CR No.1664 of 2011 (O&M) [ 1 ] ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.1664 of 2011 (O&M) Date of decision:20.04.2011. Munish Sharda and another ...Petitioners Vs. Bhai Manbir Singh and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Anuj Raura, Advocate, for the petitioners. Mr. Rajbir Singh Guron, Advocate, for the respondents. ***** RAKESH KUMAR JAIN, J. The questions involved in this revision petition are as under: - i) Whether an advocate engaged by a party can authorize another advocate to appear for him if he is prevented by a reasonable cause from appearing and conducting the proceedings at any hearing? ii) Whether an advocate, who appears on behalf of another advocate engaged by a party, can only plead and cannot act on behalf of the said party without a document in writing in his favour? iii) Whether a sub-tenant cannot be ordered to be evicted only on the ground of non-payment of rent? A few facts are required to be noticed in order to find out answer to the aforesaid questions. Bhai Manbir Singh and Bhai Mandeep Singh CR No.1664 of 2011 (O&M) [ 2 ] ****** [hereinafter referred to as “landlords”] filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 [for short “the Act”] seeking eviction of M/s Good Luck Marketing Services Private Limited [hereinafter referred to as “tenant”], Munish Sharda and Aryans International [hereinafter referred to as “sub-tenants”] from the First Floor of SCO Nos.32-35, Sector 8-C, Madhya Marg, Chandigarh [hereinafter referred to as “demised premises”] on the ground of non-payment of rent. On 03.02.2009, the learned Rent Controller passed the following order: - “Present: Sh. Rajbir Singh Guraon, Advocate, Counsel for the petitioners. ***** Petition received by entrustment. It is checked and registered. Notice of the same be issued for 28.03.2009 to the respondents on filing of PF copy etc. Sd/- Sudhir Parmar CJ/RC/03.02.2009.” On 28.03.2009, the learned Rent Controller passed the following order: - “Present: Sh. Rajbir Singh Guraon, Advocate, Cl. for the petitioners. Sh. S.P.Chhatwal, Cl. for the respondent No.1. Sh. N.S.Bawa, Cl. for respondents No.2 & 3. ***** Respondent served through summons. Vakalatnamas filed on behalf of respondents No.1 to 3 by counsel named above. On request, to come up on 23.04.2009 for filing reply on behalf of all the respondents. Sd/- Sudhir Parmar CJ/RC/28.03.2009.” On 23.04.2009, the learned Rent Controller passed the following order: - “Present: Counsel for the parties. ***** WS on behalf of def. No.1 filed. Copy given. CR No.1664 of 2011 (O&M) [ 3 ] ****** WS on behalf of def. No.2 and 3 not filed. At request, adjourned to 12.06.2009 for filing WS on behalf of def. No.2 and 3. Sd/- CJ/RC/23.04.2009.” On 12.06.2009, the learned Rent Controller passed the following order: - “Present: As before. ***** File put up before me under the orders of Ld. District and Sessions Judge, Chandigarh, as the concerned PO has relinquished the charge. Now to come up on 18.08.2009 for the purpose already fixed. File be sent back to concerned Court immediately. Sd/- Civil Judge (Jr. Division)-cum-JMIC-Duty” On 18.08.2009, the learned Rent Controller passed the following order: - “Present: Counsel for the parties. ***** Written statement by def. No.2 & 3 not filed. A date is requested. Heard. Now to come up on 28.08.2009 for filing written statement by def. No.2&3.” Sd/- Sunil Kumar CJ(JD)/18.08.2009.” On 24.08.2009, i.e. 4 days before the date fixed, the learned Rent Controller passed the following order: - “Present: None. ***** File taken up today as I have to avail joining time from 25.08.2009 to 31.08.2009 and 30.08.2009 being Sunday. As such, case is adjourned to 28.10.2009 for the purpose already fixed. CR No.1664 of 2011 (O&M) [ 4 ] ****** Parties/counsel be informed accordingly. Date:24.08.2009. Sd/- Sunil Kumar CJ(JD)/RC/JMIC/Chandigarh” On 28.10.2009, the learned Rent Controller passed the following order: - “Present: Counsel for the parties. ***** Written statement by def. No.2 & 3 not filed. However, an application for striking off defence of def. no./respondent no.2 & 3 has been moved by counsel for petitioners. Heard. In view of the reason mentioned in the application as well as submissions, the defence of def/respondents No.2 & 3 is hereby struck off. Now to come up on 25.11.2009 for consideration. Sd/- Sunil Kumar CJ(JD)/RC/28.10.2009.” On 25.11.2009, the learned Rent Controller passed the following order: - “Present: Counsel for the parties. ***** Heard on the point of provisional assessment of rent to be tendered by the respondent. At this stage only a prima facie case is to