2003 Supreme(SC) 970

2003(7) Supreme 93
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
Doraiswamy Raju & Arijit Pasayat, JJ.
Jineshwardas (D) through LRs. & Ors. -Appellants
versus
Smt. Jagrani & Anr. -Respondents
Civil Appeal Nos. 8104-8105 of 2003
(Arising out of SLP (C) Nos. 23323-23324 of 2002)
Decided on 26-9-2003
Counsel for the Parties :
For the Appellant : Prakash Shrivastava, Advocate.
For the Respondent : A.K. Sanghi, Advocate.

Headnote:Civil Procedure Code, 1908-Order 23 Rule 1 and Order 3 Rule 1-Suit for specific performance and recovery of possession of suit land-Dismissed by trial Court and confirmed in appeal by 1st appellate Court but claim for refund of Rs. 2500/- with interest allowed-In second appeal in terms of consensus by both counsels at the time of hearing decree modified where by respondents were to pay Rs. 25000/- to appellant-Appeal-Contention that in absence of compromise in writing and signed by parties, impugned decree could not be passed-Judgment or decree passed as a result of consensus arrived at before Court could not always be said to be one passed on compromise or settlement and adjustment-No allegations attributing any impropriety to act of counsels-No interference was called for.

       Held : In Byram Pestonji Gariwala vs. Union Bank of India & Others [(1992) 1 SCC 31), this Court while adverting to the very amendment in 1976 to Rule 3 of Order 23 CPC, noticed also the effect necessarily to be given to Rule 1 of Order 3, CPC, as well and on an extensive review of the case law on the subject of the right of the counsel engaged to act on behalf of the client observed as follows :

       "37. We may, however, hasten to add that it will be prudent for counsel not to act on implied authority except when warranted by the exigency of circumstances demanding immediate adjustment of suit by agreement or compromise and the signature of the party cannot be obtained without undue delay. In these days of easier and quicker communication, such contingency may seldom arise. A wise and careful counsel will no doubt arm himself in advance with the necessary authority expressed in writing to meet all such contingencies in order that neither his authority nor integrity is ever doubted. This essential precaution will safeguard the personal reputation of counsel as well as uphold the prestige and dignity of the legal profession.

       38. Considering the traditionally recognized role of counsel in the common law system, and the evil sought to be remedied by Parliament by the C.P.C. (Amendment) Act, 1976, namely, attainment of certainty and expeditious disposal of cases by reducing the terms of compromise to writing signed by the parties, and allowing the compromise decree to comprehend even matters falling outside the subject matter of the suit, but relating to the parties, the legislature cannot, in the absence of express words to such effect, be presumed to have disallowed the parties to enter into a compromise by counsel in their cause or by their duly authorized agents. Any such presumption would be inconsistent with the legislative object of attaining quick reduction of arrears in court by elimination of uncertainties and enlargement of the scope of compromise.

       39. To insist upon the party himself personally signing the agreement or compromise would often cause undue delay, loss and inconvenience, especially in the case of non-resident persons. It has always been universally understood that a party can always act by his duly authorized representative. If a power-of-attorney holder can enter into an agreement or compromise on behalf of his principal, so can counsel, possessed of the requisite authorization by vakalatnama, act on behalf of his client. Not to recognise such capacity is not only to cause much inconvenience and loss to the parties personally, but also to delay the progress of proceedings in court. If the legislature had intended to make such a fundamental change, even at the risk of delay, inconvenience and needless expenditure, it would have expressly so stated.

       40. Accordingly, we are of the view that the words in writing and signed by the parties , inserted by the C.P.C. (Amendment) Act, 176, must necessarily mean, to borrow the language of Order III Rule 1 CPC.

       "any appearance, application or act in or to any court, required or authorized 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."

       (emphasis supplied)

       We are in respectful agreement with the above statement of law. Consequently it is not permissible for the appellant, to contend to the contrary. That apart we are also of the view that a judgment or decree passed as result of consensus arrived at before court; cannot always be said to be one passed on compromise or settlement and adjustment. It may, at times, be also a judgment on admission, as in this case. Considering the fact and circumstances of the case, we find that there are no adequate reasons on merits also to call for interference in a second appeal. The so-called questions formulated cannot be considered to be even questions of law and, at any rate, not substantial questions of law, as required under Section 100, CPC. The courts below have concurrently rejected the claim of the plaintiff/appellants on pure findings of fact based upon relevant evidence and nothing survived for consideration at all in such an appeal. Further, respondent side alone appears to have been saddled with additional liabilities under the decision of the High Court, though on the basis of admission made by counsel appearing for parties. There is nothing said against the counsel, who appeared for parties, and no allegations have been made also attributing any impropriety to their action. Therefore, we are not persuaded to agree with the submissions made on behalf of the appellants. (Paras 7 to 9)