O 3, R, 1] Order 3 723

Order III
Recognised Agents and Pleaders

1. Appearances etc. may be in person, by recognised agent or by pleader.—

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 1[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.

Pre 1976 Amendments and Case Cited

1. Vide Act No. 22 of 1926.
2. Satyanarayana v. Venkata, AIR 1957 AP 172 (FB).
3. Aswini Kumar Ghosh v. Arabinda Bose AIR 1952 SC 69, MANU/SC/0022/1952.
4. Chief Executive Officer and Vice-Chairman, Gujarat Maritime Board v. Patel Gandu
Paba (decd.) through LRs AIR 1999 Guj 34, MANU/GJ/0218/1998.
5. D.P. Chadha v. Triyugi Narain Mishra, MANU/SC/0758/2000: AIR 2001 SC 457.
6. G.V. Lakshminarayanan v G.V. Nagammal AND M.D. Kasthuri and M.E. Devarajan v
G.V. Lakshminarayanan and D. Kanagaraj MANU/TN/8238/2007: AIR 2007 Mad 231,
MANU/TN/8238/2007; Ayyanadan v. Seeniammal AIR (7) 1920 Mad. 213.
7. Goparaju Venkata Satya Suryanarayana v. Tallapragada Naga Venkata Suryanarayana
Murthy AIR 2006 AP 278, MANU/AP/0230/2006.
8. Sarla Rani Gupta v. Bhusan Lal, AIR 1976 J&K 12.
9. N. Venkatchalapathy v. Saroja, AIR 1981 Mad 349 : 1981 (1) Mad LJ 440 : 1981 (94) Mad
LW 376; Devamma v. Senthappa, AIR 1972 Mys 157 : 1972 (1) Mys LJ 136; Shanti v.
Ramnath, AIR 1972 P&H 270 : 1972 Cur LJ 315; Bipin Chandra v. Madhuri Ben Bhat, AIR
1963 Guj 250 : 1963 (4) Guj LR 890; Pulvarthy Sreeram Murthy v. Pulvarthy, AIR 1955 AP
207 : 1955 (1) Mad LJ (Andh) 13 : 1955 Andh WR 13 : 1954 Andh LT (Civil) 211.
10. B. Yashwant v. Regional Director, 1978 Mah LJ 589.
11. Kailashi Devi v Matadeen Agrawal AIR 2001 Raj 306, MANU/RH/0640/2001.
12. Pavithra, rep. by Power Agent S. Rajkumar Kalingarayar v. Rahul Raj (2003) 1 MLJ
182, MANU/TN/2288/2002.
13. N. M. Varma v. G. Amba Lal, AIR 1956 Cal 476 : 60 Cal WN 810; Nabin Chandra v. State
of Orissa, AIR 1957 Ori 56 : 23 Cut LT 67 : ILR (1957) Cut 71; Mulchand v. Mukund,
MANU/MH/0087/1952: AIR 1952 Bom 296.
14. Norbel Kispala v. Tersa Karket, (1971) 1 Cut WR 325; Marayam Bi v. State of Maharashtra,
1984 Cr LJ 1460 (Bom).
15. Pratibha Rani v. Suraj Kumar, MANU/SC/0090/1985: AIR 1985 SC 628.

SYNOPSIS
1. Scope ........................................................................................................................ 723
2. In proceedings before family Courts .................................................................... 725

1. Scope.
Order III, Rule 1 incorporates the right of a party to be represented by an advocate in
the judicial proceedings. The words “appearing, applying or acting as the case may be”

®
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724 Code of Civil Procedure, 1908 [O 3, R. 1

are substituted for the words “duly appointed to act” by Act No. 22 of 1926. However,
the authorisation to ‘act, appear or move application’ should be in writing and not oral
(Satyanarayana v. Venkata).2 However, it has been held by the Hon’ble Supreme Court
that an advocate of the High Court, unlike a pleader, did not need to be appointed in
writing to act on behalf of his client and even when verbally appointed he could under
Order III, Rule 1, of the Code of Civil Procedure appear, plead and act on behalf of his
client and, therefore, when section 4 of the Legal Practitioners Act, 1879, provided that
every person entered as an advocate or vakil on the role of any High Court under the
Letters Patent should be entitled to “practise” in all Courts subordinate to such High
Court, the word “practise” as applied to an advocate of the Patna High Court meant
“appear, plead and act” (Aswini Kumar Ghosh v. Arabinda Bose).3
The purpose behind Order 3, Rule 1, of Code and protection of Section 33 of the
Advocates Act, 1961 is that an advocate holds a unique place in the administration
of justice. In addition to the basic qualification of law degree which provides elementary
knowledge of different branches of law experience gained in the daily application
of law and interpretation of law and are best aware of the perfection of the legal
system, their close contacts with all sections of the society to constitute a most
competent class of man to assist the Court in administration of justice for the
common good of the people. Thus, there is a consensus that a non-lawyer should
not be permitted to appear to represent another (Chief Executive Officer and Vice-
Chairman, Gujarat Maritime Board v. Patel Gandu Paba (decd.) LR’s).4
The proviso of the rule makes it clear that the Court can direct a party to appear
in person. The power of the Court to direct personal presence of any party is
inherent and implicit in the jurisdiction vesting in the Court to take decision (D.P.
Chadha v. Triyugi Narain Mishra).5 It was held that Order 3, Rule 1, proviso is wide
enough to enable the Court to direct any party to the suit to appear in person
whether he be a minor or a major or of sound or unsound mind and it may be done
at any stage of the suit (G.V. Lakshminarayanan v. G.V. Nagammal and M.D.
Kasthuri and M.E. Devarajan v. G.V. Lakshminarayanan and D. Kanagaraj; Ayyanadan
v. Seeniammal).6
This enables a party to the suit, to appear, through recognized agent or pleader, in
response to any summons, except where the personal appearance is specifically
directed.
The term “appearance” is capable of having different connotations, when it is employed
in different contexts. For instance, where the summons or the notice issued to a party,
at the initial stage, in civil proceedings, requires his appearance, it can certainly be
through a recognized agent or counsel, as provided for under Sub-rule (1) of Rule 1 of
Order III Code of Civil Procedure. However, where the appearance is required at subsequent
stages, the emphasis is to require the physical presence of the party (Goparaju Venkata
Satya Suryanarayana v. Tallapragada Naga Venkata Suryanarayana Murthy).7
Directing to appear in person does not violate Article 21 of the Constitution of India
(Sarla Rani Gupta v. Bhusan Lal).8 However, in several cases the High Courts have
expressed the view that a party should not be compelled to submit to medical examination.
(N. Venkatchalapathy v. Saroja; Devamma v. Senthappa; Shanti v. Ramnath,; Bipin
Chandra v. Madhuri Ben Bhat; Pulvarthy Sreeram Murthy v. Pulvarthy).9 A third person
who is not an advocate, having power of attorney has no right of audience but he may

®
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O 3, R, 2] Order 3 725

with the leave of the Court address the Court (B. Yashwant v. Regional Director).10 The
provisions contained in Order III, Rule 1 of the Code of Civil Procedure would restrict
the powers of holder of power of attorney to depose on behalf of the Plaintiff in relation
to the matter in issue before the Court (Kailashi Devi vs Matadeen Agrawal).11

