TMI Blog1975 (4) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... process takes its slow motion course that settlement of the dispute is not infrequently preferred by both sides to protracted adjudicatory justice. In the present case, although parties had engaged lawyers and gone to trial, they took several adjournments from court to compose their differences, The last such was granted in these terms : 19-4-65 Parties as before present Application by defendant for adjournment granted. Suit is adjourned for hearing to 21-4-65. Sd/- R. H. Maslekar, Joint Civil Judge Junior Division. Eventually, on April 21, 1965 the court recorded a compromise, signed by the pleader of the tenant, giving 18 months time to give vacant possession and decreed the suit on the agreed terms. But at heart the tenant harboured the intent to resist eviction; the impropriety of breaching she compromise was overpowered by the tempting plea of the illegality of the decree on consent. So she, started some miscellaneous proceedings which were carried right upto this Court although dismissed in every court as incompetent. Then she inaugurated this, the third chapter of litigation, Regular Civil Suit No. 422 of 1966 for a declaration that the decree based on a compr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Indian genius must speak. In this perspective, first we have to look tit the pertinent provisions of the Civil Procedure Code, the Advocates Act and the Bombay Pleaders Act. Even before that we may reproduce the terms of the compromise which resulted in the decree for eviction in the prior suit-(Regular Civil Suit No. 141 of 1964) : IN THE COURT OF THE CIVIL JUDGE , JUNIOR DIVISION AT JALGAON Regular Suit No. 141/64 SHANKARLAL GULABCHAND-Plaintiff V. ABDUL KADAR H. WELDER-Defendant A compromise has been arrived at mutually between the plaintiff and the defendant and it is agreed as under :-The defendant is to give to the plaintiff actual possession of the suit properties on or before the date the 30-10-66. In case the defendant fails to deliver actual possession of the said suit properties according the plaintiff is to take actual possession of the said properties by filing a Darkhast. The defendant is liable to pay at the rate of ₹ 55.90 the amount of the loss sustained in the form of arrears of rent inclusive of the municipal tax and education cess subsequent to the filing of the suit, from the date 1-4-64 until delivery of actual possession of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e interests and on behalf of his client although without actual reference to him where his vakalat is silent on the point. There is no statutory provision decisive of this issue and we have to garner the principles from various factors like the status and significance of the legal profession in society, the wider powers conferred on lawyers as distinguished from ordinary agents on account of the triuna facets of the role of an advocate vis a vis the client, the court and the public and its traditions and canons of professional ethics and etiquette. Above all, the paramount consideration that the Bench and the Bar form a noble and dynamic partnership geared to the great social goal of administration of justice puts the lawyer appearing in the court in a class by himself and to compare him with an ordinary agent may be to lose sight of the lawyer as engineer of the rule of law in society. National integration at the lawyer's level was statutorily achieved by the Advocates Act, 1961 whereby the Indian Bar, with a classless orientation, came into existence permitting enrollment of various categories of legal practioners like vakils and pleaders (see s. 29). It must be noted, how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity to their clients and to the Court have to be the same even though some of them may be entitled to appear only in District Courts while others in the High Courts, and Advocates in any Court in the whole of the country. The quality of the power-limitaions on the courts in which appearance is permissible being ignored for the time being cannot stand differentiation. This stand is reinforced by a reference to the Civil Procedure Code which regulates the legal process in Indian courts. Order III, r. 1, reads : 1. 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 a PartY in person, or by his recognised agent or by a pleader appearing, applying or acting on the case may be,.on his behalf We may also read r. 4(1) of the same order (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 Both these provisions clothe the pleader with the power to act in any court provided he has been emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R. 988); S. S. walker v. L. S. Walker(A.I.R. 1960 Bom. 20); and C. S. Nayakam v. A. N. Menon(A.I.R. 1968 Ker. 213. 10 SC 75-23) . Although, on an analysis of these decisions, some discordant notes may be heard, there is substantial harmony of judicial opinion on the proposition that the different classes of legal practitioners have the same rights in relation to the case in which they have been engaged. Indeed, even if there be any marginal doubt, we have to interpret the law in such manner as to promote the integration of the Indian Bar in tune with the spirit of s. 29 of the Advocates Act which categorically states that subject to the provisions of that Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practice the profession of law, namely, advocates. Shri Limaye placed great reliance on the Judicial Committee's statement in Sourindra (supra) where Sir John Edge observed; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion whether evidence is to be given or not on any question of fact ; skill in advocacy is largely the result of discrimination. These powers in themselves almost amount to powers of compromise ; one point is given up that another may prevail. But in addition to these duties, there is from time to time thrown upon the, advocate the responsible task of deciding whether in the course of a case he shall accept an offer made to him, or on his part shall make an offer on his client's behalf to receive or pay something less than the full claim or the full possible liability. Often the decision must be made at once. If further evidence is called or the advocate has to address the Court the occasion for settlement will vanish. In such circumstances, it the advocate has no authority unless he consults his client, valuable opportunities are lost to the client. (emphasis, ours) Their Lordships referred to the apparent authority that counsel has in England to compromise in all matters connected with the action. The jurisprudential basis as a branch of the Law of Agency has been thus expressed by Lord Atkin : Two observations may be added. First, the implied authority of couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r not. (emphasis, ours) The legal deduction is contained in these emphatic words : Brush unrealities aside and what do we get but a contract ? How much more is that the case in those parts of India where no solicitor intervenes and