# JAMILABAI ABDUL KADAR v. SHANKERLAL GULABCHAND & ORS

- **Citation:** [1975] Supp. 1 S.C.R. 336
- **Court:** Supreme Court of India
- **Decided:** 1975-04-30
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jamilabai-abdul-kadar-v-shankerlal-gulabchand-ors-6523
- **Pages:** 18

## Headnote

336
A
B
c
D
E
F
JAMILABAI ABDUL KADAR
V.
SHANKERLAL GULABCHAND & ORS.
April 30, 1975
JV. R. KRISHNA IYER, R.S. SARKARIA AND AC. GUPTA, JJ.J
Adrocatcs Act, 1961--Scopl' of authority of an advocate to enter into
con1pron1ise on behalf of. !di client.
The appellant engaged a pleader to fight her case in a Court. The case
wa~ adjourned from time to time for the parties to compose their differenc.cs.
Eventually, the Court re•.ordeJ a compromise, signed by the pleader ·of the
appellant. At the time of signing the compromise, though the appellant was
not present in Court, her litigation agent \V'as present and was consulted v;;hen
the order was made. The appellant later filed a suit for a declaration that the
decree based on a compromise entered into by her pleader was without authority
nnd was not binding on her. The suit was disniissed. The appeal \Vas dismissed
in limine by the High Court.
On appeal to this (::Ourt, it \Vas contended that the respondent, being a
tnerc pleader, had no power to compromise a suit unless expressly authorisc<l
by the party.
Dismis.sing the appealHELD : (a) La\vyers, be they advocates, vakils or pleaders, stand on the
san1c footing in regard to their po\\•er to act on behalf of their clients. By
the 1\dyocates Act, 1961. the Jndian Bar came into existence permitting enrolment of various categories of legal practitioners like vakils and pleaders.
Section 55 of the Act provides that t\'Cry pleader, v.·ho did not elect to be
enrolled as an ad\1ocate under that ,\ct, shall continue to enjoy the same
rights as respects practice in any Couit as he had before that Act came into force.
[340 H, 341-Al
In the instant case, though the respondent had not enrolled himself as
an advocate, his rights respects practice. in any Court are
what
he
had
enjoyed under the Bombay Pleaders Act, 1920, not\vithstanding its repenl
by the Advocaes Act.
[341-B].
(b) Every legal practitioner is an officer of the Court and aids in the
cause of justice. The responsibility of the advOcatcs to their clients and to
the Court has to be the same even though some of them may be entitled to
appiar only in District Courts "''hile others in High Courts. The quality of
pc>\ver cannot stand c!i:fferentiation. [341-GH]
(2) If a suitor countermand-; his pleadcr".s authority to enter into ·a comG
promise or withholds, by express recital in the vakalat, the power to compromise the legal proceeding, the pleader or the advocate cannot go against
snch advice and bind the principal, his client. This is as illegal as it is unprofessional.
£342-FG]
Jiwibai v. Rarnjuwal·, AIR 1947 Nag. 17, approved.
(3) To act for the suitor involves myriad intricate actions often so legal
that the client may not even understand the implication.
Representation
in
J-J
Court may he so demanding and w transforms forensic obligation that a
Jav1yer may have ethical difficulties in mechanically obcving all the directions
of his principal. 1'he legal skill that is hired by the ~lient may, fo: _il'> very
effective exercise. need an area of autonomy and quickness of decision that
to 1estrict the agency to exrrcss authorisation is to ask for an unpredictable
and endless enumeration of powers. To ~ircun1scribe the power to ac_t is to
defeat the rurpos(~ of the engagement. Tt 1s pe1fect1y open to a party, like any
•,
..., .
J. A. KADAR v. SHANKERLAL (Krishna Iyer, J.)
337
other principal; to mark out in the vakalat or by particular instructjons forA
bidd~n areas or expressly \Vithhold the right to act
in sensitive matters, the
choice being his, ;as the master .. Th~ legal p.rofession is a para-public institution '"'·hich 'de-serves the special· confidence of and o-..ves greater responsibility
to the community at large than. the ordinary nin of agency.
[346-D-G, HJ
Sourindra ,._ lleramba, AIR 1923 PC 98, follo\\~d.
.
Laxmidas Ranchhoddas v. Savitabai, [1955] 57 BLR 988, S.S. Waikcr v. L. S.
Waiker, AIR 1960 Born. 20 and C. S. Nayakam v. A. N. Mc11011 AIR
1963
,B
K.er. 213 approved.
Ron

## Text

_Characters 0–39,920 of 49,737. This is a partial read: ask again with offset=39920 for what follows._

336
A
B
c
D
E
F
JAMILABAI ABDUL KADAR
V.
SHANKERLAL GULABCHAND & ORS.
April 30, 1975
JV. R. KRISHNA IYER, R.S. SARKARIA AND AC. GUPTA, JJ.J
Adrocatcs Act, 1961--Scopl' of authority of an advocate to enter into
con1pron1ise on behalf of. !di client.
