of Court to permitappearances in particular cases – Held: Permission u/s.32 of theAct of 1961, by its very nature, is to be granted on case-to-casebasis and could also be refused with reference to the given set offacts and circumstances referable to a particular case and anyparticular person.F

Allowing the appeals, the Court

1.1 Section 11 CPC is not the foundation of the doctrine ofres judicata but is merely the statutory recognition thereof and,hence, is not considered exhaustive of the general principles ofGlaw. This doctrine, it is recognised, is conceived in larger publicinterest and is founded on equity, justice and good conscience. Ithardly needs any over-emphasis that but for this doctrine of resjudicata, the rights of the persons would remain entangled inendless confusion and the very foundation of maintaining the ruleof law would be in jeopardy. Even if this doctrine carries someH

technical aspects, as explained by this Court in Daryao, it is inthe interest of public at large that a finality should attached to thebinding decisions of the Courts of competent jurisdiction; and itis also in public interest that individual should not be vexed twicewith the same kind of litigation. As noticed, the Constitution Benchhas placed this doctrine on a high pedestal, treating it to be apart of rule of law. The principle that the doctrine of res judicatais attracted not only in separate subsequent proceedings but alsoat subsequent stage of the same proceedings is hardly of anydoubt or dispute. Even an erroneous decision remains bindingon the parties to the same litigation and concerning the sameissue, if rendered between the same parties by a Court ofcompetent jurisdiction. [Paras 9.3, 9.4, 9.5.1, 9.5.2][478-D; 479-A-B, D, F]

Daryao and Ors. v. State of U.P. and Ors. AIR 1961SC 1457 : [1962] SCR 574 – followed.

Lal Chand (dead) by L.Rs. and Ors. v. Radha Krishan(1977) 2 SCC 88 : [1977] 2 SCR 522; Y. B. Patil &Ors. v. Y. L. Patil (1976) 4 SCC 66 : [1977] 1 SCR320; Gorie Gouri Naidu (Minor) v. ThandrothuBodemma (1997) 2 SCC 552 : [1997] 1 SCR 118 –relied on.

1.2 It remains hardly a matter of doubt that the doctrine ofres judicata is fundamental to every well regulated system ofjurisprudence, for being founded on the consideration of publicpolicy that a judicial decision must be accepted as correct andthat no person should be vexed twice with the same kind oflitigation. This doctrine of res judicata is attracted not only inseparate subsequent proceedings but also at the subsequent stageof the same proceedings. Moreover, a binding decision cannotlightly be ignored and even an erroneous decision remainsbinding on the parties to the same litigation and concerning thesame issue, if rendered by a Court of competent jurisdiction. Sucha binding decision cannot be ignored even on the principle of perincuriam because that principle applies to the precedents andnot to the doctrine of res judicata. In true application of theseprinciples, it would appear that the orders passed in these mattersby the High Court on 20.04.2018 and 14.12.2018, as regards the AB

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Aissue of participation of the wife of the appellant in theseproceedings as a GPA holder of the appellant, remain binding onthe parties and cannot be ignored. In other words, this issueconcerning the capacity of the wife of the appellant to participatein these proceedings as his GPA holder cannot be agitated overagain in these very proceedings, even if the earlier ordersBgranting such permission to her are suggested to be erroneous.[Paras 10, 10.1][480-B-F]

1.3 The question in these appeals, therefore, is as towhether the previous orders in relation to these proceedings, aspassed by the High Court on 20.04.2018 and 14.12.2018 betweenCthe same parties and dealing with the same issues relating to thecapacity of the wife of the appellant in the present matters, couldbe said to be not conclusive and not operating as res judicatabecause of any question of jurisdiction or of statutory directionor prohibition. This Court is unable to appreciate the contentionDwhich suggests that the said Section 32 creates a bar for the wifeof the appellant to seek permission of the Court to appear onbehalf of her husband in her capacity as GPA holder because ofshe being an enrolled advocate. The enabling provision of Section32 of the Act of 1961, whereby any Court, authority or personmay permit any non-advocate to appear before it or him in anyEparticular case is difficult to be read as creating a correspondingbar in giving permission to a GPA holder of a party to representthat party as such, if the said GPA holder, during pendency of theproceedings in the Court, gets enrolled as an advocate. In otherwords, there does not appear any statutory prohibition operatingFin the situation like that of present case, for which the existingGPA holder of a party cannot be given permission to appear onlyas the GPA holder, even if he/she has been enrolled as anadvocate. The meaning, purport and effect of the previousconcluded orders of the High Court dated 20.04.2018 and 14.12.2018 had been clear and unambiguous that in these cases,Gwife of the appellant would be entitled to appear only as the GPAholder and not as an advocate. The submissions made on behalfof the contesting respondent that the said orders by the HighCourt stand at conflict with any statutory bar or prohibition orthey relate to any such mandatory provision of law which is goingHto be violated are not accepted. [Paras 12, 14, 14.1][483-G; 484-C-G]

1.4 Apart from the above, even if it be assumed for thesake of arguments that there had been any error in the previousorders dated 20.04.2018 and 14.12.2018, those orders, havingbeen rendered between the same parties and on the same issueof appearance of the GPA holder in the same proceedings, indeedoperate as res judicata. In the peculiar facts and circumstancesof the present case, where the only fortuitous event had beenthat wife of the appellant, who was already acting as his GeneralPower of Attorney holder, later on took the degree in law and gotherself enrolled as an advocate, the High Court had, in theprevious rounds of proceedings, cautiously balanced therequirements of law, particularly the requirements of CPC, theCivil Rules of Practice in the State, and the Act of 1961 as alsothe rules made under the Act of 1961 by specifically providingthat wife of the appellant shall appear only as his GPA holder andnot as an advocate. No such question like that of jurisdiction orstatutory prohibition arises from the said orders dated 20.04.2018and 14.12.2018 for which, the issue concluded thereby could bereagitated at the subsequent stage of these very proceedings bysuggesting different interpretations. [Paras 14.2, 14.3][484-G-H; 485-A-C]

1.5 The aforesaid orders dated 20.04.2018 and 14.12.2018operate as res judicata and create a bar in raising of the issueagain as regards capacity of the wife of the appellant in thesematters. The High Court has fallen in grave error in ignoring thesaid previous inter partes binding decisions. In the orderimpugned, the High Court has mischaracterised the issue beforeit. As noticed, the High Court has proceeded to observe that thepoint for determination in the matter was as to ‘whether the GPAholder of the plaintiff can be permitted to act like a counsel andcross-examine witnesses’. It has been pointed out on behalf of theplaintiff-appellant that his GPA holder (wife) never attempted toact like an advocate and to cross-examine the witnesses in thatcapacity. In the earlier rounds of proceedings, the High Courthad specifically ordered that the wife of the appellant would onlyact as power agent of appellant and not in her professional capacityas an advocate. In view of the above and in view of the objectionsthereafter raised by the contesting respondent, the point fordetermination, in essence, before the Court was as to whether ABC

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Athe wife of the appellant, being his GPA holder, was not entitledto cross-examine the witnesses, as captured by the Trial Courtin paragraph 5 of its order dated 07.02.2019. The Trial Court hadalso noticed the objections of the contesting respondent that thewife of the appellant, being a GPA holder, could only engage alawyer but could not participate in the Trial Court and examineBthe witnesses or argue the matter. It was contended that thoughshe was permitted to attend the suit proceedings in-person, itdid not confer her with the authority of doing any such act whichonly a legal practitioner would do. The Trial Court had rightlyoverruled such objections, particularly with reference to theCprevious orders passed by the High Court. [Paras 16, 17][488-A-F]

1.6 The High Court has viewed the entire case from analtogether wrong angle, i.e., by misdirecting itself on the realpoint for determination; by not taking into comprehension theDmeaning, purport and effect of the previous binding orders dated20.04.2018 and 14.12.2018 between the same parties in the sameproceedings; and by misapplication of the Division Bench decisionof the same High Court. This misdirected approach has resultedin the High Court ignoring the doctrine of res judicata and issuingsuch directions which are squarely opposite to the directionsEcontained in the previous binding orders. The permission underSection 32 of the Act of 1961, by its very nature, is to be grantedon case-to-case basis and could also be refused with reference tothe given set of facts and circumstances referable to a particularcase and any particular person. The impugned common orderFdated 28.06.2019 is set aside; and the orders passed by the TrialCourt dated 07.02.2019 are restored. [Paras 18, 20.2, 21][489-C-D; 490-D-E; 491-F]

Madupu Harinarayana @ Haribabu rep. by his G.P.A.,T. D. Dayal v. 1st Additional District Judge, KadapaGand Ors. 2011 (2) ALT 405 (D.B.)- distinguished.

Makhija Construction & Engg. (P) Ltd. v. IndoreDevelopment Authority (2005) 6 SCC 304; S. Nagaraj(Dead) by Lrs. & Ors. v. B.R. Vasudeva Murthy & Ors.(2010) 3 SCC 353 : [2010] 2 SCR 586 – relied on.

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S. RAMACHANDRA RAO v. S. NAGABHUSHANA RAO &ORS.

