TMI Blog1991 (9) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... s valid and in accordance with the provisions of Order XXIII rule 3, as amended by the C.P.C. (Amendment) Act, 1976. The only question which arises for consideration is as regards the construction of Order XXIII rule 3, C.P.C. We shall read this provision, as amended by the C.P.C. (Amendment Act, 19%, bracketing the newly added words: 23., R. 3 Compromise of suit where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, (in writing and signed by the parties) or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith [so far as it relates to the parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit: [Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction had been arrived at, the court shall decide the question; but no adjournment shall be granted for the purpose of deciding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch a wide power to compromise was most unlikely to be left in the hands of counsel, and it is, therefore, necessary to read the provision narrowly so as to read it as it now stands by adopting a strictly literal construction. Mr. V.A. Bobde appearing for the respondents, on the other hand, submits that it was always understood that the expression 'party' included his pleader in matters relating to appearance in court, and his counsel in the cause, therefore, has express or implied authority, unless specifically withdrawn or limited by the party, to represent him in court and do whatever is necessary in connection with the conduct of his suit including adjustment of the suit by agreement or compromise. In the absence of any such limitation or restriction of his authority, counsel appearing for a party is fully competent to put his signature to the terms of any compromise upon which a decree can be passed in proper compliance with the provisions of Order XXIII rule 3 as it now stands. Any such decree, he says, is perfectly valid. Mr. Bobde submits that in the absence of express words to the contrary, 'party', in the context of proceedings in court, must necessarily i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been understood, as explicitly stated in Order 1II rule 1, that appearance of a party in court may be in person or by his recognised agent or pleader. In the absence of any provision to the contrary, can it be stated that the legislature, when using the expression 'parties' in rule 3 of Order XXIII, limited it to parties in person and excluded their duly recognised agents or counsel ? The role of counsel in Court in England is described in Halsbury's Laws of England, 4th Ed. Vol.3, paras 1181 1183, as follows: 1181. Counsel's authority. At the trial of an action, counsel's authority extends, when it is not expressly limited, to the action and all matters incidental to it and to the conduct of the trial, such as withdrawing the record, challenging a juror, calling or not calling witnesses, cross-examining or not cross-examining witnesses, consenting to a reference to arbitration, a compromise, or a verdict, undertaking to appear, or, on the hearing of a motion for a new trial, consenting to a reduction of damages. The client's consent is not needed for a matter which is within the ordinary authority of counsel: thus if, in court, in the absence of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d mind, consented to certain terms for the withdrawal of Court of Protection proceedings against the client because of his fear of the inconvenience and iII-health likely to arise to the client from confinement. A compromise or order made by consent by counsel for a minor or other person under disability is not binding on the client, unless it is sanctioned by the court as being for the benefit of the client. The court cannot, however, enforce a compromise on a minor against the opinion of his counsel. (Halsbury, ibid) One of the early English authorities on this point is Patience Swinfen v. Lord Chelmsford [1860] 5 H N 890 at 922; S.C. 29 L. J. (E.x) 382. Delivering the judgment of the Court, Pollock, C.B., stated: ....We are of opinion, that although a counsel has complete authority over the suit, the mode of conducting it, and all that is incident to it such as withdrawing the record, withdrawing a juror, calling no witnesses, or selecting such as,. in his discretion, he thinks ought to be called, and other matters which properly belong to the suit and the management and conduct of the trial we think he has not, by virtue of his retainer in the suit, any power over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (1919) 1 KB 474 which make it plain that if in fact counsel has had his authority withdrawn or restricted the Courts will not feel bound to enforce a compromise made by him contrary to the restriction even though the lack of actual authority is not known to the other party. Lord Atkin emphasises the need to rely on express authority, rather than implied authority, particularly because of easier and quicker communication with the client. He says: ....In their Lordships' experience both in this country and in India it constantly happens, indeed it may be said that it more often 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. In such cases the parties are relying not on implied but on an express authority given adhoc by the client ......... . (ibid, page 121) However, collateral matters were understood to be beyond the scope of compromise. Lord Atkin says: If the facts are as their Lordships assume, the matter compromised was in their opinion collateral to the suit and n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ests of the client, to give the fullest beneficial effect to his employment of the advocate. Secondly, the implied authority can always be countermanded by the express directions of the client. No advocate has actual authority to settle a case against the express instructions of his client. If he considers such express instructions, contrary to the interests of his client, his remedy is to return his brief. Their Lordships are unable to see why the above considerations should not apply to an advocate in India, whose duties to his client in the conduct of a suit in no wise differ from those of advocates in England, Scotland and Ireland .......... . (Page 161) Counsel's role in entering into a compromise