Bhanwar Lal vs Kishna Ram and Others

Vineet Kothari, J.—The present First Appeal has been filed by the plaintiff Bhanwar Lal S/o. Shankar Lal against the decree passed on compromise by the learned Trial Court of Additional Dsitrict Judge No. 1, Bikaner on 01.02.2010 in Civil Original Suit No. 43/1999 "Mohan Ram S/o. Bhagwan Ram v. Kishna Ram S/o. Panna Ram".

The dispute was regarding adoption of Kishna Ram S/o. Panna Ram by one Bakhta Ram. The entire order dated 01.02.2010 is quoted herein below for ready reference:--

The learned counsel Mr. M.S. Purohit appearing for the appellant submitted that the compromise decree was passed on the basis of the photostat copy dated 08.01.2010 of the original compromise deed and the original compromise deed was not even produced before the learned Trial Court and the plaintiff Bhanwar Lal was not available on the date of compromise and he has not signed the original compromise deed. The learned counsel submitted that the plaintiff-appellant used to sign the documents and he did not put his thumb impressions on any of the document, as would be clear from the copy of the plaint and the compromise deed which purportedly bears the thumb impression of the appellant-Bhanwar Lal is not correct. The learned counsel also submitted that the Advocate Mr. Hari Saraswat authorised to appear for the plaintiff-appellant had no authority to enter into such a compromise deed on behalf of the plaintiff-appellant and, therefore, the compromise decree passed on the basis of compromise deed deserves to be set aside by allowing the present First Appeal.

The learned counsel Mr. M.S. Purohit appearing for the plaintiff-appellant relied upon the decision of the Hon''ble Supreme Court in the case of Himalayan Cooperative Group Housing Society Vs. Balwan Singh and referred head-note ''C'' wherein, the Hon''ble Supreme Court has held that as per Section 35 of the Advocates Act, 1961 read with Rules 15, 16 and 26 of the Bar Council of india Rules, 1975, an Advocate must be specifically authorised to settle and compromise a claim, that merely on the basis of his employment he has no implied or ostensible authority to bind his client to a compromise/settlement and the position of the Senior Counsel is no better.

On the other hand, the learned counsel Mr. Rajat Arora on behalf of Mr. Sanjeet Purohit appearing for the respondents relied upon the decision of the Hon''ble Supreme Court in the case of Y. Sleebachen Vs. Superintending Engineer WRO/PWD, and the decision of the co-ordinate Bench of this Court in the case of Madan Lal & Ors. v. Narendra Kumar & Anr. [S.B. Civil First Appeal No. 162/2012, decided on 23.07.2014]. The learned counsel also urged that the plaintiff-appellant has also filed a revenue suit in this regard namely, Revenue Suit No. 56/2008, which was also decreed by the learned Sub-Divisional Officer, Barmer on 27.10.2010 on the basis of very same compromise and the revision petition preferred by the plaintiff was also disposed of by the learned Revenue Appellate Authority on 02.08.2011 and the matter was, however, remanded back to the Court of learned Sub-Divisional Officer and the suit is pending before the Revenue Court of SDO. The learned counsel also submitted that it was wrong to contend that there was no compromise on behalf of the plaintiff-appellant-Bhanwar Lal, as the Advocate Mr. Hari Saraswat appearing for the plaintiff-appellant had acknowledged the fact that the original compromise deed had been mis-placed and the photocopy of the same has been placed which is true and correct copy thereof and all the parties agreed to settle the dispute in terms of the compromise deed and, therefore, the learned Trial Court has rightly decreed the suit in terms of the compromise deed that cannot be questioned by the plaintiff-appellant. The learned counsel submitted that the plaintiff-appellant has not taken recourse of the remedy available to him under Order 23 Rule 3 proviso of the Code of Civil Procedure seeking modification of the order but has directly approached this Court by way of filing the present First Appeal, which cannot be entertained.

Having heard the learned counsels for the parties and upon perusal of the record of the case including the judgments cited at bar, this Court is clearly of the opinion that the present First Appeal filed on behalf of the plaintiff-appellant is misconceived and the same is liable to be dismissed. The reasons are as follows:--

(i)- Firstly, the photocopy of the compromise deed placed before the learned Trial Court bears the thumb impressions of the plaintiff-appellant Bhanwar Lal himself duly counter-signed and identified by his Advocate Mr. Hari Saraswat, who agreed on behalf of the plaintiff to obtain the decree on the basis of said compromise recognizing the rights of the plaintiff and the defendants in relation to the agricultural lands which were sought to be partitioned amongst the parties.

(ii)- There is no force in the contention of the learned counsel Mr. M.S. Purohit appearing for the plaintiff-appellant that if the plaintiff-appellant Bhanwar Lal used to sign the documents, he could not have put his thumb impressions on the compromise deed. The law recognises both the signatures or the thumb impressions for verification of the pleadings by the parties in the plaint or written statement. More so, when the thumb impressions of the plaintiff-Bhanwar Lal have been put on the compromise deed, which were duly counter signed and identified by the Advocate appearing for the plaintiff, there is no reason to disbelieve that the plaintiff-appellant Bhanwar Lal had not put his thumb impressions on the compromise document.

