ORDER
K. Ahmad, J.
1. This is an application under Order 47 Rule 1 of the Code of Civil Procedure for the review of the final consent order dated 16-3-1953, passed in First Appeal No. 363 of 1946 by a Bench presided over by Narayan, J., (as he then was) and myself. It was filed on 14-4-1953, and came up for admission on 30-4-1953, before the same Bench, which then passed the following order :
“This application will be heard. Issue notice. Unfortunately by the time this application could be taken up for final hearing, my learned colleague Narayan, J., retired from the Bench. Therefore, under Rule 5 of Order 47 of the Code of Civil Procedure the application has now come up for decision before me sitting singly”,
2. The aforesaid First Appeal No. 363 of 1946 arose out of a title suit No. 63/19 of 1944/1945 disposed of by the judgment and decree dated 31-5-1946. The controversy in that case was mainly between the members of the same family of which one Anant Lal Jha alias Buchan Jha was the common ancestor.
3. Anant Lal Jha had five sons, namely, Sukhdeo Jha, Harischandra Jha, Gopalji Jha, Suraj Narayan Jha and Subodh Narayan Jha. Ramdani Ojhain was the wife of the aforesaid Anant Lal Jha. Of these five sons, the eldest Sukhdeo Jha has also five sons, namely, Dinesh Narayan Jha, Suresh Narayan Jha, Ramesh Narayan Jha, Umesh Narayan Jha, and Kamesh Narayan Jha. Buchan Ojhain was the wife of Sukhdeo Jha. The title suit giving rise to the aforesaid first appeal was instituted by the aforesaid five sons of Sukhdeo Jha and it were they who having lost that case in, the trial court again came up in first appeal as appellants to this Court.
On the side of the defendants in that suit there were five sets. Sukhdeo Jha, who was arrayed as respondents first party in the first appeal, was impleaded in the trial Court as defendants first party. His other four brothers, namely, Haris chandra Jha, Gopalji Jha, Suraj Narayan Jha and Subodh Narayan Jha, who were respondents second party in the said first appeal, were arrayed as defendants second party in the suit The wife of Sukhdeo Jha, namely, Buchani Ojhain, was arrayed as the respondents third party in the first appeal and as defendants third party in the suit.
The defendants fourth party consisted of two strangers, Ramlochan Jha and Ramkant Jha, who perhaps were the mortgagee and alienee from Sukhdeo Jha and were impleaded in the first appeal as respondents fourth party. The fifth set of the defendants was represented by Ramdhani Ojhain, the wife of Anant Lal Jha, who was impleaded in the first appeal as respondents fifth party. By the time the first appeal came up for final disposal, it appears that Buchani Ojhain, defendant third party, and Ramdhani Ojhain, defendant fifth party, had already died.
Therefore, the aforesaid compromise, which was recorded therein on 16-3-1953, was only between the plaintiffs-appellants, the respondents first party and the respondents second party. The opening paragraph of that consent order reads as follows : "The plaintiffs-appellants, the respondents first party and the respondents second party have now
entered into a compromise. The respondent third party is dead and the other respondents are not interested in the results of this appeal. All the appellants and the respondents who entered into the compromise are majors. The terms of the compromise are as follows :”
Thereafter, in conclusion that order says :
“The compromise is recorded and the appeal is disposed of in terms of the compromise. Parties will bear their own costs throughout, and the costs of the final decree at the time of the partition will be borne by the parties in proportion to their shares.”
4. The present application for review is directed against this consent order dated 16-3-1953, and was originally filed by the three members of the defendants respondents second party, namely, Harischandra Jha, Gapalji Jha and Suraj Narayan Jha. While this application for review has been pending for disposal, one of them, namely, Suraj Narayan Jha has died and, therefore, the application is now being pressed only on behalf of the remaining two, namely, Harischandra Jha and Gopalji Jha.
