Doctrines/Principles – Doctrine of res judicata – Application of – Advocates Act, 1961 – s.32 – High Court held that it was not permissible for a GPA holder to participate in the proceedings, wife of the appellant (his GPA holder) was given liberty to act as an advocate on behalf of her husband, the plaintiff, in these cases – Correctness of – On appeal, held: Doctrine of res judicata is attracted not only in separate subsequent proceedings but also at subsequent stage of the same proceedings – A binding decision cannot lightly be ignored and even an erroneous decision remains binding on the parties to the same litigation and concerning the same issue, if rendered by a Court of competent jurisdiction – Such a binding decision cannot be ignored even on the principle of per incuriam because that principle applies to the precedents and not to the doctrine of res judicata – In the present case, the previous orders passed in these matters by the High Court on 20.04.2018 and 14.12.2018, as regards the issue of participation of the wife of the appellant in these proceedings as a GPA holder of the appellant, remain binding on the parties and cannot be ignored – The issue concerning the capacity of the wife of the appellant to participate in these proceedings as his GPA holder cannot be agitated over again in these very proceedings, even if the earlier orders granting such permission to her are suggested to be erroneous – The meaning, purport and effect of the previous concluded orders of the High Court dated 20.04.2018 and 14.12.2018 had been clear and unambiguous that in these cases, wife of the appellant would be entitled to appear only as the GPA holder and not as an advocate – Also, the enabling provision of s.32 of the 1961 Act, whereby any Court, authority or person may permit any non-advocate to appear before it or him in any particular case is difficult to be read as creating a corresponding bar in giving permission to a GPA holder of a party to represent that party as such, if the said GPA holder, during pendency of the proceedings in the Court, gets enrolled as an advocate – In the peculiar facts and circumstances of the present case, where the only fortuitous event had been that wife of the appellant, who was already acting as his General Power of Attorney holder, later on took the degree in law and got herself enrolled as an advocate, the High Court had, in the previous rounds of proceedings, cautiously balanced the requirements of law, particularly the requirements of CPC, the Civil Rules of Practice in the State, and the 1961 Act as also the rules made under it by specifically providing that wife of the appellant shall appear only as his GPA holder and not as an advocate – Further, no such question like that of jurisdiction or statutory prohibition arises from the said orders dated 20.04.2018 and 14.12.2018 for which, the issue concluded thereby could be reagitated at the subsequent stage of these very proceedings by suggesting different interpretations – Impugned common order dated 28.06.2019 is set aside; and the orders passed by the Trial Court dated 07.02.2019 are restored – Power of Attorney – Code of Civil Procedure, 1908 – s.11. Doctrines/Principles – Doctrine of res judicata – Object and framework of – ‘res judicata pro veritate occipitur’ - ‘nemo debet bis vexari pro una et eadem causa’ – Discussed.
Advocates Act, 1961 – s.32 – Power of Court to permit appearances in particular cases – Held: Permission u/s.32 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 of facts and circumstances referable to a particular case and any particular person.
Allowing the appeals, the Court
1.1 Section 11 CPC is not the foundation of the doctrine of res judicata but is merely the statutory recognition thereof and, hence, is not considered exhaustive of the general principles of law. This doctrine, it is recognised, is conceived in larger public interest and is founded on equity, justice and good conscience. It hardly needs any over-emphasis that but for this doctrine of res judicata, the rights of the persons would remain entangled in endless confusion and the very foundation of maintaining the rule of law would be in jeopardy. Even if this doctrine carries some ORS.
technical aspects, as explained by this Court in Daryao, it is in the interest of public at large that a finality should attached to the binding decisions of the Courts of competent jurisdiction; and it is also in public interest that individual should not be vexed twice with the same kind of litigation. As noticed, the Constitution Bench has placed this doctrine on a high pedestal, treating it to be a part of rule of law. The principle that the doctrine of res judicata is attracted not only in separate subsequent proceedings but also at subsequent stage of the same proceedings is hardly of any doubt or dispute. Even an erroneous decision remains binding on the parties to the same litigation and concerning the same issue, if rendered between the same parties by a Court of competent jurisdiction. [Paras 9.3, 9.4, 9.5.1, 9.5.2][478-D; 479A-B, D, F]
Daryao and Ors. v. State of U.P. and Ors. AIR 1961 SC 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 SCR 320; Gorie Gouri Naidu (Minor) v. Thandrothu
Bodemma (1997) 2 SCC 552 : [1997] 1 SCR 118 –
relied on.
