Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Hriday Nath Sarkar vs Niroda Sundari Dasya And Anr. on 5 January, 1928
Equivalent citations: AIR 1928 Cal 334
Author: Mukerji


Mukerji, J.

1. The suit in which this appeal has arisen was one for setting aside a compromise decree. The suit in which that decree was passed was title Suit 704 of 1922 in which defendant 1 of this suit was the plaintiff, defendant 2, who is the plaintiff’s husband, was originally the sole defendant, and the plaintiff was added as defendant 2 therein on the objection of her husband that she was the owner of some of the properties involved.

2. The Court of first instance dismissed the suit. The lower appellate Court has reversed that decision. Hence the appeal by defendant 1.

3. The plaintiff challenged the validity of the compromise alleging that she is an illiterate pardanashin lady, that she sent a vakalatnama through her husband to be filed in the suit, but gave no authority to anybody, either verbally or in writing, that she was all along under the impression that the suit was pending and that she did not know anything about the compromise and so the same was not binding on her. The defence was, amongst others, that the plaintiff had duly executed the vakalatnama that was filed, that her husband was looking after the suit and had authority to settle the terms of the compromise and to give instructions to the pleader who had appeared on her behalf, that she was perfectly aware of the compromise all through and that she was benefited by the compromise and had also approved of it. The issues framed in the suit, however, betray a lamentable lack of care on the part of those responsible for the framing thereof, and the “Gourd evidently did not consider the pleadings at the time when they were “framed.

4. The pleadings give rise to a number of questions which must be answered one way or the other before the suit can be properly disposed of. They are: First: Was the pleader who filed the compromise petition authorized to compromise the suit and did he agree to the compromise acting under such authority? Second: Was the plaintiff’s husband authorized to compromise the suit on her behalf and did he act in the matter of the compromise on he strength of such authority? Third: Was the compromise entered into by the plaintiff herself or with her knowledge and consent or approval? These three questions have got to be kept separately in view, and if any of them is answered in the affirmative the plaintiff’s suit must fail.

5. The main arguments that have been addre3sed in support of this appeal have sought to elicit an answer in the affirmative in respect of each of the aforesaid three questions, while the respondent has endeavored to support the findings of the Subordinate Judge and has urged that those findings are sufficient to entitle the plaintiff to the decree she has obtained.

6. Now as regards the first of these questions the Subordinate Judge appears to have fallen into an error in supposing that the vakalatnama (Ex. A) does not authorize the pleader to compromise the suit but only empowers him to ask for permission to compromise. This view is based upon a misreading of the terms of the vakalatnama. The difficulty, how ever, in the appellant’s way is that there is nothing to show that the pleader purported to compromise the suit on this own responsibility and acting on the authority conferred on him by the vakalatnama. The pleader has not been examined as a witness in the case. The appellant says that as the plaintiff in her plaint denied having given any authority, verbal or written, to anybody to compromise the suit though she admitted having sent a vakalatnama through her husband, as soon as he has succeeded in showing that the vakalatnama contains the necessary authority, his burden is discharged, and it is for the plaintiff to prove that the pleader did not act on that authority. This position, no doubt, is correct; but then it has not been proved that the plaintiff was aware of this clause in the vakalatnama when she executed it a matter with regard to which the burden of proof was on the appellant and which he has not discharged. The finding of the trial Court upon which the appellant relies, so far as this matter is concerned and which is to the effect that Ex. A was the vakalatnama which the plaintiff had executed, does not go near enough to what the appellant has got to establish to fix the plaintiff with knowledge of this particular clause. Moreover though a clause of this description is to be found in vakalatnamas that are ordinarily filed, it is exceedingly uncommon for pleaders to take the responsibility of entering into a compromise on the strength of the authority conferred by it, the more so in cases where illiterate pardanashin ladies are concerned. Those who assert that this was the position have got to discharge an exceedingly heavy burden indeed and the least that could be expected of them is that they should the examine pleader himself.

7. As regards the second question the Subordinate Judge has found that it does not appear that the plaintiff, to quote his words,
either expressly or impliedly clothed her husband with plenary authority to compromise the suit on her behalf.

8. The arguments that have been advanced on behalf of the appellant did not seriously challenge the correctness of this finding.

9. So far as the third question is concerned it is sufficient to state that the finding of fact at which the Subordinate Judge has arrived is that the compromise was made without the knowledge and consent of the plaintiff.

10. A further contention was advanced, though rather faintly, which was to the effect that the plaintiff was benefited by the compromise, and in support of this contention reliance was placed on a finding of the Munsif which does not appear to have been touched by the Subordinate Judge. The Munsif says:

Defence witness 1 explains how she (i.e., the plaintiff) has enjoyed the benefit of the compromise. In my opinion the explanation is very satisfactory. Moreover the Court would not have sanctioned the compromise after two days contest if the compromise had not benefited the present plaintiff who was a pardanashin lady; it had a sacred duty to perform.

11. I am inclined to think that what the learned Munsif meant to say was merely that the compromise was beneficial to the plaintiff a matter which is neither here nor there in the present suit. Even if the compromise was beneficial to her interest, so long as she has not taken some benefit out of or under it which would constitute an estoppel debarring her from remedy, it does not matter in the least. Of this estoppel there is nothing on which it may be founded.

12. The appeal, in my judgment, fails and it is accordingly dismissed with costs.

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