Thus, it is evident from the provisions of
Order III of the CPC that an appearance, application or
act in or to any Court which is required to be made or
done by a party in the Court, can be effectively made or
done by the party in person or by a recognised agent. A
recognised agent, for that purpose, includes a person
who holds the power of attorney. The provisions
contained in the Powers of Attorney Act 1882 indicate
that there is no prohibition for a litigant seeking a writ
under Article 226 or Article 227 of the Constitution
through a power of attorney holder. The donee of a
power of attorney is no more than an agent of the donor
and does not pursue the proceeding in his own
independent capacity. Instead, he acts for and on behalf
of the donor and is subject to the limitations which are
contained in the instrument. {Para 11}
12. The present writ petition is filed as though the
petitioner is the owner of the estate. Apart from a bald
assertion that the petitioner is managing the property on
account of her husband’s absence, there is no material
conferring authority on her.
13. The reliance placed on the decisions in
Narayanan Nair’s and Ashadevi N.P.’s cases are
misplaced. In Narayanan Nair’s case, this Court
recognised the right of a duly authorised agent to
institute a suit on behalf of the plaintiff in light of the
written authorisation produced along with the plaint.
Whereas, in Ashadevi N.P.’s case, this Court held that
the broader principles of the C.P.C. apply to writ
petitions. Neither the provisions in the Evidence Act,
CPC, the Rules, nor the precedents referred to above aid
the petitioner in filing the writ petition on behalf of her
husband without a power of attorney.
14. The right that can be enforced under
Article 226 also shall ordinarily be the personal or
individual right of the petitioner himself, though in
the case of some of the writs like habeas corpus or
quo warranto this rule may have to be relaxed or
modified”.
(emphasis supplied)
Tested against the aforesaid principles, I hold that
the petitioner has no locus-standi to institute and
prosecute the writ petition on behalf of her husband.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) NO. 2862 OF 2025
SHAREEFA, W/O. ISMAIL K.P. Vs THE SUB COLLECTOR, TIRUR,
PRESENT: MR.JUSTICE C.S.DIAS
Dated: 25.08.2025
Citation: 2025:KER:65018
The writ petitioner’s husband is the co-owner of
12.48 Ares of land comprised in Survey No.309 in Tanur
Village, Tirur Taluk. The petitioner is managing the
property as her husband is employed abroad. The
property is ‘dry land’. However, the respondents have
erroneously classified the land as 'wet land' and
included it in the data bank prepared under the Kerala
Conservation of Paddy Land and Wetland Act, 2008, and
the Rules framed thereunder (‘Act’ and ‘Rules', for
brevity). To rectify the misclassification of the land, the
petitioner’s husband and the other co-owners had
submitted Ext.P3 application in Form 5 under Rule 4
2025:KER:65018
WP(C) NO. 2862 OF 2025
4
(4d) of the Rules before the 1st respondent. As there was
an inordinate delay in considering the application, the
petitioner’s husband filed W.P.(C) No.24574/2024 before
this Court. By Ext.P4 judgment, the 1st respondent was
directed to consider the application within one month.
Nevertheless, the 1st respondent rejected the application
by Ext.P7 order, which has led to the filing of the
present writ petition.
2. When the writ petition was taken up for
hearing, this Court questioned the petitioner’s locusstandi to file the writ petition, since she is neither the
owner of the property nor the power of attorney holder.
3. I have heard Sri. C.M. Mohammed Iquabal,
the learned Counsel for the petitioner and Smt. Deepa
V., the learned Government Pleader.
4. The learned counsel for the petitioner argued
that, by virtue of Section 120 of the Evidence Act, 1872,
the petitioner, being the wife of a co-owner of the
property, is competent to represent her husband’s
estate and file the writ petition even without a power of
attorney. The learned Counsel placed reliance on Order
III Rule 1 of the Code of Civil Procedure (‘CPC’, in short)
and the decisions of this Court in Narayanan Nair v.
John Kurien [1998(1) KLT 673] and Ashadevi N.P.
and Others v. State of Kerala and Others [2020 (4)
KHC 280] to fortify his submissions.
5. The learned Government Pleader opposed the
above contention and submitted that the petitioner
cannot file the writ petition without a power of attorney
executed in her favour, for the action is in personam and
the right to sue rests solely with the landowners.
6. The facts that the petitioner is not the owner
of the property in question, her husband has not
executed a power of attorney in her favour, and it was
her husband who filed the earlier writ petition are not
disputed.
7. The reliance placed on Section 120 of the
Evidence Act, 1872, is wholly misconceived, and it reads
as follows:
“120. Parties to civil suit and their wives or
husbands Husband or wife of person under criminal ―
trial.
In all civil proceedings the parties to the suit, and the
husband or wife of any party to the suit, shall be
competent witnesses. In criminal proceedings against any
person, the husband or wife of such person, respectively,
shall be a competent witness”.