1.2 It remains hardly a matter of doubt that the doctrine of res judicata is fundamental to every well regulated system of jurisprudence, for being founded on the consideration of public policy that a judicial decision must be accepted as correct and that no person should be vexed twice with the same kind of litigation. This doctrine of res judicata is attracted not only in separate subsequent proceedings but also at the subsequent stage of the same proceedings. Moreover, a binding decision cannot lightly be ignored and even an erroneous decision remains binding on the parties to the same litigation and concerning the same issue, if rendered by a Court of competent jurisdiction. Such a binding decision cannot be ignored even on the principle of per incuriam because that principle applies to the precedents and not to the doctrine of res judicata. In true application of these principles, it would appear that the orders passed in these matters by the High Court on 20.04.2018 and 14.12.2018, as regards the issue of participation of the wife of the appellant in these proceedings as a GPA holder of the appellant, remain binding on the parties and cannot be ignored. In other words, this issue concerning the capacity of the wife of the appellant to participate in these proceedings as his GPA holder cannot be agitated over again in these very proceedings, even if the earlier orders granting 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 to whether the previous orders in relation to these proceedings, as passed by the High Court on 20.04.2018 and 14.12.2018 between the same parties and dealing with the same issues relating to the capacity of the wife of the appellant in the present matters, could be said to be not conclusive and not operating as res judicata because of any question of jurisdiction or of statutory direction or prohibition. This Court is unable to appreciate the contention which suggests that the said Section 32 creates a bar for the wife of the appellant to seek permission of the Court to appear on behalf of her husband in her capacity as GPA holder because of she being an enrolled advocate. The enabling provision of Section
32 of the Act of 1961, whereby any Court, authority or person may permit any non-advocate to appear before it or him in any particular case is difficult to be read as creating a corresponding bar in giving permission to a GPA holder of a party to represent that party as such, if the said GPA holder, during pendency of the proceedings in the Court, gets enrolled as an advocate. In other words, there does not appear any statutory prohibition operating in the situation like that of present case, for which the existing GPA holder of a party cannot be given permission to appear only as the GPA holder, even if he/she has been enrolled as an advocate. The meaning, purport and effect of the previous concluded orders of the High Court dated 20.04.2018 and 14.12.2018 had been clear and unambiguous that in these cases, wife of the appellant would be entitled to appear only as the GPA holder and not as an advocate. The submissions made on behalf of the contesting respondent that the said orders by the High Court stand at conflict with any statutory bar or prohibition or they relate to any such mandatory provision of law which is going to be violated are not accepted. [Paras 12, 14, 14.1][483-G; 484C-G] ORS.
1.4 Apart from the above, even if it be assumed for the sake of arguments that there had been any error in the previous orders dated 20.04.2018 and 14.12.2018, those orders, having been rendered between the same parties and on the same issue of appearance of the GPA holder in the same proceedings, indeed operate as res judicata. In the peculiar facts and circumstances of the present case, where the only fortuitous event had been that wife of the appellant, who was already acting as his General Power of Attorney holder, later on took the degree in law and got herself enrolled as an advocate, the High Court had, in the previous rounds of proceedings, cautiously balanced the requirements of law, particularly the requirements of CPC, the Civil Rules of Practice in the State, and the Act of 1961 as also the rules made under the Act of 1961 by specifically providing that wife of the appellant shall appear only as his GPA holder and not as an advocate. No such question like that of jurisdiction or statutory prohibition arises from the said orders dated 20.04.2018 and 14.12.2018 for which, the issue concluded thereby could be reagitated at the subsequent stage of these very proceedings by suggesting different interpretations. [Paras 14.2, 14.3][484-GH; 485-A-C]
1.5 The aforesaid orders dated 20.04.2018 and 14.12.2018 operate as res judicata and create a bar in raising of the issue again as regards capacity of the wife of the appellant in these matters. The High Court has fallen in grave error in ignoring the said previous inter partes binding decisions. In the order impugned, the High Court has mischaracterised the issue before it. As noticed, the High Court has proceeded to observe that the point for determination in the matter was as to ‘whether the GPA holder of the plaintiff can be permitted to act like a counsel and cross-examine witnesses’. It has been pointed out on behalf of the plaintiff-appellant that his GPA holder (wife) never attempted to act like an advocate and to cross-examine the witnesses in that capacity. In the earlier rounds of proceedings, the High Court had specifically ordered that the wife of the appellant would only act as power agent of appellant and not in her professional capacity as an advocate. In view of the above and in view of the objections thereafter raised by the contesting respondent, the point for determination, in essence, before the Court was as to whether the wife of the appellant, being his GPA holder, was not entitled to cross-examine the witnesses, as captured by the Trial Court in paragraph 5 of its order dated 07.02.2019. The Trial Court had also noticed the objections of the contesting respondent that the wife of the appellant, being a GPA holder, could only engage a lawyer but could not participate in the Trial Court and examine the witnesses or argue the matter. It was contended that though she was permitted to attend the suit proceedings in-person, it did not confer her with the authority of doing any such act which only a legal practitioner would do. The Trial Court had rightly overruled such objections, particularly with reference to the previous orders passed by the High Court. [Paras 16, 17][488A-F]
1.6 The High Court has viewed the entire case from an altogether wrong angle, i.e., by misdirecting itself on the real point for determination; by not taking into comprehension the meaning, purport and effect of the previous binding orders dated 20.04.2018 and 14.12.2018 between the same parties in the same proceedings; and by misapplication of the Division Bench decision of the same High Court. This misdirected approach has resulted in the High Court ignoring the doctrine of res judicata and issuing such directions which are squarely opposite to the directions contained in the previous binding orders. The permission under Section 32 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 of facts and circumstances referable to a particular case and any particular person. The impugned common order dated 28.06.2019 is set aside; and the orders passed by the Trial Court dated 07.02.2019 are restored. [Paras 18, 20.2, 21][489C-D; 490-D-E; 491-F] Madupu Harinarayana @ Haribabu rep. by his G.P.A., T. D. Dayal v. 1st Additional District Judge, Kadapa and Ors. 2011 (2) ALT 405 (D.B.)- distinguished. Makhija Construction & Engg. (P) Ltd. v. Indore Development 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. ORS.
Sheoparsan Singh and Ors. v. Ramnandan Prasad
Narayan Singh and Ors. A.I.R. 1916 Privy Council 78; Mrs. Dossibai N. B. Jeejeebhoy v. Hingoo Manohar Missa [1962] 3 SCR 928; Satendra Prasad Jain v. State of 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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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