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Report No. 27

Order III, rule 4

Several points have been considered under Order HI, rule 4 which deal with the mode of appointment of pleaders, powers and the form of the appointment. These are as follows:-

(a) Sub-rule (1).-According to the Madras Amendment, where a person appoints a pleader, the document must be "subscribed with his signature in his own hand". This does not appear to be necessary.

(b) Sub-rule (2).-The question whether the appointment should be accepted by the pleader in writing has been considered. Such a requirement was contained in the old rule 2, and was removed by the Amendment Act 22 of 1926.1 No change is considered necessary on this point.

(c) Sub-rule (3) provides that certain applications and proceedings, mainly applications for review, appeal, and applications for copies or refund, etc., are deemed to be "proceedings in the suit", so that the provision in sub-rule (2) providing that the appointment of pleader continues until the "proceedings in the suit" are ended, is attracted. Now, one suggestion which has been made is that a pleader should not be allowed to act, etc., in the High Court (in appeal, etc.), on the basis of the authority filed by him in the lower court, and that he should file a fresh appointment in the High Court. It has been stated, that until the records of the lower court are called for, it becomes difficult to check up whether the pleader appearing in the High Court had in fact filed his authority in the lower court.

The Patna High Court has added a rule on the subject2, whereunder, a pleader shall not act for any person in the High Court unless his appointment has been filed in the High Court. It is, however, considered that no such change is necessary. Counsel's statement in the High Court that he has filed his authority in the lower court can ordinarily be relied upon.

While "appeals" are mentioned in the sub-rule, applications relating to appeals are not mentioned. It is accordingly considered desirable to mention these specifically.3

There is some conflict of decisions on the point whether an authority filed by a pleader in the suit continues to be valid for the purposes of revision. One view is that the power to file an appeal includes the power to file a petition or revision.4 But a contrary view has also been taken.5 It is therefore considered desirable to add revisions also.

Another question that has arisen under sub-rule (3) is, whether applications under Order IX, rule 9 or under Order IX, rule 13 are proceedings in the suit. As regards applications for restoration of suit after dismissal for default (Order IX, rule 9), one view is that they are proceedings in the suit.6-7

But a contrary view has also been taken.8-9

Regarding applications for setting aside ex parte decrees (Order IX, rule 13) one view is that a fresh authority is not necessary.10 But some doubt is thrown by one decision.11

It is considered unnecessary to insert any express provision in this behalf. (An amendment on the subject has been made by the Kerala High Court.12)

(d) Sub-rule (6).-(Local Amendments)

Sub-rule (6) has been inserted by several High Courts13, to provide, in effect, that a Government pleader appearing on behalf of the Government or on behalf of any public servant sued in his official capacity shall not be required to present any document empowering him to act, but that such pleader shall file a memorandum of appearance signed by himself and stating the names of the parties, the name of the party for whom he appears and name of the person by whom he is authorised to appear. After some consideration, it is felt that no such provision is necessary.

It may be noted that three kinds of documents are provided for in respect of various situations by Order III, rule 4:-

(i) A pleader who is appointed by the party to in court, has to file a document in writing signed by the party, etc., under sub-rule (1)14, and pay necessary courtfees15.

(ii) A pleader who has been engaged for the purpose of pleading only has to file a memorandum for appearance signed by himself and stating the specified particulars under sub-rule (5). He need not file a power of attorney16.

(iii) A pleader who has been engaged for pleading only, by any other pleader (who himself has been duly appointed to act on behalf of the party concerned) need not, under the proviso to sub-rule (5), file the memorandum of appearance.

1. The present position is discussed in Abdul Rauf v. Nani Bai, AIR 1955 Nag 276.

2. Order 3, rule 5B Patna Amendment.

3. Compare the Bombay Amendment to Order 3, rule 4(3).

4. J.P. Ojha v. R.R., AIR 1962 All 485.

5. Mool Chand v. Ram Babu, AIR 1961 MP 323.

6. Panna Lal v. Balla Ram, AIR 1957 Raj 391 (Reviews the case-law).

7. Abdul Aziz v. Punjab National Bank Ltd., AIR 1929 Lah 96 (Jai Lal.

8. Hyderabad Import and Export Corpn. v. United Trading Co., AIR 1958 AP 652.

9. See also Pavoo Rayil v. Kunhiman, (1955) 2 MIJ 124 (125).

10. Jwala v. Bhrigu, AIR 1944 All 238.

11. Krishna v. Ranganathan, AIR 1951 Mad 686 (2).

12. See Kerala Amendment to Order 3, rule 4(3).

13. See Madras, Kerala and Rajasthan Amendments, Order 3, rule 4(6).

14. Braja Behari v. Arun Coomar, ILR (1953) 2 Cal 309 (315).

15. Mammal Lal v. Parma Nand, AIR 1951 All 451.

16. Ramzan v. Copal Das, AIR 1936 Lah 199.

Order III, rule 5

This follows local amendments.1-2 The object is to make it clear that where service of a process is effected on a pleader, the pleader should have been appointed to act for the Party.

1. See the amendments made by High Courts of Andhra Pradesh, Bombay, Gujarat, Madhya Pradesh, Madras and Rajasthan.

2. See also Civil Justice Committee (1924-25), Report, p. 172, Chapter 10, para. 23.

Order III, rule 6

Under the Bombay Amendment, a party may be required by the Court to appoint an agent within the jurisdiction of the Court for accepting service of process, etc. This appears to be a useful provision, and has been adopted.

Order IV, rule 2

Order IV, rule 2 provides for the particulars to be entered in the Register of Civil Suits. The Calcutta Amendment makes an exception in respect of some suits triable by a Court of Small Causes. This seems to be a matter which can be best dealt with by local Amendments, and need not be adopted for the whole of India.



Code of Civil Procedure, 1908 Back




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