Appeal No 3698 of 1991
From the Judgment and Order dated 1111990 of the Bombay High Court in Chamber Summons No 838 of 1990 in Execution Application No 242 of 1989 in Suit No 309 of 1972
Arun Jaitley RF Nariman R Karanjawala Mrs M Karanjawala Ms Nandini Gore and Ms Aditi Choudhary for the appellant
191 VA Bobde UA Rao and BR Agarwala for the respondents
The Judgment of the Court was delivered by THOMMEN J
Leave granted
The appellant who is the defendant in Suit No 309 of 1972 challenges the judgment of the Bombay High Court in Chamber Summons No 838 of 1990 in Execution Application No 242 of 1989 whereby the High Court held that the decree made against the defendant in terms of a compromise in writing and signed by counsel representing the parties but not signed by the parties in person was valid and binding on the parties and in the absence of any challenge against the order made under Order XXI rule 23 Civil Procedure Code allowing execution of the decree the defendant was no longer entitled to resist execution by recourse to Chamber Summons
The High Court found that the decree was valid and in accordance with the provisions of Order XXIII rule 3 as amended by the CPC Amendment Act 1976
The only question which arises for consideration is as regards the construction of Order XXIII rule 3 CPC We shall read this provision as amended by the CPC Amend ment Act 19 bracketing the newly added words 23 R 3 Compromise of suit where it is proved to the satisfaction of the court that a suit has been ad justed wholly or in part by any lawful agreement or compro mise in writing and signed by the parties or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject matter of the suit the Court shall order such agreement compromise or satisfaction to be recorded and shall pass a decree in accordance therewith so far as it relates to the parties to the suit whether or not the subject matter of the agreement compromise or satisfaction is the same as the subject matter of the suit Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction had been arrived at the court shall decide the question but no adjournment shall be granted for the purpose of deciding the question unless the court for reasons to be recorded thinks fit to grant such adjournment Explanation
An agreement or compromise which is void or voidable under the  shall not be 192 deemed to be lawful within the meaning of this rule
Mr Arun Jaitley appearing for the appellant says that the High Court was wrong in holding that notwithstanding the amendment of 1976 inserting the words in writing and signed by the parties  it was still sufficient if the terms of compromise were reduced to writing and signed by counsel representing the parties and not necessarily by the parties in person
Any such construction would do violence to the provision as amended in 1976
He says that the object of the amendment was to provide that no agreement or compromise adjusting wholly or in part a pending suit was valid unless such compromise was evidenced in writing and signed by the parties in person
The expression parties  he contends means only parties and none else
To read counsel  into that expression as done by the High Court is to presume that the legislature failed to say what it intended to say and to attempt to supply the omission by correcting the deficiency
This cannot be done
The legislature on the other hand made its intention explicit by providing that an agreement or compromise would form the basis of a decree only if the consensus was reduced to writing and signed by the parties
Neither an agent nor a pleader could act as a substitute for a party to sign the agreement or compromise
A decree based on a compromise not signed by the parties in person is a nullity and is incapable of execution
Mr Jaitley submits that if the legislature had intended to authorise counsel independently to sign the memorandum containing the terms of settlement and allow a decree to be passed in terms thereof the legislature would have said so by further adding the words or their counsel 
In the absence of any such expression it cannot be presumed that the legislature intended more than what it said and that party  included counsel
This argument Mr Jaitley says is fortified by the fact that for the first time the legis lature has allowed a decree to be passed on the basis of compromise relating to matters concerning the parties but extending beyond the subject matter of the suit
Such a wide power to compromise was most unlikely to be left in the hands of counsel and it is therefore necessary to read the provision narrowly so as to read it as it now stands by adopting a strictly literal construction
Mr VA Bobde appearing for the respondents on the other hand submits that it was always understood that the expression party  included his pleader in matters relating to appearance in court and his counsel in the cause there fore has express or implied authority unless specifically withdrawn or limited by the party to represent him in court and do 193 whatever is necessary in connection with the conduct of his suit including adjustment of the suit by agreement or com promise
