Smt. Sita Devi vs Narain Singh and Another

D.B. Lal, J.—Narain Singh and another filed a suit for possession against Smt. Sita Devi which was based on title. The learned Senior Subordinate Judge partly decreed the suit and partly dismissed it. The defendant came in appeal before the learned Additional District Judge but her appeal was dismissed because the same was withdrawn as a result to a compromise arrived at between the parties. Thereafter she came in second appeal before a learned single Judge of this Court. It was contended that the power of attorney granted in favour of the counsel representing the appellant did not authorise him to compromise the dispute or to withdraw the appeal. As such the order of the learned Additional District Judge was to be considered non est and that was the sole ground on which the second appeal was preferred before the High Court. The plea, however, did not prevail before the learned single Judge and the second appeal has been dismissed. Thereafter an application was made before the learned single Judge for a certificate of fitness for appeal under Clause 10 of the Letters Patent. In this manner the present Letters Patent Appeal has come up before us for decision.

It is impossible for a member of the Bar to do justice to his client and to carry on his profession according to the highest standards unless he has the implied authority to do everything in the interest of his client. This authority not only consists in putting forward such argument as he thinks proper before the Court, making such admission as he thinks proper, but also to settle the client''s litigation if he feels that a settlement will be in the interest of his client and it would be foolish to let the litigation proceed to a judgment. This implied authority may, however, be limited or restricted or even taken away. An advocate is after all an agent of his client and it is open to his client to say that he would not compromise or withdraw a litigation. This view has been upheld in AIR 1930 158 (Privy Council) Shital Prasad Singh and Others Vs. Surendra Nath Chatterji and Others, , Laxmidas Ranchhoddas and Others Vs. Savitabai Hargovindas Shah, and Mst. Bachni w/o Sawan Singh v. Kartar Singh, (AIR 1963 Punj 376). Therefore, the implied authority was of course there but the said authority could be curtailed or taken away by the language used in the power of attorney.

In the instant case, on 22-7-1969 when the appeal was set down before the learned Additional District Judge, a statement was made by the counsel for the appellant that the parties had compromised and that the appeal be dismissed as withdrawn and the decree of the trial Court be affirmed. Accordingly the learned Additional District Judge made the order that the appeal be dismissed as withdrawn because the parties had compromised and a statement to that effect was recorded by the counsel for the appellant. It is obviously true that the counsel for the appellant considered it to be in the interest of his client to withdraw the appeal. There was also a compromise between the parties. It has been held in Silver Screen Enterprises Vs. Devki Nandan Nagpal, that in a case where the factum and validity of compromise is not disputed the Court must dismiss the appeal under Order 23, Rule 3 of the Code of Civil Procedure. In that case an argument was raised that the appellate Court had no jurisdiction to record the compromise under Order 23, Rule 3 but this argument did not find favour with the Supreme Court. Therefore, the learned Additional District Judge rightly made the order dismissing the appeal as withdrawn, no sooner he was satisfied, that the dispute Was compromised between the parties under Order 23, Rule 3 of the Code of Civil Procedure. It was not required of the Court to have enforced the attendance of the parties in person. The counsel represented his client and his statement was sufficient, provided he had the authority to make that statement.

In the power of attorney which we have cared to see in original, the following language is used.

;k vihy lEcU/kh U;k;ky; ftlls bl eqdnes dh lquokbZ gks A esjh@ gekjh vksj ls mifLFkr gksdj iSjoh djs------gj rjg dk O;ku nsus] nLrkost is''k djkus ;k okil ysus lkylh] jkftukek ;k QSlyk djus] bdcky nkok djus ;k bekukbZ ;k dqdhZ] xfj�rkjh QSlys ;k vtjk fMxzh-----vf/kdkjh gksxk A

The expressions gj rjg dk O;ku nsus] jkthukek ;k QSlyk djus] bdcky nkok djus in our opinion do indicate that the advocate had the authority to withdraw the appeal or to get recorded the compromise in appeal so that the appeal could be dismissed as a result to that compromise.

The expression nkok does not necessarily mean in the context, the suit. Rather it means the claim made in the suit and it is not difficult to conclude that when the appeal was filed the said claim which came to exist right on the first day was pending on the date of appeal. The appeal is a proceeding incorporating the suit and the claim made in the suit was to be decided in appeal. Therefore, when the learned counsel made that statement he was in fact referring to the claim made in the suit and to that extent the decree of the trial Court was to be confirmed. Besides this interpretation of the expression nkokthe other expressions gj rjg dk O;ku nsus vkSj jkthukek ;k QSlyk djus-------------also indicate that the counsel had the authority to withdraw the appeal.

In this view of the matter be-sides the implied authority of the advocate, there was the express authority conferred upon him in the power of attorney to compromise and withdraw the appeal. The learned Additional District Judge could pass no other order but of dismissing the appeal as withdrawn.

We are, therefore, of the opinion that the learned single Judge has arrived at a correct decision. There is no merit in this appeal and the same is dismissed without making any order as to costs,