Sheoparsan Singh and Ors. v. Ramnandan PrasadNarayan Singh and Ors. A.I.R. 1916 Privy Council78; Mrs. Dossibai N. B. Jeejeebhoy v. Hingoo ManoharMissa [1962] 3 SCR 928; Satendra Prasad Jain v. Stateof U.P. (1993) 4 SCC 369 : [1993] 2 Suppl. SCR 336;Awadh Bihari Yadav v. State of Bihar (1995) 6 SCC 31: [1995] 3 Suppl. SCR 197; Municipal Committee v.State of Punjab (1969) 1 SCC 475 : [1969] 3 SCR 447;Allahabad Development Authority v. Nasiruzzaman &Ors. (1996) 6 SCC 424 : [1996] 5 Suppl. SCR 435;Mathura Prasad Bajoo Jaiswal & Ors. v. Dossibai N.B. Jeejeebhoy (1970) 1 SCC 613 : [1970] 3 SCR 830– referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 7691-7694 of 2022.

From the Judgment and Order dated 28.06.2019 of the High Courtof Andhra Pradesh at Amaravathi in CRP Nos.758, 759, 760 and 761 of2019.

Guru Krishnakumar, Sr. Adv., K. Parameshwar, Ms. A.Sregurupriya, Prasad Hegde, Advs. for the Appellant.

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AMs. Menaka Guruswamy, Sr. Adv., D. Bharat Kumar, TadimallaBhaskar Gowtham, Aman Shukla, Yash S. Vijay, M. ChandrakanthReddy, Gopal Jha, Advs. for the Respondents.

The Judgment of the Court was delivered by DINESH MAHESHWARI, J.B

Leave granted.

2. These appeals are directed against the common order dated28.06.2019 in Civil Revision Petition Nos. 758, 759, 760 & 761 of 2019,as passed by the High Court of Andhra Pradesh at Amaravathi, wherebyCthe High Court has not approved the similar orders dated 07.02.2019, aspassed by the Court of III Additional Senior Civil Judge at Vijayawadain four separate civil proceedings between the same contesting parties.

3. Put in a nutshell, the issue involved in the matter is concerningthe capacity in which the plaintiff-appellant’s wife, who is the GeneralDPower of Attorney[1] holder of the appellant and is also an enrolledadvocate, could appear and act on his behalf in the said civil proceedings.Even before passing of the orders which form the subject-matter ofpresent appeals, this issue had led to various orders by the Trial Court atdifferent stages of proceedings as also to a couple of orders by the HighCourt in challenge to the orders so passed by the Trial Court. Therein,Ethe Trial Court and the High Court essentially held that merely for thewife of the appellant being an advocate, there was no prohibition in lawfor her to act on behalf of her husband as a GPA holder but, it was madeclear that she would appear in-person as a power agent of her husbandand not in her professional capacity as an advocate. The same propositionFwas iterated by the Trial Court in its orders dated 07.02.2019 in thesevery proceedings, while rejecting the objection against examination ofthe witnesses by the wife of the appellant in her capacity as GPA holder.However, in the impugned order dated 28.06.2019, the High Court hasheld that in view of a Division Bench decision of the same High Court, itwas not permissible for a GPA holder to participate in the proceedingsGand, therefore, while disapproving the orders under challenge, the wifeof the appellant has been given liberty to act as an advocate on behalf ofher husband, the plaintiff, in these cases.

H1 ‘GPA’, for short.

4. With the outline as aforesaid, we may take note of the relevantbackground aspects as follows:

4.1. A civil suit for partition of certain properties, being O.S. No.368 of 1995, came to be filed before the said Trial Court, wherein theappellant was arrayed as the 3[rd] plaintiff. The appellant would submitthat on 20.04.1987, he had executed a GPA in favour of his brother, the1[st] respondent herein (the contesting respondent), who had prosecutedthe said civil suit for partition. A decree was passed in the said suit onthe basis of a compromise memo filed on 17.09.1995. The appellantwould allege that he was not aware of filing of the said civil suit; that thedecree was detrimental to his interest and was fraudulently obtained;and therefore, he revoked the GPA in favour of the 1[st] respondent on26.01.1996. Later on, the appellant executed another General Power ofAttorney dated 25.01.1997 in favour of his wife. Thereafter, on behalfof the appellant, I.A. No. 634 of 1997 was filed in the said O.S. No. 368of 1995 by his new GPA holder (his wife) for recalling the judgment anddecree passed in the suit. This apart, the appellant instituted three morecivil suits, being (i) O.S. No. 388 of 1997, for declaration of title,possession, partition, and mesne profits; (ii) O.S. No. 104 of 1998, forrendition of accounts in relation to actions and bank transactions by thecontesting respondent in his erstwhile capacity as agent of the appellant;and (iii) O.S. No. 445 of 1998, for partition and mesne profits.

4.2. While the said four civil proceedings remained pending, theGPA holder of the appellant, i.e., his wife, graduated in law and she wasenrolled as an advocate in the year 2011.

4.3. On 27.09.2011, an application, being I.A. No. 1308 of 2011,was filed in said I.A. No. 634 of 1997 in O.S. No. 368 of 1995 underOrder III Rule 2 read with Section 151 of the Code of Civil Procedure,1908[2] read with Section 32 of the Advocates Act, 1961[3] read with Rules32 and 33 of the Civil Rules of Practice in Andhra Pradesh read withSection 120 of the Evidence Act, 1872 with the prayer that the GPAholder of the appellant be permitted to appear in person; and to plead,argue and do all necessary acts for conduct of proceedings. Similarapplications were filed in two of the aforesaid civil suits, being I.A No.1307 of 2011 in O.S. No. 104 of 1998 and I.A. No. 1306 of 2011 in O.S.No. 388 of 1997. The Trial Court, by its similar orders dated 19.02.2018, 2 ‘CPC’, for short.

3 ‘the Act of 1961’, for short.

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Aallowed the applications so moved and granted the prayer so made whilerejecting the contentions urged on behalf of contesting respondent withreference to Order III Rule 2 CPC. The said order 19.02.2018, as passedin relation to O.S. No. 368 of 1995 reads as under: - “1. This petition is filed under Order 3 Rule 2 Section 151 CPCand Section 32 of Advocates Act, 1961 & Rule 32 and 33 of CivilRules of practice in A.P. and Evidence Act Sect.120 praying toallow the petitioner to represent her husband the plaintiff in theabove suit, before the Hon’ble Court to appear in person, to pleadand to all acts necessary in the conduct of above proceedings.

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C2. The Petitioner who is the authorized GPA holder of the plaintiffin the suit, seeks permission of this Court, to permit her to representthe plaintiff in person. The Petitioner says that, as she is the wifeof plaintiff she can protect the best interest of her husband, andas her husband is staying in a far away place and as he cannotattend the court in person she may be permitted to represent herDhusband in person to conduct the suit and she in support of hercontentions relied upon a judgment reported in AIR 2003 A.P.317, Sundar Raj Jaiswal and others vs. Smt.Vijaywa Jaiswal.

3. Wherein it was held that, under Section 32 of the Advocate Actthe court may permit appearance in a particular case permittingEany person other than the Advocate and that, under the saidprovision a discretionary power was given to the court to permitappearance to any non-advocate for party. it was further held inthe judgment that, the trial court granted permission for the Powerof Attorney holder of the respondent and the said Power ofFAttorney has been helping the court by appearing for therespondent and there is no remark noticed by the court below. Itis always open for the Court to withdraw or cancel permission ifthe Power of Attorney holder is ‘unworthy or reprehensible. Hencesought permission to allow her to represent her husband/plaintiffin the suit.

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4. The objection of respondent was that as per Order 3 Rule 2appearance may be in person or by recognized agent or by pleader,which is once again subject to the person knowledge of thetransactions, but never empowers to argue on behalf of theexecutant, as such the above provisions are not correct for asking H

to plead in the court on behalf of plaintiff. He further opposed thepetition stating that, the petitioner is not resident of Vijaywada, assuch, it would be difficult for them to serve notice on the petitionerin case of any applications filed in the suit. Hence, opposed thepetition.

5. However this court having considered the petition and counteraverments opines that, when the petitioner was permitted by thiscourt at the inception of the suit itself, to represent as GPA, nowthe permission is sought by her to represent her husband in person,instead of by a pleader. Moreover, she states to be the wife of theoriginal plaintiff, who in the opinion of this court can protect thebest interest of her spouse and as held by his lordship, in the abovereported judgment that, the permission cannot be withdrawn atthe instance of petitioners.More so, when there is nothing onrecord to show that, the GPA holder has created an unhealthyatmosphere on indiscipline situation or exchanged words.

6. So when the Hon’ble High Court held that, when once thepermission so granted can be withdrawn, if the acts of GPArepresenting the party in person is in derogative to the interest ofthe original party, the petitioner herein being the wife of plaintiff,in the opinion of this court can be permitted to represent in personon behalf of her husband. With regard to the other objection ofrespondent that, service of notice on the petitioner in case of anyapplications filed, would be difficult as she does not reside atVijayawada, as the petitioner at the time of arguments submittedthat she will stay at Vijayawada, till the suit is disposed off, thiscourt does not find any grounds to disallow her plea.

7. Accordingly petition is allowed.”

4.4. The aforesaid orders dated 19.02.2018 were challenged bythe contesting respondent in the High Court. The High Court by itscommon order dated 20.04.2018 in CRP Nos. 1784, 2221 & 2366 of2018, confirmed the orders of the Trial Court, but while clarifying thatthe wife of the appellant will appear in person as power agent of theappellant but not in her professional capacity as a lawyer. This orderdated 20.04.2018 by the High Court reads as under: - A

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“These three revisions arise out of the orders passed bythe III Additional Senior Civil Judge, Vijayawada, allowing theapplications filed by the 1st respondent herein under Order IIIRule 2 of the Code of Civil Procedure read with Section 32 of theAdvocates Act, 1961.

