« 上一頁繼續 »
Pauper Suits.-Applications to sue in forma pauperis under section 404, post, cannot be made by recognised agent-Devigirgura Sumbhagir, 4 Bom., 91; Mokha Harakraj vs. Bisesvour, 5 B. L. R., App., 1l ; 13 W. R., 344.
Authorised Agent. In the case of Buzl-ul-Ruheem vs. Ramgopaul Manna, 8 Sev., 941, it was held that, looking at clause 10 of the Charter, an authorised agent under section 17, Act VIII (corresponding to section 37, infra), could not file a petition of appeal on the Appellate Side of the High Court, and that the Act did not apply. Section 37, infra, possibly does apply; see section 638, infra ; Meares's case, 14 B. L. R., 106.
Foreign Princes, Government.-See sections 412, 417 and 419, infra.
Pleader.-Under the Letters Patent, advocates, vakeels and attorneys appear for suitors, and plead or act, or plead and act for them ; advocates may appear and plead only. Hence, it has been held that an advocate is not entitled to file an application in the Registrar's Office of the Appellate Side of the High Court-Ram Taruck vs. Sidhessuree, 13 W. R. 60. But see “EMPOWERING HIM TO ACT," section 39, infra, and note under section 2, ante.
37. The recognised agents of parties by whom such Recognised agents.
appearances, applications and acts may be
made or done are-
parties not resident within the local limits of Persons holding powers
of - attorney the jurisdiction of the Court within which from parties out of
limits the appearance, application or act is jurisdiction.
made or done, authorising them to make and do such appearances, applications and acts on behalf of such parties;
(6) mukhtárs duly certificated under any law for the time Certificated mukh- being in force, and holding special powerstárs.
of-attorney authorising them to do, on behalf of their principals, such acts as may legally be done by mukhtárs ; (c) persons carrying on trade or business for and in the
names of parties not resident within the ; Persons carrying
local limits of the jurisdiction of the Court on trade or business for parties out of jurisdic
within which limits the appearance, tion.
cation 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. Nothing in the former part of this section applies to the
territories now administered respectively Recognised a gents in Punjab, Oudh and by the Lieutenant-Governor of the Punjab Central Provinces.
and the Chief Commissioners of Oudh and the Central Provinces ; but in those territories the recognised agents of parties by whom such appearances, applications and acts may be made and done shall be such persons as the Local Government may, from time to time, by notification in the official Gazette, declare in this behalf.
This section applies to H. C. and P. S. C. C. As to Oudh, see Act XVIII of 1876,
General Power.-A general power-of-attorney requires to be stamped-See Act I of 1879, cl. 50. A warrant of attorney to the attorney of a defendant, to receive à declaration or plaint, in any action or suit to be brought for the recovery of certain moneys, and to confess the same action or suit, or else to suffer or consent a judgment or decree in the said action or suit by default, or in any other way to pass or be pronounced against the defendant, empowers the attorney to accept service
and appear for the defendants within the meaning of this section-Khaulut Chandra Ghose vs. Sarada Soondery Dossee, Bourke, 244.
Vakalutnamahs, whether executed by principals or their attorneys or agents, and mukhtarnamahs, under the authority of which vakalutnamahs are executed, need not be verified on oath; the responsibility for their correctness rests with the vakils. A mukhtarnamah under seal is as valid as a mukhtarnamah under signature-Petition of the Maharajah of Burdwan, 7 W. R., 475.
Within Jurisdiction. This is an enabling section, and should be construed liberally. A lived for 40 years in Pen when he returned to his native village to get his sisters married, leaving an agent holding a general power-of-attorney. He was away for four months : Held, he was not resident in Pen, and his attorney was a recognised agentRamchandra vs. Keshav, I. L. R., 6 Bom., 100.
See also as to the meaning of “RESIDENT” the note under section 16, supra.
