Full Judgment Text
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PETITIONER:
JAMILABAI ABDUL KADAR
Vs.
RESPONDENT:
SHANKERLAL GULABCHAND & ORS.
DATE OF JUDGMENT30/04/1975
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
SARKARIA, RANJIT SINGH
GUPTA, A.C.
CITATION:
1975 AIR 2202 1975 SCR 336
1975 SCC (2) 609
CITATOR INFO :
RF 1991 SC2234 (27)
ACT:
Advocates Act, 1961--Scope of authority of an advocate to
enter into compromise on behalf of his client.
HEADNOTE:
The appellant engaged a pleader to fight her case in a
Court. The case was adjourned from time to time for the
parties to compose their differences. Eventually, the Court
recorded a compromise, signed by the pleader of the
appellant. At the time of signing the compromise, though
the appellant was not present in Court, her litigation agent
was present and was consulted when the order was made. The
appellant later filed a suit-for a declaration that the
decree based on a compromise entered into by her pleader was
without authority and was not binding on her. The suit was
dismissed. The appeal was dismissed in limine by the High
Court.
On appeal to this Court, it was contended that the
respondent, being a mere pleader, had no power to compromise
a suit unless expressly authorised by the party.
Dismissing the appeal-
‘
HELD : (a) Lawyers, be they advocates, vakils or
pleaders, stand on the same footing in regard to their power
to act on behalf of their clients. By the Advocates Act,
1961, the Indian Bar came into existence permitting
enrollment of various categories of legal practitioners like
vakils and pleaders. Section 55 of the Act provides that
every pleader, who did not elect to be enrolled as ’an
advocate tinder that Act, shall continue to enjoy the same
,is rights respects practice in any Court as be had before
that Act came into force. [340 H, 341-A]
In the instant case, though the respondent. bad not enrolled
himself as an advocate, his. rights respects practice, in
any Court are what he had enjoyed under the Bombay Pleaders
Act, 1920 notwithstanding its repeal P. by the Advocates
Act. [341-B].
(b) Every legal practitioner is an officer of the Court and
aids in the cause of justice. The responsibility of the
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advocates to their clients and to the Court has to be the
same even though some of them may be entitled to appear only
in District Courts while others in High Courts. The quality
of power cannot stand differentiation. [341-GH]
(2) If a suitor countermands his pleader’s authority to
enter into a compromise or withholds, by express recital in
the vakalat, the power to compromise the legal proceeding,
the pleader or the advocate cannot go against such advice
and bind the principal, his client. This is as illegal as
it is unprofessional. [342-FG]
Jiwibai v. Ramjuvar, AIR 1947 N4g. 17, approved.
(3) To act for the suitor involves myriad intricate actions
often so legal that the client may not even understand’ the
implication. Representation in Court may be so demanding
and so transforms forensic obligation that a lawyer may have
ethical difficulties in mechanically obeying all the
directions of his principal. The legal skill that is hired
by the client may, for its very effective exercise, ’need in
area of autonomy and quickness of decision that to restrict
the agency to express authorisation is to ask for an
unpredictable and endless enumeration of powers. To
circumscribe the power to act is to defeat the purpose of
the engagement. It is perfectly open to a party, like any
337
other principal, to mark out in the vakalat or by particular
instructions forbidden areas or expressly withhold the right
to act in sensitive matters, the choice being his, as the
master. The legal profession is a para-public institution
which deserves the special confidence of and owes greater
responsibility .to the community at large than the ordinary
run of agency. [346-D-G, H]
Sourindra v. Heranba, AIR 1923 PC 98, followed.
Laxmidas Ranchhodrlas v. Savitabai, [1955] 57 BLR 988, S. S.
Waiker v. L. S. waiker, AIR 1960 Bom. 20 and C. S. Nayak- v.
A. N. Menon AIR 1963 Ker. 213 approved.
Rondel v. Morsley [1969] 1 A. C. 191 referred. to.
(4) The Advocate or pleader has authority to act by way of
compromising at case in which he is engaged even without
specific consent from his client subject to two over-
riding considerations : (i) He must act in good faith and
for the benefit of his client; otherwise the power fails.