2. Heard Mr. V.S.R. Anjaneyulu, learned counsel for thepetitioner and Smt. Hemalatha Suryadevara, the General PowerAgent of the 1st respondent herein, who was the plaintiff in all thethree suits.

3. The 1st respondent, who was the plaintiff in threedifferent suits namely O.S.Nos.368 of 1995, 389 (sic) of 1997and 104 of 1998, is the principal and his wife Smt. SuryadevaraHemalatha, is his power agent. It appears that the 1st respondentand the plaintiff was all along represented by the counsel beforethe Court below. One of the suits already got disposed of. Theother two suits are now pending. Even in the disposed of suit,some applications have been filed.

4. In the meantime, the wife of the 1st respondent filedapplications in all the three suits, under Order III Rule 2 of CPCfor representing her husband and to appear in person, to pleadand to conduct the above proceedings. These applications wereallowed by the Court below, forcing the 1st defendant in two suitsand the sole defendant in the third suit to come up with the aboverevisions.

5. The objections of the learned counsel for the petitionerto the orders impugned in these revisions are two fold namely (i)that the wife-cum-General Power Agent of the 1st respondentalso happens to be a lawyer, but she can either appear as a counselor as a power agent and not as both and (ii) that the address forservice should be intimated by the 1st respondent in Vijayawadato enable the petitioners to serve notices and summons.

6. The power agent of the 1st respondent, who appeared inperson before me, stated that she is not seeking to appear as anadvocate for the 1st respondent but she is seeking to appear onlyas the power agent of the 1st respondent. There can be noobjection to a party to a proceeding to appear through the poweragent.Order III Rule 2 of CPC provides for the same and to that extent the order of the trial Court allowing the applications cannotbe found fault with. Once an application under Order III Rule 2CPC is allowed, the power agent has two options, first option is toappear in person as a power agent and the second option is toengage an advocate herself. Both cannot be combined in a singleorder and that is the objection of the learned counsel for thepetitioner. That objection is sustainable in law.

8. But in so far as the second objection is concerned, if the1st respondent is appearing only as a power agent of a party, thequestion of informing the local address for service does not arise.It is only when a lawyer is engaged, the question of furnishing alocal address for service would arise.

Therefore, all the Civil Revision Petitions are disposed ofconfirming the orders of the trial Court and clarifying that Smt.Suryadevara Hemalatha, will appear in person as a power agentof the 1st respondent and will not appear in her professionalcapacity as a lawyer.

As a sequel thereto, miscellaneous petitions, if any, pendingshall stand closed.”

4.5. Thereafter, another application of similar nature in relation toO.S. No. 445 of 1998 was considered and allowed by the Trial Court byits order dated 24.09.2018, while rejecting similar objection of therespondent and while observing as under: - “The respondent opposed the petition stating that, as perOrder 3 rule 2 CPC appearance maybe in person or by recognizedagent or by a pleader, which is once again is subject to the personalknowledge of the transactions and it never empowers to argue onbehalf of the executants, as such the provisions under which thispetition is filed is not correct to seek permission to represent andplead on behalf of the plaintiff in the suit.

However, this court considering the petition and counteraverments opines that, when GPA is executed in favour of thepetitioner authorizing her to represent the plaintiff in the suit, andshe as GPA also intends to plead on behalf of the plaintiff in thesuit as she can protect the best interest of her husband, and when AB

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as per Sec.32 of Advocate Act any court or authority or personmay permit any person, not enrolled as to advocate under Act, toappear before it, in any particular case, petitioner being theauthorized agent of plaintiff in the suit, seeking permission to appearin person and conduct the suit on behalf of her husband seemsreasonable.

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Moreover, when the permission granted can be withdrawnby the Court, if the acts of GPA representing the party, in personin derogative to the interest of the original party. So, the petitionerbeing the wife of plaintiff in the suit seeking permission to representin person on behalf of her husband seems justice and necessary.CHence, for the reasons stated above, I am inclined to allow theapplication. Accordingly, the petition in allowed.”

4.6. The aforesaid order dated 24.09.2018 was challenged by theDcontesting respondent in the High Court in CRP No. 6924 of 2018. Thispetition was also dismissed by the High Court by its order dated14.12.2018, which may also be usefully reproduced as under: - “Aggrieved by an order passed by the trial Court permitting the1st respondent to be represented by his wife as the General PowerEof Attorney holder, to act, to appear and to plead, the defendant inthe suit has come up with the above revision.

2. Heard Mr. V.S.R. Anjaneyulu, learned counsel for the petitioner.The G.P.A. holder of the 1st respondent takes notice.

3. The 1st respondent herein has filed a suit in O.S.No.445 ofF1998 for partition. It appears that the 1st respondent is a retiredI.A.S. Officer and his wife who is General Power of Attorneyholder is an Advocate enrolled in the Bar Council of AndhraPradesh.

4. Therefore, the 1st respondent has appointed his own wife asGGeneral Power agent. This fact is not disputed.

5. When an attempt was made by the G.P.A. holder to act in dualcapacity, both as a General Power of Attorney and as an advocatefor her husband, this Court directed that she can only opt for one.

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6. Therefore, the 1st respondent filed I.A.No.556 of 2018 seekingpermission for the G.P.A. holder to plead, present and argue hiscase in person. This application has been allowed by the trial Courtby an order dated 24-09-2018. It is against the said order that therevision has been filed.

7. The contention of Mr. V.S.R. Anjaneyulu, learned counsel forthe petitioner is that G.P.A. holder, having a personal interest,cannot plead on behalf of the party. Reliance is placed upon theclause contained in the deed of a General Power of Attorney.

8. But clauses 2 and 3 of the deed of General Power of Attorneyauthorises the G.P.A. holder to sign and verify plaints, writtenstatements, affidavits etc., and also to appear in all courts.Therefore, the General Power of Attorney certainly authorisesthe holder to plead on behalf of the 1st respondent.

9. Merely because the wife happens to be a lawyer, there is noprohibition in law for her to plead the case of her husband byholding a general power. The bar for a lawyer to take a dual role,is in the context of conflict of interests, which correlate to ethicalprinciples in respect of the profession. But when a lawyer’s spouseis involved in litigation, there can be no bar for the lawyer to actas the power agent of the spouse, for doing whatever is authorisedby the deed of General Power of Attorney to do.

10. Moreover, I do not know in what way the petitioner is aggrievedby such an act. If at all there are certain things only within theexclusive knowledge of the principal that can certainly be raisedas a point. Therefore, I find no merits in the revision. Hence, theCivil Revision Petition is dismissed. No costs.

As a sequel thereto, miscellaneous petitions, if any, pendingshall stand closed.”

4.7. On the other hand, when the said proceedings were toprogress further, the contesting respondent filed separate applications,this time contending that the wife of the appellant, who was representinghim as GPA holder, was not entitled to examine the witnesses. The TrialCourt, yet again, rejected the objection of the contesting respondent byits separate but substantially similar orders dated 07.02.2019. The order A

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Aso passed by the Trial Court in relation to O.S. No. 368 of 1995 reads asunder: - “1. This petition is filed under Sec.151 CPC by the petitionerseeking the court to prevent the wife of the plaintiff who isrepresenting the plaintiff in person, as his GPA from examiningthe witnesses.

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2. The Petitioner says that, the 1st plaintiff in the suit is beingrepresented by his wife as GPA holder from 1998 onwards, andas on the said date the suit was being represented by differentcounsel. The 1st respondent who came on record as GPA, of theplaintiff filed an application under Order 3 Rule 2 CPC seekingpermission to represent the 1st plaintiff in person and the saidapplication was allowed, against which this petitioner preferredCRP 1784/2018, which was disposed of on 20-4-2018, directingthe GPA holder not to conduct the suit proceedings both in thecapacity of an advocate as she is enrolled in bar, and as GPA.The petitioner says that, when the 1st respondent nowhere statedthat, the GPA in her name was cancelled, and she was authorizedto make personal appearance on behalf of the plaintiff, therespondent has to only engaged a counsel represent in her personalcapacity. Hence, the 1st respondent cross examining the witnessesin person is against the orders of Hon’ble High Court in CRP1784/2018. Hence, this petition to declare that the 1st respondentwho is GPA holder is not authorized to participate in the crossexamination of the witnesses.

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3. The 1st respondent opposed the petition stating that, she as aGPA of her husband/plaintiff is appearing in person, after obtainingpermission from this Court, and though she is enrolled in barcouncil, she is not appearing in her professional capacity, in thismatter and thus she is appearing in person, as such, she is entitledto cross examine the witnesses and that petitioner cannot directthe plaintiff, as to how she has to conduct the case i.e., eitherthrough a counsel or in person. The Hon’ble High Court in CRPNo.1784/2018 stated that the GPA holder cannot represent thecourt both as a GPA and in her professional capacity, but did notsay that she cannot in her personal capacity conduct the suitproceedings. Hence, she being the GPA of her husband iscompetent to do the suit in person that includes the crossexamination of witnesses.

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4. Heard both sides.

5. Both the parties did not adduce any oral or documentaryevidence.

“Whether the respondent cannot be permitted to participate in theexamination of witnesses as prayed by the petitioner?”

