http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 17

PETITIONER:

JAMILABAI ABDUL KADAR

Vs.

RESPONDENT:

SHANKERLAL GULABCHAND & ORS.

DATE OF JUDGMENT30/04/1975

BENCH:

KRISHNAIYER, V.R.

BENCH:

KRISHNAIYER, V.R.

SARKARIA, RANJIT SINGH

GUPTA, A.C.

CITATION:

1975 AIR 2202 1975 SCR 336

1975 SCC (2) 609

CITATOR INFO :

RF 1991 SC2234 (27)

ACT:

Advocates Act, 1961--Scope of authority of an advocate to

enter into compromise on behalf of his client.

HEADNOTE:

The appellant engaged a pleader to fight her case in a

Court. The case was adjourned from time to time for the

parties to compose their differences. Eventually, the Court

recorded 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

was present and was consulted when 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 and was not binding on her. The suit was

dismissed. The appeal was dismissed in limine by the High

Court.

On appeal to this Court, it was contended that the

respondent, being a mere pleader, had no power to compromise

a suit unless expressly authorised by the party.

Dismissing the appeal-

`

HELD : (a) Lawyers, be they advocates, vakils or

pleaders, stand on the same footing in regard to their power

to act on behalf of their clients. By the Advocates Act,

1961, the Indian Bar came into existence permitting

enrollment of various categories of legal practitioners like

vakils and pleaders. Section 55 of the Act provides that

every pleader, who did not elect to be enrolled as 'an

advocate tinder that Act, shall continue to enjoy the same

,is rights respects practice in any Court as be had before

that Act came into force. [340 H, 341-A]

In the instant case, though the respondent. bad not enrolled

himself as an advocate, his. rights respects practice, in

any Court are what he had enjoyed under the Bombay Pleaders

Act, 1920 notwithstanding its repeal P. by the Advocates

Act. [341-B].

(b) Every legal practitioner is an officer of the Court and

aids in the cause of justice. The responsibility of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 17

advocates to their clients and to the Court has to be the

same even though some of them may be entitled to appear only

in District Courts while others in High Courts. The quality

of power cannot stand differentiation. [341-GH]

(2) 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 pleader or the advocate cannot go against such advice

and bind the principal, his client. This is as illegal as

it is unprofessional. [342-FG]

Jiwibai v. Ramjuvar, AIR 1947 N4g. 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 Court may be so demanding

and so transforms forensic obligation that a lawyer may have

ethical difficulties 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 in

area of autonomy and quickness of decision that to restrict

the agency to express authorisation is to ask for an

unpredictable and endless enumeration of powers. To

circumscribe the power to act is to defeat the purpose of

the engagement. It is perfectly open to a party, like any

337

other principal, to mark out in the vakalat or by particular

instructions forbidden areas or expressly withhold the right

to act in sensitive matters, the choice being his, as the

master. 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

run of agency. [346-D-G, H]

Sourindra v. Heranba, AIR 1923 PC 98, followed.

Laxmidas Ranchhodrlas v. Savitabai, [1955] 57 BLR 988, S. S.

Waiker v. L. S. waiker, AIR 1960 Bom. 20 and C. S. Nayak- v.

A. N. Menon AIR 1963 Ker. 213 approved.

Rondel v. Morsley [1969] 1 A. C. 191 referred. to.

(4) The Advocate or pleader has authority to act by way of

compromising at case in which he is engaged even without

specific consent from his client subject to two over-

riding considerations : (i) He must act in good faith and

for the benefit of his client; otherwise the power fails.

(ii) It is prudent and proper 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 withdrawal'

of authority, the implicit power to compromise in the

pleader will fall to the ground.[352-B]

In the present case, the 'pleader had acted substantially

with the knowledge of and encouraged by his client. The

several adjournment taken by the appellant specifically for

settling the suit speak for themselves. There is no doubt

that the broad sanction for. the compromise came from the

appellant, that no shady action was in imputable to the

respondent and that his conduct had been motivated by the

good of his client. [352-H]

[Counsel should not rush in with a compromise where due care

will make them fear to tread, that a junior should rarely

consent on his own when there is a senior in the brief, that

a party may validity impunge an act of compromise by his

pleader if he is available for consultation but is by-

passed. The lawyer must be above board, especially if he is

to agree to an adverse verdict.] [353-C-D]

JUDGMENT:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 17

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 43 of 1968

Appeal by special leave from the judgment and order dated

the, 11th December, 1967 of the Bombay High Court at Bombay

ill Second Appeal No. 1428 of 1967.