8. The above provision merely enables a spouse
to be a competent witness in a proceeding involving the
other spouse. It does not clothe a non-party spouse with
the right to institute proceedings in substitution of the
party spouse.
9. Chapter XI of the Rules of the High Court of
Kerala, 1971, lays down the procedure for presentation
of writ petitions before this Court. Rule 145
unequivocally mandates that the writ petitions filed
under Articles 226, 227 and 228 of the Constitution have
to be filed by the petitioner or his duly authorised
Advocate. Rule 19 prescribes the form and manner in
which a vakalath has to be attested to appoint an
Advocate. In addition to the above, writ petitions have to
be accompanied by an affidavit sworn to by the party.
There is no provision under the Rules enabling a nonparty spouse to file a writ petition on behalf of a party
spouse, without a duly executed power of attorney, in
the status of an agent.
10. Order III of the CPC permits recognised
agents and pleaders to appear on behalf of a litigant.
Rule 1 of Order III enables 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 recognized agent, or by a pleader
appearing, applying or acting, as the case may be, on his
behalf. Under Rule 2 of Order III, recognised agents of
parties by whom such appearances, applications and
acts may be done or made, include persons holding
powers of attorney, authorising them to make and do
such appearances, applications and acts on behalf of
such parties.
11. Thus, it is evident from the provisions of
Order III of the CPC that an appearance, application or
act in or to any Court which is required to be made or
done by a party in the Court, can be effectively made or
done by the party in person or by a recognised agent. A
recognised agent, for that purpose, includes a person
who holds the power of attorney. The provisions
contained in the Powers of Attorney Act 1882 indicate
that there is no prohibition for a litigant seeking a writ
under Article 226 or Article 227 of the Constitution
through a power of attorney holder. The donee of a
power of attorney is no more than an agent of the donor
and does not pursue the proceeding in his own
independent capacity. Instead, he acts for and on behalf
of the donor and is subject to the limitations which are
contained in the instrument.
12. The present writ petition is filed as though the
petitioner is the owner of the estate. Apart from a bald
assertion that the petitioner is managing the property on
account of her husband’s absence, there is no material
conferring authority on her.
13. The reliance placed on the decisions in
Narayanan Nair’s and Ashadevi N.P.’s cases are
misplaced. In Narayanan Nair’s case, this Court
recognised the right of a duly authorised agent to
institute a suit on behalf of the plaintiff in light of the
written authorisation produced along with the plaint.
Whereas, in Ashadevi N.P.’s case, this Court held that
the broader principles of the C.P.C. apply to writ
petitions. Neither the provisions in the Evidence Act,
CPC, the Rules, nor the precedents referred to above aid
the petitioner in filing the writ petition on behalf of her
husband without a power of attorney.
14. In Calcutta Gas Co. (Proprietary) Ltd. v.
State of W.B., Charanjit Lal Chowdhary v. Union of
India (AIR 1962 SC 1044), an identical question arose,
wherein the Constitution Bench of the Hon’ble Supreme
Court held as follows:
“5. The first question that falls to be considered is whether
the appellant has locus standi to file the petition under
Article 226 of the Constitution. The argument of learned
counsel for the respondents is that the appellant was only
managing the industry and it had no proprietary right
therein and, therefore, it could not maintain the application.
Article 226 confers a very wide power on the High Court to
issue directions and writs of the nature mentioned therein
for the enforcement of any of the rights conferred by Part III
or for any other purpose. It is, therefore, clear that persons
other than those claiming fundamental rights can also
approach the court seeking a relief thereunder. The article
in terms does not describe the classes of persons entitled to
apply thereunder; but it is implicit in the exercise of the
extraordinary jurisdiction that the relief asked for must be
one to enforce a legal right. In State of Orissa v. Madan
Gopal Rungta [1951 SCC 1024 : (1952) SCR 28] this Court
has ruled that the existence of the right is the foundation of
the exercise of jurisdiction of the court under Article 226 of
the Constitution. In Chiranjit Lal Chowdhuri v. Union of
India [1950 SCC 833 : (1950) SCR 869] it has been
held by this Court that the legal right that can be
enforced under Article 32 must ordinarily be the right
of the petitioner himself who complains of infraction
of such right and approaches the court for relief. We
do not see any reason why a different principle should
apply in the case of a petitioner under Article 226 of
the Constitution. The right that can be enforced under
Article 226 also shall ordinarily be the personal or
individual right of the petitioner himself, though in
the case of some of the writs like habeas corpus or
quo warranto this rule may have to be relaxed or
modified”.
(emphasis supplied)
Tested against the aforesaid principles, I hold that
the petitioner has no locus-standi to institute and
prosecute the writ petition on behalf of her husband.
Consequently, I dismiss the writ petition, which shall not
prejudice the landowners' right to filing a fresh writ
petition or executing a power of attorney in favour of the
petitioner authorising her to file a fresh writ petition on
the same cause of action. The Registry shall forward a
copy of this judgment to the Registrar (Judicial) for
reference.
Sd/-
C.S.DIAS, JUDGE
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