be seen for the purpose of provisional assessment of rent. The respondent has not disputed the rate of rent as claimed by the petitioner. Therefore, the provisional rate of rent is assessed at the admitted/claimed rate of Rs.25,920/- for the period 01.04.2008 to 30.06.2008 and @ Rs.27,994/- w.e.f. 01.07.2008 to 31.12.2008 and onwards, with interest @ 6% per annum and cost Rs.1,000/-. Now to come up on 22.12.2009 for tendering rent CR No.1664 of 2011 (O&M) [ 5 ] ****** by the respondent. Sd/- Sunil Kumar RC/25.11.2009.” On 22.12.2009, the learned Rent Controller passed the following order: - “Present: As above. ***** A date is requested. Heard. To come up on 24.12.2009 for tendering of rent. Sd/- CJ/RC/22.12.2009.” On 24.12.2009, the learned Rent Controller passed the following order: - “Present: Counsel for the parties. ***** A perusal of the title reveals that vide order dated 25.11.2009 provisional rent was assessed and the case was adjourned to 04.12.2009 for tendering of provisional rent. However, on the request of respondent, not objected by the petitioner, the case was adjourned for today i.e. 24.12.2009 for tendering the provisional rent. But today the respondent has failed to tender the provisional rent. In Rakesh Wadhawan vs. M/s Jagdamba International Corporation, 2006 SC AIR page 2004, it has been held by the Hon'ble Supreme Court that the provisional rent as determined by the Controller shall be liable to be paid or tendered by the tenant on the first date of hearing falling after the date of preliminary/provisional order of controller. On the failure of the tenant to comply, nothing remains to be done and an order of eviction shall follow. Since the tenant/respondent has failed to comply the same, the law laid down in the judicial authority cited above squarely applies to the facts of the present case. Accordingly, in view of the law laid down CR No.1664 of 2011 (O&M) [ 6 ] ****** above, the respondent is liable to be ejected from the demised premises. Accordingly, the present petition is allowed with costs. The respondent is directed to vacate the demised premises within 2 months from today. Memo of costs be prepared and file be consigned to the record room after due compliance. Pronounced. Sd/- Sunil Kumar 24.12.2009. Rent Controller, Chandigarh.” The aforesaid order dated 24.12.2009 was challenged by the petitioners by way of statutory appeal in which it was alleged by them that they are tenants in the demised premises under the landlords at a monthly rent of `25,920/-. On receipt of the summons for 28.03.2009, they had engaged Kulwant Singh Bawa, Advocate [for short “K.S.Bawa”] to contest the eviction petition, who told the petitioners that since it was a matter of civil nature, therefore, their presence was not required on each and every date of hearing and he would inform them as and when the need would arise for the purpose of their appearance, as a result of which, the petitioners could not come present on each and every date of hearing and came to know on 30.03.2010 when the landlords threatened to take possession of the demised premises on the ground that an eviction order has already been passed against them. It is alleged that the petitioners rushed to the Court and found that their Advocate K.S.Bawa had already expired on 10.06.2009. Then, they engaged Anil Kumar Bhai, Advocate and had found that the presence of Narinder Singh Bawa, Advocate [for short “N.S.Bawa”] has been marked on each and every date of hearing even after the death of K.S.Bawa on 10.06.2009. It was further alleged that N.S.Bawa was not engaged by the petitioners to appear on their behalf and as such, his appearance before the learned Rent Controller on their behalf was inconsequential. However, the learned Appellate Authority dismissed the appeal vide its order dated 05.01.2011. The petitioners has, thus, filed the present revision petition in order to challenge the validity of order dated 28.10.2009 by which their defence was struck off, order dated 24.12.2009 by which they have been ordered to be evicted from the demised premises due to non-tendering of rent and order dated 05.01.2011 by which their appeal has CR No.1664 of 2011 (O&M) [ 7 ] ****** been dismissed by the learned Appellate Authority. Learned counsel for the petitioners has argued that since N.S.Bawa was never engaged by the petitioners as it is evident from the Power of Attorney available on record, which has been signed only by K.S.Bawa and two other advocates, namely R.K.Sharma and G.S.Sandhu, therefore, he had no authority to appear on behalf of the petitioners before the learned Rent Controller on 