2. In proceedings before family Courts.

In view of Section 13 of the Family Courts Act, 1984, legal practitioners have no
right to appear, act or address the Court. They can only be invited by Court to assist
as amicus curiae in particular cases. Order 3 Rule 1 of the Code of Civil Procedure
empowers a party in a suit or proceedings to be represented by a pleader, but so
far as the proceedings in the Family Courts are concerned, the right of representation
by the pleader does not exist. The operation of Order 3 Rule 1 is subject to any law
for the time being in force. In addition to the said exclusion in the code, Section 13
of Family Courts Act prohibits the operation of Order 3 Rule 1 to the extent that the
case being represented by the legal practitioner. The recognised agent appointed
under Order 3 Rule 2 stands on a different footing from pleader. However, recognised
agent cannot be a legal practitioner. The embargo on the appearance of legal
practitioners should not be extended to recognised agent. There is no prohibition in
the Act or Rules on a petition being filed by an authorised agent who is not legal
practitioner (Pavithra, rep. by Power Agent S. Rajkumar Kalingarayar v. Rahul Raj).12
The right to take help of a lawyer is a contractual right and not a constitutional
fundamental right in civil cases (N. M. Varma v. G. Amba Lal; Nabin Chandra v. State
of Orissa; Mulchand v. Mukund).13 The proceedings under Section 125 of Criminal
Procedure Code are not proceedings relating to any offence but in fact they are
proceedings of civil nature (Norbel Kispala v. Tersa Karket; Marayam Bi v. State of
Maharashtra).14 However, in criminal cases relating offences, the assistance of lawyers
cannot be taken away (Pratibha Rani v. Suraj Kumar).15

2. Recognised agents.—
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.

ANNOTATION

High Court Amendments “Persons holding on behalf of such

Bombay parties either (i) a general power-of-
attorney, or (ii) in the case of
In Order III, Rule 2(a) has been substituted
proceedings in the High Court of
as under:
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726 Code of Civil Procedure, 1908 [O 3, R. 2

Bombay an Attorney of such High make and do such appearances,

Court or an Advocate, and in the case
of proceedings in any district, any
such Attorney or any Advocate or a
Pleader to whom a sanad for that
district has been issued, holding the
requisite special power-of-attorney
from 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, authorising them or him to
make and do such appearances,
applications and acts on behalf of
such properties.”
Gujarat
In Order III, Rule 2(a) has been substituted
as under:
“Persons holding on behalf of such
parties either (i) a general power-of-
attorney, or (ii) in the case of
proceedings in the High Court of
Gujarat, an Advocate, and in the case
of proceedings in any district, an
Advocate or a Pleader to whom a sanad
for that district has been issued,
holding the requisite special power-
of-attorney from 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, authorising them or him to
applications and acts on behalf of such
parties.”
Madhya Pradesh
In Order III, Rule 2(a) has been substituted
as under:
“Persons holding on behalf of such
parties either (i) a general power-of-
attorney, or (ii) in the case of
proceedings in the High Court of
Madhya Pradesh, an Advocate of that
High Court, and in the case of
proceedings in any district, any
Advocate or a Pleader to whom a sanad
for that district has been issued,
holding the requisite special power-
of-attorney from 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, authorising them or him to
make and do such appearances,
applications and acts on behalf of such
parties”
Effective Date of High Court
Amendments
Bombay –– Vide Notification No. 3236,
dated 27.11.1936
Gujarat –– w.e.f. 17.03.1961
Madhya Pradesh –– w.e.f. 16.09.1960

Case Cited
1. M. Venkata Subba Reddy v. State Bank of India, 2003 (3) ALD 684, MANU/AP/0262/2003.
2. Bagusethi Manikyam v. Bagusethi Ramamurty AIR 1975 Ori 20, MANU/OR/0007/1975.
3. Hari Om Rajendra Kumar v. Chief Rationing Officer, MANU/AP/0059/1990: AIR 1990
AP 340 at 344.
4. Aswin S. P. Patel v. National Rayon, AIR 1955 Bom 262; D. Sornam v. State, MANU/TN/
0411/1968 : (1969) 1 Mad LJ 207 at 209.
5. Purushottam & Co. v. Mani Lal & Sons, MANU/SC/0004/1960: AIR 1961 SC 325 :
(1961) 1 SCR 982 : 1961 (1) SCJ 283.
6. Mrs. Sakunthala v. Anandarajan (2008) 1 MLJ 354 , MANU/TN/9206/2007.
7. Smt. Kamla Bakshi v. Union of India (UOI) AIR 2004 J&K 65, MANU/JK/0172/2003.
8. Ratheesh Kumar v. Jithendra Kumar 2005 (2) KLT 669, MANU/KE/0145/2005;
Vidhyadhar v. Manikrao, (1999) 3 SCC 573; Humberto Luis v. Floriano Armando Luis
(2002), 2 Bombay CR 754.

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O 3, R, 2] Order 3 727

9. Dr. Deepak Sharma v. Smt. Vineeta Sharma AIR 2008 Cal 55, MANU/WB/0024/2008;
Ram Prasad v. Hari Narain AIR 1998 Raj 185, MANU/RH/0233/1998; Raees Ahmed v.
Shrigopal Prakash 2002 (50) BLJR 2508 , MANU/RH/0143/2002; Bashir v. Smt. Hussain
Bano 2005 (2) MPHT 390, MANU/MP/0073/2005; Smt. Shanti Devi Agarwal v. V.H.Lulla
AIR 2004 MP 58, MANU/MP/0226/2003; Janki Vashdeo Bhojwani v. Indusind Bank Ltd.
AIR 2005 SC 439, MANU/SC/1030/2004; Raees Ahmed v. Shrigopal Prakash 2002
(50) BLJR 2508 , MANU/RH/0143/2002; Ram Prasad v. Hari Narain AIR 1998 Raj 185,
MANU/RH/0233/1998.
10. Naba Kumar Seal v. Prabir Kumar Dhar 2005 (2) CHN 149, MANU/WB/0537/2004.
11. State of J&K v. Shri Karan Singh, AIR 1960 J&K 47.
12. Samdukhan v. Madan Lal, MANU/RH/0009/1959: AIR 1959 Raj 35; Also see Govind v.
Chhoti, AIR 1966 Raj 170.
13. B. Yashwant v. Regional Director, 1978 Mah LJ 589.

COMMENTS
Under Order III, Rule 2 of the Code of Civil Procedure, the recognised agents of
parties are entitled to appear, file applications and act on behalf of such parties who
gave the power (M. Venkata Subba Reddy v. State Bank of India).1 It is however, to
be noted that “recognised agents” are different from “authorised agents”. The two
expressions have been used separately in different rules. “Authorised agent” has not
been defined in the Code. Consequently, a person can be an “authorised agent” even
though he may not be a “recognised agent (Bagusethi Manikyam v. Bagusethi
Ramamurty).2
Authorisation can be made by the party himself or by his recognised agent. Appearing,
moving application and acting are different from ‘pleading’ for another (Hari Om
Rajendra Kumar v. Chief Rationing Officer).3 The word ‘pleading’ in this sense generally
includes the right of audience in Court, the right to address the Court and right to
examine or cross-examine the witnesses (Aswin S. P. Patel v. National Rayon; D.
Sornam v. State).4 An agent appointed under a power-of-attorney executed by a
Managing partner can sign and verify the plaint (Purushottam & Co. v. Mani Lal &
Sons).5 Such agent can also file the suit on behalf of the firm. It was held that the
word “act” under Order III Rule 2, Code of Civil Procedure does not include the act
of power of attorney holder to appear as witness on behalf of the party (Mrs. Sakunthala
v. Anandarajan).6
As a substitute of the Plaintiff, the Advocate cannot appear as a witness and make
a statement. An Advocate can only certify those facts which have been communicated
to him by the Plaintiff. In other words where the Advocate knows that he is a
material witness in the case and may have to appear as such, at any point of time
should not continue to appear as a counsel. The word ‘act’ in Rule 3 Code of Civil
Procedure debars the power of attorney holder to appear as a witness on behalf of
the party. He can appear as a witness only in his personal capacity and can state
on oath whatever he has knowledge about the case, but cannot appear as a witness
on behalf of the party in the capacity of that party (Smt. Kamla Bakshi v. Union of
India (UOI)).7
A general power-of-attorney holder cannot be allowed to appear as a witness on behalf
of a party in the capacity of the party. The power-of-attorney holder of a party can
appear only in his personal capacity and cannot appear on behalf of the party in the
capacity of that party. Where a party to the suit does not appear in the witness box
®
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728 Code of Civil Procedure, 1908 [O 3, R. 3