In this application the party arrayed on the
other side are five plaintiffs-appellants opposite parties Nos. 1 to 5, Sukhdeo Jha, defendant-respondent first party as opposite party No. 6, Ram Lochan Jha and Ramkant Jha, defendants respondents fourth party as opposite party Nos. 7 and 8 respectively and Subodh Narayan Jha as opposite party No, 9.
5. The main controversy raised in this application for review is that the so-called consent’ order dated 16-3-1953, whereby First Appeal No. 363 of 1946 was disposed of on compromise between the parties, was passed at the back of the petitioners and without their consent and as a matter of fact, according to the allegations made in the petition, that order came to be passed “under mistaken impression that all parties and their lawyers were present and had consented to the terms of the compromise recorded in that order.”
Therefore, it has been prayed that the aforesaid order dated 16-3-1953, should be set aside and First Appeal No. 363 of 1946 be restored to file for hearing in the presence of the petitioners.
6. The ground for the allegation that the aforesaid consent order was passed at the back and without the consent of the petitioners, as stated in the petition, appears from the following facts. In First Appeal No. 363 of 1946, the three original defendants-respondents petitioners along with their fourth brother, Subodh Narayan Jha, who has been now impleaded in this application as opposite party No. 9, put in their appearance under a common vakalatnama, dated 27-3-1947 (exhibit A).
That was in the name of only one advocate, namely, Mr. S. C. Misra (as he then was) and it is said that he alone on their behalf had the authority to act for them in the said first appeal. But it so happened that while the said first appeal was still pending for disposal in this Court, Mr. S. C. Misra (as he then was) was raised to the Bench on 11-12-1952. Thus thereafter there was no advocate left on the record who could on their behalf act for them in the case.
It, however, appears and that is not denied
that a few days before that i.e., on 8-12-1952, an appearance slip had been filed in the name of Mr. G. P. Misra under the authority of Mr. S. C. Misra (as he then was) authorising him to plead on their behalf. That is exhibit B on the record. Subsequent thereto, on 19-12-1952, a regular vakalatnama was also filed, which is exhibit 1 on the record. But that is executed only on behalf of Subodh Narayan Jha, opposite party No. 9 and is in the name of two advocates one the same Mr. G. P. Misra and the other Mr. Raghunath Jha.
Therefore, the admitted facts are that so far as this vakalatnama dated 19-12-1952, was concerned, it was not expressed to be executed on behalf of any of the three petitioners of this application, namely, Harischandra Jha, Gopalji Jha or Suraj Narayan Jha and further that no other vakalatnama barring the one dated 27-3-1947, (exhibit A) in the name of Mr. S. C. Misra (as he then was) was ever filed in the said first appeal bearing the execution of these petitioners, and that as to appearance slip filed by Mr. G. P. Misra under the authority of Mr. S. C. Misra (as he then was) it is clear that it was only for the purpose of pleading.
That being so, the controversy substantially centres round the point as to how far the appearance slip dated 8-12-1952 (exhibit B) filed under the authority of Mr. S. C. Misra (as he then was) authorising Mr. G. P. Misra to plead for the petitioners as also how far the vakalatnama dated 19-12-1952 (exhibit 1) executed by Subodh Narayan Jha alone in the name of Mr. Raghunath Jha and Mr. G. P. Misra gave authority in the first appeal to Mr. G. P. Misra or to Mr. Raghunath Jha to represent the petitioners 1 and 2 at the time when the compromise order dated 16-3-1953, was recorded.
If they or either of them had the authority and could then represent the interest of the petitioners it has to be conceded that the consent order is a valid one and is binding on them. The position, however, will be otherwise if it is found that they or either of them had no such authority to represent them in the matter of the aforesaid compromise.