28.03.2009 and thereafter. It is submitted that the learned Rent Controller has committed a serious error of law in permitting a person not duly authorized by them to appear before it and acted upon the request made by him for the purpose of continuing the proceedings in which their defence was ultimately struck off because of the non-filing of written statement in time. He also submits that the learned Courts below have further erred in ordering eviction of the petitioners on the ground of non-tendering of rent on the stipulated date although the petitioners have been alleged to be sub-tenants by the landlords in their eviction petition inducted without their consent. He submits that a sub-tenant cannot be ordered to be evicted for non-payment of rent as the tenant would not include a sub-tenant. In this regard, he has relied upon a Full Bench judgment of this Court rendered in the case of P.C.Verman (Retd.) Lt. Col. Dr. V. Mohinder Singh and others, 1997(3) P.L.R. 857 and a Single Bench judgment of this Court, who has followed the aforesaid Full Bench decision, rendered in the case of Gurdial Singh V. Rajeshwar Dayal, 2008(1) R.C.R. (Civil) 254. In reply, learned counsel for respondent Nos.1 and 2 has argued that, admittedly, N.S.Bawa had not accepted the Power of Attorney which is on record of the learned Rent Controller and the same had been accepted by K.S.Bawa, R.K.Sharma and G.S.Sandhu, Advocates and according to the zimni order dated 28.03.2009, N.S.Bawa had appeared for the present petitioners and, thereafter, it is not clear as to whether K.S.Bawa had appeared or N.S.Bawa had appeared and since K.S.Bawa had died on 10.06.2009, therefore, it is presumed that N.S.Bawa had been appearing throughout on behalf of K.S.Bawa. He has also submitted that an Advocate engaged by a party can authorize another Advocate to plead on his behalf for the purpose of seeking dates etc. and for CR No.1664 of 2011 (O&M) [ 8 ] ****** these purposes he is not required to file any Power of Attorney or even memo of appearance in the Court. In support of his submission, he has referred to Section 119 of the Code of Civil Procedure, 1908 [for short “CPC”], Order 3 Rule 4(5) of CPC, Form No.19 provided in Appendix `H' of CPC, Section 34 of the Advocates Act, 1961 [for short “Act of 1961] and Rules 2 & 7, Chapter 6, Part B, Volume 5 of the Rules and Orders of Punjab and Haryana High Court [for short “Rules & Orders”]. Besides referring to the aforesaid provisions of law, he has also relied upon a decision of the Bombay High Court in the case of Jayant Madhav Chitale V. Garware Wall Ropes Ltd. And others, AIR 1997 Bombay 126 and decision of the Delhi High Court in the case of Berjesh Goyal and another V. Daily Foods (India), 2009 AIR (Delhi) 118. In respect of the second submission made by learned counsel for the petitioners, it is submitted by him that the petitioners cannot claim themselves to be the sub-tenants as provided in Section 2(i) of the Act which does not include a person placed in occupation of a building or rented land by its tenant without the consent of the landlord. I have heard both learned counsel for the parties and perused the available record with their able assistance. In order to answer the first and second questions, which have been framed in the beginning of the judgment, a few provisions of law, which have been quoted by learned counsel for respondent Nos.1 & 2 are required to be noticed:- Section 119 of CPC. “119. Unauthorized persons not to address Court. -- Nothing in this Code shall be deemed to authorize any person on behalf of another to address the court in the exercise of its original civil jurisdiction, or to examine witnesses, except where the Court shall have in the exercise of the power conferred by its charter authorized him so to do, or to interfere with the power of the High Court to make rules concerning advocates, vakils and attorneys.” CR No.1664 of 2011 (O&M) [ 9 ] ****** Order III Rule 4(5) of CPC. “(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 authorized 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.” Form No.19 provided in Appendix `H' of CPC “No.19 VAKALATNAMA In the Court of ................. Suit/Miscellaneous Case/Civil Appeal/Execution Case No........... of 20....., fixed for ............... Plaintiff/Appellant/Applicant/D.H. Versus ..................... Defendant/Respondent/Opposite Party/J.D. Vakalatnama of Plaintiff/Appellant/ Applicant/D.H./Defendant/Respondent/Opposite Party /J.D. In the case noted above Sri .............., each of Sarvasri ................. Advocate, is hereby appointed as counsel, to