The appellant engaged a pleader to fight her case in a Court. The case
wa~ adjourned from time to time for the parties to compose their differenc.cs.
Eventually, the Court re•.ordeJ a compromise, signed by the pleader ·of the
appellant. At the time of signing the compromise, though the appellant was
not present in Court, her litigation agent \V'as present and was consulted v;;hen
the order was made. The appellant later filed a suit for a declaration that the
decree based on a compromise entered into by her pleader was without authority
nnd was not binding on her. The suit was disniissed. The appeal \Vas dismissed
in limine by the High Court.
On appeal to this (::Ourt, it \Vas contended that the respondent, being a
tnerc pleader, had no power to compromise a suit unless expressly authorisc<l
by the party.
Dismis.sing the appealHELD : (a) La\vyers, be they advocates, vakils or pleaders, stand on the
san1c footing in regard to their po\\•er to act on behalf of their clients. By
the 1\dyocates Act, 1961. the Jndian Bar came into existence permitting enrolment of various categories of legal practitioners like vakils and pleaders.
Section 55 of the Act provides that t\'Cry pleader, v.·ho did not elect to be
enrolled as an ad\1ocate under that ,\ct, shall continue to enjoy the same
rights as respects practice in any Couit as he had before that Act came into force.
[340 H, 341-Al
In the instant case, though the respondent had not enrolled himself as
an advocate, his rights respects practice. in any Court are
what
he
had
enjoyed under the Bombay Pleaders Act, 1920, not\vithstanding its repenl
by the Advocaes Act.
[341-B].
(b) Every legal practitioner is an officer of the Court and aids in the
cause of justice. The responsibility of the advOcatcs to their clients and to
the Court has to be the same even though some of them may be entitled to
appiar only in District Courts "''hile others in High Courts. The quality of
pc>\ver cannot stand c!i:fferentiation. [341-GH]
(2) If a suitor countermand-; his pleadcr".s authority to enter into ·a comG
promise or withholds, by express recital in the vakalat, the power to compromise the legal proceeding, the pleader or the advocate cannot go against
snch advice and bind the principal, his client. This is as illegal as it is unprofessional.
£342-FG]
Jiwibai v. Rarnjuwal·, AIR 1947 Nag. 17, approved.
(3) To act for the suitor involves myriad intricate actions often so legal
that the client may not even understand the implication.
Representation
in
J-J
Court may he so demanding and w transforms forensic obligation that a
Jav1yer may have ethical difficulties in mechanically obcving all the directions
of his principal. 1'he legal skill that is hired by the ~lient may, fo: _il'> very
effective exercise. need an area of autonomy and quickness of decision that
to 1estrict the agency to exrrcss authorisation is to ask for an unpredictable
and endless enumeration of powers. To ~ircun1scribe the power to ac_t is to
defeat the rurpos(~ of the engagement. Tt 1s pe1fect1y open to a party, like any
•,
..., .
J. A. KADAR v. SHANKERLAL (Krishna Iyer, J.)
337
other principal; to mark out in the vakalat or by particular instructjons forA
bidd~n areas or expressly \Vithhold the right to act
in sensitive matters, the
choice being his, ;as the master .. Th~ legal p.rofession is a para-public institution '"'·hich 'de-serves the special· confidence of and o-..ves greater responsibility
to the community at large than. the ordinary nin of agency.
[346-D-G, HJ
Sourindra ,._ lleramba, AIR 1923 PC 98, follo\\~d.
.
Laxmidas Ranchhoddas v. Savitabai, [1955] 57 BLR 988, S.S. Waikcr v. L. S.
Waiker, AIR 1960 Born. 20 and C. S. Nayakam v. A. N. Mc11011 AIR
1963
,B
K.er. 213 approved.
Ronde/ v. Morsley [1969] l A. C. 191 ref~rred to.
(4) The Advocate .or pleader has authority to act by \vay of compromising
a case iii 'vb.ich he is engaged even without specific consent from his client
subject. to two
over~riding considerations: (iJ He must act in good faith
C
ctnd for the benefit of his client; otherwise the power fails. {ii) It is prudent
and rroper to consult his client and take his consent if there is time and
opportunity. In any case, if there is any instruction to the contrary or \Vith~
drawal of authority, the' implicit power to compromise ,in . the pleader. \Viii
fall tto the ground.
[352-BJ
ln the present case, the pleader had acte<l substantially with the knowledge
of and encou_raged by his clie!}t.
Ttfe several adjournments taken by the , ~D
a.ppellant specifically for settling the suit speak for themselves. There is no
doubt that the broad sanction for the compromise came fro1n the ap:ijellant,
that· no shady action \vas imputable to the respondent and that his conduct had
been motivated by the good of his clie.nt.
[352-H]
[Counsel should not rush in with a compromise ·where due ca.re ·wil.I make
them fear. to. tread. that a junior should rarely consent on his O\\'fl \\'hen tberc
is a senior in the brief, that a party n1ay validity impunge an act of compreE
misc by his pleader if be is available for consultation but is by-passed. The
la\vyet must be above board, cspeciaI!y if he is to agree to an ad'\'ersc verdict.]
