THAKUR SINGH Vs. INDER SINGH

JUDGEMENT

(1.) In a suit for specific performance of an alleged agreement by which defendant-appellant agreed to execute a deed transferring the ownership rights of a specific piece of land measuring 17 Kanals and 18 Marlas, an agreement was arrived at between the counsel for the parties in the trial Court after a good deal of evidence had already been led by them. This happened on August 19, 1971. Shri Brij Mohan Lal, counsel for the plaintiff, made the following statement:-

(2.) An appeal against the decree was preferred by the plaintiff to the Court of the District Judge. Shri Ved Parkash Sharma District Judge, Gurdaspur, allowed the plaintiff's appeal by his judgment dated May 31, 1972. The learned Dist. Judge held that Shri Brij Mohan Lal, Advocate for the plaintiff, had no power to consent to the settlement of the case by an oath being taken by the opposite party under S. 9 of the Indian Oaths Act, 1873, nor did Section 36 of the Code of Civil Procedure. 1882, give him any such authority as no specific power to that effect had been given to him in the Vakalatnama executed in his favour by the plaintiff. In addition, he held that the trial Court acted in an indecent haste to decide the case inasmuch as the report of the Commissioner did not specifically show that Thakar Singh had actually stated in the Gurdwara and the Commissioner had not even reported as to where and in whose presence the statement was made by Thakar Singh. An objection was taken by the learned District Judge to the words spoken by Thakar Singh not having been recorded by the Local Commissioner. Notice was also taken of the difference in the statement required to ba given by Thakar Singh on oath between what had been stated by the Advocate for the plaintiff and what had been recorded in the order of the trial Court The decree of the trial Court was set aside for the foregoing reasons and the case was odrered by the lower appellate Court to be remanded to the trial Court for re-decision on merits.

(3.) The unsuccessful defendant then filed this appeal against the order of the learned Additional District Judge When the appeal came up before a learned Single Judge of this Court, he noticed the contention of the counsel for the defendant-appellant that an Advocate has an inherent right to enter into a compromise and that even if the provisions of the Indian Oaths Act, 1873, could not apply on account of the repeal of that Act by the Oaths Act 44 of 1969, nothing could stop the Advocate of the plaintiff-respondent in settling the case on the basis of certain conditions. Since, in the opinion of the learned Single Judge, this question was one of importance and there is also some judicial opinion to the effect that the provisions of the Act were against public policy, the learned Judge thought it proper that the case should be decided by a larger Bench and, therefore made this reference on October 4, 1973.