THAMBU BASHYAM AYYANGAR Vs. NSRINIVASACHARIAR

JUDGEMENT

(1.) The question involved in this second appeal is as to the power of the pleader to compromise the case for defendants 1 and 3. The suit was brought by the worshippers of a certain temple for a declaration that a usufructuary mortgage executed in favour of the father of defendants 1 to 3 is not binding on the suit temple and for recovery of properties or in the alternative, if the Court held that the mortgage was binding on the temple, for recovery of the properties on payment of Rs. 263. The defendants contended that the mortgage was binding on the plaint temple and that the plaintiffs were not entitled to any relief. Issues were framed and when the suit came on for hearing the pleaders on both sides represented that the matter was settled between the parties. Defendants 1 to 3 bad a common pleader. Both the pleaders, plaintiff 2 and defendant 2 endorsed on the plaint the terms of the settlement. The suit was then adjourned to 16 April 1930 to enable the plaintiffs to deposit Rs. 240 into Court in pursuance of the terms of the settlement. The plaintiffs deposited the amount that day but defendants 1 and 3 appeared in person and stated that they did not agree to the compromise. The learned District Munsif held that they were bound by the compromise and decreed the suit in terms of the compromise. This was confirmed on appeal and the second appeal is preferred against that decision. The material terms of the vakalath are given in the judgment of the lower appellate Court and it is not disputed that the translation is correct. It is as follows: ...You are to appear for us in the above suit, file answer, etc., and conduct and examine all proceedings that may be taken in connexion with the application for execution of any decree or order that may be passed therein and avasyamanal (if necessary or expedient) you are to compromise the suit or raise contest therein....

(2.) It is not disputed that in the context avasyamanal must mean, as translated by the District Judge, "if necessary or expedient" because there cannot be any such thing as legal necessity to compromise a suit. The learned District Judge held that to decide whether it was necessary or expedient to compromise the suit was within the discretion of the pleader. The case relied on for the appellants are Thenal Ammal V/s. Sokkammal AIR 1918 Mad 656, Mehra V/s. Ahmad A.I.R. 1929 Lah. 746, Ghasi Ram V/s. Haribux A.I.R. 1930 Cal 477, Jagapathi Mudaliar v. Ekambara Mudaliar (1898) 21 Mad 274, Taru Bala V/s. Sourendra AIR 1925 Cal 866, Krishnamachariar V/s. Chinnammal (1913) 18 IC 369, Sourendranath Mitra v. Tarubala Dasi AIR 1930 PC 158, Neale V/s. Garden Lennox (1902) AC 465, Brauwnsiein V/s. Accidental Death Insurance Co. (1862) 31 LJ Q B17, at 21, Venkatarayudu V/s. Surya Rao A.I.R. 1929 Mad. 416 and Bank of New South Wales V/s. Owston (1879) 4 AC 270. Most of these cases can be eliminated as not relevant. Mehra V/s. Ahmad A.I.R. 1929 Lah 746, was a case of a mere general power of attorney. Ghasi Ram V/s. Haribux, A. 1. Rule 1930 Cal. 477, was a case where counsel in Court consented to a decree without consulting his client though he was there. It was not a question of authorization under a vakalath. In Jagapathi Mudaliar V/s. Ekambara Mudaliar (1898) 21 Mad 274 the terms of the vakalath were quite general. Venkatarayudu V/s. Surya Rao A.I.R. 1929 Mad. 416, a decision of myself, was not a case where there was any vakalatnama and I held that it was a question of fact whether a party's pleader was authorized to state that his client would abide by High Court's decision in another suit, and that with such a question of fact the High Court cannot interfere in revision. Neale V/s. Garden Lennox (1902) AC 465 was a case of express prohibition by the party to counsel who nevertheless compromised. This case was alluded to by Maccardie, J., in Welsh V/s. Roe (1918) 87 LJ KB 520 with regard to the powers of a solicitor. Bank of New South Wales v. Owston (1879) 4 AC 270 is merely a decision about the authority of an agent which is wholly useless in determing the power of a pleader under a vakalatnama in Court. Sourendra Nath V/s. Tarubala Dasi AIR 1930 PC 158, a Privy Council case is really, as far as it goes, against the appellant. Their Lordships say that any advocate when briefed in a suit (including a suit in the Court of a Subordinate Judge), has the implied authority of his client to settle the suit by a compromise. On the matter of the vakalath they express no opinion but merely say where the legal representative in Court of a client derives his authority from an express written authority, such as a vakalatnama, different considerations may well arise, and in such cases their Lordships express no opinion as to the existence of any implied authority of the kind under discussion.

(3.) Brauwnstein V/s. Accidental Death Insurance Co (1862) 31 LJ Q B17 is merely quoted to explain the meaning of the word "necessary." The question there was as to a clause in an insurance policy that the directors might call for evidence if necessary and it was held that this meant only such evidence as the directors might reasonably require. That really does not assist us at all in a matter of this sort. Taru Bala V/s. Sourendra AIR 1918 Mad 656 deals with a pardanashin lady compromising. Practically the one case on which the appellants rely is Taru Bala v. Sourendra AIR 1918 Mad 656. The head-note summarises the vakalath as containing a provision authorizing the vakil to present if necessary petitions for razinama for withdrawal and for referring to arbitration and to sign the razinama, etc., petitions.