Code of Civil Procedure, 1908 (CPC)
Recognised Agents and Pleaders under Order III CPC: Appearance, Power of Attorney and Service
A party need not conduct his own litigation in person. Order III of the Code of Civil Procedure, 1908 permits appearances, applications and acts in court to be made by the party himself, by a recognised agent, or by a pleader, and it makes the acts of those representatives bind the party. The Order also settles a question that arises constantly in modern practice: how far a power-of-attorney holder may go, and in particular what he may and may not depose to as a witness. These notes cover the whole of Order III with the leading judgments, above all Janki Vashdeo Bhojwani.
1. Order III Rule 1: Appearance by Party, Agent or Pleader
§ Order III Rule 1, CPC 1908 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 the party in person, or by his recognised agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf: Provided that any such appearance shall, if the Court so directs, be made by the party in person. |
Three features of the rule deserve attention. It is permissive and general: whatever the law requires a party to do in court may be done through a representative, unless a law expressly provides otherwise. The exception for express provision matters, because several statutes and rules require personal appearance, notably for examination under Order X and for the recording of a compromise in some circumstances. And the proviso preserves the court's power to require the party himself to appear, which is exercised where the party's personal knowledge is needed or where representation would defeat the purpose of the step.
2. Who is a Recognised Agent: Rule 2
§ Order III Rule 2, CPC 1908 The recognised agents of parties by whom such appearances, applications and acts may be made or done are — (a) persons holding powers-of-attorney, authorising them to make and do such appearances, applications and acts on behalf of such parties; (b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorised to make and do such appearances, applications and acts. |
Clause (a) is the ordinary case: an attorney under a power of attorney that in terms authorises appearances, applications and acts in court. A general power of attorney for managing property or business does not automatically confer this authority; the instrument must be read to see whether it extends to litigation. Clause (b) covers the trade agent of a non-resident principal, and is doubly limited: it applies only in matters connected with that trade or business, and only where no other agent has been expressly authorised.
Service on a recognised agent: Rules 3 and 5
Rule 3 provides that processes served on a recognised agent are as effectual as if served on the party in person, unless the court otherwise directs, and that the provisions relating to service of process on a party apply to service on his recognised agent. Rule 5 carries the principle into the pleader's sphere: service of a process on a pleader who has been duly appointed to act for a party, or upon an agent of such pleader or a person left in charge of his office, is as effectual as if it were served on the party in person, unless the court otherwise directs. The scheme lets litigation proceed at the address of the representative, which is why Order VI Rule 14A requires the parties to register an address for service, and why a change of pleader must be intimated to the court.
3. Pleaders: Rule 4 and the Vakalatnama
§ Order III Rule 4, CPC 1908 (in substance) (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 appointment 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 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. (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 the particulars prescribed. |
The instrument of appointment is the vakalatnama, and Rule 4 draws a distinction of practical importance between a pleader engaged to act, who requires a written appointment filed in court and who can bind the client by acts done in the suit, and a pleader engaged to plead only, who files a memorandum of appearance and argues without being on record. By Section 2(15) a pleader includes an advocate, a vakil and an attorney of a High Court. Note also the continuity created by Rule 4(2): once filed, the appointment runs until it is determined with leave, or until death, or until the proceedings end, and the Explanation extends it to appeals and applications for review or revision, which is why an advocate on record remains answerable for notices long after the trial.
4. The Power-of-Attorney Holder in Civil Proceedings
A power-of-attorney holder may act for the principal, but acting and testifying are two different things, and the distinction has produced the most examined proposition in this Order. The authority to act is governed by Order III and by the terms of the instrument, read with the Powers-of-Attorney Act, 1882. The competence to give evidence is governed by the law of evidence, under which a witness may depose only to facts of which he has personal knowledge, and no authority under a power of attorney can convert another person's knowledge into his own.