V. M. Limiyae, V. N. Ganpule,R. N. Nath and Urmila Sirur

for the appellant.

Y. S. Chitale and A. G. Rainaparkhi, 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 ejectment suit,

if we probe the deeper public and professional implications

of the limitations on a pleader's implied power to enter

into a compromise of a case bona fide can behalf of his

client, bat in his interest, although without his consent.

The facts to use trite phraseology, fall within a narrow

compass. The landlords., Respondents 1 to 3, brought an

action for eviction of the tenant-appellant (Regular Suit

141 of 1964) under the rent control law extant in

Maharashtra. Litigation is often so harassingly long that

even ",here recovery of possession is sought for immediate

338

bona fide need of the owner, the judicial process takes its

slow motion course that settlement of the dispute is not

infrequently preferred by 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, The

last such was granted in these 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. Maslekar,

Joint Civil Judge

Junior Division."

Eventually, on April 21, 1965 the court recorded a

compromise, signed by the pleader of the tenant, giving 18

months time to give vacant possession and decreed the suit

on the agreed terms. But at 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 entered 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 launched upon and frivolous litigation screened 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, bad no authority to do so, especially because the

client's consent so to do had not been secured and an

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 17

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

fairplay in court and

339

we cannot and did not permit him to 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 to direct dispossession of a tenant

of a building. We do not examine the materials 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 statute-law and

decisions against the backdrop of Indian conditions.

Foreign aid is helpful but in law, as in life, Indian genius

must speak. In this perspective, first we have to look tit

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) :

"IN THE COURT OF THE CIVIL JUDGE , JUNIOR DIVISION 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 loss 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 intervening 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.

Reagular Suit No. 422/66

Produced on behalf of the plaintiff

on the date 30-1-67

(Signature-illegible)

Advocate for the plaintiff

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 17

340

(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"

Although 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. That this is an error is conceded by Sri

Chitale appearing for respondents 1 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 the Second Appeal

in limine we may proceed on the footing that Sri Palshikar,

the pleader, had 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

dubiety and assume bona fides 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 significance 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 class by himself and to compare him with an

ordinary agent may be to lose 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 whereby the Indian Bar,

with a classless orientation, came into existence permitting

enrollment of various categories of legal practioners like

vakils and pleaders (see s. 29). It

341

must be noted, however, that Shri Palshikar has not been

enrolled as an 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 does not elect to be enrolled as an Advocate under that

Act shall continue to enjoy the same rights as respects

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 17

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 competence of a pleader, to enter into a

compromise without the consent of the, concerned party.

Even so, s. 9 illumines the area to some extent and the

relevant portion may be extracted

"9. No person shall appear, plead or act for

any party in any civil proceeding in any court

unless he is a pleader as defined in this Act

and is entitled and duly empowered to appear,

plead and act for such party in such

proceeding;"

Shri Chitale contends-and this argument has found favour

with the courts 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 this power to act. When he

settles his client's suit he acts for him as much as he does

so when he gives up a point as meritless. We will examine

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 practioners have substantially the same

powers vis-a-vis client and court. The egalitarian ethos

injected by the Advocates Act makes for parity of powers

between pleaders and advocates to act on behalf of their

client. We think if 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 any Court in the

whole of the country. The quality of the power-limitaions

on the courts in which appearance is permissible being

ignored for the time being cannot stand differentiation.

This stand is reinforced by a reference to the Civil

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 done by a party in such Court, may,

except where otherwise

442

expressly provided by any law for the time

being in force, be made or done by a PartY 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

"(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 in any court provided he has been empowered by a

vakalatnama in this behalf. The Code has defined 'pleader'

in these general terms :

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 17

"Sec. 2(15) 'Pleader' means any 'person

entitled to appear and plead for another in

Court, and includes an advocate, a vakil and

attorney of a High Court."

It-is obvious that this definition obliterates any status-

wise distinction between an advocate and any other legal

practitioner like a vakill or pleader entitled to appear in

court on behalf of his client. A profession whose founding,

fighting faith is equal justice under the law does not

practice inequality within its fold deaf to the mood music

of non-discrimination.

The broad conclusion, having due regard to the perspective

'we have set out right at the beginning, is that lawyers, be

they Advocates, vakils or pleaders, stand on the same

footing in regard to their power to act on behalf of their

clients.

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 'action. Does the power to 'act' cover the

right to settle the suit without getting the client's

consent, or is it implied in the engagement ? To clear

possible confusion we may straightaway 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 pleader

(or, for that matter, the Advocate, cannot go against such

advice and hind the principal, his client. This is as

illegal as it is unprofessional.