(ii) It is prudent and proper to consult his client and take
his consent if there is time and opportunity. In any case,
if there is any instruction to the contrary or withdrawal’
of authority, the implicit power to compromise in the
pleader will fall to the ground.[352-B]
In the present case, the ’pleader had acted substantially
with the knowledge of and encouraged by his client. The
several adjournment taken by the appellant specifically for
settling the suit speak for themselves. There is no doubt
that the broad sanction for. the compromise came from the
appellant, that no shady action was in imputable to the
respondent and that his conduct had been motivated by the
good of his client. [352-H]
[Counsel should not rush in with a compromise where due care
will make them fear to tread, that a junior should rarely
consent on his own when there is a senior in the brief, that
a party may validity impunge an act of compromise by his
pleader if he is available for consultation but is by-
passed. The lawyer must be above board, especially if he is
to agree to an adverse verdict.] [353-C-D]
JUDGMENT:
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 43 of 1968
Appeal by special leave from the judgment and order dated
the, 11th December, 1967 of the Bombay High Court at Bombay
ill Second Appeal No. 1428 of 1967.
V. M. Limiyae, V. N. Ganpule,R. N. Nath and Urmila Sirur
for the appellant.
Y. S. Chitale and A. G. Rainaparkhi, for respondents.
The Judgment of the Court was delivered by
KRISHNA IYER, J. There is more than meets the eye in the
seemingly simple legal issue raised in this ejectment suit,
if we probe the deeper public and professional implications
of the limitations on a pleader’s implied power to enter
into a compromise of a case bona fide can behalf of his
client, bat in his interest, although without his consent.
The facts to use trite phraseology, fall within a narrow
compass. The landlords., Respondents 1 to 3, brought an
action for eviction of the tenant-appellant (Regular Suit
141 of 1964) under the rent control law extant in
Maharashtra. Litigation is often so harassingly long that
even ",here recovery of possession is sought for immediate
338
bona fide need of the owner, the judicial 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 compromise entered into by her pleader
without authority was not binding on her and consequently
she was not liable to be dispossessed. This last spell of
litigation, after the first compromise in Court, has taken
long ten years. Socio-legal research may well prove that
legal justice may soon reach a point of no return if
fundamental structural reform of the whole forensic process
were not launched upon and frivolous litigation screened so
as not to discredit faith in court justice. Anyway, in the
present case, the hierarchy of courts has held against the
appellant and she has come up, by special leave, conscious
of adverse findings of fact by courts below, to this Court.
The only point urged by Shri Limaye for the appellant is
that Respondent 4 the pleader, Shri Palshikar, who signed
the razi, bad no authority to do so, especially because the
client’s consent so to do had not been secured and an
advocate-respondent 5 before us-had also been retained in
the case who had neither signed the document not represented
to the Court about the settlement. It is common case that
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the tenant was absent in court although her litigation agent
was present (and consented) when the order was made.
Shri Limaye has raised the principal plea that Respondent 4
being a mere pleader, had no power to compromise the suit
unless expressly authorised by the party and here admittedly
no such express authorisation existed. He seemed to make a
distinction between advocate and pleader although at some
stages he read this limitation as applicable to advocates
too. A second point faintly raised was prudently abandoned
for the reason that it had not been set up in the pleadings
or urged at earlier stages. Last minute ingenuity is not
fairplay in court and
339
we cannot and did not permit him to argue that the court had
no material in the recitals of the compromise to make out
the mandatory grounds required under the relevant ’rent
control’ law for a court to direct dispossession of a tenant
of a building. We do not examine the materials of the
contention of all.
Now to the only contention canvassed before us. Although
vintage rulings and relevant books have been cited and
voyages to Anglo-American legal systems made, we have to
decide the issue in the light of Indian statute-law and
decisions against the backdrop of Indian conditions.
Foreign aid is helpful but in law, as in life, 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 Rs.
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 plaintiff,
and accordingly, the defendant is to pay at the said rate
the damages for the intervening period. In case the
defendant fails to pay (the same), the plaintiff is to
recover the amount by filing a Darkhast. The defendant is
to bear his own costs and to pay to the plaintiff the
latter’s costs of this suit. The plaintiff is to take the
amount of refund in respect of the Court fee stamp that may
be paid. It is agreed as above. A decree may therefore be
passed in terms thereof.
Sd/- Shankarlal Gulabchand.