7. At the hearing of this application the petitioners examined five witnesses, namely, Raghunath Jha (P.W. 1), Mr. G. P. Misra (P.W. 2), Harischandra Jha, petitioner No. 1 (P.W. 3), Gopalji Jha, petitioner No. 2 (P.W. 4) and Mr. Parmeshwar Prasad Sinha, the present advocate of the petitioners (P.W. 5), And besides them, the Court examined three more witnesses. They were (1) Sukhdeo Jha, defendant-respondent opposite party No. 6, (2) Subodh Narayan Jha, defendant respondent opposite party No. 9 and (3) Dinesh Narayan Jha, plaintiff appellant opposite party No. 1.
On the submissions made on behalf of the parties, the main points that fall for decision in this case are : (1) whether on the allegations made any review lies; (2) whether the vakalatnama dated the 27th March, 1947 (exhibit A) in the name of Mr. S. C. Misra (as he then was) continued to be a valid authority up to the date of the consent order, namely, the 16th March, 1953, even though, in the meantime, Mr. S. C. Misra had already been raised to the Bench on 11th December, 1952.
If so, whether the appearance slip dated the 8th December, 1952 (exhibit B) filed in the name of Mr. G. P. Misra under the authority of Mr. S. G. Misra (as he then was) was effective enough to authorise Mr. G. P. Misra to represent the petitioners in the matter of compromise which was recorded on the 16th March, 1953 on the oral submissions made in the Court on behalf of the parties
concerned; and (3) whether the four brothers, Harischandra Jha, Gopalji Jha, Suraj Narayan Jha and Subodh Narayan Jha, at the time when the consent order was passed, were between themselves the members of a joint Hindu Mitakshara family, and if so, who was then the Karta of that joint family; and whether Subodh Narayan Jha in executing the vakalatnama dated the 19th December, 1952, in favour of Messrs Raghunath Jha and G. P. Misra had the authority to execute and did in fact execute it in a representative capacity on behalf of all his brothers, who appear as petitioners on the records of this case.
8. Now I take up these points in the order in which they have been mentioned above,
9. The first point relates to the maintainability of the review application. Rule 1 of Order 47 of the Code, of Civil Procedure, which is the relevant provision dealing with the question of review, says :
“1. (1) Any person considering himself aggrieved–
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred.
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes,
and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.”
This provision as is clear provides three grounds for review– (1) Any discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made; (2) on account of some mistake or error apparent on the face of the record and (3) for any other sufficient reason.
In this case the ground alleged by the petitioners is that there is a, mistake or error apparent on the face of the record inasmuch as the court recorded the consent order under the mistaken impression that all parties and lawyers were present and had consented to the terms of the compromise though as a matter of fact the petitioners were not present and had not consented to that compromise nor then they had any lawyer who could represent them or consent to that compromise on their behalf. In my opinion, on the facts alleged the argument advanced cannot be dismissed as one without substance.
If in fact the petitioners were not present and had not consented to the compromise or if they had no lawyer at that time to represent them who could and had consented to the same, there is no escape from the conclusion that the order was passed under a mistaken impression. Therefore, I think that on the facts alleged review lies. This is fully supported by the decisions in Hakim Gir v. Basdeo Sahi, 10 Ind Cas 894 (Cal) (A), Ghansham Singh v. Lal Singh, ILR 9 All 61 (FB) (B), and Sheonandan Prasad Singh v. Hakim Abdul Fateh Mohammad Reza, AIR 1935 P.C. 119 (C). In all these cases orders under review were alleged to have been
made on compromise and in each of them review had been sought on the ground that the compromise had been recorded without any authority from the party aggrieved and as such there was mistake or error on the face of the record a point exactly the same which has been raised here.
And so far as the decisions in Chhajju Ram v. Neki, AIR 1922 PC 112 (D), and Gopal Chandra Lahiri v. Solomon, ILR 13 Cal 62 (E) are concerned, they are not in any way at variance with the rule of law laid down in those cases. They, as a matter of fact, deal with a different point, namely, the scope and. implication of the third ground for review “sufficient cause”. In them review was not sought on the second ground, namely, thai there was “some mistake or error apparent on the face of the record”. Accordingly, the first point has to be decided in favour of the petitioners.
