IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 333 of 2010 Judgment reserved on: 30.3.3011 Date of Decision: 4.5.2011 Geeta Devi ..Petitioner Versus. Lekh Ram and others ..Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? . Yes. For the Petitioner (s): Mr.Satyan Vaidya, Advocate. For the Respondent(s): Mr.Ashwani Sharma, Advocate. Deepak Gupta, J . 1. This petition is directed against the order dated 22.5.2010 passed by the learned Additional District Judge, Ghumarwin whereby he dismissed the application filed by the petitioner (hereinafter referred to as the wife) for review of the order dated 2.11.2007. 2. Briefly stated, the facts of the case are that the petitioner Geeta Devi was married to Lekh Ram. It appears that their relations after marriage were not good and this compelled Geeta Devi to file an application on her own behalf and on behalf 2 of her children for maintenance under Section 125 Cr.P.C. On 17.9.1986 this petition was disposed of on the statement of the parties. In his statement, the husband agreed to handover the possession of his land and house to the wife Geeta Devi in lieu of maintenance. On this basis, the petition was disposed of and the husband had specifically agreed to give full control of his house and land to his wife Geeta Devi for her maintenance. Geeta Devi in turn agreed that she would not destroy the property in any manner. Further, the husband agreed to pay monthly maintenance of Rs.60/- per month to each of five children through the mother. This proposal was agreed to by the wife and in lieu of this settlement Geeta Devi was not granted any monetary maintenance but given the land and house owned and possessed by the husband Lekh Ram. 3. In the year 1996 Geeta Devi on her own behalf and on behalf of her four minor children filed a suit against Lekh Ram praying for a decree of declaration that the plaintiffs are entitled to be maintained out of the share of the defendant in 3 the entire suit property. The defence taken by the husband in this suit was that the plaintiffs are residing in the house owned by the defendant and further that the plaintiffs are possessing the entire land of the defendant. According to the defendant Lekh Ram, he was paying for the study of his sons and daughters and since his entire land and house were in possession of the wife the suit be dismissed. The suit was decreed and it was held by the learned trial Court vide his judgment and decree dated 21st April, 2003 that Geeta Devi and her children were entitled to be maintained out of the share of the defendant in the suit property and therefore a charge was created over the entire property of the defendant as mentioned in the plaint. However, the prayer of the plaintiffs that the defendant be restrained from selling or otherwise alienating the suit property was rejected, because, as rightly held by the trial Court, the transfer of the property would be subject to the aforesaid charge and the property in the hands of the transferee would be 4 subject to the charge. Admittedly, this decree attained finality. 4. On 24.12.2004, defendant No.1 Lekh Ram executed a gift deed in favour of his brother defendant No.2 Kartar Singh and gifted his share in the land to him and on the same date executed another gift deed gifting another portion of the land to defendant No.3 Jagdish. Geeta Devi thereafter filed a suit praying that she be declared to be owner in possession of 8-9 bighas of land in village Naharal and 7-19 bighas of land in village Dehlwin i.e. the share of her husband in the land in these two villages. She also prayed that the gift deeds be declared to be null and void and the defendants be restrained from interfering in her possession of the suit land. 5. Along with the suit the plaintiffs filed an application under Order 39 Rules 1&2 praying that the defendants be injuncted from interfering in the suit land. The learned trial Court vide order dated 20.8.2005 allowed the application and directed the parties to maintain status quo qua the suit land. 5 6. Aggrieved by the said order, respondent No.1 Lekh Ram filed an appeal which was heard by the learned Additional District Judge, Ghumarwin. During the course of hearing of the matter, counsel for the parties in this appeal arising out of the proceedings under Order 39 Rules1&2 CPC arrived at a compromise that the appellant be directed to maintain status quo qua possession of the part of the suit land comprised in village Naharal but the order was vacated in so far as village Dehlwin was concerned. 