appear, plead and act on behalf of the undersigned, in any manner, he thinks it proper, either himself or through any other Advocate, and in particular to do the following, namely, -- to receive any process of Court (including any notice CR No.1664 of 2011 (O&M) [ 10 ] ****** from any appellate or reversional Court), to file any applications, petitions or pleadings, to file, produce or receive back any documents, to withdraw or compromise the proceedings, to refer any matter to arbitration, to deposit or withdraw any moneys, to execute any decree or order, to certify payment, and receive any moneys due under such decree or order. The undersigned shall be bound by all whatsoever may be done in the aforesaid case (including any appeal or revision therefrom) for and on behalf of the undersigned by any of the said counsel. Signature ................................ Name in full ............................ Date ........................................ Attesting witness .................... Name in full ........................... Address .................................. Date ........................................ Accepted/Accepted on the strength of the signatures of the attesting witness.” Section 34 of the Advocates Act, 1961. “34. Power of High Courts to make rules. --(1) The High Court may make rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the Courts subordinate thereto. (1A) The High Court shall make rules for fixing and regulating by taxation or otherwise the fees payable as costs by any party in respect of the fees of his adversary's advocate upon all proceedings in the High Court or in any Court subordinate thereto. CR No.1664 of 2011 (O&M) [ 11 ] ****** (2) Without prejudice to the provisions contained in sub-section (1), the High Court at Calcutta may make rules providing for the holding of the Intermediate and the Final examinations for articled clerks to be passed by the persons referred to in section 58AG for the purpose of being admitted as advocates on the State roll and any other matter connected therewith.” Rules 2 & 7, Chapter 6, Part B of Rules & Orders. “PART B— RULES MADE BY THE HIGH COURT OF PUNJAB AND HARYANA UNDER SECTION 34(1) OF THE ADVOCATES' ACT, 1961. No.G.S.R.40/C.A/25/61/S.34(1)/70.- In exercise of the powers conferred by Section 34(1) of the Advocate Act, 1961 (Act No.25 of 1961) and all other powers vested in it by law, the High Court of Punjab and Haryana, on the provisions of the aforesaid Section having come into force by virtue of Government of India Notification No.F.41(40)/67-J, dated the 5th April, 1969, makes the following rules laying down the conditions subject to which an Advocate shall be permitted to practise in the High Court and the Courts subordinate thereto. 1. In these rules unless there is anything repugnant in the subject or context the Word 'advocate' shall include a partnership or a firm or advocates. 2. Save as otherwise provided for in any law for the time being in force, no advocate shall be entitled to appear, plead or act for any person in any Court in any proceeding unless the advocate files an appointment in writing signed by such person of his CR No.1664 of 2011 (O&M) [ 12 ] ****** recognized agent or by some other person duly authorised by or under a power of attorney to make such appointment and signed by the Advocate in token of its acceptance or the advocate files a memorandum of appearance in the form prescribed by the High Court : Provided that where an advocate has already filed an appointment in any proceeding, it shall be sufficient for another advocate, who is engaged to appear in the proceedings merely for the purposes of pleading, to file a memorandum of appearance or to declare before the Court that he appears on instructions from the advocate who has already filed his appointment in the proceedings: Provided further that nothing herein contained shall apply to an advocate who has been requested by the Court to assist the Court amicus curie in any case or a proceeding or who has been appointed at the expense of the State to defend an accused person in a criminal proceeding. Explanation.—A separate appointment or a memorandum of appearance shall be filed in each of the several connected proceedings, notwithstanding that the same advocate is retained for the party in all the party connected proceedings”. 