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TMI Blog1946 (7) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... n advocate), and on the other side by one Chunilal and the defendant's counsel. Mohanlal held a special power of attorney (a khas mukhtyarnama) and his counsel also had a vakalatnama. Neither of these documents confers express authority to refer the dispute to arbitration. The plaintiff challenges their respective powers to make the reference on his behalf. In the two lower Courts the authority of the defendant's agent Chunnilal, and of his counsel, was also challenged, but we are not concerned with them in this reference. The order of reference only discusses the plaintiff's position, and though the questions referred are general, they must of course be read in conjunction with the order. Accordingly, we say nothing about the powers of Chunnilal and the defendant's counsel. Now so far as Mohanlal's power is concerned it was argued on the one hand that the power to refer is included not only in the words to compromise and to sign compromise petitions, but also in the more general clause, and whatever would be required to be done in the conduct of this suit would be done by the agent and the same would be binding on me as if I had done the same. ( 3. ) As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scuss and decide abstract problems, however intriguing they may be, but to deal with concrete cases. Accordingly, if realism is to be imported, to our opinion, it will be necessary to bear in mind that the word compromise used in the question referred is a convenient though loose, but nevertheless accurate translation of longer phrases used in another language. ( 5. ) Now the power of attorney confers express authority on the agent to settle the dispute between themselves by give and take. But it does not stop there. It goes on, and whatever would be required to be done in the conduct of this suit would he done by the agent and the same would be binding on me as if I had done the same. We think this second phrase must be read in conjunction with the clause about give and take and that the two read together leave no doubt that the intention was to confer the wide powers and several meanings which are embraced in the single English word compromise. That includes a power to refer a dispute to arbitration. ( 6. ) There can be no doubt that one of the matters which must be done in the conduct of a suit is to determine, if and when the question arises, whether the dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... glish word normally connotes. We express no opinion as to what should happen when the several aspects of the word compromise are not separately set forth in a power in the vernacular given to an agent as opposed to a pleader. ( 8. ) Turning next to the position of counsel the question referred asks: Whether counsel in India (Advocates including Barristers) have implied powers to compromise a pending suit or refer it to arbitration without express authority or consent of the client, even though they cannot act without a written authority from the client, or plead without filing a memorandum of appearance. Our answer is yes, they can. We will consider the power to compromise first. The Judicial Committee of the Privy Council decided in Sourendranath v. Tarubala Dasi that the power to compromise a suit without reference to the client is inherent in the position of an Advocate in India. It is implied in the authority conferred on him by the client to conduct the suit on his behalf in the best way possible, unless the implied authority is expressly countermanded or withdrawn. It is thus implicit in his appointment. It is true their Lordships were dealing with an Advocate who was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... implied. Such contracts must therefore, be construed with reference to the surrounding circumstances and the parties who made them. Section 9, Indian Contract Act provides for this. As Pollock and Mulla observe at p. 58 of their work: The language of the section appears to assume that the terms of a contract may be (as undoubtedly they may, by familiar law and practice) partly express and partly implied.... There is a class of cases, of considerable importance in England, where the parties are presumed to have contracted with tacit reference to some usage well known in the district or in the trade, and whatever is prescribed by that usage becomes an additional term of the contract, if not contrary to the general law or excluded by express agreement. Such terms are certainly implied, as resulting not from the words used, but from a general interpretation of the transaction with reference to the usual understanding of persons entering on like transaction in like circumstances. ( 11. ) What is the engagement of counsel but a special kind of contract? It is true, Barristers cannot sue for their fees in England because of a fictitious supposition that they are acting not for rewa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sub-rule (1). It would be impossible for him to conduct the case without reading into the power a number of terms which are not there. Objections would be taken at every stage and the client would be exposed to the danger of losing his case because of some unauthorised step. ( 13. ) Next add the general clause: and whatever would be required to be done in the conduct of this suit. Where do we get now? Apply the ejusdem generis rule and even then it is necessary to construe it with relation to the usual powers of a pleader. View the matter how you will, it is impossible to escape the conclusion that the conduct of cases in Indian Courts would become unworkable unless powers are construed in the light of their Lordships' observations. 21. Now we have referred here to the power given to the agent and considered how it would be construed if it had been given instead to a pleader. We must not be understood by this to imply that the rule of construction is the same in the two cases. It is not. In the case of the agent, the power must be construed strictly and only such authority as is conferred expressly or by necessary implication can be taken into consideration. In the case of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Ekambera (98) 21 Mad 274 where a distinction is drawn between a pleader and other advocates; also to the view in some other cases. With the utmost respect we differ from them. 25. We think it right to add that Section 188, Indian Contract Act leads to the same conclusion. An agent has implicit authority to do every lawful thing necessary for the act for which he is appointed, and in particular to do that which is usual in the conducting of such business. The Privy Council tell us what is usual in the case of counsel. The power to compromise is one of the things they may do. 26. We have next to consider whether an authority to compromise embraces authority to refer to arbitration. We have already referred to the cases which hold that one of the meanings of compromise is arbitration, indeed, that, according to some authorities, was its original meaning, and it is still its primary meaning in the dictionaries. We are referred to an impressive list: Murray's Dictionary: Ainsworth's Latin English Dictionary: Wharton's Law Lexicon: The Oxford English Dictionary: and Story's Equity Jurisprudence. To this we add Sir Dinshah Mulla's opinion at p. 15, Edn. 11, of his C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which requires the existence of a power in writing to act draws no distinction between the various lands of acting, and consequently we are relegated to the general powers of counsel as envisaged by the Privy Council. As we have shown, there is in their Lordships' opinion no distinction between the power of counsel in England, Scotland and Ireland and advocates in India who are not required to file a power. 29. Had it not been for Order III, Rule 4 there would have been no distinction at all. Order III, Rule 4 therefore makes the difference. But the only requisite it lays down is a written authority of appointment. Once that is given it leaves counsel so appointed free to act , and draws no distinction between various kinds of acting. If the legislature draws no distinction how can we? We must in the circumstances give full effect to the rule of their Lordships, and that, in our judgment, embraces not only the authority to compromise but also to refer to arbitration, except where the authority has been expressly withdrawn. 30. We may mention in passing that Devadoss J., placed a reference to arbitration on the same footing as compromise and admissions, so far as counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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