[353-C-DJ
CIVIL APPEL'LATE JURISDICTION : Civil Aooeal No. 43 of 1968
Appeal by special leave from the judgment a~d order dated the.
11th December, 1967 of the
Bombay
High Court at Bombay in
Second Appeal No. 1428 of 1967;
V. M. Limaye, V. N. Ganp11/e, R. N. Nath and Urmila Siri1r
for the a~ellant.
Y. S. Chitale and A. G. Ratnaparkhi, for respondents.
The Judgment of the Court was delivered by
KRISHNA IYER, J. There is more than meets
the
eye in the
seemingly simple legal issue· raised in this cjectment suit, if we probe
the deeper public and professional implications of the limitations on a.
pleader's implied power to enter rnto a compromise of a case .bona fide
on behalf of his client, but in his
inrerest,
although
without his
Cl)l!Setlt.
The facts to use trite phraseology, fall within a narrow CO'!Jpass.
The landlords, Respondents I to. 3, brought an action for cv1ct1on of
lbc tenant-appellant (Regular Swt 11~ o~ 19~4) under the rent .control law extant in Maharashtra. L!t1gat1.on !s often so h.arass1~gly
Jon~ that even where recovery of possession 1s sought for 1mmed1at<!
"
F
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338
SUPREME COURT REPORTS
[1975] SUPP· S.C.R.
A bona fide need of the owner, the judicial process; takes its slow motion
course that settlement of the dispute is not infrequently prefen-ed hy
both sides to protracted adjudicatory justice.
In the present case,
although parties had engaged lawyers and gone to trial, they
took
several adjournments from court to compose their differences, Th~ last
B
c
such was granted in thes.e terms :
"19-4-65 Parties as before present
"Application by defendant for adjournment granted.
Suit is adjourned for hearing to 21-4-65.
Sd/-
R. H. MasJe.kar,
Joint Civil Judge
Junior Division."'
:.-
Eventually, on April 21, 1965 the court
r<corded a compromise,
signed by the pleader o~ the tenant, giving 18 months time to give
vacant possession and decreed the suit on the agreed terms. But at
D heart the tenant harboured the intent to resist eviction; the impropriety
of breaching she compromise was overpowered by the tempting plea
of the illegality of the decree on consent. So she started some miscellaneous proceedings which were carried right upto this Court although dismissed in every court as incompetent. Then she inaugurated
this, the third chapter of litigation.
Regular Civil Suit No. 422 of
1966 for a declaration that the decree based on a compromise enter~d
E into by her pleader without authority was not binding on her and
consequently she was not liable to be dispossessed. This last spell
of litigation, after the first compromise in Court, has taken long ten
years. Socio-legal research may well prove that
legal justice may
soon reach a point of no return if fundamental structural reform of
the whole forensic process were not lannched upon and frivolous
F
litigation scree11ed so as not to discredit faith in court justice. Anyway, in the present case, the hierarchy of courts has held against the
appellant and she has come up. by special leave, conscious of adverse
findings of fact by courts below, to this Court. The only point urged
by Shri Limaye for the appellant is that Respondent 4 the pleader,
Shri Palshikar, who signed the razi, had no authority to do so, especially
because the client's consent so to do had not been secured and on
G advocate-respondent 5 before us-had also been retained in the case
who had neither signed the document not represented to the Court
about the settlement. It is common case that the tenant was absent in
court although her litigation agent was present (and consented) when
the order was made.
Shri Limaye has raised the principal plea that Respondent 4 being
}{ a mere pleader, had no power to compromise the suit unless expressly
authorised by the party and here admittedly no such. express authorisation existed. He seemed to make a distinction between advocate and
pleader although at some stages he read this limitation as applicable
to advocates too. A second point faintly raised was prudently abandoned
for the reason that it had not been set up in the pleadings or urged
at earlier stages. Last minute ingenuity is not fairpl~.y in court and
)
\
.r. A. KADA~ v. SHANKERLAL (Krishna Iyer, J.)
339'
we cannot and did not permit him 'lo argue that the court had no
~
material in the recitals of the compromise to make out the mandatory
grounds required under the relevant 'rent control' law for a court t0
direct dispossession of a tenant of a building. We do not examine the
merits of the contention of all.
·
Now to the only contention canvassed before, us. Although vintage rulings and relevant books have·been cited and voyages to Anglo·
American legal systems made, we have to decide the issue in the light
of Indian statutc'law and decisions
against the backdrop of Indian
conditions. Foreign aid is helpfo! but in law, as in life, Indian genius
must speak. In this perspective, first we have to look at the pertinent
provisions of the Civil Procedure Code; the Advocates Act and the
Bombay Pleaders Act.