In the absence of any such limitation or restric tion of his authority counsel appearing for a party is fully competent to put his signature to the terms of any compromise upon which a decree can be passed in proper compliance with the provisions of Order XXIII rule 3 as it now stands
Any such decree he says is perfectly valid
Mr Bobde submits that in the absence of express words to the contrary party  in the context of proceedings in court must necessarily include his recognised agent or pleader
This construction is warranted by the provisions of Order III CPC That this has been the consistent view adopted by courts in the construction of the expression party  in the context of proceedings in court is clear from the decisions of courts and it is most unlikely that the legislature would have by the amendment of 1976 limited the scope of party  so as to exclude the traditional role of the recognised agent or counsel
The legislative drafts men are presumed to know the law of the land as it stood then and if they had intended to deviate therefrom they would have explicitly stated so rather than leave it to future judicial construction
The Statement of Objects and Reasons for the amendment he says does not support the view canvassed by the appellant
Sub clause iii of clause 77 of the Statement of Ob jects and Reasons concerning the CPC Amendment Act 1976 states is provided that an agreement or compromise under rule 3 should be in writing and signed by the parties
This is with a view to avoiding the setting up of oral agreements or compromises to delay the progress of the suit       
In view of the words so far as it re lates to the suit  in rule 3 a question arises whether a decree which refers to the terms of a compromise in respect of matters beyond the scope of the suit is executable or whether the terms of the decree relating to the matters outside the suit can be enforced only by a separate suit
The amendment seeks to clarify the position
 The Statement of Objects and Reasons indicates that the amendment is intended to clarify that a compromise has to be in writing signed by the parties to avoid delay which might arise from the uncertainties of oral agreements
The amendment has also clarified that the terms of compromise are permitted to include all matters relating to the parties to the 194 suit even if such matters fall outside the subject matter of the suit
The legislature has thus sought to attain certainty and clari ty and widen the scope of compromise
The fundamental question is in the absence of any contrary indication in the Statement of Ob jects and Reasons can it be stated that the legislature has intended to exclude a pleader or a recognised agent from the expression party  when it has always been understood as explicitly stated in Order 1II rule 1 that appearance of a party in court may be in person or by his recognised agent or pleader
In the absence of any provision to the con trary can it be stated that the legislature when using the expression parties  in rule 3 of Order XXIII limited it to parties in person and excluded their duly recognised agents or counsel  The role of counsel in Court in England is described in Halsbury s Laws of England 4th Ed Vol3 paras 1181  1183 as follows 1181
Counsel s authority
At the trial of an action counsel s authority extends when it is not expressly limited to the action and all matters incidental to it and to the con duct of the trial such as withdrawing the record challenging a juror calling or not calling witnesses cross examining or not cross examining witnesses consenting to a reference to arbitration a compromise or a verdict undertaking to appear or on the hearing of a motion for a new trial consent ing to a reduction of damages
The client s consent is not needed for a matter which is within the ordinary authority of counsel thus if in court in the absence of the client a compromise or settlement is entered into by counsel whose authority has not been expressly limited the client is bound
If an action is settled in court in the presence of the client his consent will be inferred and he will not be heard to say that he did not understand what was going on    The implied authority of counsel in England is howev er confined to matters failing within the subject matter of the suit
In the absence of express authority counsel cannot enter into compromise on collateral matters
The authority of counsel to compromise is limited to the issues in the action a compro mise by counsel affecting collateral matters will not bind the client unless he expressly assents and it may be that a barrister has no authority to reach a binding settlement or compromise out of court Halsbury ibid 195 A compromise is however not binding and is liable to be set aside in circumstances which would invalidate agree ments between the parties
A compromise by counsel will not bind the client if counsel is not apprised of facts the knowledge of which is essential in refer ence to the question on which he has to exer cise his discretion for example that the terms accepted had already been rejected by the client
