9911796707
TMI Blog1957 (1) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... nd decree dated 31-5-1946. The controversy in that case was mainly between the members of the same family of which one Anant Lal Jha alias Buchan Jha was the common ancestor. 3. Anant Lal Jha had five sons, namely, Sukhdeo Jha, Harischandra Jha, Gopalji Jha, Suraj Narayan Jha and Subodh Narayan Jha. Ramdani Ojhain was the wife of the aforesaid Anant Lal Jha. Of these five sons, the eldest Sukhdeo Jha has also five sons, namely, Dinesh Narayan Jha, Suresh Narayan Jha, Ramesh Narayan Jha, Umesh Narayan Jha, and Kamesh Narayan Jha. Buchan Ojhain was the wife of Sukhdeo Jha. The title suit giving rise to the aforesaid first appeal was instituted by the aforesaid five sons of Sukhdeo Jha and it were they who having lost that case in, the trial court again came up in first appeal as appellants to this Court. On the side of the defendants in that suit there were five sets. Sukhdeo Jha, who was arrayed as respondents first party in the first appeal, was impleaded in the trial Court as defendants first party. His other four brothers, namely, Haris chandra Jha, Gopalji Jha, Suraj Narayan Jha and Subodh Narayan Jha, who were respondents second party in the said first appeal, were arraye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants respondents fourth party as opposite party Nos. 7 and 8 respectively and Subodh Narayan Jha as opposite party No, 9. 5. The main controversy raised in this application for review is that the so-called consent' order dated 16-3-1953, whereby First Appeal No. 363 of 1946 was disposed of on compromise between the parties, was passed at the back of the petitioners and without their consent and as a matter of fact, according to the allegations made in the petition, that order came to be passed under mistaken impression that all parties and their lawyers were present and had consented to the terms of the compromise recorded in that order. Therefore, it has been prayed that the aforesaid order dated 16-3-1953, should be set aside and First Appeal No. 363 of 1946 be restored to file for hearing in the presence of the petitioners. 6. The ground for the allegation that the aforesaid consent order was passed at the back and without the consent of the petitioners, as stated in the petition, appears from the following facts. In First Appeal No. 363 of 1946, the three original defendants-respondents petitioners along with their fourth brother, Subodh Narayan Jha, who has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1953, was recorded. If they or either of them had the authority and could then represent the interest of the petitioners it has to be conceded that the consent order is a valid one and is binding on them. The position, however, will be otherwise if it is found that they or either of them had no such authority to represent them in the matter of the aforesaid compromise. 7. At the hearing of this application the petitioners examined five witnesses, namely, Raghunath Jha (P.W. 1), Mr. G. P. Misra (P.W. 2), Harischandra Jha, petitioner No. 1 (P.W. 3), Gopalji Jha, petitioner No. 2 (P.W. 4) and Mr. Parmeshwar Prasad Sinha, the present advocate of the petitioners (P.W. 5), And besides them, the Court examined three more witnesses. They were (1) Sukhdeo Jha, defendant-respondent opposite party No. 6, (2) Subodh Narayan Jha, defendant respondent opposite party No. 9 and (3) Dinesh Narayan Jha, plaintiff appellant opposite party No. 1. On the submissions made on behalf of the parties, the main points that fall for decision in this case are : (1) whether on the allegations made any review lies; (2) whether the vakalatnama dated the 27th March, 1947 (exhibit A) in the name of Mr. S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) Any discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made; (2) on account of some mistake or error apparent on the face of the record and (3) for any other sufficient reason. In this case the ground alleged by the petitioners is that there is a, mistake or error apparent on the face of the record inasmuch as the court recorded the consent order under the mistaken impression that all parties and lawyers were present and had consented to the terms of the compromise though as a matter of fact the petitioners were not present and had not consented to that compromise nor then they had any lawyer who could represent them or consent to that compromise on their behalf. In my opinion, on the facts alleged the argument advanced cannot be dismissed as one without substance. If in fact the petitioners were not present and had not consented to the compromise or if they had no lawyer at that time to represent them who could and had consented to the same, there is no escape from the conclusion that the order was passed under a mistaken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rolling them. They further lay down that advocates, vakils and attorneys so admitted and enrolled shall be authorised to appear for the Suitors of the High Court and to plead or to act or to plead and act for the suitors according as the High Court may by its rules and directions determine and subject to such rules and directions. Then come the rules made by the High Court under the powers conferred upon it by Parliament, the Letters Patent, and the Acts of the Indian Legislature. Of these, three rules have been here referred to. They are, is already stated above, Rule 4 of Chapter III, Rule 16 of Chapter XVIII and Rule 3 of Chapter XVII. The former two are not at all relevant for the purposes of this case; the one dealing with the petition and affidavit to be filed in the High Court and the other dealing with advocate's clerks in the Circuit Court at Cuttack, which has now been deleted. The last rule no doubt is relevant. That falls in Chapter XVII, which, as its heading shows, deals with the admission of advocates and attorneys. Therein Rule 3 reads ; Notwithstanding anything contained in Order III, Sub-rules (2) and (3) of Rule 4 of the First Schedule of the Code of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directs, be made by the party in person. Besides these in that Order 3 of the Code of Civil Procedure there is one Rule 5-B added by the Patna High Court. That is exactly much the same as Rule 3 of Chapter XVII of the Patna High Court Rules excepting this that therein the word pleader' has been substituted for the word 'advocate'. That means in the matter of acting both pleader and advocate have been put on the same footing. And rightly as is evident from the definition of pleader given in Section 2(15) of the Code of Civil Procedure which says 'pleader' includes an advocate, a vakil and an attorney of a High Court. Therefore, under