counsel and client meet face to face ? How much more when there is an actual instrument of engagement or a power of attorney ? How much more when the law requires writing ? (p. 24) The Privy Council tells us that there is inherent in the position of counsel an implicit authority to do all that is expedient, proper and necessary for the conduct of the suit and the settlement of the dispute. (p. 25) Turning next to 0.3, R. 4, consider again the case in which a pleader is appointed simply to 'act' without any attempt to set forth the scope of his acting. (That incidentally is in substance the power given to the plaintiff's counsel in the case). Is compromise not an acting ? (p. 25) Our attention has been drawn to Supaji (supra) which, while affirming implicit authority of an Advocate, doubts the application of the same principle to pleader. We unhesitatingly prefer the Full Bench view (supra). A little reflection w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at large than the ordinary run of agency. This reasoning has been high lighted by the Kerala High Court in its Full Bench decision in Nayakaim (supra). Mathew J., examined the English authorities and applied it to Indian conditions. The learned Judge observed The construction of a document appointing an agent is different from the construction of a vakalat appointing counsel. In the case of an agent the document would be construed strictly and the agent would have only such powers as are conferred expressly or by necessary implication. In the case of counsel the rule is otherwise because there we are dealing with a profession where well-known rules have crys- tallised through usage. It is on a par with a trade where the usage, becomes an additional term of the contract, if not contrary to the general law or excluded by express agreement. (p. 215) More importantly, Mathew, J. placed accent on the special position of the Bar That counsel is not a mere agent of the client would be made clear if we look at the nature of his duties and relationship with the public and the court. Counsel has a tripartite relationship : one with the public, another with the court, and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and is subject to its discipline. (p. 216) A Division Bench of the Bombay High Court (where Chagla C.J., spoke for the Court) takes a pragmatic view of a lawyer's powers to settle as is reflected from the head-note which is sufficient for our purpose (see head-note in Ranchhoddas (supra); It is impossible for a member of the Bar to do justice to his client and to carry on his profession according Lo the highest standards unless he has the implied authority to do everything in the interests of his client. This authority not only consists in putting forward such arguments as be thinks proper, but also to settle the client's litigation if he feels that a settlement would be in the interests of his client and it would be foolish to let the litigation proceed to a judgment, This implied authority has also been described as an actual authority of counsel or an advocate. This authority may be limited or restricted or even taken away. If a l imitation is put upon counsel's authority, his implied or actual authority disappears or is destroyed. In such a case he has only an ostensible authority as far as the other side is concerned. When the actual authority is des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following to say : The rule is almost universal that an attorney who is clothed with no other authority than that arising from his employment in that capacity has no implied power by virtue of his general retainer to compromise and settle his client's claim or cause of action, United States v. Beebe (1901) 180 US 343(ZI6), Holkar v. Parker (1813) 3 Law Ed. 396 (ZI7), Golder v. Bradley (C.C.A. 4th) 233 F. 721.(ZI6), Anucas, 1917 A 921 (ZI9) : In re Sonyder (1907) 190 N.Y. 66 (Z20), Ward v. Orsini 1926 243 N.Y. 123 (Z21), except in situations where he is confronted with an emergency and prompt action is necessary to protect the interests of the client and there is no opportunity for consultation with him. Generally, unless such an emergency exists, either precedent special authority from the client or subsequent ratification by him is essential in order that a compromise or settlement by an attorney shall be binding on his client. (p. 12) We are impressed by the eloquent and luminous observations of Lord Reid, if we may say so with great deference, in Rondel v. Worsley ([1969] 1 A.C. 191) : Every counsel has a duty to his client fearlessly to raise every issue, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i without his knowledge when there is time to consult and the terms affect him adversely. The Privy Council's observation in Sheonandan Prasad Singh v. Abdul Fateh Mohammed Reza (AIR 1935 P.C. 119.) serve as reminder : But whatever may be the authority of counsel, whether actual or ostensible, if frequently happens that actions are compromised without reference to the implied authority of counsel at all. In these days communication with actual principals is much easier and quicker than in the days when the authority of counsel was first established. In their Lordship's experience both in this country and in India it constantly happens that counsel do not take upon themselves to compromise a case without receiving express authority from their clients for the particular terms : and that this position in each particular case is mutually known between the parties. (p. 22) (supra) Ramaswami J., also in Govindammal (supra) in the paragraph already extracted, has referred to a disturbing aspect which must alert the public and the profession to the lurking dangers of a carte blanche to counsel to compromise a case without client's precedent permission. The learned Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e application for postponement on this score. Exhibit 21, d/17-2-65 runs: In the Court of the Joint Civil Judge, J. D. at Jalgaon Reg. Suit No. 141/64 Shankarlal Gulabchand More Ors. Plaintiffs Versus A.Kadarr H. Welder. Defendant The respectful application on behalf of the Plaintiffs and the Defendant is as follows :- In the said matter, talks regarding compromise are going on mutually between the plaintiffs and the defendants. The talks have not concluded as yet. Hence be pleased to adjourn the hearing fixed for today and give another date for hearing. This is the application. Date : 17-2-1965 Sd/- D. H. Chaudhri Advocate for plaintiff Sd/- B. H. Palshikar Advocate for defendant. Allowed Sd/-R. H. Maslekar 17-2-65. We feel no doubt that the broad sanction for the compromise came from the tenant, that no shady action is imputable to respondent 4 and that his conduct has been motivated by the good of his client. The last posting was for reporting the compromise. But, on that date, the Court declined further adjournment and the party being absent and away, the pleader for the appellant had no alternative but to suffer an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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