Shri Limaye has relied on a few decisions-both of the Privy

Council and of the Indian High Courts, in his endeavor to

make out that pleaders cannot compromise suits unless

expressly authorised 'by the vakalatnama. To substantiate

the contrary position, Shri Chitale has drawn our attention

to other rulings. These citations may he briefly surveyed

and they are : Sourindra v. Heramba(1) ; Sourendra Nath v.

Tarubala Dasi(2); Jiwibai v. Ramiuwar (FB) (3); Supaji v.

(1) A.I.R. 1923 PC 98. (2) A.I.R. 1930 PC 158.

(3) A.I.R. 1947 Nag. 17.

343

Nagorao(1); Ramaswami v. Jai Hind Talkies(2); Govindammal v.

Marhmuthu Maistry (3); Laxmidas Ranchhoddas v. Savitabai(4);

S. S. walker v. L. S. Walker(5); and C. S. Nayakam v. A. N.

Menon(6) .

Although, on an analysis of these decisions, some discordant

notes may be heard, there is substantial harmony of judicial

opinion on the proposition that the different classes of

legal practitioners have the same rights in relation to the

case in which they have been engaged. Indeed, even if there

be any marginal doubt, we have to interpret the law in such

manner as to promote the integration of the 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

practice the profession of law, namely, advocates.

Shri Limaye 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 17

as having any authority to compromise the suit

unless he has filed in the suit his client's

vakalatnama giving him authority to compromise

the suit 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 do not think that this is a

disability specially attaching to a pleader as distinguished

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 unrepresented parties. The

question of the powers of a pleader, as distinguished 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 Sourendra

Nath (supra) also had to deal with agreement to compromise a

suit and the implied power of an advocate to settle the suit

on behalf of his

(1) A.I.R, 1954 Nag. 250. (2) A.I.R. 1956 Mad. 586.

(3) A.I.R. 1959 Mad. 7. (4) [1955] 57 B.L.R. 988.

(5) A.I.R. 1960 Bom. 20. (6) A.I.R. 1968 Ker. 213.

10 SC 75-23

444

client. '.he statement of the law is instructive and may

well extracted:

"They are of opinion that Mr. Sircar, as an

advocate of the High Court, had, when briefed

on behalf of the defendant, in the Cou

rt of the

Subordinate 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 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 17

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, it the advocate has no

authority unless he consults his client,

valuable opportunities are lost to the

client." (emphasis, ours)

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 :

"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

countermanded 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

345

contrary to the interests of his client, his

remedy is to return his brief."

The Judicial Committee equated the Indian Advocate and his

duties 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, according

to Shri Limaye supports him : True, the 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."

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 his

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 pleadegr to enter into a compromise binding on

his client.

Perhaps the clearest pronouncement against the degrading

differentiation of pleaders is that by a Full Bench of the

Nagpur High Court in Jiwibai (supra). After an exhaustive

discussion, which 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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 17

both to compromise claims, and also to refer

disputes in Court to arbitration, without the

authority or consent of the client, unless

their powers in this behalf have been

expressly countermanded, 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)

346

"The Privy Council tells us that there is

inherent in the position of counsel an

implicit authority to do all that is ex-

pedient, 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 which a pleader is appointed simply to

'act' without any attempt to set forth the

scope of his acting. (That incidentally is 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 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. ample 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 transforms forensic obligation

that a lawyer may have ethical difficulties 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 agency to express

authorisation is to ask for an unpredictable and endless

enumeration of powers such as what to ask a 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. Those who know how courts

and counsel function will need no education on the

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 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 17

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 be

does so bona fide in the interests and for the advantage of

his client. This amplitude of the power to act springs from

the builtin 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

run of agency.

347

This reasoning has been high lighted by the Kerala High

Court in its Full Bench decision in Nayakaim (supra).

Mathew J., examined the English authorities and applied it

to Indian conditions. The learned Judge observed

"The construction of a document appointing an

agent is different from the construction of a

vakalat 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 crys-

tallised through usage. It is on a par with a

trade where the usage, becomes an additional

term of the contract, if not 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

"That counsel is not a mere agent of the

client would 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 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 practicing, however

unattractive the case or the client." (p. 216)

The passages quoted from Lord Dearing M. R. in Ronadel's

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

honorably can on behalf of his client. I say I

all he honorably can' because his duty is not

only to his client. All those who practice at

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 17

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 duty. 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."