these rules an advocate in order to act in a case has to fulfil what is laid down in Rule 4 (1) of Order 3, Civil Procedure Code. And as for pleading he has either to file a memorandum of appearance as laid down in Rule 4(5) of Order 3 or has to be engaged to plead by any other advocate who has been duly appointed to act in the court. So far as Section 119 of the Code of Civil Procedure is concerned, that imposes a bar on unauthorised persons and further says that nothing in this Code shall be deemed to interfere with the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d already come into force, was that thereafter as laid down in Article 220, before its latest amendment, he could not plead or act in any court or before any authority within the territory of India. That may or may not have the effect of his ceasing to hold the qualification of advocate, but this much is clear that under law the vakalatnama already filed by him on the 27th March, 1947 long before his being raised to the Bench could not automatically cease to have any force unless the same was terminated in accordance with law. The relevant provision dealing with the life of a vakalatnama is given in Sub-rule 4(2) of Order 3, Civil Procedure Code. Under that a vakalatnama is deemed to be in force (1) until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or (2) until the client or the pleader dies or (3) until the proceedings in the suit are ended so far as regards the client. On the day of compromise admittedly the proceedings in the suit had not ended nor any leave had been sought from the court in writing as required. Therefore, the Vakalatnama already filed by Mr. S. C. Misra (as he then was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the defendant. The facts of that case show that counsel who had signed the agreement of compromise for the defendant in that case was Mr. Sircar who had been briefed by Mr. K. I. Dutt to appear on behalf of the defendant. In the course of discussion on that point, their Lordships observed; An agreement to compromise a suit must he established by general principles which govern the formation of contracts, though there are special rules governing its enforcement by the Courts which arise out of its intrinsic nature. If the agreement purports to be concluded on behalf of one or both the parties by their respective legal advisers, the first two questions that arise, as on the formation of any contract by agents, are : (1) Had the agent, the actual authority of his principal, express or implied, to conclude the contract? (2) If no actual authority, had he ostensible authority so as to bind his principal against the other party, relying on ostensible authority? And having done that they formulated the problem in the following words : The First question that thus arises is : Had Mr. Sircar actual authority of the defendant, ex- press or implied, to conclude the agreem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the client. No advocate has actual authority to settle a case against the express instructions of his client. If he considers such express instructions contrary to the interests of his client, his remedy is to return his brief. The same view was again expressed by their Lordships of the Privy Council in, AIR 1935 PC 119 (C). Therein also the doctrine of implied authority was fully recognized in the advocate who was briefed in that case. And long before these two decisions, this Court in AIR 1922 Pat 232 (I), relying no doubt mostly on the discussions of the English Courts had already accepted the view that a counsel briefed in a case has got an implied authority to effect a compromise on behalf of the client. In view of these decisions I think it is too late to contend that Mr. G. P. Misra in spite of the authority given to him by Mr. S. C. Misra (as he then was) under the appearance slip could not in law effect a valid agreement of compromise on behalf of his clients. That being so, the answer to the second question has to be given in the affirmative in favour of the opposite party. 13. It has, however, been argued on behalf of the petitioners that even if it be concede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what Mr. G. P. Misra did in effecting the compromise was only pleading and not acting. In that view of the matter, the contention raised on the principle underlying Section 14 of the Bar Councils Act loses its force. I may, however, mention it here that though the right given to an advocate under S, 14 of the Bar Councils Act to practise as of right does generally include in it both the right to act and the right to plead, as laid down in Aswini Kumar Ghosh v. Arabinda Bose 1953 SCR 1: (AIR 1952 SC 369) (N) and Laurentius Ekka v. Dhuki Koeri ILR Pat 766 : AIR 1936 Pat 73 (O), that right is always subject to the rules framed by the High Court under the powers given to it by that Act or under other relevant provisions of law. That being so, it cannot be accepted that even without a Vakalatnama as contemplated by Rule 3 of Chapter XVII of the Patna High Court Rules, it could have been open to Mr. G. P. Misra not only to plead but also to act on behalf of the petitioners. But, as already stated above, here it was not a case of acting at all but only that of pleading. Therefore, in doing what Mr. G. P. Misra did, he did not stand in need of any Vakalatnamat For that the appearance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing some mistakes on the presence of Haris Chandra Jha in the Court at the time of compromise. But on other points his evidence fully corroborates the testimony of Mr. Raghunath Jha, as already referred to above. Then it has to be remembered that in the trial court also these brothers were sailing in the same boat having filed a common Vakalatnama and a common written statement. It is true that Haris Chandra Jha and Gopalji Jha in their evidence have not only suggested that the brothers were never joint in the course of this litigation but have gone to the length of charging Subodh Narayan Jha that he came in collusion with Sukhdeo. But their evidence when read carefully shows that both, the brothers in their evidence have tried to conceal the truth and just to support this application they have cooked up a wrong case that they are not Joint and that Subodh Narayan Jha in accepting the compromise acted in collusion with the other side. In cross-examination Harischandra Jha was forced to admit that at the trial stage he did depose that four years after 1938 he and defendants 3 to 5 re-united. As already stated above, these defendants 3 to 5 were no one else but Gopalji Jha, Su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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