(iii)- Even otherwise, an Advocate appearing on behalf of his client had all the due authority on his behalf to settle the dispute by way of a compromise. This Court is of the opinion that for resiling from the said compromise document, the plaintiff had the remedy available to him under Order 23 Rule 3 proviso of the Code of Civil Procedure which is very clear and unambiguous. The proviso to Rule 3 clearly stipulates that where it is alleged by one party and denied by the other that an adjustment or satisfaction of decree has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.

(iv)- No such case was set up by the plaintiff before the learned Trial Court itself before filing the present First Appeal before this Court. It appears to be an after-thought and futile effort/attempt on the part of the plaintiff-appellant-Bhanwar Lal to resile from the compromise deed which was duly counter signed and acknowledged by his Advocate Mr. Hari Saraswat and on the basis of the same, the decree was passed by the learned Trial Court and the compromise was made the part of the decree. This Court in the case of Madan Lal & Ors. v. Narendra Kumar & Anr. (supra) dealing with a similar situation, rejected such contentions in the following terms:--

"In the present case, a perusal of the record of the trial court reveals that the appellants had duly executed vakalatnama in favour of Mr. P.M. Jain, who has signed the compromise alongwith one of the defendants - Chandra Shekhar.

Besides the above, the most outstanding feature of the present case is that the appellants have nowhere in the memo of appeal even whispered that the act of the counsel who signed the compromise was not authorised by them and/or signing of the compromise and presenting the same before the learned trial court on their behalf by the counsel was unauthorised.

In view of the above, there is no substance at all in the plea raised by learned counsel for the appellants regarding the 8 compromise being unlawful as it was not signed by the parties but was signed by learned counsel for the parties.

So far as the submission made by learned counsel for the appellants regarding inclusion of the property in the compromise which was not subject matter of the suit is concerned, as already noticed hereinbefore, such a situation is clearly contemplated by the provisions of Order XXIII, Rule 3 CPC and the same, therefore, cannot give rise to any valid submission.

The further submission that as the amendment including the agriculture land, which was permitted by the trial court came to be set aside by this Court and therefore, the same could not form part of the compromise, is also wholly without any substance. The net result of setting aside of the order allowing amendment was that the agriculture land was not subject matter of the suit and nothing more. The setting of order by this Court cannot put plaintiff to a worse position. As a property which is not the subject matter of a suit can form part of the compromise, merely because an amendment granted by the trial court came to be set-aside by this Court cannot alter the position so as to render it ineligible to be a part of the subject matter of a compromise.

In view of the above discussion, there is no substance in this appeal and the same is, therefore, dismissed.

Sd/- (ARUN BHANSALI), J."

(v)- Similarly, the Hon''ble Supreme Court in the case of Y. Sleebachen v. Superintending Engineer WRO/PWD (supra) elaborately discussing the role of the Advocates in the compromises cases and held as under:--

"20. There is another very important aspect in this case which cannot be sidetracked and needs to be highlighted by us at the time of arguments, on a pertinent query from the learned counsel for the respondents as to whether any action was taken against the Government Pleader, the learned counsel was candid in accepting that not only no action was taken, the said counsel continued to be on the panel of the Government and was entrusted in with further briefs of Court cases. This itself shows that the respondents have tried to wriggle out of a valid compromise by taking such spacious plea which cannot be countenanced.

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........................ We are, therefore, of the opinion that the High Court was not justified in setting aside the consent decree passed by the learned District Judge. Such a consent decree operates as an estoppel and was binding on the parties from which the respondents could not wriggle out by taking an after thought plea that its lawyer was not authorised to enter into such a settlement.

These appeals are accordingly allowed. The impugned judgment of the High Court is set aside and the consent decrees dated 28.04.2011 passed by the trial court are restored. The appellant shall also be entitled to costs which is quantified at Rs. 25,000/- in each of these appeals.

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Now, we have to consider the role of the counsel reporting to the Court about the settlement arrived at. We have already noted that in terms of Order 23 Rule 3 CPC, agreement or compromise is to be in writing and signed by the parties. The impact of the above provision and the role of the counsel has been elaborately dealt with by this Court in Byram Pestonji Gariwala v. Union Bank of India and observed that courts in India have consistently recognised the traditional role of lawyers and the extent and nature of implied authority to act on behalf of their clients. Mr. Ranjit Kumar, has drawn our attention to the copy of the vakalatnama (Annexure R-3) and the contents therein. The terms appended in the vakalatnama enable the counsel to perform several acts on behalf of his client including withdraw or compromise suit or matter pending before the court. The various clauses in the vakalatnama undoubtedly gives power to the counsel to act with utmost interest which includes to enter into a compromise or settlement."