Where counsel enters into a com promise in intended pursuance of terms agreed upon between the clients and owing to a misunderstanding the compromise fails to carry out the intentions of one side the compromise does not bind the client and the court will allow the consent to be withdrawn
Where acting upon instructions to compromise counsel consents under a misunderstanding to certain terms which do not carry into effect the intentions of counsel and the terms are thought by one party to the more extensive than the other party intends them to be there is no agreement on the subject matter of the compromise and the court will set it aside
But a person who has consented to a compromise will not be allowed to withdraw his consent because he subsequently discovers that he has a good ground of defence Halsbury ibid para 1183
Counsel s consent in certain circumstances such as duress or mistake may not bind the client
If counsel s consent is given under duress the client will not be bound as when counsel acting for a client alleged to be of unsound mind but believing him to be of sound mind consented to certain terms for the withdrawal of Court of Protection proceedings against the client because of his fear of the inconven ience and iII health likely to arise to the client from confinement
A compromise or order made by consent by counsel for a minor or other person under disability is not binding on the client unless it is sanctioned by the court as being for the benefit of the client
The court cannot however enforce a compromise on a minor against the opinion of his counsel Halsbury ibid One of the early English authorities on this point is Pa tience Swinfen 196 vs Lord Chelmsford  at 922 SC 29 L J Ex 382
Delivering the judgment of the Court Pollock CB stated 
We are of opinion that although a coun sel has complete authority over the suit the mode of conducting it and all that is inci dent to it such as withdrawing the record withdrawing a juror calling no witnesses or selecting such as
in his discretion he thinks ought to be called and other matters which properly belong to the suit and the management and conduct of the trial we think he has not by virtue of his retainer in the suit any power over matters that are collat eral to it   
In Matthews vs Munster at 144 Lord Esher MR stated 
The instances that are given shew that one of the things that counsel may do so long as the request of the client to him to act as advocate is in force is to assent to a verdict for a partic ular amount and upon certain conditions and terms and the consent of the advocate to a verdict against his client and the withdrawing of imputations is a matter within the expres sion conduct of the cause and all that is incidental to it  If the client is in Court and desires that the case should go on and counsel refuses if after that he does not withdraw his authority to counsel to act for him and acquaint the other side with this he must be taken to have agreed to the course proposed
This case is a still stronger one for the client was not present and it is not pretended that he ever withdrew his authority to counsel but he now comes forward and asks that because he does not like what has been done it should be set aside as between himself and his opponent
This the Court will not do and this appeal must be dismissed
 See also Rondel vs Worsley 1965 1 Q B 443 502 Per Lord Denning MR
If this is the position of counsel in England Scotland and Ireland is his position the same in India in the con duct of cases in Court  That the answer is affirmative there is high judicial authority
In Babu Sheonandan Prasad Singh  Ors
vs Hakim Abdul Fateh Mohammad Reza  Anr AIR 1935 PC 119 121 Lord Atkin speaking for 197 the Board states 
As was laid down by this Board in 57 IA 133 AIR 1930 PC 158 counsel in India have the same implied authority to compromise an action as have counsel in the English Courts
But if such authority is invoked to support an agreement of compromise the circumstances must be carefully examined
In the first instance the authority is an actual authority implied from the employment as counsel
It may however be withdrawn or limited by the client in such a case the actual authority is destroyed or restricted and the other party if in igno rance of the limitation could only rely upon ostensible authority
In this particular class of contract however the possibility of suc cessfully alleging ostensible authority has been much restricted by the authorities such as and which make it plain that if in fact counsel has had his authority withdrawn or restricted the Courts will not feel bound to enforce a com promise made by him contrary to the restric tion even though the lack of actual authority is not known to the other party
 Lord Atkin emphasises the need to rely on express au thority rather than implied authority particularly because of easier and quicker communication with the client
He says 
In their Lordships  experience both in this country and in India it constantly hap pens indeed it may be said that it more often happens that counsel do not take upon them selves 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
In such cases the parties are relying not on implied but on an express authority given adhoc by the client   