10. The second point deals with the life of the authority given to Mr. S. C. Misra (as he then was) under the vakalatnama dated the 27th March, 1947 (exhibit A) as also with the Me and scope of the authority given under the appearance slip dated the 8th December, 1952 (exhibit B), to Mr. G. P. Misra by Mr. S. C. Misra (as he then was) on the basis of that vakalatnama and with the scope of power given thereby to Mr, G. P. Misra.
In this connection my attention has been drawn to a number of provisions as laid down in Sections 2(15) and 119 of the Code of Civil Procedure Rules 1, 4. and 5-B of Order 3, Civil Procedure Code, Rule 4 of the Chapter III, Rule 3 of Chapter XVII and Rule 16) of Chapter XVIII of the Patna High Court Rules, Rule 2 of Chapter I of Part I and R. 4 of Chapter IV of Part VII of the General Rules and Circular orders (civil) Volume I, Section 14 of the Bar Councils Act and Clauses 7 and 8 of the Letters Patent of the Patna High Court.
11. Clauses 7 and 8 of the Letters Patent, Patna High Court, deal with the powers of the High Court in making rules for the qualification etc. of advocates, vakils and attorneys and in admitting and enrolling them. They further lay down that advocates, vakils and attorneys so admitted and enrolled shall be authorised to appear for the Suitors of the High Court and to plead or to act or to plead and act for the suitors according as the High Court may by its rules and directions determine and subject to such rules and directions.
Then come the rules made by the High Court under the powers conferred upon it by Parliament, the Letters Patent, and the Acts of the Indian Legislature. Of these, three rules have been here referred to. They are, is already stated above, Rule 4 of Chapter III, Rule 16 of Chapter XVIII and Rule 3 of Chapter XVII. The former two are not at all relevant for the purposes of this case; the one dealing with the petition and affidavit to be filed in the High Court and the other dealing with advocate’s clerks in the Circuit Court at Cuttack, which has now been deleted. The last rule no doubt is relevant. That falls in Chapter XVII, which, as its heading shows, deals with the admission of advocates and attorneys. Therein Rule 3 reads ;
“Notwithstanding anything contained in Order III, Sub-rules (2) and (3) of Rule 4 of the First Schedule of the Code of Civil Procedure, 1908, no advocate shall act for any person in the High Court, unless. he has been appointed for the purpose in the mariner prescribed by Sub-rule (1) and the appointment has been filed in the High Court.”
This in nutshell lays down the condition precedent to be fulfilled by an advocate to enable him to act for any person in the High Court and is, much
an the same terms as laid down in Rule 4(1) of Order 3, Civil Procedure Code, which says :
“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 or by his recognized agent or ‘ by some other person duly authorised by or under a power-of-attorney to make such appointment,”
This rule 4 has got many other sub-rules. Of these Sub-rules (2) and (5) are also important. They read as follows : "(2) Every such appointment shall be filed in Court and shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client. .... ..... ..... ..... ..... (5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance signed by himself and stating-- (a) the names of the parties to the suit, (b) the name of the party for whom he appears and (c) the name of the person by whom he is authorised to appear : Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party." To follow it properly, I think Rule 1 of Order 3, Civil Procedure Code, may also be fruitfully quoted here. That reads as follows :
“Any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent,
or by a pleader appearing, applying or acting, as the
case may be, on his behalf:
Provided that any such appearance shall, if the Court so directs, be made by the party in person.”
Besides these in that Order 3 of the Code of Civil Procedure there is one Rule 5-B added by the Patna High Court. That is exactly much the same as Rule 3 of Chapter XVII of the Patna High Court Rules excepting this that therein the word pleader’ has been substituted for the word ‘advocate’. That means in the matter of acting both pleader and advocate have been put on the same footing. And
rightly as is evident from the definition of pleader given in Section 2 (15) of the Code of Civil Procedure which says ‘pleader’ includes an advocate, a vakil
and an attorney of a High Court.