(vi)- In the case of Himalayan Co-operative Group Housing Society v. Balwan Singh & Ors. (supra) relied upon by the learned counsel Mr. M.S. Purohit appearing for the plaintiff-appellant dealing with the concession made by a Senior Counsel on behalf of the client, the Hon''ble Supreme Court has held as under:--

"23. Apart from the above, in our view lawyers are perceived to be their client''s agents. The law of agency may not strictly apply to the client - lawyer''s relationship as lawyers or agents, lawyers have certain authority and certain duties. Because lawyers are also fiduciaries, their duties will sometimes more demanding than those imposed on other agents. The authority-agency status affords the lawyers to act for the client on the subject matter of the retainer. One of the most basic principles of the lawyer-client relationships is that lawyers owe fiduciary duties to their clients. As part of those duties, lawyers assume all the traditional duties that agents owe their principals and, thus, have to respect the client''s autonomy to make decisions at a minimum, as to the objectives of the representation. Thus, according to generally accepted notions of professional responsibility, lawyers should follow the client''s instructions rather than substitute their judgment for that of the client. The law is now well settled that a lawyer must be specifically authorised to settle and compromise a claim, that merely on the basis of his employment he has no implied or ostensible authority to bind his client to a compromise/settlement. To put it alternatively that a lawyer by virtue of retention, has the authority to choose the means for achieving the client''s legal goal, while the client has the right to decide on what the goal will be. If the decision in question falls within those that clearly belong to the client, the lawyers conduct in failing to consult the client or in making the decision for the client, is more likely to constitute ineffective assistance of counsel.

The Bar Council of India Rules, 1975 (for short, "the BCI Rules"), in Part VI, Chapter II provide for the ''Standards of Professional Conduct and Etiquette'' to be observed by all the advocates under the Advocates Act, 1972 (for short, "the Act, 1972"). In the preamble to Chapter II, the BCI Rules provide as follows:

"An advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate. Without prejudice to the generality of the foregoing obligation, an advocate shall fearlessly uphold the interests of his client and in his conduct conform to the rules hereinafter mentioned both in letter and in spirit. The rules hereinafter mentioned contain canons of conduct and etiquette adopted as general guides; yet the specific mention thereof shall not be construed as a denial of the existence of others equally imperative though not specifically mentioned."

(emphasis supplied)

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Generally, admissions of fact made by a counsel is binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the Court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions. Furthermore, a client is not bound by a statement or admission which he or his lawyer was not authorised to make. Lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed. We hasten to add neither the client nor the Court is bound by the lawyer''s statements or admissions as to matters of law or legal conclusions. Thus, according to generally accepted notions of professional responsibility, lawyers should follow the client''s instructions rather than substitute their judgment for that of the client. We may add that in some cases, lawyers can make decisions without consulting client. While in others, the decision is reserved for the client. It is often said that the lawyer can make decisions as to tactics without consulting the client, while the client has a right to make decisions that can affect his rights. We do not intend to prolong this discussion. We may conclude by noticing a famous statement of Lord Brougham:

"an advocate, in the discharge of his duty knows but one person in the world and that person is his client."

(vii)- The said judgment applied in the case of writ proceedings have no application to the facts of the present case inasmuch as, in the present case, the compromise decree has been passed by the learned Trial Court on the basis of the photocopy of the original compromise deed bearing the thumb impressions of the plaintiff-appellant and duly acknowledged and identified by his counsel Mr. Hari Saraswat. It is noticed that the authority of the Advocate to enter into such compromise has not been challenged by the plaintiff at any point of time. Neither any complaint has been filed by the plaintiff in the local Bar Association nor any complaint has been made to the Bar Council of Rajasthan against the said Advocate Mr. Hari Saraswat.

(ix)- This Court is of the view that if such resiling from the compromise deed, as in the present case, is to be allowed just for askance to the plaintiff, it would make a mockery of any valid compromise deed entered into between the parties to the litigation and the plaintiff cannot be let free to allow to walk out of the compromise, just at the whims and caprices of the parties concerned. The sanctity of the court procedures and the consent decree passed by the court of law cannot be allowed to be thrown to the winds by such unscrupulous litigants and it is the duty of the higher courts to condemn and restrict such tendencies of resiling, with the iron hands of justice, as is sought to be done in the present case.

(x)- No substantial ground has been established by the appellant-plaintiff before this Court for justifiably allowing the plaintiff to resile from the compromise deed in question on the basis of which, the decree has been passed by the learned Trial Court nor any proper procedure was adopted by him before the learned Trial Court under Order 23 Rule 3 proviso of the Code of Civil Procedure. All the objections and the contentions, as sought to be raised before this Court are without any basis or evidence whatsoever. Therefore, in the opinion of this Court, the present First Appeal filed by the plaintiff-appellant is liable to be dismissed with costs, being bereft of any substance.

Accordingly and in view of the above, the present First Appeal filed on behalf of the plaintiff-appellant Bhanwar Lal S/o. Shankar Lal is dismissed with costs quantified at Rs. 5,000/-[Rupees Five Thousand only] to be paid to the Legal Aid Committee at Bikaner Judgeship. A copy of this order be sent to the Court below and to the parties concerned forthwith.