ibid page 121 However collateral matters were understood to be beyond the scope of compromise
Lord Atkin says If the facts are as their Lordships assume the matter compromised was in their opinion collateral to the suit and not only would it not be binding on the parties but it would in any case be a matter in respect of which the Court in pursuance of 198 O 23 R 3 should not make a decree Page 122 Referring to the role of counsel in India and comparing him with his counterpart in Britain Lord Atkin in Sourendra Nath Mitra  Ors
vs Tarubala Dasi AIR 1930 PC 158 says   
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 be cause 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
 Counsel s power to compromise is vital to the defence of his party while engaged on his behalf in the thick of a legal battle in Court
Lord Atkin observes The advocate is to conduct the cause of his client to the utmost of his skill and under standing
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 discrimina tion
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 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   ibid page 161 Emphasising the apparent authority of counsel and the raison d etre of such authority being the paramount interest of his client and not an appandage of office Lord Atkin states The apparent authority is derived from the known existence of the implied authority   199 First the implied authority of counsel is not an appandage of office a dignity added by the Courts to the status of barrister or advocate at law
It is implied in the inter ests of the client to give the fullest bene ficial effect to his employment of the advo cate
Secondly the implied authority can always be countermanded by the express direc tions of the client
No advocate has actual authority to settle a case against the ex press instructions of his client
If he con siders such express instructions contrary to the interests of his client his remedy is to return his brief
Their Lordships are unable to see why the above considerations should not apply to an advocate in India whose duties to his client in the conduct of a suit in no wise differ from those of advocates in England Scotland and Ireland   
Page 161 Counsel s role in entering into a compromise has been traditionally understood to be confined to matters within the scope of the suit
However a compromise decree may incorporate not only matters failing within the subject matter of the suit but also other matters which are collat eral to it
The position before the amendment in 1976 was that in respect of the former the decree was executable but in respect of the latter it was not executable though admissible as judicial evidence of its contents
Referring to section 375 of the Code of Civil Procedure Act XIV of 1882 similar to Order XXIII rule 3 CPC as it stood prior to the amendment of 1976 Lord Buckmaster in Hemanta Kumari Debi vs Midnapur Zamindari Co AIR 1919 PC 79 states   
In the first place it is plain that the agreement or compromise in whole and not in part is to be recorded and the decree is then to confine its operation to so much of the subject matter of the suit as is dealt with by the agreement   although the operative part of the decree would be properly confined to the actual subject matter of the then existing litigation the decree taken as a whole would include the agreement
This in fact is what the decree did in the present case
It may be that as a decree it was incapable of being executed outside the lands of the suit but that does not prevent its being received in evidence of its con tents
Page 81 In Ram Juwan vs Devendra Nath Gupta AIR 1960 Madhya Pradesh 200 280 the High Court states Where a consent decree contains terms that do not relate to the suit   such terms cannot be enforced in execution of the decree but they may be enforced as a contract by a separate suit
Page 282 See also Vishnu Sitaram Auchat vs Ramachandra Govind Joshi AIR 1932 Bombay 466 and Jasimuddin Biswas vs Bhuban Jelini ILR 34 Calcutta 456
In Ganganand Singh  Ors
vs Rameshwar Singh Bahadur  Anr  the High Court points out that a consent decree does not stand on a higher footing than a contract between the parties
The Court always has the jurisdiction to set aside a consent decree upon any ground which will invalidate an agreement between the parties
In the absence of any such ground the consent decree is bind ing on the parties
Courts in India have consistently recognised the tradi tional role of lawyers and the extent and nature of their implied authority to act on behalf of their clients
Speak ing for a Full Bench of the Kerala High Court in Chengan Souri Nayakam vs AN Menon AIR 1968 Kerala 213 KK Mathew J as he then was 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 impli cation
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 p215
About the special position of the advocate the learned Judge stated Counsel has a tripartite relationship one with the pub lic 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 201 as practicing however unattractive the case or the client p 216 See also Jiwibai vs Ramkumar Shriniwas Murarka Agarwala AIR 1947 Nagpur 17 Govindammal vs Marimuthu Maistry  Ors AIR 1959 Mad 7 and Laxmidas Ranchhoddas  Ors