and states his own case on oath and does not offer himself to be cross-examined
by the other side, a presumption would arise that the case set up by him is not correct
(Ratheesh Kumar v. Jithendra Kumar; Vidhyadhar v. Manikrao; Humberto Luis v.
Floriano Armando Luis).8
The power to depose on behalf of and/or in place of principal extend only to depositions
in respect of “acts” done by power-of-attorney holder in exercise of power granted by
the instrument. It was further held that the term “acts” would not include deposing in
place of and instead of the principal for acts done by principal and not by power-of-
attorney holder. It was also stated that the power-of-attorney holder cannot depose
for principal in respect of matters of which only principal can have personal knowledge
and in respect of which principal is liable to be cross examined. It was further held
that if the principal is unable to appear in Court, a commission for recording his
evidence may be issued (Dr. Deepak Sharma v. Smt. Vineeta Sharma; Ram Prasad
v. Hari Narain; Raees Ahmed v. Shrigopal Prakash; Bashir v. Smt. Hussain Bano; Smt.
Shanti Devi Agarwal v. V.H.Lulla; Janki Vashdeo Bhojwani v. Indusind Bank Ltd.;
Raees Ahmed v. Shrigopal Prakash; Ram Prasad v. Hari Narain).9
The court held that where a power-of-attorney is suspected, in which case proof of
execution can be called for, the agent should be allowed to appear and act within
Order 3 Rule 2 (Naba Kumar Seal v. Prabir Kumar Dhar).10
The person having power to sign and verify the plaint’ under Order XXIX, Rule 1 can
file suits on behalf of the firm (State of J&K v. Shri Karan Singh).11 A recognised agent
holding general power of attorney has no right to plead and argue unless the Court
permits him to do so (Samdukhan v. Madan Lal; Also see Govind v. Chhoti).12 A third
person who is not an advocate, having power of attorney has no right of audience but
he may with the leave of the Court address the Court (B. Yashwant v. Regional Director).13
For recognised agents of Government also See Order XXVII Rule 2-4; Recognised
agents of foreign Rulers—See Section 85 of the Code.

3. Service of process on recognised agents.—

(1) Processes served on the recognised agent of a party shall be as effectual
as if the same had been served on the party in person, unless the Court
otherwise directs.
(2) The provisions for the service of process on a party to a suit shall apply
to the service of process on his recognised agent.

ANNOTATION
High Court Amendments had been served on the party in
Punjab, Haryana and Chandigarh person, unless the Court otherwise
directs.”
In Order III, sub-rule (1) of Rule 3 has
been substituted as under: Effective Date of High Court
“Processes served on the recognised Amendments
agent or on an Advocate of the party Vide Notification No. G.S.R. 539/CA5/1908/
shall be as effectual as if the same 74, dated 11.04.1975

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O 3, R, 4] Order 3 729

Case Cited
1. Union of India v. Abdul Razak, AIR 1956 Pat 511.
2. Kundan Lal v. Municipal Corporation, AIR 1984 Del 231: 1984 Rajdhani LR 255.
3. Smt Cheriathoppilakath Kunhibi v. The Land Acquisition Officer, Kozhikode AIR 1962
Ker 266, MANU/KE/0O8O/1962.

COMMENTS
A person holding special power-of-attorney from General Manager of Railways under
Section 145 of Railways Act is a recognised agent for the purposes of service (Union
of India v. Abdul Razak).1 The Rule does not prohibit personal service on the party.
An advocate is not a recognised agent for the purposes of this Rule (Kundan Lal v.
Municipal Corporation).2 Also see Rule 5 of this Order. A husband could not be
deemed to be a recognised agent within the meaning of Order III, Rule 2, nor can he
be regarded as an agent appointed to accept service of notice under Order III, Rule
6, Sub-rule (1), because such appointment has to be made by an instrument in writing
signed by the principal as provided by Sub-rule (2) of the above rule. The service of
notice under Section 12 (2) cannot there-fore be considered to be valid (Smt
Cheriathoppilakath Kunhibi v. The Land Acquisition Officer, Kozhikode).3

1
[4. 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 appointment shall be filed in Court and shall, for the purposes
of Sub-rule (1), 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.
Explanation.—For the purposes of this Sub-rule, the following shall be
deemed to be proceedings in the suit:
(a) an application for the review of decree or Order in the suit,
(b) an application under Section 144 or under Section 152 of this Code, in
relation to any decree or Order made in the suit,
(c) an appeal from any decree or Order in the suit, and
(d) 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 moneys paid into the Court in connection with the suit.
(3) Nothing in Sub-rule (2) shall be construed:
(a) as extending, as between the pleader and his client, the duration for
which the pleader is engaged, or
(b) as authorising service on the pleader of any notice or document issued
by any Court other than the Court for which the pleader was engaged,

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730 Code of Civil Procedure, 1908 [O 3, R. 4

except where such service was expressly agreed to by the client in the
document referred to in Sub-rule (1).
(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.

ANNOTATION

Amendments Sub-rule 3 of Order 3 use to read as

The Code of Civil Procedure (Amendment)
Act, 1976:
In Sub-rule (2) substituted the text
“filed in Court and shall, for the
purposes of Sub-rule (1), be” for the
text “filed in Court and”.
Inserted Explanation to Sub-rule (2).
Substituted Sub-rule 3.
Effective Date of Amendments
The Code of Civil Procedure (Amendment)
Act, 1976 w.e.f. 1st February, 1977
Prior to Amendment
Sub-rule (2) of Rule 4 to Order 3 use to
read as under:
“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, 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
under:
“(3) For the purposes of sub-rule (2)
an application for review of judgment,
an application under section 144 or
section 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.”
High Court Amendments
Allahabad
In sub-rule (2) of Rule 4 of Order 3
Vide Notification No. 714-IV H–36–A,
dated 09.12.1980 in Explanation to
sub-rule (2), after clause (a), clause
(aa) has been inserted as under:
“(aa) a proceeding for revision of an Order
in the suit.”
Vide Notification No. 439/VII-B-123,
dated 08.08.1994 after clause (d),