has been traditionally understood to be confined to matters within the scope of the suit. However, a compromise decree may incorporate not only matters failing within the subject matter of the suit, but also other matters which are collat eral to it. The position before the amendment in 1976 was that, in respect of the former, the decree was executable, but in respect of the latter, it was not executable, though admissible as judicial evidence of its contents. Referring to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of counsel the rule is otherwise because there we are dealing with a profession where well-known rules have crystallised 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). About the special position of the advocate, the learned Judge stated: Counsel has a tripartite relationship; one with the public, another with the court, and the third with his client. That is a unique feature. Other professions or callings may include one or two of these relationships but no other has the triple duty. Counsel's duty to the public is unique in that he has to accept all work from all clients in courts in which he holds himself out as practicing, however, unattractive the case or the client. (p. 216) See also Jiwibai v. Ramkumar Shriniwas Murarka Agarwala, AIR 1947 Nagpur 17; Govindammal v. Marimuthu Maistry Ors., AIR 1959 Mad. 7 and Laxmidas Ranchhoddas Ors. v. Savitabai Hargovindas Shah, AIR 1956 Born. 54. These principles were affirmed by this Court in Jamilabai Abdul Kadar v. Shankerlal Gulabchand Ors. [1975] Supp. SCR 336. Referring to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law should be altered deliberately rather than casually. Legislature does not make radical changes in law by a sidewind, but only by measured and considered provisions'. (Francis Bennion's Statutory Interpretation, Butterworth, 1984, para 133). As stated by Lord Devlin in National Assistance Board v. Wilkinson, [1952] 2 Q.B. 648:- It is a well-established principle of construction that a statute is not to be taken as effecting a fundamental alteration in the general law unless it uses words that point unmistakably to that conclusion. Statutes relating to remedies and procedure must receive a liberal construction 'especially so as to secure a more effective, a speedier, a simpler, and a less expensive administration of law'. See Crawford's Statutory Construction, para 254. The object of the amendment was to provide an appropriate remedy to expedite proceedings in Court. That object must be borne in mind by adopting a purposive construction of the amended provisions. The legislative intention being the speedy disposal of cases with a view to relieving the litigants and the Courts alike of the burden of mounting arrears, the word 'parties' must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial administration of a whole sub-continent inhabited by nearly four hundred million people. The law and jurisprudence of this vast community and its pattern of judicial administration are in many matters different from those of England in which they had their roots and from which they were nurtured. Yet they bear the unmistakable impress of their origin. The massive structure of Indian law and jurisprudence resembles the height, the symmetry and the grandeur of the common and statute law of England. In it one sees English law in the distant perspective of a new atmosphere and a strange clime. Speaking of the common law in the wider sense, the learned author continues: ....But the English brought into India not only the mass of legal rules strictly known as the common law but also their traditions, outlook and techniques in establishing, maintaining and developing the judicial system. When, therefore, I speak of the common law in India I have in view comprehensively all that is of English origin in our system of law. In that wide meaning the expression will include not only what in England is known strictly as the common law but also its traditions, some of the principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied legislative alteration of counsel's capacity or status or effectiveness. In this respect, the words of Lord Atkin in Sourendra (supra) comparing the Indian advocate with the advocate in England, Scotland and Ireland, are significant: There are no local conditions which make it less desirable for the client to have the full benefit of an advocate's experience and judgment. One reason, indeed, for refusing to imply such a power would be a lack of confidence in the integrity or judgment of the Indian advocate. No such considerations have been or indeed could be advanced, and their Lordships mention them but to dismiss them ........ (Page 161) Similar is the view expressed by the Rajasthan High Court in Mohan Bai v. Jai kishan, AIR 1983 Rajasthan 240; Smt. Mohan Bai v. Smtjai kishan Ors., AIR 1988 Rajasthan 22 and by the Gujarat High Court in Nadirsha Hirji Baria Ors. v. Niranjankumar alias Nireshkumar Dharamchand Shah Ors., 1983 (1) G.L.R. 774. A contrary view has been expressed by the Andhra Pradesh High Court in Kesarla Raghuram. v. Dr. Narsipalle Vasundara, AIR 1983 Andhra Pradesh 32, and it does not commend itself to us. We may, however, hasten to add that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew that the words 'in writing and signed by the parties', inserted by the C.P.C. (Amendment) Act, 1976, must necessarily mean, to borrow the language of Order II1 rule 1 C.P.C.: any appearance application or act in or to any court, required or authorized 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: Provided that any such appearance shall, if the court so directs, be made by the party in person . (emphasis supplied) In the present case, the notice issued under Order XXI rule 22 was personally served on the defendant, but he did not appear or show cause why the decree should not be executed. The notice was accordingly made absolute by Order dated 23.1.1990 and leave was granted to the plaintiff to execute the decree. The decree passed by the High Court on 18.6.1984 in terms of the compromise was a valid decree and it constituted res judicata. As stated by this Court in Shankar Sitaram Sontakke Anr. v. Balkrishna Sitaram Sonta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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