Even before that we, may reproduce the terms of the compromise
which resulted in the decree for eviction in the prior suit-(Regular
Civil Suit No. 141 of 1964) :
c
"IN THE COURT OF THE CIVIL ,JUDGE, JUNIOR
D
DTVfSTON AT JALGAON
Regular Suit No. 141/64
SHANKARLAL GULABCHAND-Plaintiff
v.
ABDUL KADAR H. WELDER-Defendant
A compromise has been arrived at mutually between the plaintiff
and the defendant and it is agreed as under :-The defendant is to
give to the plaintiff actual possession of the suit properties on or before
. the date the 30-10-66. In case the defendant fails to· deliver actual
possession of the said suit properties according the plaintiff is to take
actual possession of the said properties by filing a Darkhast. The defendant is liable to pay at the rate of Rs. 55.90 'the amount of the Joss
sustained in the form of arrears of rent inclusive of the municipal tax
and education cess subsequent to the filing of the suit, from the date
1 -4-64 until delivery of actual possession of the plaintiff, and accordingly, the defendant is to pay at the said rate the damages for the intervenrng period. In case the defendant fails to pay (the same), the
plaintiff is to recover the amount by filing a Darkhast. The defendant
is to bear his own costs and to pay to the plaintiff the latter's
costs of this suit.
The plaintiff is to take the amount of refund in
respect of the Court fee stamp that may be paid. It is agreed as
above.
A decree may therefore be passed in terms thereof.
Sd/- Shankarlal Gulabchand.
Sd/- R. C. Agarwal.
Regular Suit No. 422/66
Produced on behalf of the plaintiff
on the date 30-1-67
(Signature-illegible)
Advocate for the plaintiff
E
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340
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SUPREME COURT REPORTS
[1975] SUPP· s.c.R.
(In English)
Sd/- D. B. Choudhari.
Advocate for Plaintiff.
with authority to Compromise,
Sd/- B. H. Falashikar
Plaintiff with authority to Comp.
No. 1 and 2 and plaintiff Shankarlal Gulabchand with pleader and
defendant Abdul Kadar with pleader admitted before me the compromise. It is verified and admitted.
Sd/- R. H. Maslekar.
c. J. 24-4-65"
Alth01igh the
Civil Judge
mentions in the
order that 'defendant
Abdul Kadar' with pleader admitted before him the compromise, it
was not the defendant but his agent who was. actually present. Tbat
D this is an error is conceded by Sri Chitalc appearing for respondents
I to 3. The trial court as well as the District Court went into the question whether the plaintiff-appellant had made out that express directions
were given to the pleader Shri Falshikar (respondent No. 4) not to
compromise the suit and have come to the conclusion that no such
positive instruction 'not to compromise' was given by the party. This
being the concurrent finding of fact and the High Court having dismissed
E the Second Appeal in limine we may proceed on the footing that Sri
Palshikar, the pleader, h~d not been affirmatively informed not to enter
into a compromise.
The second question on which
also both the
Courts of fact have negatived the plaintiff:appellant's version is that the
compromise was an act of sharp practice, a fraud played by the pleader
on his client and on the court. We therefore exclude the possibility of
F
dubiety and assume bona {ides on the part of the pleader.
We
mention this to narrow the scope of the controversy which really turns
on the existence or otherwise of the implied authority of a pleader to
compromise a suit in the interests and on behalf of his client although
without actual reference to him where his vakalat is silent on the point.
There is no statutory provision decisive of this issue and we have to
garner the principles from various factors like the status and signifiG cance of the legal profession in society, the wider powers conferred on
lawyers as distinguished from ordinary agents on account of the triuna
facets of the role of an advocate vis a vis the client, the court and the
public and its traditions and canons of professional ethics and etiquette.
Above all, the paramount consideration that the Bench and the Bar
form a noble and dynamic partnership geared to the great social goal
of administration -Of justice puts the lawyer appearing in the court in a
H class by himself and to compare him with an ordinary agent may be
to Jose sight of the lawyer as engineer of the rule of law in society.
National integration at the lawyer's level was statutorily achieved
by the Advocates Act, 1961 wbereby the Indian Bar, with a classless·
orientation, came into existence permitting enrolment of various cate-
~
gorics of legal practioners like vakils and pleaders (see s. 29). It
. '
J. A. KADAR v. SHA:-!KERLAL (Krishna Iyer, J.)
3 .\ l
A
must be notC<:!, however, that Shri l'alshikar has not been enrolled as
au Advocate, On the contrary, the party had briefed, apart from
Shri Palshikar (just a pleader with a sanad under the Bombay Pleaders
Act, 1920-.for short, the Bombay Act), an Advocate--Shri Khatib,
6th respondent. Section 55 of the Advocates Act provides that every
pleader who docs not elect to be enrolled as an Advocate under that
Act shall continue to enjoy the same rights as respects practice in any
court as he had before that Act came into .force.
