JUDGMENT
Rankin, C.J.
1. In my opinion this appeal must be allowed. The question is whether a certain decree which was passed by consent should be set aside.
2. It appears that the suit was brought against defendant 2 firm for the price of goods sold and delivered amounting to Rs. 3,000 and the present applicants Haribux Goverdhonedas were impleaded as defendant 1 on the footing that they had guaranteed the payment of the price of the goods. At the hearing defendant 2 did not appear and as against them the plaintiff proved his case ex parte and obtained a decree. As regards defendant 1 the firm Haribux Goverdhonedas they did appear by learned Counsel Mr. B.C. Ghose. It appears, according to themselves, that they had taken no pains whatever to give instructions to anybody until the case was actually called on and their learned Counsel had not even read the pleadings when the ease started. The facts have not been inquired into but the case with which the present respondents came before the learned Judge was shortly this: a short time after the case had been opened counsel for the plaintiff tendered a Nagri letter of which he had an English translation. That translation was shown to Mr. B. C. Ghose who did not know Nagri and Mr. B. C. Ghose on reading it turned round and asked defendant 1 firm’s attorney to tell the petitioners to consent to a decree and, just as the attorney was conferring with one Goverdhonedas, Mr. B. C. Ghose got up and told the Court that the petitioners consented to a decree for the amount claimed. That was the story with which the learned Judge was presented. The learned Judge has investigated the facts and he has followed the course that has been adopted more than once in these circumstances. The learned Counsel Mr. B. G. Ghose made a statement from the Bar and the learned Judge has decided this case upon the basis of that statement.
3. It seems clear enough that defendant 1 firm were represented in Court in addition to their counsel, first of all, by their attorney and, secondly by one of their partners Goverdhonedas Deora. It is also quite clear that Goverdhonedas Deora is the son of Haribux Deora. It further appears that Mr. B. C. Ghose did not know at the time he had to begin this case who Goverdhonedas Deora was. When he got the letter in Nagri, he handed it back to this Goverdhonedas Deora and asked him who he was and if this was his letter. It turns out that in this way he discovered that Goverdhonedas was not Haribux but the son of Haribux the writer of the letter. It further turns out that, although Goverdhonedas was a partner of defendant 1 firm, Mr. B. C. Ghose was never made aware of this fact. So one of his clients was sitting behind his back in Court though he did not know that: as a matter of fact, so far as we are informed, be had no other client present in Court at the time. Now, Mr. Ghose’s narrative of the matter is that when he heard about this letter, as he was unable to read Nagri, he handed the original letter over whore the solicitor and Goverdhonedas were sitting and in the meantime he read the pleadings. When the letter had been read and Mr. Ghose had the advantage of hearing it read and seeing the English translation, he asked Goverdhonedas whether he admitted that the letter bore the signature that it purported to bear. He further asked whether his client meaning Haribux was present in Court and was going to give evidence. He then discovered that the man behind him and to whom he was talking was not Haribux but his son and the son admitted that the letter-bore his father’s signature. On that Mr. B. C. Ghose doing his best came to the conclusion that the case was hopeless and then he turned round and said that there was no case and ho would consent to a decree. It appears that Goverdhonedas did not object to his so doing. He did not get up to say that he withdrew his authority nor did he take any steps of that sort when Mr. B. C. Ghose got up and consented to a decree and the decree was recorded. That is not the end of the matter. At no time did Mr. B. C. Ghose then or afterwards come before the Court and suggest that when he consented to a decree or advised his client to consent to a decree he was labouring under a mistake or misapprehension of” any sort or kind. In these circumstances, the learned Judge having quoted the observations of Lord Esher M.R. in the case of Mathews v. Munster [l887] 20 Q.B.D. 141 has come to the conclusion that, even although Mr. B. C. Ghose did not know that the man sitting behind him was one of his clients, the presence of his client necessarily meant that Mr. Ghose had no authority to compromise the case without consulting his client. It seems to be a little hard if the law stands as the learned Judge thinks. But before considering the question of law, the first point, in my judgment, to consider is whether within any reasonable meaning of the expression Goverdhonedas can be heard to say that he was not consulted. In my opinion, it is abundantly plain that he was consulted and, if he is heard to say that ho was not properly and sufficiently consulted, then his duty was to refuse when his counsel was proposing to consent to a decree to allow that to happen, to object to anything of the sort being done and, if necessary, to give notice to the other side and the Court that he was withdrawing the authority which the learned Counsel had on his behalf. Why this case should be dealt with on the basis that the client was not consulted, I fail to understand on the statement made by Mr. B.C. Ghose which the learned Judge has accepted. But apart altogether from that, the learned Judge’s judgment apparently goes to the length of saying that, if the client is in Court even although he is not known to the counsel, unless the client consents, the counsel’s ostensible authority is non-existent. I do not understand why this proposition should be laid down. If any right is to accrue to the client from the fact of his being in Court, he must at least make his presence known to the counsel in order that the counsel may act accordingly, and it is monstrous to suppose that, because he keeps quiet in a back seat and does not even instruct his counsel as to who the client is or take any steps to inform the counsel of his presence, the counsel has got to carry on upon the footing that he has no authority to deal with the case as circumstances may require. It seems to me that this case is amply and sufficiently governed by the very pertinent observations which are quoted by the learned Judge of Lord Esher M.E. in Mathews v. Munster:
If the client is in Court” and Lord Esher is not talking of concealed or unknown client ” and desires that the case should go on and counsel refuses, if after that he does not withdraw his authority to counsel to act for him and acquaint the other side with this, he must be taken to have agreed to the course proposed.
4. That is all the law which, in my judgment, need be considered in this case.
5. Mr. Mukherjee has in addition to defending the principle of the decision of the learned Judge, contended before us that, apart from that, he has in this petition made out a case of an entirely different character. What he says is that it is quite true that his client gave Mr. B. C. Ghose no time to appreciate his case and Mr. B. C. Ghose had very little chance of judging accurately what the fortune of the case would be or the point that would turn out to be material and accordingly, when Mr. B. C. Ghose saw the Nagri letter, he failed to appreciate that it was not so fatal to his client as he obviously thought. The contention is that, if he had looked at that letter carefully never mind that it is perfectly true that that letter was written by Haribux ho would have seen that it did not help the plaintiff very much and it did not hurt defendant 1 very much and it is said that Mr. B.C. Ghose made a mistake in judgment in thinking that this letter was likely to be fatal to his clients It is said that on that there was a misapprehension and consequently the case comes under the principle that, if learned Counsel gives his consent on a misunderstanding, that would be a good reason for the Court refusing to enforce the agreement. If Mr. Ghose had come before the Court and stated that he had acted upon a misunderstanding, it might be that that was a case worth considering. But why should we assume that Mr. Ghose who has never complained of having acted on a misunderstanding and has never confessed to any misunderstanding acted on a misunderstanding ? The only reason is that his clients were hopelessly neglectful in giving proper instructions to him. Mr. Ghose acted to the best of his judgment and, even if it be shown that his judgment was not very sound because he had no good opportunity of appreciating the situation. I should be very sorry indeed to regard that as a reason why the party on the other side should be told that the agreement which has been come to ought not to be enforced. In my judgment, the appeal should be allowed, the order of the learned Judge should be discharged and the decree as against both sets of defendants must be restored. The costs before us and before the learned Judge must be paid by the applicants.
6. It would appear that the decree was by mistake set aside as against defendant 2 also. There appears to be no excuse as to this and the decree is restored as a whole.
Buckland, J.
7. I agree.