POINT:

6. The Petitioner’s objection for the 1st respondent to crossexamine the witnesses herself is that, she being the GPA of theplaintiff can only engage a counsel but cannot participate in thetrial and examine the witnesses or argue the matter. Though shewas permitted to represent the suit proceedings in person, it doesnot confer her with the authority of doing any such acts, which alegal practitioner would do. But, the respondent says that, whenshe was permitted by this Court to conduct the suit proceedingsas GPA of her husband- 1st plaintiff in person, it is for her todecided, whether she would continue the suit in person or engageany counsel to represent the suit proceedings and that this petitionerhas no business to direct the respondent as to adopt to whichcourse in the conduct of the suit proceedings.

7. The 1st respondent in support of her arguments has relied uponthe following two judgments 1) Surender Raj Jaiswal and othersvs. Vijaya Jaiswal, AIR 2003 AP 317; 2) Prabha P.Shenai vs.Ispat Industries Limited 2016 Law Suit (Bombay) 271. In the saidjudgment referred (1) above at paragraph No.13 his Lordshipopined that I do not see any bonafides on the part of the petitionersto insist the respondent to prosecute either personally or appointan Advocate. The respondent herself no doubt is empoweredto prosecute the particular case but due to the relationship ofherself with her husband and the acquaintance of the case,she reposed confidence fully in her husband and appointedhim as her Power of Attorney to appear on her behalf in aparticular case and, therefore, the application filed by thepetitioners herein was rightly dismissed by the Court below.The Trial Court granted permission for the Power of AttorneyHolder of the respondent and the said Power of Attorney hasbeen helping the Court by appearing for the respondent and A

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there is no remark noticed by the Court below. It is alwaysopen for the Court to withdraw or cancel permission if thePower of Attorney Holder is unworthy or reprehensible.

8. This Court considering the arguments submitted by either sideand the principle held in the above referred judgments opines that,when once the respondent was permitted to represent the 1stplaintiff who is no other than her husband, in person opining thatno person can protect the Interest of the spouse, and act in thebest Interest of the spouse other than the wife/husband, herself/himself, permitted the respondent, who is the wife of 1st plaintiff,and also GPA to represent the suit proceedings in person andbecause she was permitted and representing the suit in person,now she wants to cross examine the witnesses also, by herself,as rightly put forth by the respondent what locus standi does thepetitioner have in objecting the respondent, in cross examining thewitnesses on behalf of the plaintiff, and her husband? when thereis no bar for a party to cross examine the witnesses, the respondentwho is representing the plaintiff as a GPA and permitted to representin person intending to cross examine the witnesses by herself becurtailed? In fact the principle held under ref.(1) above judgmentaptly applies to the case on hand, because in this case also, like inthe above referred case, the GPA holder and the plaintiff arehusband and wife, as such this court opines that, unless the courtopines to withdraw or cancel the permission, if the power ofattorney holder is found unworthy there can be no hindrance forthe respondent to continue to represent the plaintiff in person.

9. As held in judgment in reference No.2 that-

9. As held in judgment in reference No.2 that- In the present case, considering the fact that the constitutedattorney in the present case is not only the husband of theplaintiff but her predecessor in title, who actually carried outthe work in question and to whom the amounts claimed in thesuit were due before he assigned his entitlement to the plaintiff,there is a preeminent case for permitting him to represent theplaintiff and argue her case in this suit. I have according,permitted him to advance arguments for the plaintiff.

10. The said principle also is apt to the case on hand, as in this suitalso the 1st respondent was permitted to represent the 1st plaintiff in person, so she can very well represent the 1st plaintiff andargue the case in this matter, and the petitioner cannot raise anyobjection with regard to the entitlement of the respondent, whowas permitted to represent in person; with regard to the barenshrined by his lordship in CRP 1784/18 that, the respondentbeing GPA holder cannot represent the matter in her professionalcapacity, when certainly the respondent is not representing theCourt as an advocate, and she is representing the Court, as thewife of plaintiff who was permitted to represent the 1st plaintiff inperson being his GPA holder and not as an advocate, she cannotbe curtailed from cross examining the witnesses. Accordingly,this point is answered against the petitioner.

11. In the result, the petition is dismissed.”

4.8. The aforesaid orders dated 07.02.2019 were challenged beforethe High Court in Civil Revision Petition Nos. 758, 759, 760 and 761 of2019, which have been considered and decided by the impugned commonorder dated 28.06.2019.

4.8.1. In the impugned order dated 28.06.2019, the High Court,after taking note of the background aspects and stand of the respectiveparties, stated the point for determination in the following terms: - “9. The short point that arises for consideration is “Whether theG.P.A. holder of the plaintiff can be permitted to act like a counseland cross-examine the witnesses?”

4.8.2. Thereafter, the High Court took note of the previousapplications moved in these matters and the orders passed thereupon,while stating its construction of such previous orders, inter alia, in thefollowing terms: - “12. The said order came to be passed in the month of December,2018. As stated above, earlier to this order, a common order waspassed in C.R.P.Nos.1784, 2221 and 2366 of 2018, wherein, theapplications filed under Order III Rule 2 of C.P.C., read withSection 32 of the Advocates Act were disposed of clarifying thatSmt.S.Hemalatha will appear in-person as a power of agent tothe first respondent and will not appear in her professional capacity.The said applications came to be filed under Order III Rule 2 of AB

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AC.P.C., for the following relief, to represent her husband; to appearin person to plead and conduct the above proceedings.

13. The said applications were allowed by the Court below, forcingthe first defendant to come up with the above three revisions.The objections of the learned counsel for the petitioner therein,Bwere two fold, namely (i) that the wife-cum-General Power agentof first respondent also happens to be a lawyer, but she can eitherappear as a counsel or as a power agent and not as both and (ii)that the address for service should be intimated by the firstrespondent in Vijayawada to enable the petitioners to serve noticesand summons. The Hon’ble High Court held that once anCapplication under Order III Rule 2 CPC is allowed, the poweragent has two options; the first option is to appear in person as apower agent and second option is to act as an Advocate herself.Both cannot be combined in a single order.”

4.8.3. Thereafter, the High Court took note of the reasons thatDprevailed with the Trial Court in passing the impugned orders dated07.02.2019, and proceeded to allow the revision petitions, essentiallywith reference to decision of the Division Bench of the High Court inthe case of Madupu Harinarayana @ Haribabu rep. by his G.P.A.,T. D. Dayal v. 1[st] Additional District Judge, Kadapa and Ors.: 2011E(2) ALT 405 (D.B.) and Section 32 of the Act of 1961. The High Courtexpressed its views against participation of the wife of the appellant inthe proceedings as GPA holder, while giving her liberty to conduct thecase as an advocate and while observing as under: - “16. The Hon’ble Division Bench in the Judgment referred toFabove observed that any person approaching the court seekingsome legal redressal has to scrupulously, and without exception,follow the procedural rules and regulations framed by the HighCourt. The rules made by the High Court, Civil Rules of Practiceand Circular Orders and Criminal Rules of Practice and CircularOrders as well as various other procedural rules made underGvarious statutes supplant the two codes. A party to the proceedingcan either himself appear as a party in person to ventilate hisgrievance or engage an advocate enrolled on the rolls of the BarCouncil of Andhra Pradesh (a statutory professional bodyconstituted under the Advocates Act, 1961). A party to theHproceedings may authorize another by giving a Power of Attorney to appear in the case, file affidavits, instruct lawyers and act onhis behalf. It was held that the G.P.A. holder cannot plead and/orargue for his principal. If a person, other than an advocate enrolledon the rolls of the Bar council, appears in court, it is an offencepunishable under law. Power of Attorney Act defines “power-of-Attorney” to include any instrument empowering a specified personto act for and in the name of the person executing it. If soempowered, the donor may execute any instrument or do anythingin his own name and signature by the authority of the donor of thepower. Section 4 of the POA Act casts an obligation on the POAto verify the affidavit, give a declaration or other sufficient proofof the POA, and to deposit the same in the High Court or theDistrict Court within the local limits of whose jurisdiction theinstrument may be. Order III C.P.C., deals with recognized agentsand pleaders. Rule 1 thereof enables the recognized agent to makeappearance, application or act in any court. Rule 2 explainsrecognized agents as “agents of parties by whom suchappearances, applications and acts may be made or done”. Theseare the persons holding POA authorizing them to make anapplication and act on behalf of such parties. Section 2(a) of theAdvocates Act defines, “Advocate” to mean an advocate enteredin any roll under the provisions of the said Act. Section 2(15) ofthe CPC defines “Pleader” to mean any person entitled to appearand plead for another in court.

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18. After referring to the provisions of Advocates Act and theRules made by the High Court and the circulars issued, this Courtin Madupu Harinarayana’s case (supra) held that all thepleadings in the proceedings should be made by party in person asrecognized agents. A party in person, and a recognized agent,have to make an appointment in writing (vakalatnama) dulyauthorizing the advocate to appear and argue the case. Only anadvocate entered on the rolls of the Bar Council of Andhra Pradesh,who has been given vakalat and which has been accepted bysuch advocate, can have the right of audience on behalf of theparty, or his recognized agent, who engaged the advocate. Section32 of the Advocates Act empowers the Advocate to permit anynon-advocate to appear in a particular case. This means that any AB

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person has to seek prior permission of the Court to argue the caseif he is not Advocate enrolled under the Advocates Act.

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19. From the above observations made, it is clear that Section 32of the Advocates Act empowers the court to permit any non-advocate to appear in a particular case after seeking priorBpermission of the court to argue a case if he is not an Advocate.It would be appropriate to extract Section 32 of the Act which isas under:

“32. Power of Court to permit appearances in particularcases.—Notwithstanding anything contained in this Chapter,any court, authority, or person may permit any person, notenrolled as an advocate under this Act, to appear before it orhim in any particular case.”