Power to Refuse. – A person holding a power-of-attorney authorising him to appear and defend suits may act or not, as he pleases, upon the power. He is at liberty to refuse to accept service of summons-In re Luchmee. Chund,' I. L. R., 8 Cal., 317,
Mukhtars.-By section 11, Act XX, 1865, mukhtárs could, subject to the conditions of their certificates as to the class of Courts in which they were authorized to practise, appear and act in any Civil Court, and appear, plead and act in any Criminal Court within the same limits. They could not plead in Civil Courts. Merely bringing a plaint to a vakil for his signature-Muddun Mohun Biswas, 6 W. R., Řef., 29, or standing behind a pleader and giving him information, did not amount to an appearance as mukhtar in contravention of Act XX, 186.5—Gujraj Singh, 10 W. R., 355. And see Kali Kumar vs. Nobin Chunder, I. L. R., 6 Cal. 583; 7 0. L. R., 562. Previous to this Act a mukhtar was not looked on as a recognised agent-Kristo Chunder Goopto vs. Furl Ali Khan, 17 W. R., 389.
The present Act is Act XVIII of 1879; under section 9, the High Court is empowered to prescribe rules for mukhtárs, and these are to be found at the Calcutta Gazette, Feb15, 1882, Part I, p. 152-3. As to this Act, see Tussuduq Hossein vs. Girhar, I. L. R., 11 Cal., 556.
Special Power.-A mere power to sue does not authorise an agent to do more than employ a vakil on the terms of paying him a reasonable remuneration-Keshav vs. Narayan, I. L. R., 10 Bom., 18; it does not enable him to terminate a suit by the oath of the opposing party-Sada Shio vs. Maruti, I. L. R., 14 Bom., 455 ; and a mere authority to look after a case does not make the donee of the power a recognised agent under this section-Bhugrcan vs. Nund Lall, I. L. R., 12 Cal., 173, p. 178.
CLAUSE (c).-In Act VIII, 1859, section 17, the words “where no other agent is ex pressly authorised ” imply that the persons so carrying on trade or business for or in the names of parties not within the jurisdiction of the Court, are purely agents: and the words
carrying on trade or business for or in the names of parties not within the jurisdiction of the Courts” refer to gomasta or agent, and not to a partner-Luchmeput Dogare vs. Sibnarain Mundle, 1 Hydè; 97. This decision was subsequently dissented from in Ram Chandra Bose vs. Snead, 7 B. L. R. App., 58, so that the point may still be considered as undetermined. These cases were decided with reference to the question whether, in an action against the firm, service of summons on a partner was sufficient. It is so now; see section 74, infra ; but the service should be made at the place of business-Kustoor Mull vs. Jokeeram, 11 B. L. R. App., 26.
Not Agents.-Clause (c) of this sectior, and section 76 are to be construed together, and are intended to carry out the same scheme of relief, which rests upon the idea that where an agent has been put forward substantially to take the place of his principal within a particular jurisdiction, he should take the place of such principal (at the option of any person who has dealt with him) in any legal proceeding that may arise out of the business or work in which the agent has been virtually a local principal. The manager or agent contemplated by the Code is one who has an initiative and independent discretion, although subject possibly to principals and general orders prescribed for his guidance. A mere servant employed to carry out orders or to execute, or a factor, or commission agent who is not identitied with the firm for which he acts, is not such an agent-Goculdas vs. Ganeshlal, I. L. R., 4 Bom., 416. A Bombay firm, simply employed by the owners, resident in England, or a ship visiting Bombay, to procure
freight for her for a particular voyage, cannot, under ordinary circumstances, be regarded as carrying on business in the name of the owners, and therefore cannot be deemed authorised agents within this section--Ratansi vs. Saunders, 8 Bom., 159. See also the case reported in the note at page 111 of vol. 7, Bombay High Court Reports.
A Political Agent is not, as such, a recognised agent-Venkatrav vs. Madhavrav, L. R., 11 Bom., 53.
Objection to Agent Acting: -An agent cannot act under this clause so long as his principal is within jurisdiction. Thus, where the manager of a firm instituted a suit to recover a sum of money while one of the partners was within jurisdiction, it was held that the partner and agent should have joined in presenting the plaint or appointing a pleader; but that, unless the irregularity affected the merits of the case, the Appellate Court ought not, on that account, to dismiss the suit-Bisandas vs. Lakhmichand Kisanchand, 6 Bom., 159. And where a recognised agent obtained a decree in appeal without objection, it was held the debtor could not in execution of it object to the agent in the same Court-Parvatibai vs. Vinayek, I. L. R., 12 Bom., 68. See “ Objection not Allowed," section 36.