📖 Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217 The appellants claimed a share in property on the basis of their own contribution to its purchase, and the evidence in support was given not by them but by their power-of-attorney holder, who had no personal knowledge of the facts deposed to. The Supreme Court held that Order III Rules 1 and 2 empower a holder of a power of attorney to act on behalf of the principal, but that the word acts does not include the giving of evidence in place of the principal. A power-of-attorney holder may depose about facts of which he has personal knowledge and about acts done by him in exercise of the power; he cannot depose about facts which are to the personal knowledge of the principal, and where the principal's own state of mind, conduct or personal transactions are in issue, the principal must enter the witness box. The appellants' failure to do so left the claim unproved. Rule: the leading authority on what a power-of-attorney holder may and may not depose to. Acting for a party is not testifying for him, and a claim resting on facts personally known to the principal fails if only the attorney gives evidence. |
Matter | May a power-of-attorney holder depose to it? |
|---|---|
Acts done by the attorney himself in exercise of the power | Yes, since they are within his personal knowledge |
Facts he personally witnessed or in which he participated | Yes, on the ordinary principle that a witness speaks to what he knows |
Facts within the personal knowledge of the principal alone | No. The principal must enter the witness box |
The principal's state of mind: intention, readiness and willingness, bona fides | No. These are personal to the principal and cannot be proved through an attorney |
Records and transactions handled by the attorney under the power | Yes, so far as he handled them and knows them |
§ Three practical rules on the power-of-attorney holder Read the instrument. Authority to appear in court must be found in the power of attorney itself; a power to manage property does not automatically authorise litigation. Acting is not testifying. He may sign, verify, file, appear and instruct; he cannot substitute himself for the principal as a witness on facts personal to the principal. Verification and affidavits. A pleading may be signed and verified by a duly authorised attorney under Order VI Rules 14 and 15, but the verification must state what is true to knowledge and what to information and belief, and a Section 26(2) affidavit by an attorney is confined to the facts he knows. |
5. Other Provisions of Order III
i. Rule 6: agent to accept service. A party may appoint an agent solely for the purpose of accepting service of process, by a written instrument filed in court, and the court may, where a party resides outside its jurisdiction and has no agent empowered to accept service, direct that service be made in the manner it thinks fit.
ii. Order VI Rule 14: signing of pleadings. Every pleading is signed by the party and by his pleader, and where the party is unable by absence or other good cause to sign, it may be signed by any person duly authorised by him to sign or to sue or defend on his behalf, which is how attorneys sign plaints.
iii. Order VI Rule 15: verification. Pleadings are verified by the party or by some other person acquainted with the facts, and Rule 15(3) requires the verifier to furnish an affidavit in support of his pleadings, a requirement mirrored in Section 26(2).
iv. Order XXIX and Order XXX. Suits by and against corporations and firms are signed and verified by the officers or partners the rules name, which is the corporate analogue of the recognised agent.
6. Landmark Judgments on Order III
- Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217. A power-of-attorney holder may depose only to facts within his personal knowledge and to acts done by him under the power, not to facts personal to the principal.
- Man Kaur v. Hartar Singh Sangha, (2010) 10 SCC 512. Restates and applies the rule: in a suit for specific performance, readiness and willingness being a matter personal to the plaintiff, an attorney cannot prove it, and the plaintiff must testify.
- Order III Rules 3 and 5. Service on a recognised agent or on a duly appointed pleader is as effectual as service on the party in person, unless the court otherwise directs.
- Order III Rule 4(2). A pleader's appointment continues until determined with leave, or until death, or until the proceedings end, and extends to appeals, review and revision.
7. Frequently Asked Questions on Order III CPC
Who may appear in a civil court on behalf of a party?
Under Order III Rule 1, any appearance, application or act required of a party may be made by the party in person, by his recognised agent, or by a pleader acting on his behalf, unless a law expressly provides otherwise, and subject to the court's power to require personal appearance.
Who is a recognised agent under the CPC?
Under Order III Rule 2, a person holding a power of attorney authorising him to make appearances, applications and acts on the party's behalf, and a person carrying on trade or business for a non-resident party in the names of that party, in matters connected with that trade or business only and where no other agent is expressly authorised.
Can a power-of-attorney holder give evidence for the principal?
Only within limits. Janki Vashdeo Bhojwani holds that he may depose to acts done by him under the power and to facts within his personal knowledge, but not to facts personal to the principal, including the principal's intention or state of mind. In such cases the principal must enter the witness box.
Is service on a pleader valid service on the party?
Yes. Under Order III Rule 5, service of a process on a pleader duly appointed to act for a party, or on his agent or a person left in charge of his office, is as effectual as service on the party in person, unless the court otherwise directs. Order III Rule 3 says the same for a recognised agent.
How is a pleader appointed under the CPC?
By a written document, the vakalatnama, signed by the party or by his recognised agent or by a person authorised under a power of attorney, and filed in court. A pleader engaged only to plead files a memorandum of appearance instead, and does not act on record.
How long does a pleader's appointment last?
Under Order III Rule 4(2), until it is determined with the leave of the court by a writing signed by the client or the pleader and filed in court, or until either dies, or until all proceedings in the suit are ended so far as regards the client, and the Explanation extends it to appeals and applications for review or revision.
8. Related Topics in This CPC Series
- Order IV: Institution of Suits and the Register of Civil Suits
- Issue and Service of Summons: Sections 27 to 29 and Order V
- Pleadings under Order VI: Rules, Verification and Amendment
- Institution of a Civil Suit: Section 26 and the Cause of Action