- (1.) THESE two revision applications can conveniently be disposed of by one judgment as the same question of law arises in them. That question in whether a recognised agent of a party can cross-examine a witness of the opposite party.
(2.) IN both the cases a hand-writing expert was examined on behalf of one party and the permission of the court was sought for his cross-examination by another hand-writing expert on behalf of the other party holding a power of attorney. The permission was refused by the Senior Civil Judge, Jaipur City, in one case (Civil Revision No. 521/1964), but was granted by the District Judge, Jaipur City, in. the other case (Civil Revision No. 18 of 1965 ). Order 3, Rule 1 C. P. C. lays down that any appearance, application or act in or to any court, required or authorised by law to be made or done by a party in such court may, except where otherwise expressly provided by any law for the time being in force, be made or done by his recognised agent or by a pleader appearing, applying or acting, as the case may be, on his behalf. Persons holding powers of attorney authorising them to make and do such appearance, applications and acts on behalf of a party are included in the term "recognised agents" under order 3, rule 2 C. P. C. Order 3, rule 4 runs as follows: - "appointment of pleader - (1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorised by or under a power-of-attorney to make such appointment. (2) Every such apppintment shall be filed in Court and shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in-Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client. (3) For the purposes of sub-rule (2) an application for review of judgment, an application under sec. 144 or sec. 152 of this Code, any appeal from any decree or order in the suit and any application or act for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or of obtaining refund of monies paid into the court in connection with the suit shall be deemed to be proceedings in the suit. (4) The High Court may, by general, order, direct that where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the order. (5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless, he has filed in Court a memorandum of appearance signed by himself and stating - (a) the names of the parties to the suit, (b) the name of the party for whom he appears, and (c) the name of the person by whom he is authorised to appear : Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in court on behalf of such party. " A perusal of the above provisions of the Code goes to show that a recognised agent of a party can cross-examine a witness of the opposite party, if this amounts to "acting". If on the other hand it amounts to "pleading" then only the party himself or his pleader can do so. There is conflict of judicial opinion on the point. The earliest reported case is that of Thunnudeo Raghvi Vs. Baldeo Raghvi (1) in which Clarke, J. of the Nagpur High Court held that examining a witness or cross-examining witness a does not fall under the category of pleading", but falls in the category of "acting". The next case is the decision of Teja Singh, J. in G. G. in Council vs. Bhagwan Sahai (2) in which the same view was taken. The learned Judge observed in para 9 - "what the recognised agent merely wanted to was to cross-examine the witnesses for the other side and then to examine the witnesses of his principal and I find it difficult to hold that this was tantamount to pleading. The Lahore case - Bashir Ahmad vs. Mrs. Mary Minck (3) does not help the respondent either. On the other hand it helps the petitioner inasmuch as it was held therein that the terra 'acting' was wide enough to include 'applying'. By applying the analogy I am inclined to think that it should also include all acts which one is expected to take for the proper conduct of the case. The reasons why 'pleading' stands on a different footing from 'acting' are given in the cases mentioned above and the most important of them is that it is regarded as a special privilege of pleaders and the intention of the Legislature appears to be that they should not be usurped by private persons. No such considerations can apply in case of the right to cross-examine or ting the Litigation Inspector of the North Wes-examine witnesses. I therefore, hold that Judge tern Railway to cross-examine and examine the of the Court below acted wrongly in not permit- witnesses. " The next reported case is the decision in Pannalal vs. Deoji Dhanji (4) in which Samvatsar, J. of the Madhya Bharat High Court took the view that examining and cross-examining witnesses are not included in the words appearance, application or act" used in O. 3, r. 1. He observed - "examination of witnesses and cross-examination requires special skill and training and also discussion of questions of relevancy and admissibility of the evidence. Questions often arise during the examination of wittnesses regarding relevancy and admissibility of evidence and persons in charge of the case of the parties are required to address the Court and argue the points raised. It cannot therefore be said that for conducting examination of witnesses there is no need to claim an audience or to address the Court. If therefore a recognised agent has no right to address the Court, it is difficult to understand how he can be allowed to examine or cross-examine witnesses. " The above are the only three reported decisions on the point. An obiter observation was made by Chagla, C. J. in A. S. Patel vs. National Rayon Corporation (5) on this point which may also be referred to here. The petitioner in that case gave a general power of attorney to one Shambhuprasad in a civil revision application and this Shambhu Prashad wanted to address arguments on behalf of his client and the question which arose for decision was whether a constituted attorney has the right of audience in the High Court on behalf of the party - "the contention put forward by Bengeri before me is that 'pleading' is included in the expression 'appearance, application or act in or to any Court'. In my opinion it is any of these expressions. The right of audience in Court, the right to address the Court, the right to examine and cross-examine witnesses, are all parts of pleading with which O. III does not deal at all. It deals with restricted class of acts in connection with the litigation in Court and it is with regard to that restricted class of act that O. III permits recognised agents to be appointed. . . . . . . . . . . . . Mr. Bengeri has drawn my attention to a recent decision of the East Punjab High Court in - G. G. in Council vs. Bhagwan Sahai (2 ). There the learned Judge Mr. Justice Teja Singh took the view that a recognised agent had the right on behalf of the party to examine and cross-examine witnesses. The learned Judge conceded that pleading was quite different from acting and that O. III did not deal with pleading. But he took the view that examining and cross-examining witnesses was part of acting and not part of pleading. With respect, I find myself unable to agree with the learned Judge. But as far as the right of audience is concerned, there can be no doubt that it is a part of pleading and not a part of acting. " I have carefully considered the above decisions. I am respectfully in agreement with the view taken by Teja Sihgh, J. I regret I am unable to subscribe to the view that examining or cross-examining a witness is a part of 'pleading'. To plead means to argue in support of a cause. In other words 'pleading' only means addressing the court. An examination of the language of sec. 119 of the Code of Civil Procedure goes to show that the authors of the Code made a distinction between addressing the court and examining witnesses in court. If it were the intention of the framers of the Code that no one except the party himself or his pleader should examine or cross-examine witnesses, this intention would have been expressed by the use of appropriate words. For, literally speaking examining and cross-examining witnesses is 'acting' and not 'pleading'. Under order 3, rule 4 (5) a pleader can plead without filing a Vakalatnama. But no pleader is allowed to examine or cross-examine witnesses unless he has filed his Vakalatnama. This is obviously because examination and cross-examination of witnesses amounts to 'acting', and order 3 rule 4 (1) lays down that no pleader shall act for any person in any court unless he has been appointed by such person by a document in writing, that is by a Vakalatnama. I therefore hold that a recognised agent of a party is entitled to examine and cross-examine witnesses. I accordingly allow Civil Revision No. 521 of 1964, set aside the order of the Senior Civil Judge and direct him to allow the handwriting expert in whose favour the party has executed a special power of attorney to cross-examine the hand-writing expert of the opposite party. I dismiss Civil Revision No. 18/65. In the circumstances of the case, I direct that parties shall bear their own costs of these two revision applications. . ;