MUTHUKRISHNAMMAL Vs. ANANDHALAKSHMI

JUDGEMENT

(1.) TENANT in R. C. O. P. No. 6 of 1993 on the file of Principal district Munsif, Dindugal is the Revision Petitioner. This revision petition is filed under Article 227 of Constitution of India.

(2.) RESPONDENT herein filed an eviction petition on the ground that the petitioner/tenant defaulted in payment of rent. In the counter statement, this allegation is denied. But when the matter came up for trial, parties settled the matter and on compromise, orders have been passed. Tenant was given 21 months time to vacate the premises and in case he fails to surrender vacant possession, landlord is allowed to take possession through court. When the tenant did not surrender vacant possession by the end of the term, landlord filed an execution petition in E. P. 197 of 1998 for getting possession of the building. An objection was filed in the lower court and the tenant wanted further six months time to surrender possession. Lower Court did not allow it and ordered delivery of the property. The same is challenged in this revision petition under Article 227 of Constitution of India.

(3.) THE role of a counsel and extended nature of his implied authority came up for consideration before a Full Bench of Kerala High court in the decision Souri Nayakam, v. A. N. Menon, 1968 K. L. T. 1 (F. B. ). THE honourable Supreme Court approved the observation of the Full Bench of Kerala high Court in paragraph 26 of the Judgment cited supra, which read thus, "courts in India have consistently recognised the traditional role of lawyers and the extent and nature of their implied authority to act on behalf of their clients. Speaking for a Full Bench of the kerala High Court in Chengan Souri Nayakam v. A. N. Menon, K. K. Mathew, J. (as he then was) observed: (AIR p. 215) "the construction of a document appointing an agent is different from the construction of a vakalat appointing counsel. In the case of an agent the document would be construed strictly and the agent would have only such powers as are conferred expressly or by necessary implication. In the case of counsel the rule is otherwise because there we are dealing with a profession where well known rules have crystallised through usage. It is on a par with a trade where the usage becomes an additional terms of the contract, if not contrary to the general law or excluded by express agreement. " About the special position of the advocate, the learned judge stated: (AIR p. 216) ". . . Counsel has a tripartite relationship; one with the public, another with the court, and the third with his client. That is a unique feature, other professions or callings may include one or two of these relationships but no other has the triple duty. Counsel's duty to the public is unique in that he has to accept all work from all clients in courts in which he holds himself out as practising, however unattractive the case or the client. " THEir Lordships further declared that the amendment of 1976 in the Code of Civil Procedure has not curtailed the implied authority of the Counsel either to confess Judgment or in entering into compromise. In paragraph 30 of the judgment, THEir Lordships further held thus: "there is no reason to assume that the legislature intended to curtail the implied authority of counsel, engaged in the thick of proceedings in court, to compromise or agree on matters relating to the parties, even if such matters exceed the subject matter of the suit. THE relationship of counsel and his party or the recognised agent and his principal is a matter of contract; and with the freedom of contract generally, the legislature does not interfere except when warranted by public policy, and the legislative intent is expressly made manifest. THEre is no such declaration of policy or indication of intent in the present case. THE legislature has not evinced any intention to change the well recognised and universally acclaimed common law tradition of an ever alert, independent and active bar with freedom to manocuvre with force and drive for quick action in a battle of wits typical of the adversarial system of oral hearing which is in sharp contrast to the inquisitorial traditions or the'civil law'of France and other European and latin American countries where written submissions have the pride of place and oral arguments are considered relatively insignificant. (See Rene Davit, english Law and French Law Tagore Law Lectures, 1980 ). ' ; THE civil Law'is indeed equally efficacious and even older, but it is the product of a different tradition, culture and language; and there is no indication, whatever, that Parliament was addressing itself to the task of assimilating or incorporating the rules and practices of that system into our own system of judicial administration. " And, finally, their Lordships concluded in paragraph 40 of the Judgment thus: "accordingly, we are of the view that the words'in writing and signed by the parties', inserted by the C. P. C. (Amendment) Act, 1976, must necessarily mean, to borrow the language of Order III Rule 1 CPC: any appearance, application or act in or to any court, required or authorised by law to be made or done by a party in such court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent, or by a pleader, appearing, applying or acting as the case may be, on his behalf: Provided that any such appearance shall, if the court so directs, be made by the party in person. " In view of this declaration of Law by the Honourable supreme Court, I do not think that the submission made by the Counsel for the petitioner could be accepted.