Therefore, under these rules an advocate in order to act in a case has to fulfil what is laid down in Rule 4 (1) of Order 3, Civil Procedure Code. And as for pleading he has either to file a memorandum of appearance as laid down in Rule 4(5) of Order 3 or has to be engaged to plead by any other advocate who has been duly appointed to act in the court. So far as Section 119 of the Code of Civil Procedure is concerned, that imposes a bar on unauthorised persons and further says that nothing in this Code shall be deemed to interfere with the powers of the High Court to make rules concerning advocates, vakils and attorneys.
As for Section 14 of “the Bar Councils Act, it is
enough to say that it deals with the rights of advocates to practise and is of no assistance in deciding the point raised here. Under that section a legal practitioner, so long as his name is entered in the roll of Advocates, is, it is true, entitled as of right) to practise in that court (Prafulla Ranjan Das v. Patna High Court AIR 1931 PC 22 (2) (F)) but that right has to be read along with other relevant provisions of law.
Similarly Rule 2 of Chapter I, Part I and Rule 4 of Chapter IV, Part VII of the General Rules and Circular Orders of the High Court of Judicature at Patna (Civil) Volume I have no bearing on the facts of this case. They deal with pleading, petition, affidavit or application to be filed in the subordinate courts and lay down the conditions under which a vakil or pleader can act or plead in courts other than the High Court.
12. Therefore, for our present decision the only important provision that deserves consideration is Sub-rule 4(5) of Order 3, Civil Procedure Code. This much is not denied that Mr. G. P. Misra, as required by this rule, did file a memorandum of appearance and that he did the same, as is evident from it, under the authority given to him by Mr. S. C. Misra (as he then was) who, admittedly, at least up to that date had a valid vakalatnama on behalf of the petitioners to act for them in that case.
That being so, the point we are considering resolves itself substantially into two questions: (1) as to whether the appearance slip retained its validity and had life up to 16th March, 1953 when the compromise in controversy came to be effected and (2) as to whether under the power given thereunder to him, could Mr. G. P. Misra represent his clients even in that matter of compromise. In my opinion, the first question has to be answered in the affirmative.
It is not denied that on the 8th December. 1952, Mr. S. C. Misra (as he then was) had the necessary authority under the vakalatnama dated the 27th March, 1947, to authorise Mr. G. P. Misra to plead for the petitioners and that he as a matter of fact made an endorsement to that effect in the appearance slip. Now the effect of the appointment of Mr. S. C. Misra as a Judge of this Court on the 11th December, 1952, when the Constitution had already come into force, was that thereafter as laid down in Article 220, before its latest amendment, he could not plead or act in any court or before any authority within the territory of India.
That may or may not have the effect of his ceasing to hold the qualification of advocate, but this much is clear that under law the vakalatnama already filed by him on the 27th March, 1947 long before his being raised to the Bench could not automatically cease to have any force unless the same was terminated in accordance with law. The relevant provision dealing with the life of a vakalatnama is given in Sub-rule 4(2) of Order 3, Civil Procedure Code.
Under that a vakalatnama is deemed to be in force (1) until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or (2) until the client or the pleader dies or (3) until the proceedings in the suit are ended so far as regards the client. On the day of compromise admittedly the proceedings in the suit had not ended nor any leave had been sought from the court in writing as required.
Therefore, the Vakalatnama already filed by Mr. S. C. Misra (as he then was) under this provision
of law could be determined only if the client or the pleader had died. The word ‘death’ as used here is physical death and not civil or constitutional death. Therefore, it has to be held that in the eye of law the vakalatnama given to Mr, S. C. Misra (as he then was) on 27-3-1947, had not been determined up till the date of the consent order and, therefore, Mr. G. P. Misra, on the authority given to him under the appearance slip by Mr. S. C. Misra (as he then was) could validly represent the petitioner in the matter of pleading.