vs Savitabai Hargovindas Shah AIR 1956 Born
These principles were affirmed by this Court in Jamila bai Abdul Kadar vs Shankerlal Gulabchand  Ors
1975 Supp
SCR 336
Referring to a number of decisions on the point VR Krishna Iyer J observes   
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 tike any other principal to mark out in the vakalat or by particular instructions forbidden areas or expressly withhold the right to act in sensi tive matters the choice being his as the master
If the lawyer regards these fetters as inconsistent with his position he may refuse or 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 he does so bona fide in the interests and for the advantage of his client   Page 346 See also Monoharbahal Colliery Calcutta vs KN Mishra  Ors AIR 1975 SC 1632
After the amendment of 1976 a consent decree as seen above is executable in terms thereof even if it comprehends matters falling outside the subject matter of the suit but concerning the parties
The argument of the appellant s counsel is that the legislature has intended that the agreement or compromise should be signed by the parties in person because the responsibility for compromising the suit including matters falling outside its subject matter should be borne by none but the parties themselves
I1 this contention is valid the question arises why the legislature has presumably being well aware of the consistently fol lowed practice of the British and Indian Courts suddenly interfered with the time honoured role of lawyers in the conduct of cases without specifically so stating but by implication Can the legislature be presumed to have funda mentally altered the position of counsel or a recognised agent as traditionally understood in the system of law and practice followed in India and other common law countries  without expressly and directly so stating There is 202 no indication in preparatory work such as the 54th Report of the Law Commission dated 621973 or in the Statement of Objects and Reasons or in the words employed by the legisla ture that the concept of agents and pleaders  of Order III CPC was in any manner altered
There is no warrant for any such presumption
It is a rule of legal policy that law should be altered deliberately rather than casually
Legislature does not make radical changes in law by a sidewind but only by measured and considered provisions 
Francis Bennion s Statutory Interpretation Butterworth 1984 para 133
As stated by Lord Devlin in National Assistance Board vs Wilkinson It is a well established principle of con struction that a statute is not to be taken as effecting a fundamental alteration in the general law unless it uses words that point unmistakably to that conclusion Statutes relating to remedies and procedure must receive a liberal construction especially so as to secure a more effective a speedier a simpler and a less expensive administration of law 
See Crawford s Statutory Construc tion para 254
The object of the amendment was to provide an appropriate remedy to expedite proceedings in Court
That object must be borne in mind by adopting a purposive con struction of the amended provisions
The legislative inten tion being the speedy disposal of cases with a view to relieving the litigants and the Courts alike of the burden of mounting arrears the word parties  must be so construed as to yield a beneficent result so as to eliminate the mischief the legislature had in mind
There is no reason to assume that the legislature in tended to curtail the implied authority of counsel engaged in the thick of proceedings in court to compromise agree on matters relating to the parties even if such matters exceed the subject matter of the suit
The relationship of counsel and his party or the recognised agent and his principal is a matter of contract and with the freedom of contract gener ally the legislature does not interfere except when war ranted by public policy and the legislative intent is expressly made manifest There is no such declaration of policy or indication of intent in the present case
The legislature has not evinced any intention to change the well recognised and universally acclaimed common law tradition of an ever alert independent and active
Bar with freedom to manoeuvre with force and drive for quick action in a battle of wits typical of the adversarial system of oral hearing which is in sharp contrast to the 203 inquisitorial traditions of the civil law  of France and other European and Latin American countries where written submissions have the pride of place and oral arguments are considered relatively insignificant
See Rene David English Law and French Law Tagore Law Lectures 1980 The civil law  is indeed equally efficacious and even older but it is the product of a different tradition culture and language and there is no indication
whatever that Parliament was addressing itself to the task of assim ilating or incorporating the rules and practices of that system into our own system of judicial administration
The Indian legal system is the product of history