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20. Prima-facie, a reading of the above provision vis-à-vis thelaw laid down by the Division Bench show that it is only theDAdvocate, who has enrolled under the provisions of the AdvocatesAct, has the right of practice in any court. Any violation of thesame would amount to committing the offence under Section 35of the Evidence Act.

21. In the instant case, the wife of the plaintiff, who is representingher husband, intends to examine the witness as a G.P.A. holder.She is not arguing the matter as an Advocate for the plaintiff norshe is cross-examining the witness as a lawyer for the first plaintiff,though she is a lawyer practicing in the said court.

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22. Though the judgment in C.R.P.No.6924 of 2018 between theFsame parties held that there is no bar for the petitioner to participatein the trial, but the Division Bench judgment of this Court prohibitsparticipation by the G.P.A. Holder. The same was not brought tothe notice of the learned Judge. As observed by me earlier, theDivision Bench of this Court categorically held that the G.P.A.holder cannot plead and/or argue for his principal.If a person,Gother than an Advocate enrolled on the rolls of the Bar Council,appears in the Court it is an offence punishable under law.

23. It may be true that the respondent herein, who is also anAdvocate, is doing the case of her husband as a General Powerof Attorney holder. It may also be true that the same may notcause much prejudice to the petitioners. But, in view of the judgment H

of the Division Bench of the combined High Court, C.R.Ps. areallowed, however, giving liberty to the respondent to conduct thecase as an Advocatesince she is a practicing Advocate as well.

24. There shall be no order as to costs. Miscellaneous Petitionspending if any in these revisions shall stand closed.”

(emphasis supplied)

5. A long deal of arguments has been advanced before us in theseappeals preferred against the order so passed by the High Court. It hasbeen contended on behalf of the appellant that the High Court has totallymisdirected itself and has failed to consider that the issue in questionrelating to the appearance of wife of the appellant as his GPA holderstood concluded in these proceedings by virtue of the previous orders ofthe High Court dated 20.04.2018 and 14.12.2018; and such an issuecould not have been re-opened at all, for operation of the doctrine of resjudicata. In the other limb of submissions, it has been argued on behalfof the appellant that the wife of the appellant has a right to conduct thelegal proceedings as his GPA holder; and there is no explicit bar underany law which prevents the wife of the appellant to act as his GPAholder merely for her being an enrolled advocate. On the other hand, ithas been contended on behalf of the contesting respondent that theprevious orders between the parties granting permission to the wife ofthe appellant to conduct the cases do not attract the doctrine of resjudicata, for having been passed in ignorance of the statutory directionsin Section 32 of the Act of 1961. In the other segment, it has beenargued on behalf of the contesting respondent that as an officer of theCourt, an advocate cannot plead or cross-examine without filing avakalatnama and the jurisprudence of this Court as also of the HighCourts does not allow an advocate to appear as a power of attorneyholder. Various authorities have been cited by the learned counsel forthe parties in support of their respective contentions; we shall deal withthe relevant of them at the appropriate juncture hereafter.

6. Having regard to the background aspects and the rivalcontentions, we may, first of all, take up the issue of res judicata beforemoving to any other issue raised in these appeals.

7. Learned counsel for the appellant has contended, with referenceto various decisions including that in the case of Y.B. Patil & Ors. v.Y.L. Patil: (1976) 4 SCC 66, that the doctrine of res judicata is A

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Aattracted not only in separate subsequent proceedings but also atsubsequent stage of the same proceedings and hence, the concludedorders passed earlier in these proceedings are binding on the parties.The learned counsel has argued that the issue as regards conduct of thecase by the wife of the appellant on his behalf and in her capacity asGPA holder has attained finality in these proceedings with the concludedBorders dated 20.04.2018 and 14.12.2018 as passed by the High Courtand such an issue cannot be reopened at the subsequent stage of thesevery proceedings. It has been contended, with reference to the severaldecisions, including that in the case of Gorie Gouri Naidu (Minor) v.Thandrothu Bodemma: (1997) 2 SCC 552, that even an erroneousCdecision, if rendered between the same parties, binds them if the samehad been decided by a Court of competent jurisdiction. The learnedcounsel has also referred to the decision in Makhija Construction &Engg. (P) Ltd. v. Indore Development Authority: (2005) 6 SCC 304as regards the distinction between a precedent and the operation of thedoctrine of res judicata; and to the decision in S. Nagaraj (Dead) byDLrs. & Ors. v. B.R. Vasudeva Murthy & Ors.: (2010) 3 SCC 353 tosubmit that the orders as passed in this matter by the High Court on20.04.2018 and 14.12.2018 cannot be ignored even on the principles ofper incuriam because those principles have relevance to the doctrineof precedents but have no application to the doctrine of res judicata.

E8. It has, however, been strenuously argued by the learned seniorcounsel for the contesting respondent that the said orders dated20.04.2018 and 14.12.2018 cannot operate as res judicata becausetherein, the Court had misapplied the procedural law and had not takeninto consideration the impact of Section 32 of the Act of 1961. In this Fregard, a 3-Judge Bench decision of this Court in the case of MathuraPrasad Bajoo Jaiswal & Ors. v. Dossibai N. B. Jeejeebhoy: (1970)1 SCC 613 has been strongly relied upon. It has been contended thatthe principles in Mathura Prasad (supra) would apply to both thequestions of jurisdiction as well as the situations where a decision of theCourt sanctions something which is illegal. The learned counsel wouldGsubmit that Section 32 of the Act of 1961 entitles only the non-advocatesto seek permission of the Court to plead on behalf of any party and thesame permission cannot be sought by an advocate. The contention hasbeen that the previous orders of the High Court, having ignored theimport and effect of Section 32 of the Act of 1961, do not operate as resHjudicata in the current proceedings. Another decision of this Court in the case of Allahabad Development Authority v. Nasiruzzaman &Ors.: (1996) 6 SCC 424, has also been cited to contend that this Courthas clarified the law that where the consequence of giving effect to resjudicata would be of enforcing an order standing contrary to statutorydirection or prohibition, the doctrine of res judicata has no applicability.

9. The basic principles of res judicata are generally specified inthe principal part of Section 11 of the Code of Civil Procedure, 1908which reads as under:- “11. Res judicata. —No Court shall try any suit or issue in whichthe matter directly and substantially in issue has been directly andsubstantially in issue in a former suit between the same parties, orbetween parties under whom they or any of them claim, litigatingunder the same title, in a Court competent to try such subsequentsuit or the suit in which such issue has been subsequently raised,and has been heard and finally decided by such Court.”

9.1. The doctrine of res judicata, having a very ancient history,embodies a rule of universal law and is a sum total of public policyreflected in various maxims like ‘res judicata pro veritate occipitur’,which means that a judicial decision must be accepted as correct; and‘nemo debet bis vexari pro una et eadem causa’, which means thatno man should be vexed twice for the same cause. The ancient historyof this doctrine and its consistent recognition could well be underscoredwith reference to the following statement of law in the case ofSheoparsan Singh and Ors. v. Ramnandan Prasad Narayan Singhand Ors.: A.I.R. 1916 Privy Council 78: - “…But in view of the arguments addressed to them, their Lordshipsdesire to emphasise that the rule of res judicata, while foundedon ancient precedent, is dictated by a wisdom which is for alltime.

“ ‘It has been well said,’ declared Lord Coke, ‘interestreipublicoe ut sit finis litium, otherwise great oppression mightbe done under colour and pretence of law’ “.-(6 Coke, 9 A.)

Though the rule of the Code may be traced to an English source,it embodies a doctrine in no way opposed to the spirit of the lawas expounded by the Hindu commentators. Vijnanesvara andNilakantha include the plea of a former judgment among thoseallowed by law, each citing for this purpose the text of Katyayana, A

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Awho escribes the plea thus: “If a person though defeated at lawsue again he should be answered, ‘You were defeated formerly.This is called the plea of former judgment.”[See “TheMitakshara(Vyavahara),” Bk. II, ch. I, edited by J. R. Gharpure,p. 14, and “The Mayuka,” Ch. I, sec. 1, p. 11 of Mandlik’s edition.]

BAnd so the application of the rule by the Courts in India should beinfluenced by no technical consideration of form, but by matter ofsubstance within the limits allowed by law.”

9.2. The contours of this doctrine of res judicata and its applicationCcould be taken into comprehension by a reference to the ConstitutionBench decision of this Court in the case of Daryao and Ors. v. State ofU.P. and Ors.: AIR 1961 SC 1457. In that case, after the writ petitionsfiled before the High Court of Allahabad under Article 226 of theConstitution of India were dismissed, the petitioners filed substantiveDpetitions in this Court under Article 32 of the Constitution of India for thesame relief and on the same grounds. In such petitions, this Court upheldthe objection that the decision of the High Court would operate as resjudicata while observing, inter alia, as under: - “(9) But, is the rule of res judicata merely a technical rule or is itEbased on high public policy? If the rule of res judicata itself embodiesa principle of public policy which in turn is an essential part of therule of law then the objection that the rule cannot be invokedwhere fundamental rights are in question may lose much of itsvalidity. Now, the rule of res judicata as indicated in S. 11 of theCode of Civil Procedure has no doubt some technical aspects, forFinstance the rule of constructive res judicata may be said to betechnical; but the basis on which the said rule rests is founded onconsiderations of public policy. It is in the interest of the public atlarge that a finality should attach to the binding decisionspronounced by Courts of competent jurisdiction, and it is also inGthe public interest that individuals should not be vexed twice overwith the same kind of litigation. If these two principles form thefoundation of the general rule of res judicata they cannot be treatedas irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Art. 32.