Further in any case at least on 8-12-1952, Mr. S. C. Misra (as he then was) could validly authorise Mr. G. P. Misra to plead in the case on behalf of the petitioners and there is no evidence on the record that the authority that was given to Mr. G. P. Misra on 8-12-1952, was thereafter in any form or manner withdrawn or modified; nor there is any such allegation made in the petition for review filed in this Court on behalf of the petitioners. Further, there is no fraud or collusion suggested in that petition against Mr. G. P. Misra; neither it is said that in doing what he did, Mr. G. P. Misra acted contrary to any positive instructions given to him.
The contest as to this part of the case is, therefore, confined to the point of authority alone. In other words, the question to be answered is whether in exercise of the authority given to him under the appearance slip Mr. G. P. Misra could validly conclude an agreement of compromise on behalf of the petitioners and whether having concluded such a compromise he could thereafter get the same orally recorded by the Court. In the course of discussion on this question a number of authorities for and against this proposition have been cited on behalf of the respective parties. They are, Sourendra Nath Mitra v. Tarubala Dasi, 57 Ind App 133 : (AIR 1930 PC 158) (G), Girdharan Prasad v. Bholi Ram, AIR 1941 Pat 574 (H), Nilmoni Chaudhuri v. Kedar Nath Daga, AIR 1922 Pat 232 (I), and AIR 1935 PC 119 (C). Of these, on the facts of this case, I think only three are relevant, namely, those reported in 57 Ind App 133 : (AIR 1930 PC 158) (G), AIR 1922 Pat 232 (I) and AIR 1935 PC 119 (C). In 57 Ind App 133 : (AIR 1930 PC 158) (G), the main question at issue was :
“Whether an agreement of compromise made between the plaintiffs and counsel for the defendant bound the defendant.”
The facts of that case show that counsel who had signed the agreement of compromise for the defendant in that case was Mr. Sircar who had been briefed by Mr. K. I. Dutt to appear on behalf of the defendant. In the course of discussion on that point, their Lordships observed;
“An agreement to compromise a suit must he established by general principles which govern the formation of contracts, though there are special rules governing its enforcement by the Courts which arise out of its intrinsic nature. If the agreement purports to be concluded on behalf of one or both the parties by their respective legal advisers, the first two questions that arise, as on the formation of any contract by agents, are : (1) Had the agent, the actual authority of his principal, express or implied, to conclude the contract? (2) If no actual authority, had he ostensible authority so as to bind his principal against the other party, relying on ostensible authority?”
And having done that they formulated the problem in the following words :
“The First question that thus arises is : Had Mr. Sircar actual authority of the defendant, ex-
press or implied, to conclude the agreement of compromise?”
In dealing with that case, however, their Lordships did not rely on any express authority; rather they abstained from expressing any opinion on that aspect of the case, Their answer was founded, as it appears from the decision, exclusively on the principle of implied authority, and was in the following words :
“Their Lordships regard the 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 and 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 hour, 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 liability. Often the decision, must be made at once. If further evidence is called or the advocate has to address the Court the occasion for settlement will vanish. In such circumstances, if the advocate has no authority unless he consults ‘his client, valuable opportunities are lost to the client.”
They further observed :–
“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 fullest beneficial effect to his employment of the advocate. Secondly, the implied authority can always be counter-manded 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 contrary to the interests of his client, his remedy is to return his brief.”
The same view was again expressed by their Lordships of the Privy Council in, AIR 1935 PC 119 (C). Therein also the doctrine of implied authority was fully recognized in the advocate who was briefed in that case. And long before these two decisions, this Court in, AIR 1922 Pat 232 (I), relying no doubt mostly on the discussions of the English Courts had already accepted the view that a counsel briefed in a case has got an implied authority to effect a compromise on behalf of the client.