Sd/- R. C. Agarwal.
Reagular Suit No. 422/66
Produced on behalf of the plaintiff
on the date 30-1-67
(Signature-illegible)
Advocate for the plaintiff
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340
(In English)
Sd/- D. B. Choudhari.
Advocate for Plaintiff.
with authority to Compromise.
Sd/- B. H. Falashikar
Plaintiff with authority to Comp.
No. 1 and 2 and plaintiff Shankarlal Gulabchand with pleader
and defendant Abdul kadar with pleader admitted before me
the compromise. It is verified and admitted.
Sd/- R. H. Maslekar.
C. J. 24-4-65"
Although the Civil Judge mentions in the order that
’defendant Abdul Kadar’ with pleader admitted before him the
compromise, it was not the defendant but his agent who was
actually present. That this is an error is conceded by Sri
Chitale appearing for respondents 1 to 3. The trial court as
well as the District Court went into the question whether
the plaintiff-appellant had made out that express directions
were given to the pleader Shri Falshikar (respondent No. 4)
not to compromise the suit and have come to the conclusion
that no such positive instruction ’not to compromise’ was
given by the party. This being the concurrent finding of
fact and the High Court having dismissed the Second Appeal
in limine we may proceed on the footing that Sri Palshikar,
the pleader, had not been affirmatively informed not to
enter into a compromise. The second question on which also
both the Courts of fact have negatived the plaintiff-
appellant’s version is that the compromise was an act of
sharp practice, a fraud played by the pleader on his client
and on the court. We therefore exclude the possibility of
dubiety and assume bona fides on the part of the pleader.
We mention this to narrow the scope of the controversy which
really turns on the existence or otherwise of the implied
authority of a pleader to compromise a suit in the 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
341
must be noted, however, that Shri Palshikar has not been
enrolled as an Advocate. On the contrary, the party had
briefed, apart from Shri Palshikar (just a pleader with a
sanad under the Bombay Pleaders Act, 1920-for short, the
Bombay Act), an Advocate Shri Khatib, 6th respondent.
Section 55 of the Advocates Act provides that every pleader
who does not elect to be enrolled as an Advocate under that
Act shall continue to enjoy the same rights as respects
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practice in any court as he had before that Act came, into
force. Thus his rights as respects practice in any court
are what he had enjoyed under the Bombay Act,
notwithstanding its repeal by the Advocates Act. Our
attention was drawn to ss. 9 and 16 of the Bombay Act but
neither section helps us much in regard to the controversy
bearing on the competence of a pleader, to enter into a
compromise without the consent of the, concerned party.
Even so, s. 9 illumines the area to some extent and the
relevant portion may be extracted
"9. No person shall appear, plead or act for
any party in any civil proceeding in any court
unless he is a pleader as defined in this Act
and is entitled and duly empowered to appear,
plead and act for such party in such
proceeding;"
Shri Chitale contends-and this argument has found favour
with the courts below-that a pleader has power to act for
any party and to settle a dispute involved in a suit is
ancillary to or implied in this power to act. When he
settles his client’s suit he acts for him as much as he does
so when he gives up a point as meritless. We will examine
this matter more in depth a little later.
There is force in the suggestion that even though a pleader
or’ vakil might not have chosen to get himself enrolled , in
their very eligibility to be enrolled as advocates, there is
implicit statutory acceptance of the position that all these
categories of legal practioners have substantially the same
powers vis-a-vis client and court. The egalitarian ethos
injected by the Advocates Act makes for parity of powers
between pleaders and advocates to act on behalf of their
client. We think if right to read into the complex of
provisions bearing on legal practitioners this activist
identity of power to act. After all, every legal
practitioner labels apart, is an officer of the court and
aids in the cause of justice. Logically and sociologically
and, indeed, legally, their responsibility 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
442
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 empowered by a
vakalatnama in this behalf. The Code has defined ’pleader’
in these general terms :
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"Sec. 2(15) ’Pleader’ means any ’person
entitled to appear and plead for another in
Court, and includes an advocate, a vakil and
attorney of a High Court."
It-is obvious that this definition obliterates any status-
wise distinction between an advocate and any other legal
practitioner like a vakill or pleader entitled to appear in
court on behalf of his client. A profession whose founding,
fighting faith is equal justice under the law does not
practice inequality within its fold deaf to the mood music
of non-discrimination.