(10) In considering the essential elements of res judicataone inevitably harks back to the judgment of Sir William B. Halein the leading Duchess of Kingston’s case, 2 Smith Lead Cas.13th Ed. pp. 644, 645. Said Sir William B. Hale “from the varietyof cases relative to judgments being given in evidence in civilsuits, these two deductions seem to follow as generally true: First,that the judgment of a court of concurrent jurisdiction, directlyupon the point, is as a plea, a bar, or as evidence, conclusivebetween the same parties, upon the same matter, directly inquestion in another court; Secondly, that the judgment of a courtof exclusive jurisdiction, directly upon the point, is in like mannerconclusive upon the same matter, between the same parties,coming incidentally in question in another court for a differentpurpose.” As has been observed by Halsbury, “the doctrine of resjudicata is not a technical doctrine applicable only to records; it isa fundamental doctrine of all courts that there must be an end oflitigation”, Halsbury’s Laws of England, 3rd Ed., Vol. 15, Paragraph357, p. 185. Halsbury also adds that the doctrine applies equally inall courts, and it is immaterial in what court the former proceedingwas taken, provided only that it was a court of competentjurisdiction, or what form the proceeding took, provided it was“”really for the same cause” (p. 187, paragraph 362).Res judicata,it is observed in Corpus Juris, “is a rule of universal law pervadingevery well regulated system of jurisprudence, and is put upon twogrounds, embodied in various maxims of the common law; theone, public policy and necessity, which makes it to the interest ofthe State that there should be an end to litigation — interestrepublicae ut sit finis litium; the other, the hardship on the individualthat he should be vexed twice for the same cause — nemo debetbis vexari pro eadem causa”, Corpus Juris, Vol. 34, p. 743…..

(11) The same question can be considered from anotherpoint of view. If a judgment has been pronounced by a court ofcompetent jurisdiction it is binding between the parties unless it isreversed or modified by appeal, revision or other procedureprescribed by law. Therefore, if a judgment has been pronouncedby the High Court in a writ petition filed by a party rejecting hisprayer for the issue of an appropriate writ on the ground eitherthat he had no fundamental right as pleaded by him or there hasbeen no contravention of the right proved or that the contravention AB

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is justified by the Constitution itself, it must remain binding betweenthe parties unless it is attacked by adopting the procedure prescribedby the Constitution itself. The binding character of judgmentspronounced by courts of competent jurisdiction is itself an essentialpart of the rule of law, and the rule of law obviously is the basis ofthe administration of justice on which the Constitution lays so muchemphasis.As Halsbury has observed: “subject to appeal and tobeing amended or set aside a judgment is conclusive as betweenthe parties and their privies, and is conclusive evidence against allthe world of its existence, date and legal consequences”Halsbury’s Laws of England, 3rd Ed., Vol. 22, p. 780 paragraph1660.

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9.3. It is also equally relevant to reiterate that Section 11 CPC isnot the foundation of the doctrine of res judicata but is merely thestatutory recognition thereof and, hence, is not considered exhaustive ofDthe general principles of law. This doctrine, it is recognised, is conceivedin larger public interest and is founded on equity, justice and goodconscience. These aspects were tersely put by this Court in the case ofLal Chand (dead) by L.Rs. and Ors. v. Radha Krishan: (1977) 2SCC 88 in the following words: -E“19. … The fact that Section 11 of the Code of Civil Procedure D

“19. … The fact that Section 11 of the Code of Civil Procedurecannot apply on its terms, the earlier proceeding before thecompetent authority not being a suit, is no answer to the extensionof the principle underlying that section to the instant case. Section11, it is long since settled, is not exhaustive and the principle whichmotivates that section can be extended to cases which do not fallFstrictly within the letter of the law.The issues involved in the twoproceedings are identical, those issues arise as between the sameparties and thirdly, the issue now sought to be raised was decidedfinally by a competent quasi-judicial tribunal. The principle of resjudicata is conceived in the larger public interest which requiresGthat all litigation must, sooner than later, come to an end. Theprinciple is also founded on equity, justice and good consciencewhich require that a party which has once succeeded on an issueshould not be permitted to be harassed by a multiplicity ofproceedings involving determination of the same issue….”

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9.4. It hardly needs any over-emphasis that but for this doctrineof res judicata, the rights of the persons would remain entangled inendless confusion and the very foundation of maintaining the rule of lawwould be in jeopardy. Even if this doctrine carries some technical aspects,as explained by this Court in Daryao (supra), it is in the interest of publicat large that a finality should attached to the binding decisions of theCourts of competent jurisdiction; and it is also in public interest thatindividual should not be vexed twice with the same kind of litigation. Asnoticed, the Constitution Bench has placed this doctrine on a high pedestal,treating it to be a part of rule of law.

9.5. Having taken into comprehension the object and frameworkof doctrine of res judicata, a few ancillary principles, relevant to thecase at hand, may also be usefully noticed.

9.5.1. The principle that the doctrine of res judicata is attractednot only in separate subsequent proceedings but also at subsequent stageof the same proceedings is hardly of any doubt or dispute. A 3-JudgeBench of this Court in the case of Y.B. Patil (supra), has terselyunderscored this principle of law in the following terms: - “4. …It is well settled that principles of res judicata can be invokednot only in separate subsequent proceedings, they also get attractedin subsequent stage of the same proceedings. Once an order madein the course of a proceeding becomes final, it would be binding atthe subsequent stage of that proceeding….”

9.5.2. It is also well-settled, as laid down in several decisions, thateven an erroneous decision remains binding on the parties to the samelitigation and concerning the same issue, if rendered between the sameparties by a Court of competent jurisdiction. In the case of Gorie GouriNaidu (supra), this Court, inter alia, said, “4…..The law is well settled that even if erroneous, an inter-party judgment binds the party if the court of competent jurisdictionhas decided the lis….”

9.5.3. In Makhija Construction & Engg. (P) Ltd. (supra), thisCourt also clarified the distinction between a precedent and the operationof the doctrine of res judicata in the following terms: - “19. …A precedent operates to bind in similar situations in a distinctcase. Res judicata operates to bind parties to proceedings for noother reason, but that there should be an end to litigation.”

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A9.5.4. In S. Nagaraj (supra), it was also made clear by this Courtthat binding decisions cannot be ignored even on the principles of perincuriam because those principles have relevance to the doctrine ofprecedents but have no application to the doctrine of res judicata.

10. For what has been noticed and discussed in the precedingBparagraphs, it remains hardly a matter of doubt that the doctrine of resjudicata is fundamental to every well regulated system of jurisprudence,for being founded on the consideration of public policy that a judicialdecision must be accepted as correct and that no person should be vexedtwice with the same kind of litigation. This doctrine of res judicata isattracted not only in separate subsequent proceedings but also at theCsubsequent stage of the same proceedings. Moreover, a binding decisioncannot lightly be ignored and even an erroneous decision remains bindingon the parties to the same litigation and concerning the same issue, ifrendered by a Court of competent jurisdiction. Such a binding decisioncannot be ignored even on the principle of per incuriam because thatDprinciple applies to the precedents and not to the doctrine of res judicata.

10.1. In true application of these principles, it would appear thatthe orders passed in these matters by the High Court on 20.04.2018 and14.12.2018, as regards the issue of participation of the wife of theappellant in these proceedings as a GPA holder of the appellant, remainEbinding on the parties and cannot be ignored. In other words, this issueconcerning the capacity of the wife of the appellant to participate inthese proceedings as his GPA holder cannot be agitated over again inthese very proceedings, even if the earlier orders granting such permissionto her are suggested to be erroneous.F11. However, learned senior counsel for the contesting respondenthas strenuously argued, with reference to the decisions in MathuraPrasad and Allahabad Development Authority (supra), that the saidorders dated 20.04.2018 and 14.12.2018 do not operate as res judicata.In view of the submissions made on behalf of the contesting respondent,we may examine the relevant features of the said cited cases in necessaryGdetails.

11.1. In the case of Mathura Prasad (supra), the appellantconstructed buildings for commercial or residential purposes on openland in pursuance of lease granted by the respondent. His application tothe Civil Judge for determination of standard rent was, however, dismissedH

on the ground that the Bombay Rents, Hotel and Lodging House RatesControl Act, 1947 did not apply to open land leased for the constructionof such buildings. A Single Judge of the Bombay High Court confirmedthis order in a group of revision applications. However, in the case ofVinayak Gopal Limaye v. Laxman Kashinath Athavale: ILR (1956)Bom 827, the Bombay High Court decided that a building lease in anopen plot was not excluded from Section 6(1) of the said Act of 1947.The view so taken by the Bombay High Court in Vinayak Gopal Limaye(supra) was affirmed by this Court in the case of Mrs. Dossibai N. B.Jeejeebhoy v. Hingoo Manohar Missa: (1962) 3 SCR 928. Relyingupon this judgment, the appellant filed a fresh petition in the Court ofSmall Causes, Bombay for an order determining the standard rent sincethe area was located within the limits of Greater Bombay. The TrialJudge rejected this application essentially on the consideration that thematter had already been decided between the same parties in the earlierproceedings for fixation of rent. The High Court affirmed the order sopassed and hence, the matter was in appeal before this Court.