Thus his rights as
respects practice in any court are what he
had enjoyed under the
Bombay Act, notwithstanding its repeal by the Advocates Act. Our
attention was drawn to ss. 9 and 16 of the Bombay Act but neither
section helps us much in regard to the controversy bearing on the
competenc~ of a pleader, to enter into a compromise without the consent of the concerned p~rty. Even so, s. 9 illumines the area to some
extent and the relevant portion may be extracted :
B
c
"9. No person shall appear, plead or act for any party
in any ciyi! proceeding in any court unless he is a pleader as
defined in this Act and is entitled and duly empowered \o
appear, plead and act for such party in such proceeding;"
'D
Shri Chitale contends-and this
argument has
found favour with
the courl~ below-that a pleader has power to act for any party and
to settle a dispute involved in a suit is ancillary to or implied in thi~
power to act. When he settles his client's suit k
acts for him as much
as he does so when he gives up a point as meritless. We will examine
E
this matter more in depth a little later.
There is force in the suggestion that even though
a pleader or
vakil might not have chosen to get himself enrolled, in their very
eligibility to be enrolled as
advocates,
there
is implicit statutory
acceptance of the position that ,all these categories of legal practioncrs have substantially the same powers vis-a-vis client and court.
The egalitarian ethos injected by the Advocatell
Act makes
for parity of powers between pleaders and advocates to act on behalf
of their client. We think it right to read into the complex of
provisions' bearing
on
legal
practitioners
this
activist
identity of power to act. After all, every legal practitioner labels apart, is
an officer of the court and aids in the cause of justice. Logically and
sociologically and, indeed, legally, their responsibility to their clients
and to the Court have to be the same even though some of them may
be entitled to appear only in District Courts while others in the High
Courts. and Advocates in anv Court in the whole of the country. The
quality of the power-limitations on the. courts i.n which appearance -
is permissible being ignored for the ·time bemg--eannot
sta~d.
differentiation. This stand is reinforced by a reference· to the C1v1!
Procedure Code which regulates the legal process in Indian courts.
Order III, r.1, reads :
"1. Any appearance, application or act in or to any
Court, required or authorised by law to be made or do.ne
by a party in such Court, may, except where othetW!Se
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SUP.REME COURT REPORTS
[1975] SUPP· s.c.R.
A
expressly provided by any Jaw for the time being in force, be
made. or done by a pany in person, or by his recognised
agent or by a pleader appearing, applying or acting on the
case may be, on his behalf ;
We may also read r. 4(1) of the same order:
B
" ( 1) No pleader shall act for any person in any Court,
unless he has been appointed for the purpose by such person
by a document in writing signed by such person . .
"
Both these provisions clothe the pleader with the power to act Ill any
cnurt provided be has been empowered by a vakalatnama in this
C
b~half. The Code has defined 'pleader' in these general terms :
"Sec. 2( 15) 'Pleader' means any
person entitled to
appear and plead for another in Court, a/Id includes an advocate, a vakil and attorney of a High Court."
It is obvious that this definition obliterates any status-wise distinction
D between
an
advocate:
and
any
other
legal
practitioner like
a vakil
or pleader entitled to appear in court on behalf of
his
client.
A profession whose founding. fighting faith is equal justite
under the law does not practise inequality within its fold deaf to tbe
mood music of non-discrimination.
•
The broad conclusion, having due regard to the perspective ·we
E have set out right at the beginning, is that lawyers, be they Advocates,
vakils t'r pleaders, stand on the same footing in regard to their power
to al't on behalf of their clients.
F
The cases cited before us. discerningly understood, confirm the
soundness of this equating principle. As earlier clarified, the sole issue
is the delineation of the scope and. ambit of 'acting'. Docs the power
to 'act' cover the right to settle the suit without getting the
client's
cor1sent, or .is it implied in the engagement ? To clear possible confusion we may straightawav state that both sides agree-and that is
the undoubted law-·that if a suitor
countermands
his
pleader's
authority to enter into a compromise or withholds, by express recital
in the vakalat, the power to compromise the legal proceeding·, the
G pleader (or, for tha: matter, the Advocate, cannot go against such
advice and hind the principal, his client.
This is as illegal as it is
nnprofcssional.
Shri Limaye has relied on a few decisions-both of the Privy
Council and of the Indian High Court,, in his endeavour to make out
that pleaders cannot compromise suits unless expressly authorised by
H the vakalatnama. To substantiate the contrary position, Shri Chitale
has drawn our atN:ntion to other rulings. These citations n1ay be
briefly surveyed and they are : Sourindra v. Heramba(') ; Sourendra
Nath v. Taruba/a Dasi( 2); Jiwibai v. Ramjuwar (FB) ('); Supaji v.
(I) A.T.R.
1923 PC 98.
(3) A.J.R. 1947 Nag. 17.
(") A.J.R. 1930 PC
158.
•
)
• >
I
J. A. KADAR v. SHANKERLAJ. (Krishna Iyer, J.)
Nagorao('); Ratnllswami v. Jai Hind Talkies(');
Govinda~mia! 4 v.
Marhmuthu
Maistry(');
Laxmidas Ra11c/1hoddas V·
Sav1taba1( ) ;
S. S. Walker v. L. S. Walker( 5 ); and C. S.
Nayakam v.