The broad conclusion, having due regard to the perspective
’we have set out right at the beginning, is that lawyers, be
they Advocates, vakils or pleaders, stand on the same
footing in regard to their power to act on behalf of their
clients.
The cases cited before us, discerningly understood, confirm
the soundness of this equating principle. As earlier
clarified, the sole issue is the delineation of the scope
and ambit of ’action. Does the power to ’act’ cover the
right to settle the suit without getting the client’s
consent, or is it implied in the engagement ? To clear
possible confusion we may straightaway state that both sides
agree-and that is the undoubted law-that if a suitor
countermands his pleader’s authority to enter into a
compromise or withholds, by express recital in the vakalat,
the power to compromise the legal proceeding, the pleader
(or, for that matter, the Advocate, cannot go against such
advice and hind the principal, his client. This is as
illegal as it is unprofessional.
Shri Limaye has relied on a few decisions-both of the Privy
Council and of the Indian High Courts, in his endeavor to
make out that pleaders cannot compromise suits unless
expressly authorised ’by the vakalatnama. To substantiate
the contrary position, Shri Chitale has drawn our attention
to other rulings. These citations may he briefly surveyed
and they are : Sourindra v. Heramba(1) ; Sourendra Nath v.
Tarubala Dasi(2); Jiwibai v. Ramiuwar (FB) (3); Supaji v.
(1) A.I.R. 1923 PC 98. (2) A.I.R. 1930 PC 158.
(3) A.I.R. 1947 Nag. 17.
343
Nagorao(1); Ramaswami v. Jai Hind Talkies(2); Govindammal v.
Marhmuthu Maistry (3); Laxmidas Ranchhoddas v. Savitabai(4);
S. S. walker v. L. S. Walker(5); and C. S. Nayakam v. A. N.
Menon(6) .
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
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as having any authority to compromise the suit
unless he has filed in the suit his client’s
vakalatnama giving him authority to compromise
the suit before the Court."
Superficially understood, this supports the appellant in
wriggling out of the compromise, because the pleader Shri
Phalsikar had not been given any authority to compromise the
suit, in the vakalatnama, but we do not think that this is a
disability specially attaching to a pleader as distinguished
from an Advocate. We go further and consider that these
observations have to be construed in the context of the fact
that in the facts of that case some of the defendants had
not filed vakalatnamas at all and that, ultimately, the
Judicial Committee had upheld the compromise after special
valalatnamas were filed for the unrepresented parties. The
question of the powers of a pleader, as distinguished from
the larger powers of an Advocate did not come up for
consideration in that appeal and we cannot treat the ruling
as authority for the position taken up by the appellant.
Lord Atkin, speaking for the Judicial Committee in Sourendra
Nath (supra) also had to deal with agreement to compromise a
suit and the implied power of an advocate to settle the suit
on behalf of his
(1) A.I.R, 1954 Nag. 250. (2) A.I.R. 1956 Mad. 586.
(3) A.I.R. 1959 Mad. 7. (4) [1955] 57 B.L.R. 988.
(5) A.I.R. 1960 Bom. 20. (6) A.I.R. 1968 Ker. 213.
10 SC 75-23
444
client. ’.he statement of the law is instructive and may
well extracted:
"They are of opinion that Mr. Sircar, as an
advocate of the High Court, had, when briefed
on behalf of the defendant, in the Cou
rt of the
Subordinate Judge of Hoogly, the implied
authority of his client to settle the suit.
Their Lordships have already said that he must
be treated as though briefed on the trial of
the suit. Their Lordships regard the power to
compromise a suit as inherent in the position.
of an advocate in India. The considerations
which have led to this implied power being
established in the advocates of England,
Scotland and Ireland apply in equal measure to
India. It is a power deemed to exist because
its existence is necessary to effectuate the
relations between advocate and client, to make
possible the duties imposed upon the advocate
by his acceptance of the cause of his client.
The advocate is to conduct the cause of his
client to the utmost of his skill and
understanding. He must in the interests of
his client be in the position, hour by hour,
almost minute by minute, to advance this
argument, to withdraw that; he must make the
final decision 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
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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 counsel is not an
appendage of office, a dignity added by the
Courts to the status of barrister or advocate
at law. It is implied in the interests 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
345
contrary to the interests of his client, his
remedy is to return his brief."