11.1.1. In the aforesaid context, various features of the doctrineof res judicata were explained by this Court in the relied upon passageas follows: - “11. It is true that in determining the application of the rule of resjudicata the Court is not concerned with the correctness orotherwise of the earlier judgment. The matter in issue, if it is onepurely of fact, decided in the earlier proceeding by a competentCourt must in a subsequent litigation between the same parties beregarded as finally decided and cannot be reopened. A mixedquestion of law and fact determined in the earlier proceedingbetween the same parties may not, for the same reason, bequestioned in a subsequent proceeding between the same parties.But, where the decision is on a question of law i.e. the interpretationof a statute, it will be res judicata in a subsequent proceedingbetween the same parties where the cause of action is the same,for the expression “the matter in issue” in Section 11 of the Codeof Civil Procedure means the right litigated between the partiesi.e. the facts on which the right is claimed or denied and the lawapplicable to the determination of that issue. Where, however, thequestion is one purely of law and it relates to the jurisdiction of theCourt or a decision of the Court sanctioning something which is AB

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Aillegal, by resort to the rule of res judicata a party affected by thedecision will not be precluded from challenging the validity of thatorder under the rule of res judicata, for a rule of procedure cannot”supersede the law of the land.

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11.1.2. This Court held that in the given case, the earlier decisionof the Civil Judge that he had no jurisdiction to entertain the applicationfor determination of standard rent was plainly erroneous; and if such adecision was regarded as conclusive, ‘it will assume the status of aspecial rule of law applicable to the parties relating to theCjurisdiction of the Court in derogation of the rule declared by theLegislature’. Therefore, the operation of doctrine of res judicata wasruled out in that case.

11.2. In the case of Allahabad Development Authority (supra),the relevant aspects were that after a notification under Section 4(1) ofDthe Land Acquisition Act, 1894 (‘the Act of 1894’) for acquiring a largeextent of land for Transport Nagar Scheme, the enquiry under Section5-A was dispensed with in exercise of power under Section 17(1-A), asamended by the Legislature of the State; and possession of land in questionwas taken on 02.11.1977, whereby the land stood vested in the Stateunder Section 16 of the Act of 1894. However, the High Court passedEan order declaring that the acquisition proceedings stood lapsed byoperation of Section 11-A, which requires that after acquisition, an awardmust be made within a period of two years from the date of publicationof declaration and if no award is made within that period, the entireproceeding for acquisition of land would lapse. The same question wasFexamined by this Court in Satendra Prasad Jain v. State of U.P.: (1993)4 SCC 369 and Awadh Bihari Yadav v. State of Bihar: (1995) 6SCC 31, where it was held that Section 11-A of the Act of 1894 wouldnot apply to the cases of land acquisition under Section 17 wherepossession had already been taken and the land stood vested in the State.In the given context and while referring to a decision in the case ofGMunicipal Committee v. State of Punjab: (1969) 1 SCC 475, thisCourt held as under: - “6. In view of the above ratio, it is seen that when the legislaturehas directed to act in a particular manner and the failure to actresults in a consequence, the question is whether the previous H

order operates as res judicata or estoppel as against the personsin dispute. When the previous decision was found to be erroneouson its face, this Court held in the above judgment that it does notoperate as res judicata. We respectfully follow the ratio therein.The principle of estoppel or res judicata does not apply where togive effect to them would be to counter some statutory directionor prohibition. A statutory direction or prohibition cannot beoverridden or defeated by a previous judgment between the parties.In view of the fact that land had already stood vested in the Statefree from all encumbrances, the question of divesting does notarise. After the vesting has taken place, the question of lapse ofnotification under Section 4(1) and the declaration under Section6 would not arise. Considered from this perspective, originaldirection itself was erroneous and the later direction with regardto delivery of possession of the land, in consequence, was notvalid in law…..”

11.3. Thus, in the case of Mathura Prasad (supra), this Courtobserved that when the earlier decision on the question of jurisdictionwas erroneous, it could not be treated as conclusive, else it would assumea special status to rule of law applicable to the parties relating to thejurisdiction, in derogation of the rule declared by the legislature. InAllahabad Development Authority (supra), this Court was concernedwith operation of the statutory direction and inapplicability of the provisionsof lapsing of acquisition where possession was already taken and theland stood vested in the State. Simply put, in these cases, the doctrine ofres judicata has been held inapplicable in relation to the question ofjurisdiction and in relation to the question of statutory direction/prohibition.

12. The question in these appeals, therefore, is as to whether theprevious orders in relation to these proceedings, as passed by the HighCourt on 20.04.2018 and 14.12.2018 between the same parties and dealingwith the same issues relating to the capacity of the wife of the appellantin the present matters, could be said to be not conclusive and not operatingas res judicata because of any question of jurisdiction or of statutorydirection or prohibition.

13. What has been argued in this Court on behalf of the respondentsis that Section 32 of the Act of 1961 bars the advocates from seeking AB

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Apermission of the Court and this provision entitles only the non-advocatesto seek such permission to plead on behalf of any party. According tolearned counsel of the respondents, this provision has been ignored inthe previous decisions.

13.1. Section 32 of the Act of 1961 reads as under: -B“

“32. Power of Court to permit appearances in particularcases.—Notwithstanding anything contained in this Chapter, anycourt, authority, or person may permit any person, not enrolled asan advocate under this Act, to appear before it or him in anyparticular case.”C

14. We are unable to appreciate the contention which suggeststhat the said Section 32 creates a bar for the wife of the appellant toseek permission of the Court to appear on behalf of her husband in hercapacity as GPA holder because of she being an enrolled advocate. Theenabling provision of Section 32 of the Act of 1961, whereby any Court,Dauthority or person may permit any non-advocate to appear before it orhim in any particular case is difficult to be read as creating a correspondingbar in giving permission to a GPA holder of a party to represent thatparty as such, if the said GPA holder, during pendency of the proceedingsin the Court, gets enrolled as an advocate. In other words, there doesnot appear any statutory prohibition operating in the situation like that ofEpresent case, for which the existing GPA holder of a party cannot begiven permission to appear only as the GPA holder, even if he/she hasbeen enrolled as an advocate.

14.1. As noticed, the meaning, purport and effect of the previousconcluded orders of the High Court dated 20.04.2018 and 14.12.2018Fhad been clear and unambiguous that in these cases, wife of the appellantwould be entitled to appear only as the GPA holder and not as an advocate.We are unable to accept the submissions made on behalf of the contestingrespondent that the said orders by the High Court stand at conflict withany statutory bar or prohibition or they relate to any such mandatoryGprovision of law which is going to be violated.

14.2. Apart from the above, we are clearly of the view that evenif it be assumed for the sake of arguments that there had been any errorin the previous orders dated 20.04.2018 and 14.12.2018, those orders,having been rendered between the same parties and on the same issueof appearance of the GPA holder in the same proceedings, indeed operateHas res judicata.

14.3. In the peculiar facts and circumstances of the present case,where the only fortuitous event had been that wife of the appellant, whowas already acting as his General Power of Attorney holder, later ontook the degree in law and got herself enrolled as an advocate, the HighCourt had, in the previous rounds of proceedings, cautiously balancedthe requirements of law, particularly the requirements of CPC, the CivilRules of Practice in the State, and the Act of 1961 as also the rulesmade under the Act of 1961 by specifically providing that wife of theappellant shall appear only as his GPA holder and not as an advocate.No such question like that of jurisdiction or statutory prohibition arisesfrom the said orders dated 20.04.2018 and 14.12.2018 for which, theissue concluded thereby could be reagitated at the subsequent stage ofthese very proceedings by suggesting different interpretations.

15. At this juncture, we may also deal with the reason that hasprevailed with the High Court in the order impugned.

15.1. As noticed, the High Court has chosen to brush aside thesaid previous orders dated 20.04.2018 and 14.12.2018 by reproducing acouple of paragraphs of the Division Bench decision of that High Courtin the case of Madupu Harinarayana (supra) and by holding that byvirtue of the said decision, the GPA holder cannot plead or argue for hisprincipal. The High Court has reproduced the following two passages ofthe said decision in Madupu Harinarayana:

“28. A conspectus of Rules 1 and 2 of Order III of Code ofCivil Procedure, Section 2(a) and Sections 29, 30, 33, 34 of theAdvocates Act, Rule 2 of Section 34 Rules and Code of CriminalProcedure would show that all the pleadings in a proceeding shallbe made by the party in person, or by his recognized agent. Aparty in person, and a recognized agent, have to make anappointment in writing (vakaltnama) duly authorizing the advocateto appear and argue the case. Only an advocate entered on therolls of the Bar Council of Andhra Pradesh, who has been givenvakalat and which has been accepted by such advocate, can havethe right of audience on behalf of the party, or his recognizedagnet, who engaged the advocate. Sections 29 and 30 of theAdvocates Act make it clear that advocates are the onlyrecognized class of persons entitled to pract5ise law, and such anadvocate should have been enrolled as such under the AdvocatesAct. Section 32 of the Advocates Act empowers the court to ABC

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permit any non-advocate to appear in a particular case. This onlymeans that any person has to seek prior permission of the Courtto argue a case if he is not an advocate enrolled under theAdvocates Act. Further, it is an offence for a non-advocate topractice under the provisions of the Advocates Act. Section 45prescribes a sentence of six months imprisonment.

