MOHAN BAI Vs. JAI KISHAN

JUDGEMENT

(1.) This is a revision petition by Smt. Mohan Bai against the order of the District Judge, Udaipur dt. Mar. 10, 1986, dismissing the application filed by the petitioner u/s. 151 of the Civil P.C. on 29th June, 1982 in his Court for setting aside the final decree, which had been passed by the District Judge, Udaipur in the suit for redemption which had been filed by Jai Kishan since dead and represented by the non-petitioners.

(2.) Facts leading to the filing of this revision petition are that Jaikishan had instituted a civil suit on Nov. 21, 1975 against the petitioner for redemption of mortgage of certain house property which had been usufructuarily mortgaged by him on May 16, 1953 after borrowing a sum of Rs. 2999/- from the petitioner. In the redemption suit, the plaintiff Jai Kishan had stated that he had allowed Smt. Mohan Bai, petitioner to expend a mount to the extent of Rs. 2100/- in the said house. It was stated that the petitioner did not make additions in the number of rooms in the property mortgaged, but she dismantled a latrine and started using "owari" in the house as latrine. Thereupon, Jaikishan asked the petitioner and her husband to redeem the mortgaged property from mortgage after taking the mortgage amount and further amount, if any, expended by her. Since the petitioner did not re-deliver the property after redeeming the mortgage, Jaikishan filed the suit for redemption. In that suit, petitioner admitted the factum of mortgage. However, she alleged that she had incurred an amount of about Rs. 7615.85 in making additions in mortgaged property and claimed that amount in addition to the mortgage amount before redemption. A preliminary decree was passed by the trial Court on May 16, 1953 for redemption of mortgaged property on deposit of payment by the plaintiff of the amount of Rs. 2999/- as mortgage money and Rs. 3997.45/- as the amount incurred by the mortgagee in certain constructions or repairs in the mortgaged property. The plaintiff deposited this amount in the trial court. Aggrieved by the preliminary decree, Smt. Mohan Bai defendant filed First Appeal No. 109 of 1981 in the Court of the District Judge, Udaipur. During the course of that appeal, a compromise was filed which was signed by the plaintiff Jai Kishan and his counsel and on behalf of Smt. Mohan Bai, defendant, the compromise was signed by her advocate Mr. Bansilal. The compromise was verified by the District Judge, Udaipur on Mar. 12, 1982 and the suit of Jai Kishan was decreed in accordance with the compromise.

(3.) As against the compromise decree dt. Mar. 12, 1982 passed by the District Judge, Udaipur in Civil Appeal No. 109/81, Mohan Bai filed Civil Second Appeal No. 101/83(82 ?) before this court. In that Second Appeal, the counsel for Mohan Bai, defendant petitioner challenged the compromise decree on the ground that the compromise on the basis of which the decree was passed, was not signed by the defendant Mohan Bai and was signed only by her advocate Mr. Bansilal. It was urged in the Second Appeal that according to the provisions of O.23, R.3, C.P.C. as amended by the Amending Act No. 104 of 1976, before a compromise can be given effect to by the Court under O.23, R.3, C.P.C., it should be signed by the party himself and a compromise cannot be acted upon by the Court if it is signed merely by the Advocate of the party. The second appeal was dismissed by the Hon'ble Justice Shri D.P. Gupta on Jan. 2, 1983. The judgement of His Lordship is reported in 1983 Rajasthan LR 365. It would appear from para 5 of the reported judgement that his Lordship did not accept the contention of defendant Mohan Bai that the amended provision of O.23, R.3 C.P.C. indicated that the compromise petition signed only by the advocates of the parties would not be given effect to by the Court and after referring to the decision of the Privy Council reported in AIR 1930 PC 158 and to the decision of the Nagpur High Court in Jiwi Bai v. Ramkuwar, AIR 1947 Nag 17 (FB) and further a Bench decision of the Kerala High Court reported in AIR 1968 Kerala 213 (FB), which were cited with approval by their Lordships of the Supreme Court in Jamila Bai Abdul Kadar v. Shankarlal Gulabchand, AIR 1975 SC 2202 and also yet another decision of the Supreme Court in Employers Manoharbahal Colliery, Calcutta v. K.N. Mishra, AIR 1975 SC 1632, his Lordship recognised that a counsel for the party had implied authority to compromise a civil case on behalf of his client and there was no lack of authority in the action of the counsel. In para 9, his Lordship concluded that neither O.23, R.3 C.P.C. debars a counsel from signing a compromise petition nor it interferes with his inherent right to enter into an agreement or compromise on behalf of his client and that the Court can act upon the compromise petition which is signed only by counsel for the parties and had not been signed by the parties personally. Then his Lordship referred to the observations of their Lordships of Supreme Court in the case of Smt. Jamilabai Abdul Kadar v. Shankerlal Gulabchand (supra) wherein their Lordships uphold the implied authority of legal practitioner to act by way of compromising a case in which he was engaged without specific consent from his client subject to two overriding considerations. Firstly, the counsel must act in good faith and for the benefit of his client, otherwise the power fails and secondly, that it is prudent and proper to consult his client and take his consent, if there is time and opportunity. 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.