AN.
Menon('').
Although, on an analysis of these decisions,
so~e .. disco~d~nt
notes may be beard, there is substantial harmony of JUd!~ial opm10n
on the proposition that the different classes of _legal practitioners have
the same rights in relation to the case in which they have been en·
gaged. Indeed, even if there be any marginal dou)'t, we. have
to
interpret the law in such manner as to promote the mtegration of !he
Indian Bar in tune with the spirit of s. 29 of the Advocates Act which
categorically states. that subject to the provisions of that Act and
any rules made. thereunder, there shall, as from the appointed day, be
only one class of persons entitled to practise the profession of law,
namely, advocates:
Shri Llmaye placed great reliance on the Judicial Committee's
statement in Sourindra (supra) where Sir John Edge observed;
"A pleader; who does not hold and has not filed in the
suit before the Court his client's general power of attorney
authorising him generally to compromise suits on behalf of
his clients, cannot be recognised by a Court .as having any
authority to compromise the suit unless he has filed in the
std his client's vakalatnama giving him authority to compromise the ~uit before the Court."
Superficially understood, this supports the appellant in wriggling out
of the compromise, because the pleader Shri Phalsikar had not been
given any authority to compromise the suit, in the vakalatnama, but
we ~o _not !hink that this is a disability specially attaching to a pleader
as d1stmgmshed from an Advocate. We go further and consider that
these_ observations have to be construed in the context of the fact
that in the facts of that case some of the defendants had
not filed
vakalatnamas at all and that, ultimately, the Judicial Committee had
upheld the compromise after special valalatnamas were filed for the
umeprescnted parties. The question of the powers of a pleader, as
d 0stmgu,,hed from the larger powers of an Advocate did not come
up for consideration in that appeal and we cannot treat the ruling as
authority for the_ position taken up by the appellant.
, Lord Atkin, speaking for the Judicial Committee in Sourcndra
!vat!; (s~pra) also had to deal with agreement to compromise a suit and
the nnphed power of an advocate to settle the suit on behalf of his
(I) A.T.R. 1954 Nag. 250.
(3) A.1.R. 1959 Mad. 7.
(5) A.LR. 1960 Dom. 20.
10 SC/75-23
(2) A.I.R. 1956 Mad. 536.
(4) [1955] 57 B.L.R. 988.
(6) A.LR. 1968 Kor. 213.
343
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client. The statement of the law is instructive and may well
be
extracted :
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"They are of opinion that Mr. Sircar, as an advocate of
the High Court, had, when briefed on behalf of the defendant, in the Court of the Snbordinate Judge of Hoogly, the
implied authority of his client to settle the suit. Their Lordships have already said that he must be treated as though
briefed on the trial of the suit. Their Lordships regard th('.
power to compromise a suit as inherent in the position of an
advocate in India. The considerations which have led to this
implied power being established in the advocates of England,
Scotland am! Ireland apply in equal measure to India. It
is a power deemed to exist because its existence is necessary
to effectuate the relations between advocate and client, to
make possible the duties imposed upon the advocate by his
acceptance of the cause of his client.
The advocate is to conduct the cause of his client to
the utmost of his skill and understanding. He must in the
interests of his client be in the position, hour
by hnur,
almost minute by minute, to advance this argument, to withdraw that ; he must make the final decision whether evidence
is to be given or not on any question of fact ; skill in advocacy
is largely the result of discrimination. These powers in themselves almost amount to powers of compromise ; one point
is given up that another may prevail. But in addition to these
duties, there is from time to time thrown upon the advocate
the responsible task of deciding whether in the course of a
case he shall accept an offer made to him, or on his part
shall make an offer on his client's behalf to receive or pay
something less than the full claim or the full possible liabi- ·
lity. Often the decision must be made at once. If further evidence is called or the advocate bas to address the Court the
occasion for settlement will vanish. In such circumstances, it
the advocate has no authority unless he consults his client,
valuable opportunities are lost to the client."
(emphasis, ours)
G Their
Lordships
referred
to the apparent authority that counsel
has in England to compromise in all matters connected
with
the
action. The jurisprudential basis as a branch of the Law of Agency
has been thus expressed by Lord Atkin :
H
"Two observations may be added. First, the implied
authority of counsel is not an appendage of office, a dignity
added by the Courts to the status of barrister or advocate
at law. It is implied in the interests of the client, to give the
fullests beneficial effect to his employment of the advocate.
Secondly, the implied authority can always be conntermanded by the express directions of the client. No advocate has
actual authority to settle a case against the express instructions of his client. If he considers such express instructions
•
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J. A. KADAR v. SHANKERLAL (Krishna Iyer, J.)
contrarv to the interests of his client, his remedy is to return
his brief."
The Judicial Committee equated the Indian Advocate and his dutic>
to his client in the conduct of the suit as in no wise different from
those of his counter-parts in the United Kingdom :
''There are no local
conditions which make it less
desirable for the client to have the full benefit of an advocate's experience and judgment."