It is rooted in our soil nurtured and nourished by our culture languages and traditions fostered and sharpened by our genius and quest for social justice reinforced by history and heritage it is not a mere copy of the English common law though inspired and strengthened guided and enriched by concepts and precepts of justice enquiry and good con science which arc indeed the hallmark of the common law
In the words of MC Setalvad    the common law of England with its statutory modifications and the doctrines of the English courts of equity has deeply coloured and influenced the laws and the system of judicial administration of a whole sub continent inhabited by nearly four hundred million people
The law and jurisprudence of this vast community and its pattern of judi cial administration are in many matters dif ferent from those of England in which they had their roots and from which they were nurtured
Yet they bear the unmistakable impress of their origin
The massive structure of Indian law and jurisprudence resembles the height the symmetry and the grandeur of the common and statute law of England
In it one sees English law in the distant perspective of a new atmosphere and a strange clime
 Speaking of the common law in the wider sense the learned author continues 
But the English brought into India not only the mass of legal rules strictly known as the common law but also their traditions outlook and techniques in estab lishing maintaining and developing the judi cial system
When therefore I speak of the common law in India I have in view comprehen sively all that is of English origin in our system of law
In that wide meaning 204 the expression will include not only what in England is known strictly as the common law but also its traditions some of the princi ples underlying the English statute law the equitable principles developed in England in order to mitigate the rigours of the common law and even the attitudes and methods pervad ing the British system of the administration of justice The Common Law in India 1960 The Hamlyn Lectures Twelth Series pp1 4
After the attainment of independence and the adoption of the Constitution of India judicial administration and the constitution of the law courts remained fundamentally un changed except in matters such as the abolition of appeals to the Privy Council the constitution of the Supreme Court of India as the apex court the conferment of writ jurisdic tion on all the High Courts etc
The concept structure and organisation of Courts the substantive and procedural laws the adversarial system of trial and other proceedings and the function of judges and lawyers remained basically unaltered and rooted in the common law traditions in contra distinction to those prevailing in the civil law or other systems of law
In our own system of judicial administration if strains have developed and cracks have appeared by the stresses and 2pressures of the time if aberrations have become too obvious to be ignored or too deeprooted to be corrected by an internal mechanism if the traditional role of the legal profession requires urgent legislative scrutiny with a view to remedying the defects and strengthening and safeguarding the system it is a matter exclusively for Parliament to consider but the amendment in question is not addressed to that purpose
Aberrations there always have been in every system of administration but whether they are merely peripheral or transient in character mere ripples on a placid pool or symptomatic of deeper malady requiring structural modifica tion by prompt legislative intervention is a matter of grave significance for the jurists sociologists and political scientists to ponder over
So long as the system of judicial administration in India continues unaltered and so long as Parliament has not evinced an intention to change its basic character there is no reason to assume that Parliament has though not express ly but impliedly reduced counsel s role or capacity to represent his client as effectively as in the past
On a matter of such vital importance it is most unlikely that Parliament would have resorted 205 to implied legislative alteration of counsel s capacity or status or effectiveness
In this respect the words of Lord Atkin in Sourendra supra comparing the Indian advocate with the advocate in England Scotland and Ireland are significant There are no local conditions which make it less desirable for the client to have the full benefit of an advocate s experience and judg ment
One reason indeed for refusing to imply such a power would be a lack of confi dence in the integrity or judgment of the Indian advocate
No such considerations have been or indeed could be advanced and their Lordships mention them but to dismiss them   Page 161 Similar is the view expressed by the Rajasthan High Court in Mohan Bai vs Jai kishan AIR  Smt
Mohan Bai vs Smtjai kishan  Ors AIR and by the Gujarat High Court in Nadirsha Hirji Baria  Ors
vs Niranjankumar alias Nireshkumar Dharamchand Shah  Ors
 A contrary view has been ex pressed by the Andhra Pradesh High Court in Kesarla Raghu ram
vs Dr Narsipalle Vasundara AIR 1983 Andhra Pradesh 32 and it does not commend itself to us