348

"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. lie is

none of these things. He owes allegiance to a

higher cause. It is the cause of truth and

justice. He must not consciously misstate 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 see 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 to settle as is reflected from the head-note

which is sufficient for our purpose (see head-note in

Ranchhoddas (supra);

"It is impossible for a member of the Bar to

do justice to his client and to carry on his

profession according Lo the 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 be 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 limited or

restricted or even taken away. If a l

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 17

advocate."

The Madras decisions have not been consistent. In

Ramaswami's Case (supra) it was observed

"It has been laid down in Jagpati Mudaliar v.

Ekabara Mudaliar 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. Amulyadhan 1923 PC 13.

349

As the vakalat did not give counsel authority

to compromise, Kesrvaraman Chettiar and the

two other directors who sail with him would

not be bound by the compromise."

(p. 589)

The reference to 'pleader' here is not really in

contradistinction to 'advocates'. 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 clear 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. 1 2)

In the American system there is only a single class of

attorney 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(ZI6), Holkar

v. Parker (1813) 3 Law Ed. 396 (ZI7), Golder

v. Bradley (C.C.A. 4th) 233 F. 721.(ZI6),

Anucas, 1917 A 921 (ZI9) : In re Sonyder

(1907) 190 N.Y. 66 (Z20), Ward v. Orsini 1926

243 N.Y. 123 (Z21), except in situations where

he is confronted with an emergency and prompt

action is necessary to protect the interests

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 17

of the client and there is no opportunity for

consultation with him. Generally, unless such

an emergency exists, either precedent special

authority from the client or subsequent rati-

350

fication by him is essential in order that a

compromise or settlement by an attorney shall

be binding on his client."

(p. 12)

We are impressed by the eloquent and luminous observations

of Lord Reid, if we may say so with great deference, in

Rondel v. Worsley (1) :

"Every counsel has a duty to his client

fearlessly to raise every issue, advance every

argument, and ask every question, however

distasteful, which he thinks will help his

client's case. But, as an officer of the

court, concerned in the administration of

justice, he has an overriding duty to the

court, to the standards of his profession, and

to the public, which may and often does lead

to a conflict, with his client's wishes or

with what his client thinks are his personal

interests. Counsel must not mislead the

court, be must not lend himself to casting

aspersions on the other party or witnesses for

which there is no sufficient basis in the

information in his possession, he must not

withhold authorities or documents which may

tell against his clients but which the law or

the standards of his profession require him to

produce. And by so acting he may well incur

the displeasure or worse of his client

so that

if the case is lost, his client would or might

seek legal redress if that were open to him."

(Cases and Materials on The English Legal

System-by Geoffrey Wilson-Sweet & Maxwell-

1973,p. 124)

We may now deal with the properties whichmay bear upon

thebona fides of the lawyer's conduct if he settles a

suit, without client's consent, Powers are one thing,

prudence is another and indeed the latter sometimes bears

upon the former. Mathew J set the record straight, if we

may say with respect, in Nayakam (supra) :

"Although we see no reason to limit or

restrict the implied authority of counsel to

compromise an action or confess judgment

unless expressly done so by his client, we

think that both in the interest of the client

and the good reputation of counsel, it is

always advisable that he should get specific

instructions before taking such a radical

step."

(p. 216)

Another facet of the limit on lawyer's powers is articulated

in the Bombay view, if we may use that expression for

convenience, the ruling-viz., Waikar (supra )-being one

relating to the implied of an advocate to compromise.

Certainly, as pointed out there, the power cannot extend to

matters extraneous to the action. Mudholkar J. has

uttered a caution that, as far as possible, irrespective of

the

(1) [1969] 1 A.C. 191.

351

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 17

scope of the power the lawyer must prefer to get his

client's concurrence to the settlement. The reasons are

obvious. If the compromise is not bona fide in the client's

interests, the power is exceeded and it is rash to bind a

party to razi without his knowledge when there is time to

consult and the terms affect him adversely. The Privy

Council's observation in Sheonandan Prasad Singh v. Abdul

Fateh Mohammed Reza (11) serve as reminder :

"But whatever may be the authority of counsel,

whether actual or ostensible, if frequently

happens that actions are compromised without

reference to the implied authority of counsel

at all. In these days communication with

actual principals is much easier and quicker

than in the days when the authority of counsel

was first established. In their Lordship's

experience both in this country and in India

it constantly happens that counsel do not take

upon themselves to compromise a case without

receiving express authority from their clients

for the particular terms : and that this

position in each particular case is mutually

known between the parties." (p. 22) (s

upra)

Ramaswami J., also in Govindammal (supra) in the paragraph

already extracted, has referred to a disturbing aspect which

must alert the public and the profession to the lurking

dangers of a carte blanche to counsel to compromise a case

without client's precedent permission. The learned Judge

quotes, what may be a cautionary signal. from Thenal Ammal

v. Sokkummal (ILR 41 Mad. 233, 235AIR 1918 Mad. 656)

"It is not the ordinary duty of an Advocate to

negotiate terms, without reference to his

client, with the opposite party. Such an

action is calculated to place the practitioner

in a false position. We do not think it is

desirable that such a power should vest in him

in the interest of the profession. From the

point of view of the client, we think that it

is not safe that he should be regarded by

engaging a vakil to have given him authority

to dispose of his right in any way he chooses.