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O 3, R, 4] Order 3
clauses (e to j) has been inserted as
under:
“(e) an application or proceedings
for transfer under sections 22,
24 and 25 of this Code.
(f) an application under Rule 4 or
Rule 9 or Rule 13 of Order IX
of this Code,
(g) an application under rule 4 of
Order XXXVII of this Code,
(h) a reference arising from or out
of suit,
(i) an application for execution of
any decree or order in the suit,
(j) any application relating to or
incidental to or arising from or
out of any proceedings referred
to in Clauses (a) to (i) of this
sub-rule (including an
application for leave to appeal)
to Supreme Court:
Provided that where the venue
to the suit or the proceedings
shifts from one Court
(subordinate or otherwise) to
another situate at a different
station, the pleader filing the
appointment referred to in
Sub-rule (2) in the former Court
shall not be bound to appear,
Act or plead in the latter Court
unless he files or has already
filed a memorandum signed
buy him that he has
instructions from his client to
appear, act or plead in that
Court.
Andhra Pradesh and Madras
In sub-rules (1) and (2), for the text “in
writing signed”’, the text “a document
subscribed with his signature in his own
hand” is substituted;
Sub-rule (6) inserted after sub-rule (5) as
under:
®
731
“(6) No Government pleader or other
pleader appearing on behalf of the
Government or on behalf of any public
servant sued in his official capacity,
shall be required to present any
document empowering him to act, but
such pleader shall file a memorandum
of appearance signed by himself and
stating the particulars mentioned in
Sub-rule (5).”
Bombay
Sub-rule (3) of Rule 4 to Order 3 substituted
vide Maharashtra Gazette, Pt. IVC dated
24.08.1972 as under:
“(3). For the purposes of Sub-rule (2)
above (i) an application or a proceeding
of transfer under Section 23,24 or 25
of this Code, (ii) an application under
Rule (9) or Rule 13 of Order IX of this
Code, (iii) an application under rule 4
of Order XXXVII of this Code, (iv) an
application for review of judgment, (v)
an application under Section 152 of
this Code, (vi) a reference arising from
or out of suit, (vii) an application for
amendment of the decree or order or
the record in the suit, (viii) an application
for the execution of any decree or
order in the suit, (ix) an application
under Section 144 of this Code, (x)
any appeal (including an appeal under
Letters Patent of the High Court) or
revision or a reference arising from or
out of the suit, (xi) any application
relating to or incidental to or arising in
or out of such appeal or revision or a
reference arising from or out of the
suit (including an application for leave
to appeal under Letters Patent of the
High Court or for leave to appeal to
the Supreme Court), any application
or proceeding for sanctioning
prosecution under chapter XXXV of
the Code of Criminal Procedure, 1898,
relating to suit or any of the proceedings
mentioned hereinbefore (including
731
732 Code of Civil Procedure, 1908
withdrawal, refund or payment of or
out of the moneys deposited as security
for costs or for covering the costs of
the preparation, printing and
transmission of the Transcript Record
of the appeal to the Supreme Court),
(xv) any application for expunging any
remarks or observations on the record
of or made in the judgment in the suit
of or any appeal, revision, reference
or review from or out of the suit, (xvi)
any application for certificate in regard
to the substitution of heirs in appeal
to the Supreme Court arising from
the suit and (xvii) any application under
rule 15 of Order XLV of this Code,
shall be deemed to be proceedings in
the suit:
Provided that where the venue of the
suit or the proceedings shifts from
one Court (subordinate or otherwise)
to another the pleader filing the
appointment referred to in sub-rule (2)
in the former Court shall not be bound
to appear, act or plead in the latter
Court unless he files or has already
filed a memorandum signed buy him
that he has instructions from his client
to appear, act or plead in that Court.”
Delhi, Punjab, Haryana, Chandigarh,
Himachal Pradesh
For sub-rule (3), substitute the following:
“(3) for the purposes of sub-rule (2),—
(i) an application or a proceeding
for transfer under section 22,
24 or 25 of this Code,
(ii) an application under Rule 4 or
Rule 9 or Rule 13 of Order IX
of this Code,
(iii) an application under Rule 5 of
Order XXXVIII of this Code,
(iv) an application for review of
judgment,
(v) a reference arising from or out
of suit,
732
[O 3, R. 4
(vi) an application for amendment
of the decree or order or the
record in the suit or an appeal,
reference or revision arising
from or out of the suit,
(vii) an application for the execution
of any decree or order in the
suit,
(viii) an application for restitution
under section 144 or section
151 of this Code,
(ix) an application under section 151
of this Code,
(x) an application under section 152
of this Code,
(xi) any appeal (including an appeal
under the Letters Patent of the
High Court) or revision
application from any decree or
order in the suit or an appeal
arising from or out of the suit,
(xii) any application relating to, or
incidental to, or arising from or
out of, such appeal or revision
or a reference arising from or
out of the suit (including an
application for leave to appeal
under the Letters Patent of the
High Court or for leave to appeal
to the Supreme Court),
(xiii) any application for directing or
proceeding for prosecution
under Chapter XXXV of the
Code of Criminal Procedure,
1898, relating to the suit or any
of the proceedings mentioned
hereinbefore or an appeal or
revision arising from and out
of any order passed in such
application or proceeding,
(xiv) any application or act for the
purposes of obtaining copies
of documents or the return of
documents produced or filed
in the suit or in any of the
®
O 3, R, 4]
proceedings mentioned
hereinbefore,
(xv) a n y a p p l i c a t i o n f o r t h e
withdrawal or for obtaining the
refund or payment of or out of
the monies paid or deposited
into the Court in connection
with the suit or any of the
proceedings mentioned
hereinbefore (including
withdrawal, refund or payment
of or out of the monies
deposited as security for costs
or for covering the costs of the
preparation and printing of the
Transcript Record of the appeal
to the Supreme Court),
(xvi) any application for expunging
any remarks or observations
on the record of or made in the
judgment in the suit or any
appeal, reference or review
arising from or out of the suit,
(xvii) any application for certificate
in regard to the substitution
of heirs in appeal to the
Supreme Court arising from
the suit, and
(xviii) any application under Rule 15 of
Order XLV of the Code shall
be deemed to be proceedings
in the suit:
Provided that, where the venue of
the suit or the proceedings shifts
from one court (subordinate or
otherwise) to another, situate at
different station, the pleader filing
the appointment referred to in sub-
rule (2) in the former court shall not
be bound to appear, act or plead in
the latter court, unless he files or
he has already filed a memorandum
signed by him that he has instruction
from his client to appear, act and
plead in that court.
®
Order 3 733
Gujarat
In Sub-rule (3) of Rule 4 to Order III
following insertion has been between the
words “order in the suit” and “any application
or act”:
“or any application relating to such
appeal”
Karnataka
“4.(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 subscribed with his
signature in his own hand 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 and
the appointment has been
accepted in writing by the
pleader.
(2) Every such appointment shall
be filed into Court. Except as
otherwise provided in this rule,
no such appointment shall be
deemed to have been until its
determination with the leave of
the Court by a document
subscriber with his signature
in his own hand by the client
or his recognised or authorised
agent or by the pleader as the
case may be and filed into
Court; or any client or the
pleader dies or until all
proceedings in the suit are
ended so far as regards the
client.
(3) For the purpose of sub-rule (2),
proceedings in the suit shall
mean all interlocutory and
miscellaneous proceedings
connected with the suit or any
decree or order passed therein
733
734 Code of Civil Procedure, 1908
taken in the Court in which
the suit has been instituted or
by which the suit has been
disposed of, and shall include
applications for review of
judgment, applications for
amendment for correction of
the decree, application for
execution of the decree or any
order in the suit or for restitution
under section 144 of the Code
or otherwise, applications for
leave to appeal against any
decree or order passed in the
suit, and applications or acts
for the purpose of obtaining
copies of documents or copies
of judgments, decrees or
orders, or for the return of
documents produced or filed
in the suit or for obtaining
payment or refunds of monies
paid into court in connection
with the suit or any decree or
order therein.
(4) (a) In the case of applications for
execution of a decree,
applications for review of
judgment and applications for
leave of appeal, a pleader
whose appointment continues
in force by virtue of sub-rule
(2) of this rule and who has
been served with the notice in
any such application shall be
at liberty to intimate to the Court
in writing in the form of a
memorandum filed into court
at or before the first hearing of
any such application or appeal
that he has not received
instructions from his client and
to retire from the case.
(b) Where, however, the pleader,
does not so report the
absence of instructions to the
Court but proposes to
734
[O 3, R. 4
continue to act on the strength
of the original appointment,
he shall file into court at or
before the first hearing of such
matter a formal memorandum
stating that he will continue
to appear and act for his client
in the said application or
appeal, as the case may be.
(c) If a pleader filed the
memorandum referred to in
clause (a) or omits to file the
memorandum referred to in
clause (b) within the time
prescribed therefor, the Court
shall proceed as provided in
sub-rule (2) of Rule 5 of this
Order.
(5) The High Court may by rule or
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 attached by
such person and in such
manner as may be specified
in the rule or order.
(6) No pleader who has been
engaged for the purpose of
pleading only shall plead on
behalf of any party unless he
has filed into court a
memorandum of appearance
signed by himself and stating
(a) the names of the parties to
the suit, (b) 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 himself been
®
O 3, R, 4] Order 3
duly appointed to act in court
on behalf of such party.
(7) No Government pleader or other
pleader appearing on behalf of
the Government or on behalf
of any public servant sued in
his official capacity shall be
required to present any
document empowering him to
act, but such pleader shall file
into court a memorandum of
appearance signed by him and
stating the particulars
mentioned in sub-rule (6).”
Kerala
In Order III, in sub-rule 4:
(a) In sub-rule (2), for ‘Every such
appointment’, substitute ‘when
accepted by the pleader in
writing’;
(b) omit sub-rule (5);
(c) after sub-rule (5), insert the
following sub-rule (6):
“(6) No pleader appearing on behalf of
the Government or on behalf of any
public servant sued, in his official
capacity shall be required to present
any document empowering him to act,
but such pleader shall file 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.’.
Madhya Pradesh
Same as in Punjab with the following
modifications in items:
(a) Item (x) in Punjab, is item (v)
in Madhya Pradesh;
®
735
(b) in item (i), for ‘under section
22, 24 or 25 of this Code,’,
substitute ‘under section 23,
24 or 25 of this Code,’;
(c) in item (iii), omit ‘Rule 4 or’;
(d) item (vii) in Punjab, is item (ix)
in Madhya Pradesh;
(e) omit (ix); and
(f) item (xiii) in Punjab, is item
(xii) in Madhya Pradesh and in
the said item, for ‘any
application for directing or
proceeding for prosecution’,
substitute ‘any application or
proceeding for sanctioning
prosecution’
Orissa and Patna
For sub-rule (4), substitute the following:
“(4) Notwithstanding anything
contained in Order III, Rule 4(3) of
the First Schedule of the Code of
Civil Procedure, 1908, no advocate
shall be entitled to make or do any
appearance, application or act for
any person unless he presents an
appointment in writing, duly signed
by such person or his recognised
agent or by some other agent duly
authorised by power of attorney to
act in this behalf; or unless he is
instructed by an attorney or pleader
duly authorised to act on behalf of
such person.”
Rajasthan
In Order III, in rule 4, in sub-rule (3),
between the words “order in the suit”
and “any application or act”, insert
the words “or any application relating
to such appeal.”
Insert the following as sub-rule (6):
“(6) No Government pleader within the
meaning of Order 27, Rule 8B, shall
be required to present any document
735
736 Code of Civil Procedure, 1908 [O 3, R. 4