The Judicial Committee equated the Indian Advocate and his
duties to his client in the conduct of the suit as in no
wise different from those of his counter-parts in the United
Kingdom :
"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."
There is an obscure passage in the judgment which, according
to Shri Limaye supports him : True, the Board has observed :
"Where the legal representative in Court of a
client derives his authority from an express
written authority, such as a vakalatnama,
different considerations may well arise, and
in such cases their Lordships express no
opinion as to the existence of any implied
authority of the kind under discussion."
We are unable to see anything here to contradict the general
power, actual though implied, of counsel (be he advocate or
pleader) to settle the suit of his client as part of his
duty to protect the interests of his client.
We may now move on to the Indian decisions, none of which
specifically uphold the absence of implied authority of a
pleader qua pleadegr to enter into a compromise binding on
his client.
Perhaps the clearest pronouncement against the degrading
differentiation of pleaders is that by a Full Bench of the
Nagpur High Court in Jiwibai (supra). After an exhaustive
discussion, which we need not repeat, the Court concluded at
p. 26 :
"Our answer to the second question is that
counsel in India, whether Barristers,
Advocates, or pleaders, have inherent powers,
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both to compromise claims, and also to refer
disputes in Court to arbitration, without the
authority or consent of the client, unless
their powers in this behalf have been
expressly countermanded, and this, whether the
law requires a written authority to ’act’ or
’plead’ or 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)
346
"The Privy Council tells us that there is
inherent in the position of counsel an
implicit authority to do all that is ex-
pedient, 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 will unfold the compelling necessity of
giving a comprehensive meaning to the expression ’act’ and
for the inclusion of all categories of legal practitioners
as repositories of this. ample agency, bound yet broadened
by obligatory traditions, professional control and public
confidence in the Bar as a massive social instrumentality of
democracy. To act for the suitor involves myriad intricate
actions often so legal that the client may not even
understand the implication, sometimes so sudden that time
for taking instructions is absent. Representation in court
may be so demanding and so transforms forensic obligation
that a lawyer may have ethical difficulties in mechanically
obeying all the directions of his principal. The legal
skill that is hired by the client may, for its very
effective exercise, need an area of autonomy and quickness
of decision that to restrict the agency to express
authorisation is to ask for an unpredictable and endless
enumeration of powers such as what to ask a witness and what
not to, what submissions to make and what points to give up
and so on. To circumstances the power to act is to defeat
the purpose of the engagement. Those who know how courts
and counsel function will need no education on the
jurisprudence of lawyer’s position and powers. Of course,
we hasten to enter a caveat. It is perfectly open to a
party, like any other principal, to mark out in the vakalat
or by particular instructions forbidden areas or expressly
withhold the right to act in sensitive matters, the choice
being his, as the master. If the lawyer regards these
fetters as inconsistent with his position, he may refuse or
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return the brief. But absent speaking instructions to the
contrary, the power to act takes in its wings the right and
duty to save a client by settling the suit if and only if be
does so bona fide in the interests and for the advantage of
his client. This amplitude of the power to act springs from
the builtin dynamism, challenge and flux of the very
operation of legal representation as felicitously expressed,
if we may say so with great respect, in the noble words of
Lord Atkin (Sourendra Nath’s Case (supra). We may supplement
the grounds for giving this wider construction by the fact
that the legal profession is a para-public institution which
deserves the special confidence of and owes greater
responsibility to the community at large than the ordinary
run of agency.
347
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 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)
The passages quoted from Lord Dearing M. R. in Ronadel’s
Case (1967 1 Q.B. 443) bear repetition when considering the
public justice role of the Bar :
"A barrister cannot pick or choose his
clients. He is bound to accept a brief for
any man who comes before the courts. No
matter how great a rascal the man may be. No
matter how given to complaining. No matter
how undeserving or unpopular his cause. The
barrister must defend him to the end.
Provided only that he is paid a proper fee, or
in the case of a dock brief, a nominal fee.