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 immedi ate 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 coun sel will no doubt arm himself in advance with the necessary authority expressed in writing to meet all such contingen cies 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 pres tige and dignity of the legal profession
Considering the traditionally recognised role of counsel in the common law system and the evil sought to be remedied by Parliament by the CPC 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 authorised agents
Any 206 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
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 authorised 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 authorisation 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 funda mental change even at the risk of delay inconvenience and needless expenditure it would have expressly so stated
Accordingly we are of the view that the words in writing and signed by the parties  inserted by the CPC Amendment Act 1976 must necessarily mean to borrow the language of Order II1 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 In the present case the notice issued under Order XXI rule 22 was personally served on the defendant but he did not appear or show cause why the decree should not be exe cuted
The notice was accordingly made absolute by Order dated 2311990 and leave was granted to the plaintiff to execute the decree
The decree passed by the High Court on 1861984 in terms of the compromise was a valid decree and it constituted res judicata
As stated by this Court in Shankar Sitaram Sontakke  Anr
vs Balkrishna Sitaram Son takke  Ors  
It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum
The com 207 promise having been found not to be vitiated by fraud misrepresentation misunderstanding or mistake the decree passed thereon has the binding force of res judicata 
 Page 355 SR
Das CJ in Sailendra Narayan Bhanja Deo vs The State of Orissa   states  a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercises its mind on a contested case  
Page 351 A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the court at the end of a long drawn out fight
A compromise decree creates an estoppel by judgment
As stated by Spencer Bower  Turner in Res Judicata Second Edition page 37 Any judgment or order which in other respects answers to the description of a res judicata is nonetheless so because it was made in pursuance of the consent and agreement of the parties 
Accordingly judgments orders and awards by consent have always been held no less efficacious as estoppels than other judgments orders or decisions though doubts have been occasionally expressed whether strictly the foundation of the estoppel in such cases is not representation by conduct rather than res judicata     
See also Mohanlal Goenka vs Benoy Kishna Mukherjee  Ors  The consent decree made on 1861984 remained unchal lenged
None questioned it
The appellant never raised any doubt as to its validity or genuineness
He had no case that the decree was vitiated by fraud or misrepresentation or his counsel lacked authority to enter into a compromise on his behalf
Nevertheless after six years he questioned its validity by means of chamber summons
This was an unsuccess ful challenge by reason of delay estoppel or res judicata and was rightly so held by the High Court
Accordingly we see no merit in this appeal
It is dismissed
However in the circumstances of the case we do not make any order as to costs
VPR Appeal dismissed


Summary:
The appellant was in possession of a plot as a tenant
Pursuant to Town Planning Scheme framed by the respondent Corporation under the Bombay Town Planning Act 1955 the said plot was re constituted ie the plot was altered by the making of the Town Planning Scheme
The respondent was injuriously affected by the said scheme because it has the effect of terminating his possession and adversely affected his business in the demised premises
However before fina lising the scheme the Town Planning Officer neither issued special notice to the respondent a required under sub rule 3 nor provided him an opportunity as provide 227 under sub rule 4 of Rule 21 of the Bombay Town Planning Rules 1955
The appellants filed a civil suit challenging the action and the Trial Court issued a permanent injunction restraining the respondent Corporation from reconstituting the plot until due procedure was followed
On appeal by the Corporation a Single Judge of the High Court allowed the appeal and set aside the decree of the Trial Court and dismissed the suit
The Single Judge fol lowed the decision of the Full Bench in Dungarlal Harichand vs State of Gujarat  Ors
holding that the appellants were not entitled to special notice under sub rule 3 and opportunity under sub rule 4 and 2that non compliance with the said rule does not vitiate the Planning Scheme
The decision of the Single Judge was con firmed in Letter Patent appeal by the Division Bench of the High Court