7. Thereafter, the wife filed a petition in this Court which was registered as CMPMO No.7 of 2008. This petition was disposed of and the petitioner wife was directed to approach the learned Additional District Judge for correction of the earlier order. This Court in its order clearly stated that it will be open to the petitioner to show and demonstrate that no concession was intended to be given on her behalf and any such concession given was not binding on her. 8. Thereafter, the petitioner wife filed an application under Section 151 CPC before the learned trial 6 Court. The basic ground raised by her was that the rights which had vested in her by judicial orders could not have been given up by her counsel that too in her absence. This application has been dismissed by the impugned order. The learned Additional District Judge came to the conclusion that the counsel had the authority to make a concession on her behalf and since the same counsel continued acting for her, her statement is binding upon the petitioner. 9. I have heard Sh.Satyen Vaidya, learned counsel for the petitioner-wife and Sh.Ashwani Sharma, learned counsel for the respondents. 10. The main issue which arises for consideration is whether the statement made by the counsel for the wife is binding upon her or not. At the outset, I may state that Sh.Satyen Vaidya, learned counsel for the petitioner has very fairly conceded that he is not imputing any mala fides to the counsel but according to him the counsel could not have made a statement which virtually made the plaintiff loose half of her land. 7 11. Various judgments have been cited before me by the learned counsel for the parties. 12. In Smt.Jamilabai Abdul Kadar vs. Shankarlal Gulabchand and others, AIR 1975 SC 2202, the Apex Court held as follows: “22. 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 Section 2(15). Civil 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 overriding 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. We need hardly emphasize 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.” 13. In Smt.Sita Devi vs. Narain Singh and another, AIR 1976 HP 39, a Division Bench of this Court held as follows: “An advocate has implied authority to do everything in the interest of his client. This implied authority includes power to settle dispute by adjustment or compromise. But this implied authority can be abridged or curtailed or taken away by the express terms in the power of attorney.” 14. This question as to how a compromise should be entered into, again came up for consideration before the Apex Court in Gurpreet Singh vs. 8 Chatur Bhuj Goel, (1988) 1 SCC 270 wherein the Apex Court after considering the provisions of Order 23 Rule 3 CPC as amended in the year 1976, held as follows: “10. Under R. 3 as it now stands, when a claim in suit has been adjusted wholly or in part by any lawful agreement or compromise, the compromise must be in writing and signed by the parties and there must be a completed agreement between them. To constitute an adjustment, the agreement or compromise must itself be capable of being embodied in a decree. When the parties enter into a compromise during the hearing of a suit or appeal, there is no reason why the requirement that the compromise should be reduced in writing in the form of an instrument signed by the parties should be dispensed with. The court most therefore insist upon the parties to reduce the terms into writing.” 15. However, the Apex Court in Byram Pestonji Gariwala vs. Union Bank of India and others, AIR 1991 SC 2234, held as follows: “30. There is no reason to assume that the legislature intended to curtail the implied authority of counsel, engaged in the thick of proceedings in Court, to compromise or 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 generally, the legislature does not interfere except when warranted 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 inquisitorial traditions of the 'civil law' of 9 France and other European and Latin American countries where written submissions have the pride of place and oral arguments are considered relatively insignificant…… 31. 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, equity and good conscience which are indeed the hallmark of the common law……… 38. Considering the traditionally recognised 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 itself duly authorised 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 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 fundamental change, even at the risk of delay, inconvenience and needless expenditure, it would have expressly so stated.” 10 16. It would be pertinent to mention that it appears that the earlier judgment of two Judges Bench of the Apex Court in Gurpreet Singh’s case (supra) was not brought to the notice of the Apex Court. 