empowering him to act, but such W.e.f. 10.09.1968

pleader shall file a memorandum of
appearance signed by himself and Orissa
stating the particulars mentioned in Notification No. 5596–RX–2188 w.e.f.
sub-rule (5).” 14.05.1984

Effective Date of High Court Karnataka

Amendments W.e.f. 30.03.1967
Allahahad Kerala
Vide Notification No. 714-IV H–36–A, dated W.e.f. 09.06.1959
09.12.1980 w.e.f. 21.03.1981
Vide Notification No. 439/VII-B-123, dated Madhya Pradesh
08.08.1994 w.e.f. 22.10.1994 Vide Madhya Pradesh Rajpatra W.e.f.
18.10.1968
Bombay
Maharashtra Gazette, Pt. IVC dated Rajasthan
24.08.1972 Notification No. 5596–RX–2188 w.e.f.
Delhi, Punjab, Haryana, Chandigarh, 14.05.1984
Himachal Pradesh

Case Cited
1. Subs. by Act No. 22 of 1926.
2. Sakrappa Neelappa v. Shidramappa Gangappa Katti AIR1960Kant217, MANU/KA/0099/1960.
3. Kota Co-operative Agricultural Bank Limited v. State of Karnataka AIR 2003 Kant 30,
MANU/KA/0391/2002.
4. Hari Kishan Shah v. T. R. Bhasin, AIR 1972 J&K 19.
5. N. Satyanarayana v. Y. Venkat Subbaiah, AIR 1957 AP 172 : 1957 (1) Andh WR 318 :
1957 Andh LT 369.
6. Adinarayana v. Surya, MANU/OR/0027/1980: AIR 1980 Ori 110 : 1979 (48) Cut LT 609.
7. Doki Adinarayana Subudhi v. Doki Surya Prakash Rao AIR 1980 Ori 110, MANU/OR/
0027/1980.
8. Jayant Madhav Chitale v Garware Wall Ropes Limited MANU/MH/0017/1997: AIR
1997 Bom. 126, Kota Co-operative Agricultural Bank Limited, Kota v. State of Karnataka
AIR2001Kant36, MANU/KA/0087/2001.
9. Doki Adinarayana Subudhi v. Doki Surya Prakash Rao AIR 1980 Ori 110, MANU/OR/
0027/1980.
10. Chengan Souri Nayakam v. A.N. Menon AIR 1968 Ker 213, MANU/KE/0056/1968.
11. Pushpa Devi Bhagat (D) th. LR. Smt. Sadhna Rai v. Rajinder Singh MANU/SC/3016/
2006: AIR 2006 SC 2628, MANU/SC/3016/2006; Byram Pestonji Gariwala v. Union
Bank of India AIR 1991 SC 2234, MANU/SC/0485/1991
12. Deputy Collector v. Comunidade of Bombolim, MANU/SC/0037/1996: AIR 1996 SC
148 (149) .
13. Deputy Collector, Northern Sub-Division, Panaji v. Commidade of Bambolin, MANU/
SC/0037/1996: AIR 1996 SC 148; Chief Engineer v. S. K. Atri, MANU/JK/0024/1981:
AIR 1981 J&K 68.
14. Bijli Cotton Mills v. Chhaganmal, MANU/UP/0263/1982: AIR 1982 All 183; Sathiraju v.
Sathamma, MANU/TN/0307/1952: AIR 1952 Mad 819.

