Jamilabai Abdul Kadar Vs. Shankerlal
Gulabchand & Ors [1975] INSC 114 (30 April 1975)
KRISHNAIYER, V.R.
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 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. Nayakv. 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 overriding 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 bypassed. The lawyer must be above board, especially if he
is to agree to an adverse verdict.] [353-C-D]
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 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 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 plaintiffappellant'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 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 :
"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 statuswise 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 there under, 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 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 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, 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 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 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
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 highlighted 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 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) 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 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 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 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 rati350
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 & Maxwell1973,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 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 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
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.
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