SITA DEVI Vs. NARAIN SINGH

JUDGEMENT

(1.) 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defendant came in appeal before the learned Additional District Judge but her appeal was dismissed because the same was withdrawn as a result to a compromise arrived at between the parties.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.

(2.) 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 Sourendra Nath Mitra v. Tarubala Dasi, (AIR 1930 PC 158), Shital Prasad Singh v. Surendra Nath Chatterji, (AIR 1950 Pat 253), Laxmidas Ranchhoddas v. Savitabai Hargovindas Shah, (AIR 1956 Bom 54) 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.

(3.) 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 v. Devki Nandan Nagpal, (AIR 1970 SC 669) 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.