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TMI Blog1957 (2) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... s admittedly looking after her interests. The vakil for the plaintiff also signed the endorsements and consented to the dismissal of O. S. No. 151 of 1950. On the ground that the vakil had no authorisation to enter into any compromise and that her father was also not her authorised agent, this Govindammal filed a review application for setting aside the order of dismissal of the suit O. S. No. 151 of 1950 in the Chidambaram District Munsif's Court itself. That was not prosecuted and went by default. She subsequently filed an appeal in the District Court out of time. 4. The application for excusing delay was dismissed. Thereafter she has filed this suit to have the decree in O. S. No. 151 of 1950 set aside. The learned Subordinate Judge came to the conclusion that the suit for partially setting aside the compromise was devoid of merits and secondly, that in fact the vakil had power to enter into the compromise and that even if there is no express authority to enter into the compromise, under the inherent authority impliedly given to the vakil, he had the power to enter into the compromise on behalf of the party. Therefore, he dismissed the suit. Hence this appeal. 5. That on m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel who pleads. Where the vakalat given to the vakil in a case empowered him to compromise the suit no second or special vakalat is necessary to empower him to compromise it. (3) Thenal Ammal v. Sokkammal, ILR (1918) Mad 233; AIR 1918 Mad 656 (C), (Seshagiri Aiyar and Kumaraswami Sastriar JJ.):-- A vakalat containing a provision authorising the vakil to present if necessary petitions for razinama for withdrawal and for referring to arbitration and to sign the razinama etc., petitions' does not give authority to the vakil to enter into a compromise without reference to his clients. At page 235 (of ILR Mad) : (at p. 657 of AIR): 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 rights in any way he chooses. Therefore we think that the general power claimed is not in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mma (1947) 2 MLJ 580 , (Gentle C. J. and Tyagarajan J. ): In a vakalatnama conferring in detail six separate distinct powers, the absence of a power or direction to compromise was not without significance. 582 (of Mad LJ) : (at p. 100 of AIR): He (the Advocate) had no express authority to effect a compromise, but solely to contest the suit. In those circumstances no implied authority arises or can be deemed to have been conferred upon him to make a compromise which was binding upon his client. (7) Nundo Lal Bose v. Nistarini Dassi, ILR 27 Cal 428 (G), 438: There cannot, I think, be any reasonable doubt at the present day that counsel possesses a general authority, an apparent authority, which must be taken to continue until notice be given to the other side by the client that it has been determined to settle and compromise the suit in which he is actually retained as counsel, and in the exercise of his discretion to do that which no considers best for the interest of his client in the conduct of the particular case in which he is so retained. (8) In B. N. Sen and Bros. v. Chunnilal Dutt and Co. AIR 1924 Cal 651 , Sanderson C. J. and Richardson, J.:-- The authority of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 383 : It is too late in the day.... to contend that a specific authority to compromise is necessary. (13) Jiwibai v. Ramkumar, AIR 1947 Nag 17, (FB) (M): 25 : The authority to compromise is implicit in the appointment unless it is expressly countermanded, and that, whether there is express authority conferred by the power or not. (14) Sarathakumari Dasi v. Amulyadhan, AIR 1923 P. C. 13 (N): It has been well established that a vakil appointed under a usual power of attorney is not endowed with power or Authority to compromise the suit he is thus retained to argue. (15) Sourendranath Mitra v. Tarubala Dasi (16) Sheonandan Prasad Singh v. Abdul Fateh Muhammad. Counsel in India have the same implied authority to compromise the action as have counsel in the English courts. (17) Supaji v. Nagorao Sakharam AIR 1954 Nag 250 (Q): Kaushalendra Rao and Deo JJ.: The authority to compromise is implicit in the appointment of an advocate unless it is expressly countermanded whether there is authority expressly conferred by the power or not. Similarly, a counsel's action in not prosecuting an appeal once filed because of a settlement is also included in his authority. (18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel outside the limits of his authority is of no effect: Jivibai v. Ramkumar (M), (supra); ILR 1948 Mad 647 : (AIR 1949 Mad 98) (F), Strauss v. Francis, (1866) 1 Q.B. 379 (Y), per Blackburn J. at page 382. Difficult questions however arise if the limitation has not been communicated to the other side and counsel consents in spite of dissent or on terms different to those his client authorised : 1919-1-K. B. 474 (T). In some cases courts have refused to inquire if there is such a limitation : In re Hobler, 1844-8 Beav. 101 (Z); Mole v. Smith, 1820-1 Jack and W. 665 (Z-1) per Lord Eldon L. C. at page 673 and have refused to set aside a compromise entered into by counsel : 1866-1 Q.B. 379 (Y); Rumsey v. King, 1876-33 L.T. 728 (Z2). But the rule seems to be that the Court has power to interfere, and the House of Lords has held that the Court is not prevented by agreement of counsel from setting aside or refusing to enforce a compromise, that it is a matter for the discretion of the Court and that when in the particular circumstances of the case grave injustice would be done by allowing the compromise to stand, the compromise may be set aside even though the limitation of counsel& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscrimination. 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 responsible 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, if the advocate has no authority unless he consults his client, valuable opportunities are lost to the client. Lord Atkin proceeded to emphasise that the authority is not "an apanage of office, a dignity added by the courts to the status of Barrister or Advocate at law, but one implied in the interests of the client, to give the fullest beneficial effect to his employment of the Advocate, and he states the limitations of that authority in the form that "the implied authority can always be countermanded by the express directions of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gland, (Simonds Edn) Vol. 3, Section 72: The authority of counsel at the trial of an action extends, when it is not expressly limited, to the action and all matters incidental to it and to the conduct of the trial such as withdrawing the record or a juror, calling or not calling witnesses, consenting to a reference, or a state processus, or a verdict, undertaking not to appeal, or on the hearing of a motion for a new trial consenting to the reduction of damages. The consent of the client is not needed for a matter which is within the ordinary authority of counsel, and, if a compromise is entered into by counsel in the absence of the client, the client is bound. If an action is settled in court in the presence of the client, his consent will be inferred, and he will not be heard to say that he did not understand what was going on. So when an arrangement was suggested, and the client's solicitor went and consulted the client, who was not in court, and returned, and afterwards the suggested arrangement was concluded by counsel, the consent of the client was inferred, and where a settlement was announced and an adjournment requested for classification of matters of detail, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umed until the contrary is shown: United States v. Beebe (Z16); at least it is not to be presumed that this was done, without lawful authority, and slight evidence in such a case may be sufficient to authorise the belief that he was clothed with all the power he assumed to exercise. It has been held that a compromise settlement made in good faith by counsel, when sanctioned by the court in a decree, is binding upon the client. Statutes relative to the authority of an attorney touching the conduct of his client's cause of action have generally been held to effect no departure from the general rule that an attorney has no implied authority to compromise his client's claim. The general rule has been held to apply even though the client may be a resident of a distant State or is a municipality or other Government body. The general rule stated is now followed by the English courts, although the early tendency of these courts was apparently to recognise such powers. In some States the question as to the implied power of an attorney to agree to a compromise of his client's right of action out of court appears to be an open one, and in a few jurisdictions it has been held ..... X X X X Extracts X X X X X X X X Extracts X X X X
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