Agency Ceasing.- A gomasta of a firm ceases to be a recognised agent as soon as the firm ceases to exist–Mokha Hurruckraj vs. Bissessur, 13 W. R., 344; but the munim of a firm which has ceased to transact business, who is engaged in collecting the assets of that firm and otherwise winding up its affairs, is a recognised agent of the owner of such firm within the meaning of clause 2, section 17, Act VIII of 1859, and can on behalf of his absent principal, maintain or defend a suit brought in respect of the business of the firm whose affairs he is engaged in winding up-His Highness Tukoj vs. Pitambardas, 9 Bom., 427.
Resident.-See Ramchandra vs. Keshav, I. L. R., 6 Bom., 100.
PUNJAB.-The provision regarding Punjab, Oudh and Central Provinces will enable the Local Governments to keep, if they think fit, the special rules on the subject now in force in those territories, viz., Notification (Punjab) No. 1225, dated 26th September 1866; and the order of the Governor-General in Council as regards Oudh, dated 6th August 1861. AJMERE.-See Ajmere Regulation 1 of 1877, section 28, and section 3, ante.
38. Processes served on the recognised agent of a party Service of process on
to a suit or appeal shall be as effectual as recognised ågent. if the same had been served on the party in person, unless the Court otherwise directs. .
The provisions of this Code for the service of process on a party to a suit shall apply to the service of process on his recognised agent.
This section applies to H. C. and P. S. C. C. As to Oudh, sce last section.
This section does not bar service of notice on the parties themselves--Ram Lall Choudhry vs. Soondery Shah, W. R., 1864, Mis., 21.
Service upon an attorney's clerk of an order directed to be served on the attorney is not good-Èmritlall Saligram vs. Kidd, 2 Hyde, 116. A person to whom a power-of-attorney has been given may refuse to accept service of
that is, refuse to act on the power---In re Luchme Chand, I. L. R., 8 Cal., 326.
39. The appointment of a pleader to make or do any Appointment of appearance, application or act as aforesaid, pleader.
shall be in writing, and such appointment shall be filed in Court.
When so filed, it shall be considered to be in force until revoked with the leave of the Court, by a writing signed by the client and filed in Court, or until the client or the pleader dies, or all proceedings in the suit are ended so far as regards the client.
No advocate of any High Court established by Royal Charter shall be required to present any document empowering him to act.
This section applies to H. C. and P. S. C. C.
Appointment in Writing-A legal practitioner can transfer his brief orally, under a rule of the Allahabad High Court-Matadin vs. Gangabai, I. L. R., 9 Alla., 613.
Vakalutnamahs require a stamp. They may be executed by the principal or any person holding a power-of-attorney, whether enrolled as a mukhtar or not-Shaikh Nubee Buxsh, petitioner, 7 W. R., 461, and neither the mukhtarnamah under which the vakalutnamah has been executed, nor the vakalutnamah itself requires to be verified on oath; the responsibility of all such documents being properly executed rests with the vakil- Maharajah of Burdwan, petitioner, 7 W. R., 475.
The acceptance of a vakalutnamah should be unconditional to all cases-Goopeenath Mudduck, petitioner, 14 W. R., 7. It remains in force until revoked, with the leave of the Court, in writing by the client-King vs. King, I. L. R., 6 Bom., 416, p. 420.
No fresh vakalutnamah is necessary to appear in any proceedings subsequent to decree, even in such as an appeal to the Privy Council - Shah Makhun vs. Sreekishen Singh, 8 W. R., 92, or in an application for a new trial-Sutto Churn Ghossal, petitioner, 12 W. R., 465, or for execution of decree, or to answer a claim put forward under section 246 of Act VIII, 1859-Gopal Jaya Chand vs. Hargovind, 5 Bom., 83, or to appear in a remanded case, 4 Mad., xliii.
Empowering him to Act.-Subject to the rules of the High Court, an Advocate may perform all the duties of a pleader without producing a vakalutnamah-Bakhtawar vs. Sant Lal, I. L. R., 9 Alla., 617. See “PLEADER,” section 36, ante.
Court of Wards. - The Collector of the District as Agent of the Court of Wards gave a vakalutnamah to a pleader whom he retained to conduct the case of a ward. The Collector died before judgment. Held, a second vakalutnamah was unnccessaryKrishna v. Marudanayagam, I. L. R., 15 Mad., 135.