In tenant s appeal to this Court it was contended on behalf of the Respondent Corporation that i compliance with sub rule 213  4 was not mandatory ii Since sub rule 21 3 is only an additional advantage It is dis pensable and could be waived iii the framing of the Town Planning Scheme is for the benefit of the residents of the Local authority as an amenity provided therein to the gener al public ie construction of General Post Office the interest of the general public outweighs the individual interest
Therefore sub rule 213 is not mandatory iv the use of the word shall  in rule 213 may be construed as directory and not as mandatory
Allowing the appeal this Court HELD 1
Under Section 105 of Transfer of Property Act a lease creates right or an interest in enjoyment of the demised property and a tenant or a sub tenant is entitled to remain in possession of the demised property until the lease is duly terminated and eviction takes place in accordance with law
Therefore a tenant or a sub tenant in possession of a tenement in the Town Planning Scheme is a person inter ested within the meaning of Rules 213  4 of the Rules
But he must be in possession of the property on the crucial date ie when the town plan scheme is notified in the official gazette
Every owner or tenant or a sub tenant in possession on that date alone shall be entitled to a notice and opportunity
Accordingly appellants are entitled to notice under sub rule 3 and a 228 reasonable opportunity under sub rule4 thereof234H235A B235 E 2
A conspectus of the statutory scheme brings out the fact that the Town Planning Officer before making the final scheme and submitting it to the local authority is required to follow the procedure prescribed by the Act and the Rules
At the relevant stages he is required to issue notice to the affected person
234 F G 21 A reading of section 32 of the Bombay Town Planning Act 1955 read with Rule 213 makes it abundantly clear that the Town Planning Officer is to give notice of at least 3 days in the prescribed manner to the affected persons to submit objections or views affected persons are to be given ade quate opportunity under rule 214 to respond and thereafter the Officer is to demarcate the area allotted to or reserved for public purposes or for purpose of the local authority and the reconstituted plots to be allotted to persons in ownership with the shares of such persons in common plot etc
236 G H 3
Rule 213 speaks of special notice of at least three days duration
It is inconsonance with and in compli ance of the principles of natural justice
The legislature thus made a distinction between the general notice envisaged in sub rule 1 of Rule 21 and special notice under sub rule 3 of Rule 21 which was in addition to the former
237 C 31 The purposes of clauses 3 and 4 of Rule 21 are obvious and the consequences that would ensue are self evident
The issuance of notice under sub rule 3 and giving of sufficient opportunity under sub rule 4 are self evident to subserve the basic concept of fair and just procedure
These sub rules subserve the principles of natu ral Justice to avoid arbitrariness offending Article 14 and to be Just and fair procedure satisfying the mandate of Article 21
237 CE 4
It is settled law that before depriving a person of his property or imposing any further liability the principle of natural justice require prior notice and reasonable opportunity to him to put forth his claim or objections
237 B 41 Since the non compliance with issuance of notice and giving of sufficient opportunity contemplated under sub rules 3 and 4 of Rule 21 229 injuriously affects the right to property of the owner or interest of the tenant or sub tenant as the case may be it shall be construed to be mandatory and not directory
There fore the issuance of special notice of at least three clear days duration and giving sufficient opportunity to the person affected to put forth his views of the scheme are mandatory and non compliance thereof vitiates the validity of the final scheme
237 H 238 A 237 E Kaushikprasad Chandulal Mahadevia  Anr
vs The Ahmedabad Municipal Corporation and Ors 1970 11 GLR 993 Mohanlal Jesinghbhai vs PJ
PateI Town Development Officer Ahmedabad Municipal Corporation  Ors  approved
Dungarlal Hanchand vs State of Gujarat  Ors  disapproved
The appearance of shall  is not conclusive nor per se connotes its mandatory contour
Its meaning must be ascertained in the light of the legislative intent in its employment the context in which it was couched the conse quences it produces the result it effected and above all the purpose it seek to serve would all be kept in view
From the fact situation the courts are to cull out the intention whether the construction to be put up would subserve the purpose of the legislative intent or tend to defeat it
Public interest is always a paramount consideration
237 F G 6
The principle of Waiver connotes issuance of notice and non response thereto
Everyone has a right to waive an advantage or protection which law seeks to give him
Un doubtedly if a notice is issued and no representation is made by either the owner tenant or a sub tenant it would amount to waive the opportunity and such person cannot be permitted to turn round after the scheme reaches finality to say that here is non compliance of sub rules 3 and 4 of Rule 21
It would amount to putting premium on dilatory and dishonest conduct
238 B C