H.M. Noordeen vs J.M. Sultan and Others

S.S. Subramani, J.—The very same petitioner came to this Court on an earlier occasion in C.R.P.No. 2765 of 1997, seeking to set aside

the order of Scheme Court on 23.9.1997. At that time, 1 did not admit the revision petition on the ground that the, remedy of the petitioner lies

only before the civil court by filing a review application. Petitioner is a successful bidder of the auction held on 22.7.1997 which entitles: him to

have the entire hundial collection of the Nagore Dargha for the months of September and October, 1997. He bid in the auction for Rs. 29,80,000.

He was asked to deposit a sum of Rs. 14,77,500 being 50% of the bid amount after deduction a sum of Rs. 25,000 which was already deposited

at the time of participating in the bid. For the remaining 50% of the amount, he was asked to furnish necessary security, which was also made. The

period of collection is from 1.9.1997 to 31.10.1997. While petitioner was making the collections, third respondent filed I.A.No. 58 of 1997 on

29.8.1997 falsely alleging that the petitioner has not deposited the security amount for 50% of the bid amount, and prayed for cancellation of the

auction. It seems that this I.A.No. 58 of 1997 filed by third respondent came for arguments. Learned Counsel for petitioner before the lower court

as well as counsel for third respondent wanted to get an agreed order. On the basis of the agreement submitted before the lower court, all the 32

hundials in the Durgah were sealed with court seal by officer of court, and the hundials should be opened by the court officer and the amount

should not be deposited into the State Bank of India. It was this order that was challenged in C.R.P.No. 2765 of 1997, alleging that the petitioner

did not authorise his counsel to make a joint endorsement or accept any proposal given by court. At any rate, petitioner says that he is entitled to

collect the entire fees. According to him, the counsel did not have the authority to make such a statement to seal the 32 hundials without his

consent.

Pursuant to my direction in C.R.P.No. 2765 of 1997, petitioner filed I.A.No. 62 of 1997 bringing to the notice of the scheme court that the

compromise memo was not signed by the parties and the Scheme Court should review its order dated 23.9.1997. When no orders were passed

on those applications, petitioner again came to this Court, and I gave a direction to the lower court to dispose of the application within a time

schedule.

By the impugned Order, the lower court dismissed I.A.No. 62 of 1997 holding that the order that was passed earlier was really one of consent

and petitioner is not entitled to reopen the same for the reasons stated in the C.R.P. It is against that order, the present civil revision petition is filed.

I do not think that there is any merit in this civil revision petition.

The only argument put forward by learned Counsel is that so far as the petitioner is concerned, when he has not given any consent, his counsel

cannot give consent to a compromise which is detrimental to him.

After hearing learned Counsel for respondents, I do not think that the submission of learned Counsel for petitioner has any substance.

In a recent decision of the Honourable Supreme Court reported in Byram Pestonji Gariwala Vs. Union Bank of India and others, , their

Lordships have considered the power of advocate while exercising his authority. Their Lordships have held that even after the Amendment of the

CPC in 1976; it remains the same. If the petitioner again stresses about any right to participate in the bid, it can only be through court of law, for

which petitioner has obtained necessary permission.

After hearing learned Counsel on both sides, I feel that the present revision petition is frivolous. It is admitted by the petitioner himself that an

application was filed by third respondent to set aside the sale. Petitioner also received notice of the same and the court adjourned the matter for

filing objections. It was at that time, learned Counsel for petitioner himself submitted that all the 32 hundials can be kept under lock and key by

court. The said order was passed by the lower court on the assumption that the petitioner herein has not furnished security for 50% of the bid

amount. Though the representation made before the tribunal was wrong, an order of injunction was passed. Naturally, the collections could not be

realised by the petitioner, and it was at that time learned Counsel for petitioner before the lower court agreed with the suggestion put forth by

learned Counsel for third respondent therein, i.e., these hundials could be sealed. The concession given by learned Counsel is recorded in the order

of lower court? and the lower court has also stated that it is only in pursuance of the agreement between the parties, the order has been passed

sealing 32 hundials. When that order was challenged in the earlier revision petition, I refused to entertain the same holding that a remedy by way of

review is available. When review application was filed, the lower court found that there was no error apparent on the face of records and what he

has recorded is only what transpired before court. It refused to entertain the review application. It is that order that is challenged in this revision

petition.

In the decision reported in Byram Pestonji Gariwala Vs. Union Bank of India and others, , in paragraph 38 to 40 and 43, their Lordships

considered the role of a counsel and his powers. They read thus:

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 their 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.

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 fundamental 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 C.P.C. (Amendment) Act, 1976, must necessarily mean, to borrow the language of Order 3,

Rule U C.P.C. ''any appearance, application or act in or to any court, required or authorised 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

recognised 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.

(underscored portion is in Italics in the Reports by way of emphasis) (paras 38 to 40) ""A judgment by consent is intended to stop litigation

between the parties just as much as 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 and Turner in res judicata, (2nd Edn. page 3 7):

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.

Their Lordships declared the above law after the Amendment to the CPC in 1976 which insisted the signature or the parties to the compromise.

Their Lordships said that even though the signature of the parties is not there, when the counsel signed it, that is valid. The same principle will have

to apply in this case also. The counsel has got the authority to represent the case of the petitioner and it is for him to decide how to protect the best

interests of his client. In this case, learned Counsel made representation to seal the hundials when the action of the petitioner was sought to be

questioned. In spite of the Review Application, the lower court has asserted that what it has recorded in the earlier order is really what transpired

before the court.

When the lower court has asserted that it has recorded what transpired before it in court, I do not think that the petitioner can successfully

represent before this Court that the order of the lower court is wrong. The review petition, in my opinion, was rightly dismissed:

Learned Counsel for petitioner submitted that he has auctioned for more than Rs. 25 lakhs, and by virtue of this concession, he has lost every

thing. The contributions and offerings by the worshipers are also taken by second respondent. In those circumstances, petitioner wanted the

amount paid by him to be refunded and the security must be released. Once I hold that the counsel has acted in good faith and properly, petitioner

will not be entitled to refund of the amount or for cancellation of the security.

In the result, the civil revision petition is dismissed. No costs. Connected C.M.P. is also dismissed.