1984 Supreme(Cal) 226

High Court Of Calcutta
M. N. Roy, U. C. Banerjee
ASHOKE KUMAR DAW - Appellant
Versus
GOBINDA CHANDRA DEV - Respondent
Matter 326  Of  1982
Decided On : 07/02/1984

The consent of an Advocate to an order of the Court is valid and binding on the client if it is given bona fide, in good faith, for the benefit of the client, and on due and proper exercise of necessary prudence.

Headnote:

CONSENT ORDER - VALIDITY - POWER OF ATTORNEY - AUTHORITY OF ADVOCATE - JURISDICTION OF APPELLATE BENCH - RECEIVER - DISCHARGE AND APPOINTMENT.

Fact of the Case:

The Appellants, members of Mohan Bagan Athletic Club, filed a suit challenging the right of the Respondents, members of the Club, to amend the Club's rules and to continue as office bearers. The Appellants also filed an application for an injunction restraining the Respondents from acting as office bearers and members of the Executive Committee of the Club. The Trial Court granted an injunction on 29th March 1982. On 6th April 1982, the Respondents filed an application under Clause 13 of the Letters Patent for transfer of the suit under Section 24 of the Civil Procedure Code (CPC). On the same day, D.K. Sen. J. issued a Rule and stayed the hearing of the suit and the operation of the injunction order dated 29th March 1982. The Appellants preferred an appeal against this order, and the Appeal Court directed that the interim order made by the Trial Judge would continue with the addition that the Respondents would be at liberty to collect the proposed enhanced subscription and deposit the difference between the old and new rates in a separate account. On 27th May 1982, the Appeal Court varied the order and directed that 50% of the excess subscription realized by the Receiver be handed over to the Executive Committee of the Club for meeting the immediate needs for disbursement for running of the club. On 23rd June 1982, the Appeal Court further clarified that 50% of the excess subscription realized and to be realized by the Receiver be handed over to the Executive Committee. On 14th October 1982, the Appeal Court directed that the Receiver, after keeping a sum of Rs. 75,000 in his hand, hand over the balance sum to the Executive Committee. On 6th May 1983, the Appeal Court, on consent of the parties, passed an order that no further deposit need be made with the Receiver. The Appellants filed an application challenging the validity of the order dated 6th May 1983, contending that it was obtained by the Respondents without placing the correct facts before the Court and that it was without jurisdiction.

Finding of the Court:

1. The non-filing of the power of attorney by the Advocate for the Appellants was a mere irregularity and a curable one. 2. Under the power of attorney filed, the Advocate for the Appellants had the implied authority to act by way of compromises in the case in which he was engaged, even without specific consent from his client, subject to acting in good faith and for the benefit of the client. 3. The consent given by the Advocate for the Appellants to the order dated 6th May 1983 was not bona fide, was not for the benefit of the Appellants, and was given on a mistaken belief and realization. 4. The consent order dated 6th May 1983 was obtained by the Respondents by misleading the Court and the Advocate for the Appellants. 5. The Appellate Bench presided over by Pyne J. retained jurisdiction to pass the order dated 6th May 1983, even after the disposal of the connected appeal, as the Receiver appointed had not yet been discharged and the relevant orders in the connected appeal had not yet been drawn up, completed, and filed.

Issues: 1. Whether the non-filing of the power of attorney by the Advocate for the Appellants was a mere irregularity or a nullity. 2. Whether the Advocate for the Appellants had the authority to consent to the order dated 6th May 1983 under the power of attorney filed. 3. Whether the consent given by the Advocate for the Appellants to the order dated 6th May 1983 was bona fide and for the benefit of the Appellants. 4. Whether the order dated 6th May 1983 was obtained by the Respondents by misleading the Court and the Advocate for the Appellants. 5. Whether the Appellate Bench presided over by Pyne J. had jurisdiction to pass the order dated 6th May 1983 after the disposal of the connected appeal.

Ratio Decidendi: 1. The non-filing of the power of attorney by the Advocate for the Appellants was a mere irregularity and a curable one, as it did not render the proceedings null and void, but rather allowed for the defect to be cured retrospectively upon the filing of the power of attorney. 2. Under the power of attorney filed, the Advocate for the Appellants had the implied authority to act by way of compromises in the case in which he was engaged, even without specific consent from his client, subject to acting in good faith and for the benefit of the client. 3. The consent given by the Advocate for the Appellants to the order dated 6th May 1983 was not bona fide, was not for the benefit of the Appellants, and was given on a mistaken belief and realization, as evidenced by the Advocate's own letter expressing regret and apology for his actions. 4. The consent order dated 6th May 1983 was obtained by the Respondents by misleading the Court and the Advocate for the Appellants, as the Respondents failed to disclose the existence of the order dated 15th October 1982, which modified the order dated 14th October 1982 and limited the amount that could be handed over to the Executive Committee. 5. The Appellate Bench presided over by Pyne J. retained jurisdiction to pass the order dated 6th May 1983, even after the disposal of the connected appeal, as the Receiver appointed had not yet been discharged and the relevant orders in the connected appeal had not yet been drawn up, completed, and filed.

Final Decision: The application challenging the validity of the order dated 6th May 1983 was dismissed without any order as to costs. The Receiver appointed in the suit was discharged, and a new Receiver was appointed in his place.