There is an obscure passage in the judgment which, accordmg
Sbri Limaye supports him : True, ihe Board has observed :
"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."
to
We are unable to see anything here to contradict the general power,
actual though implied, of counsel (be he advocate or pleader) to
settle the suit of his client as part of bis duty to protect the interests of
his client.
We ·may now move on to the Indian decisions, none of which
specifically uphold the absence of implied
authority of a pleader
qua pleader to enter into a compromise binding on his cli.ent.
345
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Perhaps the clearest pronouncei;nent
against
the
degrading
differentiation of pleaders is that by a Full Bench of the Nagpur
High Court in Jiwibni (supra). After an exhaustive discussion, which
F
we need not repeat, the Court concluded at p. 26 :
"Our answer to the second question is that counsel
in India, whether Barristers, Advocates, or pleaders, have
inherent powers, both to compromise claims, and
also to
refer disputes in Court to arbttration, without the authority
or consent of the client, unless their powers in this behalf
G
have been expressly counter-mantled, and this, whether the
law requires a written authority to 'act' or 'plead' or not."
(emphasis, ours)
The legal deduction is contained in these emphatic words :
"Brush unrealities aside and what do we get but a
contract ? How much more is that the case in those parts
of India where no solicitor intervenes and counsel and client
meet face to face ? How much more when there is an actual
instrument of engagement or a power of
attorney ? How
much more when the law requires writing ?" (p. 24)
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"The Privy Council tells us that there is inherent in the
position of counsel an implicit authority to do all that is expedient, proper and necessary for the conduct of the suit and
the settlement of the dispute." (p. 25)
"Turning next
to 0.3, R. 4, consider
again the case in
B
which a pleader is appointed simply to 'act' without
any
attempt to set forth the scope of his acting. (That incidentally
i~ in substance the power given to the plaintiff's counsel in
the case). Is compromise not an acting ?"
(p. 25)
Our attention has been drawn to Supaji (supra) which, while affirming
C implicit authority of an Advocate, doubts the application of the same
principle to pleader.
We unhesitatingly prefer the Full Bench view
(supra).
A little reflection will unfold the compelling necessity of giving
a comprehensive meaning to the expression 'act' and for the inclusion of all categories of legal practitioners as repositories
of this
D ampk agency, bound yet broadened by obligatory traditions, professional control and public confidence in the Bar as a massive social
instrumentality of democracy. To act for the suitor involves myriad
intricate actions often so legal that the client may not even understand
the implication, sometimes so sudden that time for taking instructions
is absent. Representation in court may be so demanding and
so
E transforms forensic obligation that a lawyer may have ethical difficnlti~s in mechanically obeying all the directions of his principal. The
legal skill that is hired by the client may, for its very effective exercise, need an area of autonomy and quickness of decision' that
to
restrict the ageney to express authorisation is to ask for an unpredictable a1.1d endless enumeration of powers such as what to ask a
r witness and what not to, what submissions to make and what points
to give up and so on. To circumstances the power to act is to defeat
the purpose of the engagement. '!'hose who know how courts
and
counsel function will need no education on
tl1e jurisprudence of
lawyer's position and powers. Of course,
we
hasten to enter a
caveat. It is perfectly open to a party, like any other principal, to
mark out in the vakalat or by particular instructions forbidden areas
c or expressly withhold the right to act in sensitive matters, the choice
being his, as the master. If the lawyer regards these fetters as inconsistent ,with his position, he may refuse or return the brief. But absent
speaking instructions to the contrary, the power to act takes in its
wings the right and duty to save a client by settling the suit if and
only if he does so bona fide in the interests and for the advantage of
his client. This amplitude of the power to act springs from the builtIl in dynamism, challenge and flux of the very operation of legal representation as felicitously expressed, if we may say so with great respect,
in the noble words of Lord Atkin (Sourendra Nath's Case (supra). We
may supplement the grounds for giving this wider construction by the
fact that the legal profession is a para-public institution which deserves
the special confidence of and owes greater responsibility to the community at large than the ordinary nm of agency.
J
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J. A. KADAR v. SHANKERLAL (Krishna Iyer,!.)
Tllis reasoning has been high lighted by the Kerala. High C?urt
in its Full Bench decision in Nayakam {supra). Mathew J ., exanuned
the English authorities and applied it to Indian conditions. The learned
Judg~ observed :
"The construction of a document appointing an agent is
different from the construction
of a vakaJat 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 term of the contract, if nol contrary to the general law or excluded by express agreement."