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31. The statutes and precedents are clear on the point. It isonly advocates, whose names are entered on the rolls of the stateBar Council, who have the right to practice in any Court. If aperson practices in any Court without any such authority, andwithout such an enrolment, it would be committing an offenceCunder Section 45 of the Advocates Act punishable withimprisonment for a term which may extend to six months.Therefore the GPA Sri T.D.Dayal is not entitled to appear andargue for the Appellant. He has no right of audience in this caseor any other case.”

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15.2. With respect, we are unable to endorse the approach of theHigh Court in this matter, particularly when reliance has been placed onthe decision in the case of Madupu Harinarayana (supra) withouttaking note of the basic facts and the background aspects in which thesaid decision was rendered by the Court. The appellant of the said matterEhad filed a suit for specific performance which was dismissed by theTrial Court. The decree of the Trial Court was affirmed by the HighCourt and then, even the petitions seeking leave to appeal were dismissedby this Court. Until that juncture, the appellant was being represented bya duly instructed counsel, an enrolled advocate. Thereafter, the appellantfiled a writ petition under Article 32 of the Constitution of India in thisFCourt. It was lodged under Order XVIII Rule 5 of the Supreme CourtRules, 1966 because no reasonable cause was made out justifying thereceipt of the writ petition. Then, IAs were filed by way of appeal againstthe Registrar’s order, which were also dismissed. In these cases, beforethis Court, one Mr. T.D. Dayal represented the appellant as his allegedGGPA holder, who also addressed certain communications to the Registryof the Court that were also duly replied. Thereafter, a writ petition wasfiled in the High Court and an affidavit in support thereof was filed bythe alleged GPA holder wherein, apart from the criticism of the judgmentof the Trial Court, even unfounded and unsubstantiated aspersions weresought to be cast on the High Court and on this Court. The said writH

petition was dismissed by the Single Judge of the High Court and then,the matter was before the Division Bench in appeal. The appeal wasalso conducted by the said alleged GPA holder. The Division Benchnoticed several features of the questionable dealings of the alleged GPAholder and it was also noticed that even the copy of GPA was not annexedto the writ petition or the writ appeal. The High Court found it to be avexatious litigation by an interloper and being a gross abuse of the processof Court while observing at the very beginning of the judgment as follows:- “2. After giving a very patient hearing to Mr. T.D. Dayal, andperusing various provisions of the Advocates Act, 1961 as well asthe decisions of the Supreme Court and of this Court in which hehimself figured either as a social activist or a GPA for parties tothe proceedings in the writ petitions, we are convinced that this isvexatious litigation. This is yet another instance of busybodiesand meddlesome interlopers resorting to filing frivolous casesbefore the highest Court of the State due to perceived injustice tothe community, or to the cause of a few gullible individuals whomthey represent…….”

15.3. The High Court also issued a slew of directions, includingthat of debarring the said alleged GPA holder from taking up anyproceedings in the Court and also registering Suo Motu Contempt casefor making unfounded and scurrilous remarks. We need not go into allthose details for the purpose of the present case; suffice it to observethat the said decision proceeded on its own peculiar facts and there hadbeen a marked distinction of the points arising in the said case from thepoint arising before the High Court in the present case. In MadupuHarinarayana (supra), the point for determination was as to whether aGPA holder, who was not enrolled as an advocate, was having a right toappear and plead before the Court, particularly when he has been foundto be involved in filing frivolous cases and making reckless remarksagainst the entire justice delivery system. In contrast, the point fordetermination in the present case before the High Court was as to whetherthe wife of the appellant, being his GPA holder and having been permittedto appear as such despite having been enrolled as an advocate duringthe pendency of proceedings, was not entitled to cross-examine thewitnesses. The said decision in Madupu Harinarayana, in any case,could not have been pressed into service to override the concluded andbinding decisions between the same parties in the same proceedings at aprevious stage.

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A16. For what has been discussed hereinabove, we are of the viewthat the aforesaid orders dated 20.04.2018 and 14.12.2018 operate asres judicata and create a bar in raising of the issue again as regardscapacity of the wife of the appellant in these matters. The High Courthas fallen in grave error in ignoring the said previous inter partes bindingdecisions.B

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17. In continuity with what has been observed hereinabove, weare impelled to observe, as has rightly been contended on behalf of theappellant, that in the order impugned, the High Court has mischaracterisedthe issue before it. As noticed, the High Court has proceeded to observethat the point for determination in the matter was as to ‘whether theCGPA holder of the plaintiff can be permitted to act like a counseland cross-examine witnesses’. It has been pointed out on behalf of theplaintiff-appellant that his GPA holder (wife) never attempted to act likean advocate and to cross-examine the witnesses in that capacity. In theearlier rounds of proceedings, the High Court had specifically orderedDthat the wife of the appellant would only act as power agent of appellantand not in her professional capacity as an advocate. In view of theabove and in view of the objections thereafter raised by the contestingrespondent, the point for determination, in essence, before the Courtwas as to whether the wife of the appellant, being his GPA holder, wasnot entitled to cross-examine the witnesses, as captured by the TrialECourt in paragraph 5 of its order dated 07.02.2019. The Trial Court hadalso noticed the objections of the contesting respondent that the wife ofthe appellant, being a GPA holder, could only engage a lawyer but couldnot participate in the Trial Court and examine the witnesses or argue thematter. It was contended that though she was permitted to attend theFsuit proceedings in-person, it did not confer her with the authority ofdoing any such act which only a legal practitioner would do. The TrialCourt had rightly overruled such objections, particularly with referenceto the previous orders passed by the High Court.

17.1. Moreover, the errors on the part of the High Court in thisGcase are not confined to the erroneous framing of the point fordetermination and erroneous application of the decision in MadupuHarinarayana (supra). In fact, reference to the previous orders dated20.04.2018 and 14.12.2018 by the High Court in the background narrativehad also been incomplete and rather incorrect. It is noticed that inparagraph 13 of the order impugned, the High Court read as if the previousH

orders dated 20.04.2018 and 14.12.2018 stopped at observing that thetwo capacities, of GPA holder and advocate, cannot be combined.However, further to that, in the said orders dated 20.04.2018 and14.12.2018, the High Court had precisely noticed that the wife of theappellant was appearing only as a power agent and the orders of theTrial Court were confirmed while clarifying that she would appear in-person as a power agent and will not appear in her professional capacity.This later part of the substance of the both the orders dated 20.04.2018and 14.12.2018 appears to have not gone into the requisite considerationof the High Court.

18. Thus, it is apparent that the High Court has viewed the entirecase from an altogether wrong angle, i.e., by misdirecting itself on thereal point for determination; by not taking into comprehension the meaning,purport and effect of the previous binding orders dated 20.04.2018 and14.12.2018 between the same parties in the same proceedings; and bymisapplication of the Division Bench decision of the same High Court.This misdirected approach has resulted in the High Court ignoring thedoctrine of res judicata and issuing such directions which are squarelyopposite to the directions contained in the previous binding orders.

19. For what has been discussed and held hereinabove, theimpugned order dated 28.06.2019 cannot sustain itself and is required tobe set aside.

20. The discussion until this juncture is itself sufficient to concludethis matter. However, before closing, we may refer to a few other featuresof the case.

20.1. A long deal of arguments has been made on behalf of therespondents in this case on the point that as an officer of the Court, anadvocate cannot plead or cross-examine without vakalatnama; and asregards the impact of Bar Council Rules, particularly on the standardsof professional conduct and etiquettes. Several decisions have been citedto submit that the jurisprudence of this Court and the High Court doesnot allow advocates to appear as Power of Attorney holders. In ourview, all such contentions remain entirely inapposite to the facts of thepresent case for the simple reason that the matter in issue standsconcluded by the previous decisions by the Trial Court and then by theHigh Court. We are unable to find the said decisions operating in anymanner against statutory mandate. Various contentions that the wife of AB

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Athe appellant being an advocate is likely to face the position of conflict ofinterest and her disability to act as an advocate in the matter in whichshe is likely to have direct pecuniary interest, are all rather unnecessarywhen viewed in the light of facts that as per the binding orders passed inthese cases, wife of the appellant would be appearing only as GPA holderand not as an advocate.B

20.2. In view of the above, we need not dilate on the othercontentions urged on behalf of the contesting respondent and counterthereto by the learned counsel for the appellant. However, we may takenote of an apprehension suggested in the submissions made on behalf ofthe respondent that if the operation of Section 32 of the Act of 1961 isCnot confined to non-advocates, it may additionally create scope forunscrupulous advocates, who might have been suspended from practiceor might be engaged in other malpractices as per the Bar Council ofIndia Rules, to circumvent the legal consequences by appearing as powerof attorney holders. This line of submissions is rather unnecessary andDoverexpansive; and it does not correlate with the real matter in issuebefore us. However, we may observe that the permission under Section32 of the Act of 1961, by its very nature, is to be granted on case-to-case basis and could also be refused with reference to the given set offacts and circumstances referable to a particular case and any particularperson. In any case, for all the features and factors of the present case,Ethis line of submissions carries no relevance and does not require anyfurther comment.

21. For what has been discussed hereinabove, these appealssucceed and are allowed; the impugned common order dated 28.06.2019is set aside; and the orders passed by the Trial Court dated 07.02.2019Fare restored.

21.1. The costs of this litigation in this Court shall follow the decisionin the main proceedings by the Trial Court.

GDivya Pandey and Anurag Bhaskar(Assisted by : Ajay, LCRA)

Appeals allowed.

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