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1957 Supreme(Pat) 41
PATNA HIGH COURT
K.Ahmad, J.
Harischandra Jha
Versus
Dinesh Narain Jha
Civil Review No. 12 of 1953 ;
Decided On : JANUARY 31, 1957
An advocate briefed in a case has an implied authority to effect a compromise on behalf of the client, even if it amounts to acting, and that such authority can always be countermanded by the express directions of the client.
Headnote:
REVIEW - Grounds - Mistake or error apparent on the face of the record - Compromise recorded without authority from the party aggrieved - Maintainability of review application.
Fact of the Case:
The petitioners filed an application for review of a consent order dated 16-3-1953, passed in First Appeal No. 363 of 1946 by a Bench presided over by Narayan, J., and the author of the judgment. The consent order was passed on a compromise between the parties, but the petitioners alleged that the order was passed at their back and without their consent. They contended that the so-called consent order was passed under the mistaken impression that all parties and their lawyers were present and had consented to the terms of the compromise recorded in that order.
Finding of the Court:
The court held that the application for review was maintainable as the petitioners had alleged a mistake or error apparent on the face of the record, namely, that the court recorded the consent order under the mistaken impression that all parties and lawyers were present and had consented to the compromise.
Issues: 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.
Ratio Decidendi: 1. The court held that the vakalatnama dated 27-3-1947, given to Mr. S. C. Misra (as he then was) on behalf of the petitioners, 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. 2. The court further held that Mr. G. P. Misra had the implied authority to conclude a valid agreement of compromise on behalf of the petitioners, and that what he did in effecting the compromise was only pleading and not acting. Therefore, in doing what Mr. G. P. Misra did, he did not stand in need of any Vakalatnama. 3. On the question of 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, the court held that the probabilities were that Subodh Narayan Jha in executing the aforesaid Vakalatnama acted in a representative capacity on behalf of all the brothers including the petitioners.
Final Decision: The application for review was dismissed.
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 dis