®
736
O 3, R, 4] Order 3 737

15. Dattusing Giridharsingh Rajput (Thakur) v. Bhagwant Devasthan MANU/MH/1063/

2004: AIR 2005 Bom 86.
16. Banwarilal Kedia v. A.P. State Electricity Board AIR 2007 AP 121, MANU/AP/0933/
2006; Motilal v. LRs. of late Poonampuri MANU/RH/0144/2000.
17. Lal Chand v. Pyare, MANU/MP/0072/1971: AIR 1971 MP 245.
18. Tamil Nadu Electricity Board v. R. Srinivasan, MANU/TN/0007/1992: AIR 1992 Mad 40.
19. Bijli Cotton Mills (Pvt.) Ltd v. Chhaganmal Bastimal AIR 1982 All 183, MANU/UP/
0263/1982; Motilal v. L.Rs. of Late Poonampuri AIR2000Raj65, MANU/RH/0144/
2000; Banwarilal Kedia v. A.P. State Electricity Board AIR 2007 AP 121, MANU/AP/
0933/2006.
20. Jamilabai v. Shankar Lal, MANU/SC/0518/1975: AIR 1975 SC 2202.
21. Chengan v. A. N. Menon, MANU/KE/0056/1968: AIR 1968 Ker 213.
22. Garden Reach S. & E. Staff Assn. v. Garden Reach S. & E. Ltd., MANU/WB/0053/1990:
AIR 1990 Cal 442 at 448.
23. Moran Mar & Co. v. Mar, AIR 1954 SC 526 : 1955 (1) SCR 520 : 1954 SCJ 736.
24. Doki Adinarayana Subudhi v. Doki Surya Prakash Rao MANU/OR/0027/1980: AIR
1980 Ori 110.
25. Jamilabai Abdul Kadar v. Shankarlal Gulabchand MANU/SC/0518/1975: AIR 1975
SC 2202.
26. Swinfen v. Lord Chelmsford, (1860) 157 ER 1436, Chengan Souri Nayakam v. A.N.
Menon MANU/KE/0056/1968: AIR 1968 Ker 213.
27. B.S.N.L. v. Subash Chandra Kanchan AIR 2006 SC 3335, MANU/SC/8490/2006.
28. Bhagirathi v. Anant Narayana, MANU/OR/0017/1981: AIR 1981Ori 58.
29. Jineshwardas (D) through L.Rs. v. Smt. Jagrani AIR 2003 SC 4596, MANU/SC/0781/
2003; United India Insurance Co. Ltd. v. Jabeen (2007) 3 MLJ 58 , MANU/TN/7480/
2007; Byram Pestonji Garlwala v. Union Bank of India and Ors. AIR 1991 SC 2234,
MANU/SC/0485/1991.
30. Pushpa Devi Bhagat (D) th. LR. Smt. Sadhna Rai v. Rajinder Singh MANU/SC/3016/
2006: AIR 2006 SC 2628; Byram Pestonji Gariwala v. Union Bank of India AIR 1991 SC
2234, MANU/SC/0485/1991
31. Advocate General v. Amanulla Khan, MANU/TN/0212/1967: AIR 1967 Mad 162.
32. Har Govind Dayal v. G. N. Verma, MANU/SC/0066/1977: AIR 1977 SC 1334 .
33. C. S. Nayakam v. A. N. Menon, MANU/KE/0056/1968: AIR 1968 Ker 213.
34. Satyendra Narain Singh v. Ram Nath Singh, MANU/SC/0335/1984: AIR 1984 SC 1755.
35. E. S. Reddi v. Chief Secretary, MANU/SC/0873/1987: AIR 1987 SC 1550.
36. Smt. Kamla Bakshi v. Union of India (UOI) AIR 2004 J&K 65, MANU/JK/0172/2003.
37. Krishnaji v. Wamanrao, MANU/MH/0009/1977: AIR 1977 Bom 36.
38. Uday Shankar Triyar v. Ram Kalewar Prasad Singh AIR 2006 SC 269, MANU/SC/
2173/2005.
39. Oriental Insurance Company v. Smt. Sheela Devi and Smt. Durga Devi AIR 2006 HP
94, MANU/HP/0028/2006; Bijli Cotton Mills (Pvt) Ltd. v. Chhaganmal Bastimal MANU/
UP/0263/1982.
40. Ram Karan Das v. Bhagwan Das, MANU/SC/0286/1964: AIR 1965 SC 1144; Nishikanta
v. Durgacharan, AIR 1970 Tri 82.
41. C. S. Venkatasubramania v. State Bank of India, MANU/SC/0583/1997: AIR 1997 SC
2329.
42. Damordardass Agarwal v. R. Badrilal AIR1987AP254, MANU/AP/0226/1987.

®
737
738 Code of Civil Procedure, 1908 [O 3, R. 4

SYNOPSIS
1. Scope-Appointment of pleader . 738
2. Whether oral appointment is
valid ............................................... 738
3. Advocate’s authority when comes
to an end ...................................... 739
4. Examples of Counsels engagement
not being determined .................. 740
5. Pleaders—Admissions and
compromises made by them .... 740
6. Responsibility of Advocates ...... 742
7. No fresh Vakalatnama in appeals
and restoration applications etc. 742
8. Fees of Advocates ...................... 743

1. Scope—Appointment of pleader.
Rule 4 provides that a lawyer cannot act for another person in the Court unless he
has been appointed for the purpose by such person or his recognised agent, by a
document in writing (generally known as vakalatnama) which shall be filed in Court
and shall remain effective until all proceedings connected with the suit have ended.
The essence of the relationship of a party and a pleader is that the pleader derives
his authority from the party. That is why he has to take a writing signed by the party
and produce it before the Court as required by Order III, Rule 4, Code of Civil
Procedure. On other occasions, if some technical work is to be attended to in the
progress of the work is to be attended to in the progress of the case, certainly that
may be attended to by a pleader who is merely authorised by another pleader to do
so (Sakrappa Neelappa v. Shidramappa Gangappa Katti).2
However, where the lawyer is to be engaged only for pleading the case, filing of
memorandum of appearance is sufficient in which signature of party are not essential.
From the proviso to Sub-rule (6) of Rule 4 of Order 3 of the Code of Civil Procedure,
if a Pleader is engaged to plead i.e. argue on behalf of a party by Advocate on record
of such party, then the pleading Advocate is not required to file memorandum of
appearance (Kota Co-operative Agricultural Bank Limited v. State of Karnataka).3

2. Whether oral appointment is valid.

Appointment of an advocate to act on behalf of the party by telegram is not valid.
Where an advocate has forgotten to make endorsement of acceptance of vakalatnama,
but by conduct he has accepted it, the defect is not fatal (Hari Kishan Shah v. T. R.
Bhasin).4 Even non-filing of vakalatnama, on behalf of the party can be cured at a
subsequent stage by filing vakalatnama of the counsel who acted on behalf of the
party in the judicial proceeding before filing it (N. Satyanarayana v. Y. Venkat Subbaiah).5
But undertaking even by a senior advocate appearing on behalf of the lawyer engaged
in absence of the party cannot be accepted as it is not a valid undertaking. The
advocate cannot act without appointment in writing (Adinarayana v. Surya).6 In the
absence of a Vakalatnama executed by the client and duly accepted by the Advocate
and filed in Court, no agency at all is created and no undertaking so as to bind the
client can be given (Doki Adinarayana Subudhi v. Doki Surya Prakash Rao).7 It was
held that 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 of another
®
738
O 3, R, 4] Order 3 739

Advocate to plead on behalf of such party does not need memo of appearance to be
filed by another Advocate (Jayant Madhav Chitale v Garware Wall Ropes Limited;
Kota Co-operative Agricultural Bank Limited, Kota v. State of Karnataka).8
When a pleader gives an under taking, he acts as the agent of the client and is
representing him. He derives his authority from the client and that is why he is
required to file a vakalatnama duly signed by the client as required under Order III,
Rule 4, Code of Civil Procedure. He is prohibited from acting without a vakalatnama.
However, a Senior Advocate is debarred from filing a vakalatnama, taking instructions
from the client and from doing ‘any act other than pleading required or authorised by,
law to be done by a party’. An Advocate, who appears on behalf of another Advocate
engaged by a party can only plead but he has no power to ‘act’ on behalf of a party
without a document in writing in his favour, It is the agency created by a client in
favour of his Advocate which clothes the latter with the power to act on behalf of the
former and it is by virtue of the vakalatnama that the client becomes bound by the
actions of his Advocate within the limits of authority. In the absence of a Vakalatnama
executed by the client and duly accepted by the Advocate and filed in Court, no
agency at all is created and no undertaking so as to bind the client can be given (Doki
Adinarayana Subudhi v. Doki Surya Prakash Rao).9 The only requisite Order III Rule
4 lays down is that of written authority of appointment. When that is given it leaves
counsel so appointed free to ‘act’, and draws no distinction between various kinds of
acting. If the legislature draws no distinction then there is no justification for the Court
to make one (Chengan Souri Nayakam v. A.N. Menon).10
There is no reason to assume that the legislature intended to curtail the implied
authority of counsel, engaged in the thick of proceedings in the Court, to compromise
or agree on matters relating to the parties, even if such matters exceed the subject
matter of the suit. The relationship of counsel and his party or the recognised agent
and his principal is a matter of contract; and with the freedom of contract generally,
the legislature does not interfere except when warranted by public policy, and the
legislative intent is expressly made manifest. There is no such declaration of policy
or indication of intent in the present case. The legislature has not evinced any
intention to change the well recognized and universally acclaimed common law
tradition (Pushpa Devi Bhagat (D) th. LR. Smt. Sadhna Rai v. Rajinder Singh; Byram
Pestonji Gariwala v. Union Bank of India).11
State is always represented through counsel as such no vakalatnama is required and
memo of appearance by Counsel is sufficient (Deputy Collector v. Comunidade of
Bombolim).12 In cases of standing counsel for Government filing of ‘Vakalatnama’ is
not necessary (Deputy Collector, Northern Sub-Division, Panaji v. Commidade of
Bambolin; Chief Engineer v. S. K. Atri).13