40. Processes served on the pleader of any party or left Service of process on
at the office or ordinary residence of such pleader.
pleader, relative to a suit or appeal, and whether the same be for the personal appearance of the party or not, shall be presumed to be duly communicated and made known to the party whom the pieader represents, and, unless the Court otherwise directs, shall be as effectual for all purposes in relation to the suit or appeal as if the same had been given to or served on the party in person.
Act VIII of 1859, section 18. This section applies to H. C. and P. S. C. C.
Service of notice of appeal upon respondent's pleader is good service on him-Ishur Dutt vs. Shib Pershad, 15 W. R., 290. So also is service of summons calling on a party to appear and give evidence--Shivrudrappa vs. Kashinath Vishnu, 6 Bom., 141 ; and service on the attorneys on the record is good even after a decree nisi in a divorce suit -King vs. King, I. L. R., 6 Bom., 416.
41. Besides the recognized agents described in section 37, Agent to receive any person residing within the jurisdiction process.
of the Court may be appointed an agent to accept service of process. Such appointment may be special or general, and shall be
made by an instrument in writing signed His appointment to be in writing and to be by the principal, and such instrument, filed in Court.
or, if the appointment be general, a duly attested copy thereof, shall be filed in Court.
Act VIII of 1859, sections 50, 51. This section applies to H. C. and P. S. C. C. O’K, CIV, P.
OF THE FRAME OF THE SUIT. 42. Every suit shall, as far as practicable, be so framed
as to afford ground for a final decision upon Suit how to be framed.
the subjects in dispute, and so to prevent further litigation concerning them. This section applies to H. C. 43. Every suit shall include the whole of the claim which
the plaintiff is entitled to make in respect Suit to include whole claim.
of the cause of action ; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
If a plaintiff omit to sue in respect of, or intentionally, Relinquishment
of relinquish, any portion of his claim, he shall part of claim.
not afterwards sue in respect of the portion so omitted or relinquished.
A person entitled to more than one remedy in respect of Omission to sue for
the same cause of action may sue for all or one of several remedies.
of his remedies ; but if he omits (except with the leave of the Court obtained before the first hearing) to sue for any of such remedies, he shall not afterwards sue for the remedy so omitted.
For the purpose of this section, an obligation and a collateral security for its performance shall be deemed to constitute but one cause of action.
Ilustration. A lets a house to B at a yearly rent of Rs. 1,200. The rent for the whole of the years 1881 and 1892 is due and unpaid. A sues B only for the rent due for 1892. A shall not afterwards sue B for the rent due for 1881.
Act VIII of 1859, section 7, altered.
Cause of Action.- The words cause of action have been held from the earliest time. to mean every fact which it is material to be proved to entitle the plaintiff to succeed ; every fact which the defendant would have a right to traverse.-Cooke vs. Gill, L. R., 8 C. P., 107. It does not depend on the relief claimed.- Shankar vs. Dya Shankar, 15 Ind App., 66; I. L. R., 15 Cal., 422, and has no relation whatever to the defence, but refers entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintitf asks the Court to arrive at a conclusion in its favour-Chand Kour vs. Partab Sing, 15 Ind. App., 156. Thus where plaintiff sued as the assignee of a debt, the assignment was held to be part of the cause of action--, Read vs. Broron, 22 Q. B. D., 128. One test in deciding whether the cause of action in two suits is the same is whether the same evidence would support both-Brunsden vs. Humphrey, 14 Q. B. D., 141, p. 149; and see Soorasoonderee vs. Golam Ali, 19 W. R., 141.
Application and Principle of this Section.-This section applies to H. C. and P. S. C. Courts ; to soits under the N.-W. P. Rent Act-Madho vs. Murli, I. L. R., 5 Alla., 406 ; and to suits under Act X of 1859 -- Purbhoo vs. Ramjeeuun, 1 Alla., 119; Ram Soonder vs. Krishno, 17 W. R., 350 ; Adhirani vs. Raghu, I. L. R , 12 Cal., 50 ; and to suits under the Deccan Agriculturists Relief Act-Bhau vs. Hari, I. L. R., 7 Bom., 377. It does not apply to cases where the previous suit has been withdrawn with leave to bring
a fresh suit--Venkata vs. Ranga, I. L. R., 10 Mad., 160 ; Mulchand vs. Bhikari, I. L. R., 43. Claim as hairen not boued by cura disposing of claim to dower