Therefore we think that the general power

claimed is not in consonance with the highest

ideals of the profession or of justice. For

these reasons we think that a very strict

interpretation should be placed upon vakalat

containing powers of this kind."

Ramaswami, J. has adverted to the wiser alternative of

counsel seeking client's consent before compromising the

litigation, having regard to the 'position in which the Bar

finds itself' these days.

(1) AIR 1935 P.C. 119.

352

While we are not prepared to consider in this case whether

an Advocate or pleader is liable to legal action in case of

deviance or negligence, we must uphold the actual, though

implied, authority of a pleader (which is a generic

expression including all legal practitioners as indicated in

s. 2(15), C.P.C.) to act by way of compromising a case in

which he is engaged even without specific consent from his

client, subject undoubtedly to two over-riding

considerations : (i) He must act in good faith and for the

benefit of his client ; otherwise the power fails (2) it is

prudent and proper to consult his client and take his

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 17

consent if there is time and opportunity. In any case, if

there is any instruction to the contrary or withdrawal of

authority, the implicit power to compromise in the pleader

will fall to the ground. We need hardly emphasise that the

bar must sternly screen to extirpate the black-sheep among

them, for Caesar's wife must be above suspicion, if the

profession is to command the confidence of the community and

the court.

On the facts of the present case we have little doubt that

the pleader has acted substantially with the knowledge of

and encouraged by his client. The several adjournments

taken by the appellant specifically for settling the suit

speak better when we read the penultimate application for

postponement on this score. Exhibit 21, d/17-2-65 runs:

"In the Court of the Joint Civil Judge, J. D.

at Jalgaon Reg. Suit No. 141/64

Shankarlal Gulabchand More &

Ors...........................

Plaintiffs

Versus

A.Kadarr H. Welder................. Defendant

The respectful application on behalf of the

Plaintiffs and the Defendant is

as follows :-

In the said matter, talks regarding compromise

are going on mutually between the plaintiffs

and the defendants. The talks have not

concluded as yet. Hence be pleased to adjourn

the hearing fixed for today and give another

date for hearing. This is the application.

Date : 17-2-1965 Sd/- D. H. Chaudhri

Advocate for plaintiff

Sd/- B. H. Palshikar

Advocate for defendant.

Allowed

Sd/- R. H. Maslekar

17-2-65."

We feel no doubt that the broad sanction for the compromise

came from the tenant, that no shady action is imputable to

respondent 4 and that his conduct has been motivated by the

good of his client.

353

The last posting was for reporting the compromise. But, on

that date, the Court declined further adjournment and the

party being absent and away, the pleader for the appellant

had no alternative but to suffer an eviction decree or

settle it to the maximum advantage of his Ordinarily when a

junior and senior appear in the case, it would be an

adventurist act exposing himself to great risk on the part

of the junior to report a compromise without consulting his

senior, even assuming that the party was not available.

Nevertheless, we have had an over-all view of the facts of

the present case and do not feel inclined to the view that

the implied authority of the pleader has been abused. The

courts below were right in fastening the settlement of the

suit upon the appellant.

Nevertheless, it is right to stress that counsel should not

rush in with a razi where due care will make them fear to

tread, that a junior should rarely consent on his own when

there is a senior in the brief, that a party may validly

impugn an act of compromise by his pleader if he is

available for consultation but is by-passed. The lawyer

must be above board, especially if he is to agree to an

adverse verdict. As for classes of legal practitioners, we

are equally clear that the tidal swell of unification and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 17

equalisation has swept away all professional sub-castes.

Anyway, that is the law. Such artificial segregations as

persist are mere proof of partial survival after death and

will wither away in good time. Anyway, that is our hope.

We dismiss the appeal, but in view of divided judicial

opinion in the High Courts and the Constitutional obligation

of this Court under Art. 141 to resolve and settle the law

we direct the parties will bear their costs in this Court.

Appeal dimissed

P. B. R.

354