Dev Pal Kashyap, Advocate vs M/s Sant Ram Narinder Mohan, Cloth Merchants and another

Sukhdev Singh Kang, J.—Sh. Dev Pal Kashyap has filed this revision petition u/s 15 of the East Punjab Urban Rent Restriction Act, 1949 (for short ''the Act'') against the judgment dated 14th June, 1982, passed by the Appellate Authority, Faridkot, allowing the appeal of M/s. Sant Ram Narinder Mohan-respondent and setting aside the order of eviction passed by the Rent Controller, Faridkot, vide order dated 19th October, 1979. The facts are brief and lie in a narrow compass.

Sh. Dev Pal Kashyap petitioner filed an application u/s 13 of the Act for ejectment of M/s. Sant Ram Narinder Mohan and another, on the ground that firm M/s. Sant Ram Narinder Mohan (respondent No. 1) was his tenant; it was in arrears of rent and had sublet the premises in dispute to respondent No. 2. It was also averred that respondent No. 1 had committed such acts as were likely to impair the material value and utility of the premises in dispute and that the tenant had not occupied the shop for a period of over one year. The premises were unsafe and unfit for human habitation. The ejectment application was contested by respondent No. 1. In its written statement it denied the material allegations. The case was hotly contested. Both the parties led evidence. During final hearing of arguments the parties came to terms and entered into a compromise. The learned Rent Controller recorded the statements of the learned counsel for respondents Nos. 1 and 2, Sh. Kulbhushan Beri and the applicant which was countersigned by his counsel Sh. Hans Raj Bansal, Advocate. After going through the evidence on the record and the statements of Sh. Kulbhushan Beri Advocate, and the applicant Sh. Dev Pal Kashyap, the learned Rent Controller allowed the application and passed an order of ejectment of respondent No. 1 from the shop in dispute subject, however to the condition that respondent No. 1 shall vacate the shop as ''and when the applicant gets another shop, denoted by mark ''X'' on plan Exhibit C1 on the file of the Rent Controller, vacated from its present occupants and puts respondent No. 1 into its possession as a tenant. The rent of the new shop will be Rs. 100/- per month from the date of actual occupation. If the applicant was unable to deliver possession of shop marked ''X'' to the respondent, as per the agreed terms, within one year from the date of the passing of the order the application shall stand dismissed. If on the other hand the respondent fails or refuses to take possession or occupies the shop within 15 days of the service of the registered notice on him to this effect the applicant will be entitled to get execution of the ejectment order through Court.

M/s. Sant Ram Narinder Mohan filed an appeal against this order of the learned Rent Controller. It came up for heating before Shri Dev Bhushan Gupta, Appellate Authority, Faridkot A preliminary objection was raised on behalf of the landlord that the appeal was not competent because the Rent Controller had passed the order of ejectment with the consent of the parties. This objection was over-ruled by the learned Appellate Authority. The plea of the appellant that Shri Kulbhushan Beri, Advocate, had no authority to enter into a compromise, found favour with the learned Appellate Authority. He held that Shri Kulbhushan Beri was not authorised to compromise the case. He had no authority to surrender the possession of a bigger shop in exchange for a smaller one at an enhanced rent The learned Appellate Authority allowed the appeal and set aside the order of the learned Rent Controller and remanded the case to him for deciding it afresh in accordance with law. Aggrieved by this order, the petitioner has preferred the present revision petition

Mr. R.L. Sarin, Advocate, learned counsel for the petitioner, has argued that since the ejectment order had been passed by the learned Rent Controller with the consent of the parties M/s. Sant Ram Narinder Mohan-respondent cannot be termed to be the person aggrieved by that order. So it could not file an appeal against the impugned order. In support of this contention Mr. Sarin has relied upon a decision of a Division Bench of the Madras High Court in Kanagarathnammal v. H. Soma Rao (1955) II M.L.J. 433.

This argument of Mr. Sarin is inherently fallacious. It is well settled that the provisions of the CPC are not applicable to the proceedings before the Rent Controller except to the limited extent provided for under Sections 16 and 17 of the Act Section 16 provides that an Appellate Authority or a Rent Controller shall have the same powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence as are vested in a Court under the Code of Civil Procedure. Orders passed by a Rent Controller or an Appellate Authority shall be executed in view of the provisions of Section 17 of the Act, by a Civil Court as if they were decrees of that Court (See in this connection Ram Dass v. Smt. Sukhdev Kaur (1981) 83 P.L.R. 440) Right of appeal has been provided by Section 15(b) of the Act which reads:--

Any person aggrieved by an order passed by the Controller may within fifteen days from the date of such order of such longer period as the appellate Authority may allow for reasons to be recorded in writing, prefer an appeal in writing to the appellate authority having jurisdiction. In computing the period of fifteen days the time taken to obtain a certified copy of the order appealed against shall be excluded.