3. Advocate’s authority when comes to an end.

Ordinarily a pleader is deemed to be acting for his party until the vakalatnama filed
in the case is not determined by another document in writing. However, there is no
special form prescribed for withdrawal. But mere statement of a pleader that he has
no instructions does not amount to withdrawal or cancellation of vakalatnama (Bijli
Cotton Mills v. Chhaganmal; Sathiraju v. Sathamma).14 No counsel can withdraw or
a party can terminate his services without the Courts’ leave. It was held that appointment
of every Advocate remains in force until determined with the leave of the Court by

®
739
740 Code of Civil Procedure, 1908 [O 3, R. 4

a writing signed by the client or the Advocate as the case may be and filed in Court.
Therefore, requirement of the said code is that an appointment of an Advocate can
be determined only with the leave of the Court. The only exception is that where the
client or Advocate dies or the proceedings of the suit are terminated (Dattusing
Giridharsingh Rajput (Thakur) v. Bhagwant Devasthan).15 It has been held that the
words “until all proceedings in the suit are ended so far as regards the client” are wide
enough to cover the proceedings by way of an application for restitution of a suit
dismissed for default. All the proceedings in the suit do not come to an end so far
as regards the client merely by a dismissal of a suit for default as such Order of
dismissal may be set aside for valid reasons on an application and the case may be
restored for Trial (Banwarilal Kedia v. A.P. State Electricity Board; Motilal v. LRs. of late
Poonampuri).16

4. Examples of counsels engagement not being determined.

By non-payment of counsel’s fee or engaging another advocate does not make the
first counsels’ engagement determined (Lal Chand v. Pyare).17 Mere writing by counsel
that he has given up engagement without taking leave of the Court does not discharge
his services. Where the Court has acted upon after the counsel gave in writing
withdrawal from the case, the leave of the Court can be treated as implied (Tamil
Nadu Electricity Board v. R. Srinivasan).18 In the absence of a written termination of
the relationship of the client and the pleader, the pleader is not absolved of his duty
to appear on behalf of his client. Any statements made by him that he had no
instructions, does not terminate his authority. Once he has accepted the brief and the
client has paid his fee, he continues to represent the client and be responsible for the
conduct of the case. He is, no doubt, entitled to terminate his status as a pleader of
the client but that cannot be done orally. It must be done in writing with the permission
of the Court in the manner laid down by Clause (2) of Rule 4 of Order III (Bijli Cotton
Mills (Pvt.) Ltd v. Chhaganmal Bastimal; Motilal v. L.Rs. of Late Poonampuri; Banwarilal
Kedia v. A.P. State Electricity Board).19
As mentioned in the rule, death of the party determines the authority of his counsel
except for the purposes of communicating death as required under Order XXII, Rule
10A of this Code. Also, elevation of an advocate to Bench also determines his
engagement under the vakalatnama.

5. Pleaders—Admissions and compromises made by them.

A duly appointed pleader can compromise on behalf of his client (Jamilabai v. Shankar
Lal).20 However, he can do so only in good faith (Chengan v. A. N. Menon).21 The
advocate has an implied authority to compromise on behalf of the party he represents
even in Writ Petitions (Garden Reach S. & E. Staff Assn. v. Garden Reach S. & E.
Ltd.).22 Also admissions made by counsels as to facts bind the parties but not the
admissions on points of law (Moran Mar & Co. v. Mar).23 In the absence of a Vakalatnama
executed by the client and duly accepted by the Advocate and filed in Court, no
agency at all is created and no undertaking so as to bind the client can be given (Doki
Adinarayana Subudhi v. Doki Surya Prakash Rao).24
A pleader, who does not hold and has not filed in the suit before the Court his client’s
general power of attorney authorising him generally to compromise suits on behalf of
his clients, cannot be recognised by a Court as having any authority to compromise

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the suit unless he has filed in the suit his client’s vakalatnama giving him authority
to compromise the suit before the Court (Jamilabai Abdul Kadar v. Shankarlal
Gulabchand).25
A Barrister is not liable to be sued in damages, even if he compromised an action
which he was expressly instructed by his client not to do. Whether or not an advocate
can be sued for negligence in the discharge of his duty in this country, the functions
and duties of an advocate are not those of an agent simpliciter, and his authority
cannot be confined to specific powers which might be enumerated in the vakalat, by
which he is appointed to act. This is not to say that counsel can enter into a
compromise or confess Judgment against the specific instructions given by the client
(Swinfen v. Lord Chelmsford; Chengan Souri Nayakam v. A.N. Menon).26 In terms of
Order III, Rule 1 of the Code of Civil Procedure, a litigant is represented by an
advocate. A concession made by such an advocate is binding on the party whom he
represents. If it is binding on the parties, again subject to just exceptions, they cannot
at a later stage resile therefrom. The matter may, however, be different if a concession
is made on a question of law. A wrong concession on legal question may not be
binding upon his client (B.S.N.L. v. Subash Chandra Kanchan).27 However, compromise
by undertakings given by counsel appointed is binding on parties (Bhagirathi v. Anant
Narayana).28
It has been held by the Hon’ble Supreme Court that it will be prudent for counsel not
to act on implied authority except when warranted by the exigency of circumstances
demanding immediate adjustment of suit by agreement or compromise and the signature
of the party cannot be obtained without undue delay, in these days of easier and
quicker communication, such contingency may seldom arise. It was further held by
the Court that a wise and careful counsel will no doubt arm himself in advance with
the necessary authority expressed in writing to meet all such contingencies in order
that neither his authority nor integrity is ever doubted. This essential precaution will
safeguard the personal reputation of counsel as well as uphold the prestige and
dignity of the legal profession (Jineshwardas (D) through L.Rs. v. Smt. Jagrani; United
India Insurance Co. Ltd. v. Jabeen; Byram Pestonji Garlwala v. Union Bank of India
and Ors.).29
The Supreme Court in one of the recent cases have held that there is no reason
to assume that the legislature intended to curtail the implied authority of counsel,
engaged in the thick of proceedings in the Court, to compromise or agree on
matters relating to the parties, even if such matters exceed the subject matter of
the suit. The relationship of counsel and his party or the recognized agent and his
principal is a matter of contract; and with the freedom of contract generally, the
legislature does not interfere except when warranted by public policy, and the
legislative intent is expressly made manifest. There is no such declaration of policy
or indication of intent in the present case. The legislature has not evinced any
intention to change the well recognized and universally acclaimed common law
tradition (Pushpa Devi Bhagat (D) th. LR. Smt. Sadhna Rai v. Rajinder Singh; Byram
Pestonji Gariwala v. Union Bank of India).30
A pleader may “not press” any issue and finding thereon on the basis of the statement
of counsel in this regard, is binding on the party. For definition of word ‘pleader’ see
Section 2 (15).