3 to 6 xxx xxx xxx “7. Where an advocate appointed by a party in any of the proceedings is prevented by reasonable cause from appearing and conducting the proceedings at any hearing , he may instruct another advocate to appear for him at that hearing.” It is an admitted position on record that N.S.Bawa had not accepted CR No.1664 of 2011 (O&M) [ 13 ] ****** the Power of Attorney executed by the petitioners which was only accepted by K.S.Bawa and two other advocates. It is also admitted fact that N.S.Bawa had appeared on 28.03.2009 when the names of the advocates appearing for the parties have been clearly mentioned by the Rent Controller, which is thereafter not mentioned at all except for mentioning “counsel for the parties” or “as above”. At the first blush, the argument raised by learned counsel for the petitioners appears to be very attractive that an advocate, who is not engaged by a party, cannot act on his behalf, but the proviso to Order 3 Rule 4(5) of CPC provides that a pleader engaged to plead on behalf of any party can ask any other pleader to appear who is not even required to file his memorandum of appearance. Similarly, Section 34 of the Act of 1961 provides the power to the High Court to lay down conditions subject to which an advocate shall be permitted to practise in the High Court and the Courts subordinate thereto. In pursuance of Section 34(1) of the Act of 1961, which has been noticed above, this Court has framed Rules in Part B, Chapter 6, Volume 5 of the Rules & Orders. According to Rule 2, which has been reproduced here-in-above, an advocate, appearing on behalf of the other advocate, can declare before the Court that he appears on instructions from the advocate who has already filed his appointment in the proceedings and according to the Rule 7, if an advocate appointed by a party in any of the proceedings is prevented by reasonable cause from appearing and conducting the proceedings at any hearing, he may instruct another advocate to appear for him at that hearing. Order 3 Rule 4(5) came to be interpreted by the Bombay High Court in Jayant Madhav Chitale's case (supra), in which it was held as under: - “The proviso to this provision carves out an exception. If a party appoints a pleader to act on his behalf in the Court and such duly appointed pleader engages another pleader to plead on behalf of that party then another pleader is not required to file memo of appearance as contemplated in the main provision of sub-rule (4) of R.5 of the O.3. In other CR No.1664 of 2011 (O&M) [ 14 ] ****** words, whenever a pleader who has been duly appointed to act in Court on behalf of a party engages any other pleader to plead on behalf of such party, such other pleader is not required to file memo of appearance. The Court in such circumstances cannot insist the other pleader to file memo of appearance. An authority given by advocate who is duly appointed by a party to act and plead on his behalf to another advocate to plead on behalf of such party does not need memo of appearance to be filed by another advocate. It was expected of the trial court to have kept the said provision in mind.” In Berjesh Goyal and another's case (supra), the Delhi High Court, while interpreting Order 3 Rule 4 and Chapter 5 Rule 1 of the Delhi High Court Rules, has relied upon various other authoritative pronouncements and observed as under: - “9. On a perusal of the provisions set out hereinabove as also the legal position as contained in the authorities of various High Courts, this Court is of the opinion that there is no bar on a Pleader duly authorized by a party under a Vakalatnama to engage another pleader to plead the case on his or her behalf. The power to “plead” would include within its scope and ambit, the right to examine witnesses, to conduct admission and denial, to seek adjournments and to address arguments etc., as may be authorized. Such pleader, however, would not have the power to compromise a case, withdraw a case or do any other act which may compromise the interest of his or her client. In procedural matters it is not only expedient but also in the interest of speedy delivery of justice that young lawyers who work with pleaders duly CR No.1664 of 2011 (O&M) [ 15 ] ****** authorized by clients are permitted to appear in matters. This is necessary for speedy disposal of cases and also as an encouragement to the younger professionals who are in the initial/formative years of practice.” It is worthwhile to mention here that no judgment to the contrary has been cited by learned counsel for the petitioners in this regard. Thus, the first question, which has been referred to in the beginning of this judgment, is answered to the effect that an advocate, engaged by a party is competent to authorize any other advocate to appear on his behalf if he is prevented by a reasonable cause from appearing and conducting the proceedings at any hearing.