It is manifest from the language employed in Section 15 that the principle of law enshrined in sub-section (3) of Section 96 of the CPC that no appeal shall lie from a decree passed by the Court with the consent of the parties has not been incorporated in Section 15. The technical rules of procedure contained in subsection (3) of Section 96 of CPC will not be applicable to the appeal filed u/s 15(b) of the Act. In Kanagarathnammal''s case (supra) an appeal against an order passed with the consent of the parties has not been altogether barred. Even in that ease it hag been observed that such an appeal shall be competent if the appellant was able to establish fraud, undue influence or such other vitiating circumstances. In that case no attempt was made to establish any of the circumstances enumerated above. However, in the present case the tenant-firm had taken the stand before the learned Appellate Authority that the person who gave consent for passing the ejectment order had no authority to do so. This assertion will surely fall within all comprehensive phrase ''other vitiating circumstances''. A division bench of the Allahabad High Court in Jagdish Narain v. Rasul Ahmad AIR 1952 (39) All. 29 had occasion to examine the provisions of Section 96 and Order 23 Rule 3 of the Civil Procedure Code. It was observed :--

When the consent upon the basis of which a decree has been passed by the Court is itself challenged in the Court of appeal, it cannot be taken for granted that the decree was a consent decree. A consent decree must mean a decree validly consented to either by the party himself or by his duly authorised agent. If the question raised is that the agent who consented to the decree was not duly authorised, the question has to be decided and it cannot be prejudged by holding that because on the face of it there was a consent decree, no appeal lies to the appellate Court.

This is a complete answer to the contention of Mr. Sarin. Since in the present case the appellant had alleged in the grounds of appeal that Shri Kulbhushan Beri had no authority to suffer the impugned order, the appeal was competent.

It was then contended by Mr. Sarin that Shri Kulbhushan Beri had been appointed by the tenant as its counsel to conduct the case. Shri Beri had conducted the case throughout. The tenant had not indicated any dissatisfaction with the conduct of Shri Beri. Shri Dev Pal Kashyap is also a practising lawyer at Moga. It seems that Shri Kulbushan Beri had no hesitation in accepting a brief against a practising Advocate of the same place. It was during the course of arguments that a compromise was reached. May be that the tenant and Shri Beri were convinced that they will lose the case and therefore agreed to vacate the shop in dispute and take on rent a smaller shop. No allegations of misconduct or mala fide have been levelled against Shri Beri.

It is well settled that an Advocate has an implied authority to compromise any action in which he is acting as a counsel, even without the express authority of the client. In (1935) AWR 980 (Privy Council) it was observed:--

Counsel in India have the same implied authority to compromise an action as have counsel in the English Courts. But if such authority is invoked to support an agreement of compromise the circumstances must be carefully examined. In the first instance the authority is an actual authority implied from the employment as counsel.

This view was reiterated by the highest Court in Jamilabai Abdul Kadar Vs. Shankarlal Gulabchand and Others, , wherein it was observed :--

A pleader (which includes all legal practitioners as indicated in Section 2 (15) Civil P.C.) has the actual, though implied, authority of a pleader 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 goad 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.

In Employers in relation to AIR 1975 1632 (SC) it was observed that since the memorandum of compromise on the basis of which the appeal was disposed of was signed by the counsel of respondent, duly authorised to appear on his behalf, this compromise was Binding on the respondent. Faced with this situation, Mr. D.V. Sehgal, learned counsel for the respondents, argued that Sh. Biri had no authority to compromise matters which were extraneous to the proceedings or which were merely collateral to it. In support of this contention he drew my attention to a passage in the decision of Surendra Shankar Walkar Vs. Laxman Shankar Waikar and Others, which is in the following terms:--

The authority of an advocate to compromise is implicit in the appointment of the advocate unless it is expressly countermanded by the client. It must, however, be borne in mind that the implied authority of an advocate to enter into a compromise is limited to the action in which he has been engaged and does not extend to matters which are extraneous to the action or which are merely collateral to it.

In the present case it has not been alleged that Mr. Beri did not act in good faith or for the benefit of his client. No such allegations have been made in the grounds of appeal, nor any such allegation was made before the learned Appellate Authority or even before me. Sh. Beri, in the case in hand, has not entered into a compromise regarding the matters which are extraneous to the action. After evidence of the parties had been led and the arguments had been partly addressed, Mr. Beri had consented to the compromise. It can be safely assumed that Mr. Beri might have come to the conclusion that the ejectment application will be allowed by the learned Rent Controller and his client will be ejected. He accepted a proposal which was to a great extent beneficial to his client. Instead of being evicted and thrown out from the premises in dispute, the tenant was offered an alternative accommodation. It may not be so good as the shop in dispute but it was better to have it than to be left without a shop. Mr. Beri did not agree to something which may prejudicially affect the interests of his client. He has not agreed to surrender the rights of his client in any property which was not the subject matter of the ejectment proceedings nor has he committed himself to a position which may be deterimental to the interests of his client as was the case in Surendra Shankar Waikar''s case (supra). Mr. Beri acting bonafide and in the interest of his client had given consent to the compromise. He was legally competent to do so. The consent has not been given to any matter alien to the proceedings in which he was engaged. The tenant-respondent cannot successfully denounce the compromise entered into by his counsel Sh. Beri, more especially so when it has not been averred that the tenant had expressly directed Sh. Beri not to enter into a compromise.

The revision petition must succeed in another ground also. The Appellate Authority had no power to remand the case for a fresh trial. It has been so held in Raghu Nath Jalota v. Ramesh Duggal and another 1980 (1) R.C.J. 404.

For the foregoing reasons I allow this revision petition and set aside the judgment dated 14th June, 1982 of the learned Appellate Authority and restore that of the learned Rent Controller without any order as to costs.