In view of these decisions I think it is too late to contend that Mr. G. P. Misra in spite of the authority given to him by Mr. S. C. Misra (as he then was) under the appearance slip could not in law effect a valid agreement of compromise on behalf of his clients. That being so, the answer to the second question has to be given in the affirmative in favour of the opposite party.
13. It has, however, been argued on behalf of the petitioners that even if it be conceded that Mr. G. P. Misra had the necessary implied authority to effect a compromise in the case on behalf of the petitioners, he in the circumstances of this case could not do it for the steps taken by Mr. G. P. Misra to effect the compromise amounted in law to his acting and as he had been engaged at best only to plead and not to act, he could not do the same.
In answer thereto the other side relying on Section 14 of the Bar Councils Act has contended that Mr. G. P. Misra being an advocate of this Court could by virtue of that position alone, apart from any vakalatnama in his favour as contemplated by Rule 3 of Chapter XVII of the High Court Rules, effect a valid compromise on behalf of the petitioners, even if that amounted to acting. The reasoning advanced in support of this contention is that as every advocate under Section 14 of the Bar Councils Act is entitled as of right to practise and as the right to practise includes both the right to plead and the right to act, it is always open to an advocate, once he is briefed in a case, either to act or to plead therein as and when the interest of his client demands though he may not have any regular vakalatnama in his favour.
In my opinion, in advancing these two opposite contentions, both the parties have gone to the extreme and I think that on merit none of them can be held as valid. It may be conceded that it is difficult to define very exactly as to where acting ends and pleading begins. But, broadly speaking, it cannot be denied that acting amounts to taking some substantial step by an advocate on behalf or his client in the course of a proceeding pending in a court while pleading means oral submissions made in the light of the instructions given and on the materials present on the record.
My attention on this point has been drawn to the decisions in Amir Shan v. Abdul Aziz, ILR 13 Lah 775: (AIR 1932 Lah 373) (J), Sawarmal v. Kunjilal, AIR 1939 Rang 1 (K), All India Barai Mahasabha v. Jangi Lal Chaurasia AIR 1941 Oudh 169 (L) and Girwar Narayan Mahton v. Kamla Prasad, ILR 12 Pat 117 : (AIR 1933 Pat 104) (M). I have carefully gone through these decisions. I think none of them clearly defines as to what is acting or pleading. As already stated above, it is not very easy to give a very precise and correct definition of either of them. But, broadly speaking, on the principle stated above, it is here clear that what Mr. G. P. Misra did in effecting the compromise was only pleading and not acting.
In that view of the matter, the contention raised on the principle underlying Section 14 of the Bar Councils Act loses its force. I may, however, mention it here that though the right given to an advocate under S, 14 of the Bar Councils Act to practise as of right does generally include in it both the right to act and the right to plead, as laid down in Aswini Kumar Ghosh v. Arabinda Bose 1953 SCR 1: (AIR 1952 SC 369) (N) and Laurentius Ekka v. Dhuki Koeri, ILR 4 Pat 766 : (AIR 1936 Pat 73) (O), that right is always subject to the rules framed by the High Court under the powers given to it by that Act or under other relevant provisions of law.
That being so, it cannot be accepted that even without a Vakalatnama as contemplated by Rule 3 of Chapter XVII of the Patna High Court Rules, it could have been open to Mr. G. P. Misra not only to plead but also to act on behalf of the petitioners. But, as already stated above, here it was not a case of acting at all but only that of
pleading. Therefore, in doing what Mr. G. P. Misra did, he did not stand in need of any Vakalatnamat For that the appearance slip (Exhibit B)’ was sufficient in law.
Further in going through the evidence I find that Mr. G. P. Misra in his deposition has clearly stated that in effecting the compromise he acted on behalf of all those persons whom he was authorised, to represent under the appearance slip. There is no indication in that deposition that he was in any way under any misapprehension on that point. If that is so, and if what he did was within the authority available to him in law, there is no valid reason for me to say that what he did was not valid. In the result, therefore, the second point in issue in this case has to be decided against the petitioners and in favour of the opposite party.