He must accept the brief, and do all he
honorably can on behalf of his client. I say I
all he honorably can’ because his duty is not
only to his client. All those who practice at
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the Bar have from time to time been confronted
with cases civil and criminal which they would
have liked to refuse, but have accepted them
as burdensome duty. This is the service they
do to the public. Counsel has the duty and
right to speak freely and independently
without fear of authority, without fear of the
judges and also without fear of a stab in the
back from his own client. To some extent, he
is a minister of justice."
348
"It is a mistake to suppose that he is the
mouth-piece of his client to say what he wants
: or his tool to do what he directs. lie is
none of these things. He owes allegiance to a
higher cause. It is the cause of truth and
justice. He must not consciously misstate the
facts. He must not knowingly conceal the
truth. He must not unjustly make a: charge of
fraud, that is, without evidence to support
it. He must produce all the relevant
authorities, even those that are against him.
He must see that his client discloses, if
ordered, the relevant documents, even those
that are fatal to his case. He must disregard
the most specific instructions of his client,
if they conflict with his duty to the court.
The code which requires a barrister to do all
this is not a code of law. It is a code of
honour. If he breaks it, he is offending
against the rules of the profession 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
destroyed and merely the ostensible authority
remains, then although the other side did not
know of the limitation put upon the authority
of an advocate, the Court will not enforce the
settlement when in fact the client had
withdrawn or limited the authority of his
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advocate."
The Madras decisions have not been consistent. In
Ramaswami’s Case (supra) it was observed
"It has been laid down in Jagpati Mudaliar v.
Ekabara Mudaliar 21 Mad. 274 that it is not
competent to a pleader to enter into a
compromise on behalf of his client without his
express authority to do so. See also Thermal
Ammal v. Sokkammal 1918. Mad. 656 and Sarath
Kumari Dasi v. Amulyadhan 1923 PC 13.
349
As the vakalat did not give counsel authority
to compromise, Kesrvaraman Chettiar and the
two other directors who sail with him would
not be bound by the compromise."
(p. 589)
The reference to ’pleader’ here is not really in
contradistinction to ’advocates’. But in Govindammal
(supra) Ramaswami, J., after an elaborate examination of the
Indian and Anglo-American cases and books sums up thus :
"An examination of these authorities and
extracts from standard publications on
professional conduct, leads us to the
following deductions : The decisions appear to
be fairly clear that even in cases where there
is no express authorisation to enter into a
compromise, under the inherent authority
impliedly given to the Vakil, he has power to
enter into the compromise on behalf of his
client. But in the present state of the
clientele world and the position in which the
Bar now finds itself and in the face of
divided judicial authority and absence of
statutory backing, prudence dictates that
unless express power is given in the vakalat
itself to enter into compromise, in accordance
with the general practice obtaining, a special
vakalat should be filed or the specific
consent of the party to enter into the
compromise should be obtained.
If an
endorsement is made on the plaint etc., it
would be better to get the signature or the
thumb impression of the party affixed thereto,
making it evident that the party is aware of
what is being done by the vakil on his or her
behalf." (p. 1 2)
In the American system there is only a single class of
attorney unlike in Great Britain, but the implied power to
compromise has, not been upheld. American Jurisprudence S.
98 (pp. 318-320) has 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
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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 rati-
350
fication 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 (1) :
"Every counsel has a duty to his client
fearlessly to raise every issue, advance every
argument, and ask every question, however
distasteful, which he thinks will help his
client’s case. But, as an officer of the
court, concerned in the administration of
justice, he has an overriding duty to the
court, to the standards of his profession, and
to the public, which may and often does lead
to a conflict, with his client’s wishes or
with what his client thinks are his personal
interests. Counsel must not mislead the
court, be must not lend himself to casting
aspersions on the other party or witnesses for
which there is no sufficient basis in the
information in his possession, he must not
withhold authorities or documents which may
tell against his clients but which the law or
the standards of his profession require him to
produce. And by so acting he may well incur
the displeasure or worse of his client
so that
if the case is lost, his client would or might
seek legal redress if that were open to him."
(Cases and Materials on The English Legal
System-by Geoffrey Wilson-Sweet & Maxwell-
1973,p. 124)
We may now deal with the properties whichmay bear upon
thebona fides of the lawyer’s conduct if he settles a
suit, without client’s consent, Powers are one thing,
prudence is another and indeed the latter sometimes bears
upon the former. Mathew J set the record straight, if we
may say with respect, in Nayakam (supra) :
"Although we see no reason to limit or
restrict the implied authority of counsel to
compromise an action or confess judgment
unless expressly done so by his client, we
think that both in the interest of the client
and the good reputation of counsel, it is
always advisable that he should get specific
instructions before taking such a radical
step."