(p. 215)
More importantly, Mathew, J. placed accent on the special position of
the Bar :
347
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"That counsel is not a mere agent of the client wmild
D
be made clear if we look at the nature of his duties and
relationship with the public and the court. 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
E
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." (p· 216)
The passages quoted from Lord Dearing M. R. in Rondds Case
(1967 1 Q.B. 443) bear repetition when considering the public justice role of the Bar :
"A barrister cannot pick or choose his clients. He is
bound to accept a brief for any man who comes before the
courts. No matter how great a rascal the man may be. No
matter how given to complaining. No matter how undeserving or unpopular his cause. The barrister must defend·him to
the end. Provided only that he is paid a proper fee, or in the
case of a dock brief, a nominal fee. He must accept the brief,
and do all he honourably can on behalf of his client. I say
'all he honourably can' because his duty is not only to his
client. All those who practice at the Bar have from time to
time been confronted with cases civil and criminal which they
would have liked to refuse, but have accepted them as burdensome d.llty. This is the service they do to the public.
Counsel has the duty and right to speak freely and independently without fear of authority, without fear of the judges
and also without fear of a stab in the back from his own
client. To some extent, he is a minister of justice."
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SUPREME COURT REPORTS
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"It is a mistake to suppose that he· is the mouth-piece
of his client to say what he wants : or his tool to do what
he directs. He is none of these things. He owes allegiance
to a higher cause. It is the cause of truth and justice. He mnst
not consciously mis-state the facts. He must not knowingly
conceal the truth.
He must not unjustly make a charge of
fraud, that is, without evidence to support it. He must produce all the relevant authorities, even those that are against
him. He must sec that his client discloses, if ordered,
the
relevant documents, even those that are fatal to his case.
He must disregard the most specific instructions of his client,
if they conflict with his duty to the court. The code which requires a barrister to do all this is not a code of law. It is a
code of honour. If he breaks it, he is offending against the
rules of the profession and is subject to its discipline."
(p. 216)
A Division Bench of the Bombay High Court (where Chagla C.J.,
spoke for the Court) takes a pragmatic view of a lawyer's powers
D to settle as is reflected from the head-note which is sufficient for our
purpose (see head-note in Ranchhoddas (supra);
E
F
"It is impossible for a member of the Bar to do justice
to his client and to carry on his profossion according to thr.
highest standards unless he has the implied authority to do
everything in the interests of his client. This authority not
only consists in putting forward such arguments as he thinks
proper, but also to settle the client's litigation if he feels
that a settlement would be in the interests of his client and
it would be foolish to let the litigation proceed to a judgment.
This implied authority has also been described as an actual
authority of counsel or an advocate. This authority may be
!united or restricted or even taken away. If a !imitation is
put upon counsel's authority, his implied or actual authority
disappears or is destroyed. In such a case he has only an
ostensible authority as far as the other side is
concerned.
When the actual authority is destroyed and merely the ostensible authority remains, then although the other side did not
know of the limitation put upon the authority of an advocate,
the Court will not enforce the settlement when in fact the
client had withdrawn or limited the authority of his advocate."
G
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The 1·fadras decisions have not been consistent. ln Ran1a.n.va111i's
Case (supra) it was observed :
"ft has
been
1ald down
in .far.:pati Mudaliar
v.
Ekmnbara Muda/iar 21 Mad. 274 that it is not competent
to a pleader to enter into a compromise on behalf of his
client without his express authority to do so. See also Thermal Ammal v. Sokkammal 1918. Mad. 656
and
Sarath
Kumari Dasi v. Amulyadl:an 1923 PC 13.
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J. A. KADAR v. SHANKERLAL (Krishna Iyer, J.)
349
As the vakalat did not give counsel authority to compromise, Kesrvaraman Chettiar and the two other directors
who sail with him would uot be bound by the compromise."
(p. 589)
The reference to 'pleader' here is not really in contradistinction
to
'advocate'. But in Govindammal (supra) Ramaswami, J., after an
elaborate examination of the Indian and Anglo-American cases and
books sums up thus :
"An examination of these authorities and extracts from
standard publications on professional conduct, leads us to
the following deductions : The decisions appear to be fairly
ciear that even in cases where there is no express authorisation to enter into a compromise, under the inherent authority
impliedly given to the Vakil, he has power to enter into the
compromise on behalf of his client. But in the present state
of the clientele world and the position in which the Bar now
finds itself and in the face of divided judicial authority and
absence of statutory backing, prudence dictates that unless
express power is given in the vakalat itself to enter into compromise, in accordance with the general practice obtaining,
a special vakalat should be filed or the specific consent of
the party to enter into the compromise should be obtained.
If an endorsement is made on the plaint etc., it would be
better to get the signature or the thumb impression of the
party affixed thereto, making it evident that the party
is
aware of what is being done by the vakil on his or her
behalf."
(p. 12)
Jn the American system there is only a single class of attorneys, unlike in Great Britain, but the implied power to compromise has not
been upheld.
American Jurisprudence S. 98 (pp. 318-320) has the
following to say :
"The rule is almost universal that an attorney who is
clothed with no other authority than that arising from his
employment in that capacity has no implied power by virtue
of his general retainer to compromise and settle his client's
claim or cause of action, United States v. Beebe (1901) 180
US 343(Zl6), Holkar v. Parker (1813) 3 Law Ed. 396
(Zl 7), Golder v. Bradley (C.C.A.