14. The last point relates to the question as to whether Subodh Narayan Jha in executing the Vakalatnama dated 19-12-1952, acted only on his own behalf or in a representative capacity on behalf of all his brothers including the petitioners. On this point the evidence as deposed to by the witnesses in this Court lend support more to the view that between themselves the petitioners were during the course of this litigation joint with their brother Subodh Narayan Jha and, therefore, the probabilities are that Subodh Narayan Jha in executing the aforesaid Vakalatnama acted in a representative capacity on behalf of all the brothers including the petitioners. ”
There is nothing substantial on the record to establish or even to suggest that Subodh Narayan Jha had any animus as against his brother HarisChandra Jha and Gopalji Jha or even against Suraj Narayan. Jha, who is now dead. The evidence in this respect of Mr. Raghunath Jha and Mr. G. P. Misra, whose testimony I have no reason to disbelieve, lends support to this view. Mr. Raghunath Jha in his evidence says that he was all along under the impression that Subodh Narayan Jha was instructing him on behalf of all the respondents and that the four brothers were members of a joint family,
Further in his evidence he has deposed that under the instructions given to him by Subodh Narayan Jha a joint takhta was agreed to be taken for all the brothers. It is difficult to believe that if in fact Subodh Narayan Jha was separate from his other brothers or had any animus against them, he could have agreed to take a common takhta with them. To the same effect is the evidence of Mr. G. P, Misra. It may be that Mr. G. P. Misra may be making some mistakes on the presence of Haris Chandra Jha in the Court at the time of compromise. But on other points his evidence fully corroborates the testimony of Mr. Raghunath Jha, as already referred to above.
Then it has to be remembered that in the trial court also these brothers were sailing in the same boat having filed a common Vakalatnama and a common written statement. It is true that Haris Chandra Jha and Gopalji Jha in their evidence have not only suggested that the brothers were never joint in the course of this litigation but have gone to the length of charging Subodh Narayan Jha that he came in collusion with Sukhdeo. But their evidence when read carefully shows that both, the brothers in their evidence have tried to conceal the truth and just to support this application they have cooked up a wrong case that they are not Joint and that Subodh Narayan Jha in accepting the compromise acted in collusion with the other side.
In cross-examination Harischandra Jha was forced to admit that at the trial stage he did depose that four years after 1938 he and defendants 3 to 5 re-united. As already stated above, these defendants 3 to 5 were no one else but Gopalji Jha, Suraj Narayan Jha and Subodh Narayan Jha. Of the family witnesses examined before me the testimony given by Sukhdeo Jha and Dinesh Jha appears to be more consistent and worthy of reliance. So far as the evidence of Subodh Narayan Jha is concerned, that on the face
of it suggests that after the compromise he is now trying for some reasons or other to support the petitioners.
It is true that the Vakalatnama dated 21-7-1947, originally given in the first appeal on behalf of the respondents had been executed by all the four brothers, namely, Harischandra Jha, Gopalji Jha, Suraj Narayan Jha and Subodh Narayan Jha while the one dated 19-12-1952, bears the execution only of Subodh Narayan Jha. But that by itself is not very much conclusive on the point in issue. The circumstances on the record are more in favour of the probabilities that perhaps after the compromise some new incident took place in the family which worked up the old feud afresh and hence this petition for review.
Anyway, in view of what I have already found above that Mr. G. P. Misra had the implied authority to conclude a valid agreement of compromise
on behalf of all the respondents including the petitioners, it is not necessary to give a definite
finding on this point or to hold that the petitioners were all along during this litigation joint with
Subodh Narayan Jha or that Subodh Narayan Jha
in executing the Vakalatnama acted in a representative capacity on behalf of all his brothers. For on the ground of implied authority alone it has to be held that this application for review is without
substance.
15. The application is accordingly dismissed.
But in the circumstances of the case there will be no order as to costs.