(p. 216)
Another facet of the limit on lawyer’s powers is articulated
in the Bombay view, if we may use that expression for
convenience, the ruling-viz., Waikar (supra )-being one
relating to the implied of an advocate to compromise.
Certainly, as pointed out there, the power cannot extend to
matters extraneous to the action. Mudholkar J. has
uttered a caution that, as far as possible, irrespective of
the
(1) [1969] 1 A.C. 191.
351
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scope of the power the lawyer must prefer to get his
client’s concurrence to the settlement. The reasons are
obvious. If the compromise is not bona fide in the client’s
interests, the power is exceeded and it is rash to bind a
party to razi 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 (11) 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) (s
upra)
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
quotes, what may be a cautionary signal. from Thenal Ammal
v. Sokkummal (ILR 41 Mad. 233, 235AIR 1918 Mad. 656)
"It is not the ordinary duty of an Advocate to
negotiate terms, without reference to his
client, with the opposite party. Such an
action is calculated to place the practitioner
in a false position. We do not think it is
desirable that such a power should vest in him
in the interest of the profession. From the
point of view of the client, we think that it
is not safe that he should be regarded by
engaging a vakil to have given him authority
to dispose of his right in any way he chooses.
Therefore we think that the general power
claimed is not in consonance with the highest
ideals of the profession or of justice. For
these reasons we think that a very strict
interpretation should be placed upon vakalat
containing powers of this kind."
Ramaswami, J. has adverted to the wiser alternative of
counsel seeking client’s consent before compromising the
litigation, having regard to the ’position in which the Bar
finds itself’ these days.
(1) AIR 1935 P.C. 119.
352
While we are not prepared to consider in this case whether
an Advocate or pleader is liable to legal action in case of
deviance or negligence, we must uphold the actual, though
implied, authority of a pleader (which is a generic
expression including all legal practitioners as indicated in
s. 2(15), C.P.C.) to act by way of compromising a case in
which he is engaged even without specific consent from his
client, subject undoubtedly to two over-riding
considerations : (i) He must act in good faith and for the
benefit of his client ; otherwise the power fails (2) it is
prudent and proper to consult his client and take his
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consent if there is time and opportunity. In any case, if
there is any instruction to the contrary or withdrawal of
authority, the implicit power to compromise in the pleader
will fall to the ground. We need hardly emphasise that the
bar must sternly screen to extirpate the black-sheep among
them, for Caesar’s wife must be above suspicion, if the
profession is to command the confidence of the community and
the court.
On the facts of the present case we have little doubt that
the pleader has acted substantially with the knowledge of
and encouraged by his client. The several adjournments
taken by the appellant specifically for settling the suit
speak better when we read the penultimate 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.
353
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 eviction decree or
settle it to the maximum advantage of his Ordinarily when a
junior and senior appear in the case, it would be an
adventurist act exposing himself to great risk on the part
of the junior to report a compromise without consulting his
senior, even assuming that the party was not available.
Nevertheless, we have had an over-all view of the facts of
the present case and do not feel inclined to the view that
the implied authority of the pleader has been abused. The
courts below were right in fastening the settlement of the
suit upon the appellant.
Nevertheless, it is right to stress that counsel should not
rush in with a razi where due care will make them fear to
tread, that a junior should rarely consent on his own when
there is a senior in the brief, that a party may validly
impugn an act of compromise by his pleader if he is
available for consultation but is by-passed. The lawyer
must be above board, especially if he is to agree to an
adverse verdict. As for classes of legal practitioners, we
are equally clear that the tidal swell of unification and
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equalisation has swept away all professional sub-castes.
Anyway, that is the law. Such artificial segregations as
persist are mere proof of partial survival after death and
will wither away in good time. Anyway, that is our hope.
We dismiss the appeal, but in view of divided judicial
opinion in the High Courts and the Constitutional obligation
of this Court under Art. 141 to resolve and settle the law
we direct the parties will bear their costs in this Court.
Appeal dimissed
P. B. R.
354