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6. Responsibility of Advocates.
As defined under Section 2 (15) of the Code, ‘pleader’ includes ‘advocates’. The
advocates are not mere agents but also officers of Court who owe duty to assist it
in administration of justice (Advocate General v. Amanulla Khan.).31 However, they
must discharge their duties with dignity, decorum and discipline (Har Govind Dayal
v. G. N. Verma.).32 The advocates owe their duties not only to their clients and Courts
but also to public (C. S. Nayakam v. A. N. Menon).33 Advocates who are close
relatives of Judges should not exploit the relationship (Satyendra Narain Singh v. Ram
Nath Singh.).34 An advocate who is personally interested in a case, should retire from
the case and should not accept brief (E. S. Reddi v. Chief Secretary.).35
It therefore, follows that the word ‘act’ used in Order 3, does not include the act of
Advocate to appear as a witness on behalf of the party. The word ‘act’ in Rule 2 does
not include an act of power of attorney holder to appear as a witness on behalf of a
party. As a substitute of the Plaintiff, the Advocate cannot appear as a witness and
make a statement. An Advocate can only certify those facts which have been
communicated to him by the Plaintiff. In other words where the Advocate knows that
he is a material witness in the case and may have to appear as such, at any point
of time should not continue to appear as a counsel (Smt. Kamla Bakshi v. Union of
India (UOI)).36

7. No fresh vakalatnama in appeals and restoration applications etc.

Rule 4 itself provides that appointment of pleader made in writing shall continue to
remain in force until all proceedings in the suit are ended except in cases of death
of party or otherwise determination with the leave of the Court. Explanation of the
rule makes it clear that appeal is a proceeding of suit for the purposes of this rule
as such no fresh vakalatnama is required in appeals. Where a case is transferred
from one Court to another in the same town, vakalatnama does not stand determined
but if the case is transferred to different division, the appointment of counsel in
previous Court comes to an end (Krishnaji v. Wamanrao).37 If the pleader signing the
memorandum of appeal has appeared for the party in the Trial Court, then he need
not present a fresh Vakalatnama along with the memorandum of appeal, as the
Vakalatnama in his favour filed in the Trial Court will be sufficient authority to sign
and present the memorandum of appeal having regard to Rule 4(2) of Order 3 Code
of Civil Procedure, read with Explanation c. In such an event, a mere memo
referring to the authority given to him in the Trial Court may be sufficient. However,
filing a fresh Vakalatnama with the memo of appeal will always be convenient to
facilitate the processing of the appeal by the office (Uday Shankar Triyar v. Ram
Kalewar Prasad Singh).38
From a perusal of the explanation appended to Sub-rule (2) of Rule 4 of Order 3 of
the Code of Civil Procedure it is clear that applications for refund of moneys are
deemed to be proceedings in the suit (Oriental Insurance Company v. Smt. Sheela
Devi and Smt. Durga Devi; Bijli Cotton Mills (Pvt) Ltd. v. Chhaganmal Bastimal).39
No fresh vakalatnama of the same counsel is necessary in the proceedings under
Order IX Rule 9 or Order IX, Rule 13 of the Code (Ram Karan Das v. Bhagwan Das;
Nishikanta v. Durgacharan).40 Same principle applies to proceedings under Order IX,
Rule 4.

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8. Fees of Advocates.
Where the advocate had done the work till the settlement of issues and also he led
the evidence on behalf of the Bank partly and that the Trial of the suit on behalf of
the Bank was partly concluded, one-fourth of the scheduled fees under the Tamil
Nadu Legal Practitioner’s Fees Rules, 1973 may be just and proper (C. S.
Venkatasubramania v. State Bank of India.).41
It was held by the Andhra Pradesh High Court that the enquiry under Order III Rule 4,
Code of Civil Procedure, is summary and serious disputed questions of fact cannot
be decided under this Rule. In the absence of any allegations of misconduct on the
part of the Advocate or any dispute regarding fee due or payable, the Court is justified
in Ordering payment of fee or a reasonable amount of fee if the fee is not fixed when
the client wants to seek the leave to terminate the services of the Advocate in the
case (Damordardass Agarwal v. R. Badrilal.).42

5. Service of process on pleader.—

Any process served on the pleader who has been duly appointed to act in the Court
for any party or left at the office or ordinary residence of such pleader, and whether
the same is for the personal appearance of the party or not, shall be presumed to be
duly communicated and made known to the party whom the pleader represents, and,
unless the Court otherwise directs, shall be as effectual for all purposes as if the
same had been given to or served on the party in person.

Case Cited
1. Nilkant v. Kashinath Samanna, MANU/SC/0384/1961: AIR 1962 SC 666.
2. Pulin v. Rajendra, AIR 1972 Gau 25.
3. Kundan Lal v. Municipal Corporation, AIR 1984 Del 231 : 1984 Rajdhani LR 255.

COMMENTS
Rule 5 provides that any process served on the duly appointed pleader of any party
shall be presumed to be duly communicated to the party concerned (Nilkant v.
Kashinath Samanna)1 unless Court directs that the service be made in person. Also
obtaining signatures of a counsel on Order sheet amounts to information of order
to the party. The presumption under the rule is not irrebuttable (Pulin v. Rajendra).2
If the notice is received back with the endorsement that the counsel does not
represent the party concerned, the service is not sufficient (Kundan Lal v. Municipal
Corporation).3

6. Agent to accept service.—

(1) Besides the recognised agents described in Rule 2 any person residing
within the jurisdiction of the Court may be appointed as an agent to accept
service of process.
(2) Appointment to be in writing and to be filed in the Court.—Such appointment
may be special or general and shall be made by an instrument in writing

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signed by the principal, and such instrument or, if the appointment is

general, a certified copy thereof shall be filed in the Court.
1
[(3) The Court may, at any stage of the suit, Order any party to the suit
not having a recognised agent residing within the jurisdiction of the
Court, or a pleader who has been duly appointed to act in the Court on
his behalf, to appoint, within a specified time, an agent residing within
the jurisdiction of the Court to accept service of the process on his
behalf.]

Case Cited
1. Kunhibi v. Land Acquisition Officer, MANU/KE/0080/1962: AIR 1962 Ker 266.

COMMENTS
Sub-rule (3) empowers the Court to direct a party not residing within the local
jurisdiction of Court to appoint an agent within the area of local jurisdiction of such
Court so that processes as and when required may be served on him. Sub-rule (1)
entitles the party to appoint agent for the said purpose of his own even if there is
no such Order. A husband cannot be said to be an agent for the purposes of this
rule unless he is so appointed by his wife (Kunhibi v. Land Acquisition Officer)1 but
husband can of course accept summons under Order V, Rule 15 of this Code on
behalf of his wife.

Order IV
Institution of Suits

1. Suits to be commenced by plaint.—

(1) Every suit shall be instituted by presenting a plaint in duplicate to the
Court or such officer as it appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Orders VI and VII, so
far as they are applicable.
(3) The plaint shall not be deemed to be duly instituted unless it complies with
the requirements specified in Sub-rules (1) and (2).

ANNOTATIONS

Amendments Effective date of Amendment

The Code of Civil Procedure (Amendment)
Act, 1999 in clause 1 of Rule 1 substituted
the text “plaint to the Court” for the text
“plaint in duplicate to the Court” and added
clause 3 to Rule 1.
The Code of Civil Procedure (Amendment)
Act, 1999 w.e.f. 01.07.2002
Prior to Amendment
Rule 1(1) of Order 4 use to read as under:
(1) Every suit shall be instituted by
presenting a plaint to the Court or

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