17. The Apex Court thereafter considered both the aforesaid decisions in Pushpa Devi Bhagat (D) by LR vs. Rajinder Singh and others, AIR 2006 SC 2628 and held as follows: “20. Consequently, the statements of the parties or their counsel, recorded by the court and duly signed by the persons making the statements, would be 'statement in writing signed by the parties'. The court, however, has to satisfy itself that the terms of the compromise are lawful. In this case we find from the trial court records that the second defendant had executed a vakalatnama empowering her counsel Sri Dinesh Garg to act for her in respect of the suit and also to enter into any compromise. Hence there can be no doubt that Sri Dinesh Garg was authorized by the second defendant to enter into a compromise. We also find that the counsel for the plaintiffs and counsel for the defendants made solemn statements on oath before the trial court specifying the terms of compromise, which were duly recorded in writing and signed by them. The requirements of the first part of Rule 3 of Order XXIII are fully satisfied in this case.” 18. In the present case, before coming to the statement made by the counsel, it would be pertinent to refer to the order dated 14.3.2007 passed in the case which reads as follows: “14.3.2007: Present:: Sh.G.C. Rattan, Adv. For appellant. Sh.P.S. Bhardwaj, Adv. For respondent No.1. Sh.Anil Thakur, Adv. vice Sh.J.R. Sharma, Adv. for Respondents No.2&3. The matter is fixed for further arguments but it appears that the parties may negotiate as has been disclosed by Sh.G.C. 11 Rattan, Adv. for the appellant that his client is ready to make the respondent owner of the land to the extent of 8-8 bighas which shall be sufficient for her livelihood. Sh.P.S. Bhardwaj, Adv. says that some time may be given upon such proposal of the appellant so that the matter may be conciled. Put up for conciliation on 1.5.2005 and in the alternative for arguments. Sd/- Addl. Distt. Judge, Ghumarwin, Distt.Bilaspur (HP).” 19. A bare perusal of this order shows that the proposal made by Sh.G.C. Rattan, learned counsel for the appellant husband that his client is ready to make the respondent-wife owner of the land to the extent of 8-8 bighas and thereafter Sh.P.S. Bhardwaj, learned counsel for the wife prayed for time to consider the proposal. The matter was then adjourned to 1.5.2007 and it was also clearly mentioned that if no reconciliation is arrived at the arguments would be heard. 20. On 1.5.2007 arguments were heard and the case was listed for orders on 15.5.2007. On 15.5.2007 the learned Judge observed that some record was not traceable and thereafter fixed the case for further orders on 6.6.2007. Then the record was summoned. Again on 6.8.2007 attempt for reconciliation was made but was not successful as the respondent was not ready to take 8-8 12 bighas of land as full owner. Thereafter, the matter was again listed for arguments on 14.9.2007. The matter finally was adjourned to 2.11.2007 again for arguments. It appears that arguments were heard and at that stage counsel had a mutual discussion and reconciled the matter. 21. Normally, this Court would be very reluctant to interfere in such a matter but the detailed history of the case shows that whenever the wife was present or consulted the same proposal had been rejected by her on two earlier occasions. Therefore, in a sense, there were instructions to the counsel not to compromise the matter by accepting ownership of 8-8 bighas. When the wife was not willing to accept 8-8 bighas of land as full owner, the counsel, in my opinion, could not have made a statement that stay order be confirmed qua 8-8 bighas only and be vacated qua the rest of the land. Impliedly his authority to make such statement had been withdrawn because of the flat refusal of the wife to accept 8- 8 bighas of land in full and final settlement. 13 22. One cannot also loose sight of the fact that the wife was granted possession of this land in lieu of her right of maintenance and in the civil suit filed by her, her right to hold the land till she is alive was confirmed. In fact the husband himself had in no uncertain terms stated in earlier proceedings that it is the wife who is in possession of his entire land and house. In such a situation, the possession of the wife had to be protected and when the wife was not willing to compromise the matter, the counsel had no authority to make a statement that the stay order be confirmed only qua 8-8 bighas of land and be vacated with regard to the rest of the land. 23. In view of the above discussion, I am of the considered view that the matter should not have been decided on the basis of the statement of the counsel. Therefore, the impugned order is set- aside and the matter is remanded to the lower Appellate Court who shall decide the appeal on merits after hearing the parties. The parties through their learned counsel are directed to appear before the learned lower Appellate Court 14 on 13th June, 2011. Till decision of the appeal the respondents shall not interfere in the possession of the wife over the suit land. 24. The petition is disposed of in the aforesaid terms. No costs. May 4, 2011 ( Deepak Gupta ), J. PV