Satya Narain vs Balchand and others

Wanchoo, C.J.—This is an appeal by Satya Narain who was defendant in the suit against the judgment and decree of the Civil Judge, Ratangarh.

The suit was filed by Balchand and others against Nemchand and his sons Ramprasad and Satya Narain on 27-1-1949. It was based on a foreign judgment passed by the Bombay High Court on 11-3-1946, against the three defendants. The judgment and decree of the Bombay High Court were based on a compromise between the parties.

The suit was resisted by the three defendants, and two main points were urged on their behalf: (1) that the advocate who compromised the suit in the Bombay High Court had no power to do so and, therefore, the judgment dated 11-3-1948, was not binding on the defendants, and could not be treated as a conclusive judgment within the meaning of S. 13, Civil P.C. and (2) that in any case, even if the advocate had power to compromise, a judgment based on a compromise could not be conclusive under S. 13 Civil P.C., in view of clause (b) of that section.

Both these points were decided against the defendants, and the trial court passed a decree in accordance with the foreign judgment. The present appeal is only by one of the defendants, the other two defendants having been made ''proforma'' respondents. There were other points raised in the trial court but we need not refer to them as learned counsel for the appellant has only urged these two points before us.

We shall first deal with the question whether the advocate who appeared in the Bombay High Court had the power to compromise the suit on behalf of the defendants. The facts in that connection are clear from the evidence of Framroze Hormasji Vakeel P.W. 1 who was an attorney for the defendants in the suit on the original side of the Bombay High Court. His evidence makes it clear that the same firm of attorneys was representing the three defendants though they filed separate written statements. A perusal of the written statements filed on behalf of the defendants, however, shows that though the written statements were separately filed the defendants took exactly the same defence except that the sons said that they were not necessary parties to the suit. It was also admitted in the written statements that the three defendants formed a joint Hindu family of which the father namely, Nemchand, defendant No. 1, was the ''Karta''.

It further appears that the same advocate namely Sri H.M. Seervai represented all the three defendants in that Court. It is also clear that defendant No. 1, namely, Nemchand, was present on 11-3-1948, in Bombay and there was a conference between him, his attorneys and the advocates. Thereafter the case came up before the Court, and defendant No. 1 Nemchand with his counsel was present there when the counsel compromised the suit.

On these facts, it cannot in our opinion be said that the counsel had no authority to compromise the suit on behalf of all the defendants. Learned counsel for the appellant lays stress on a sentence in the statement of Framroze Hormasji Vakeel P.W. 1, where he said that the compromise had been made at the instance of defendant No. 1. That, however, does not mean that there was no compromise on behalf of defendants Nos. 2 and 3. To our mind, it only means that it was defendant No. 1 who was responsible for the compromise having taken place. But considering that defendant No. 1 was the father of defendants 2 and 3 and the manager of the joint Hindu family consisting of himself and his two sons, he was obviously compromising as the head of the family on behalf of them all.

We may also point out that it is no one''s case that the advocate was appointed on the basis of any written Vakalatnama. As such he would have, in our opinion, the power to compromise the suit as held by their Lordships of the Privy Council in - ''Sourendra Nath v. Tarubala Dasi'', AIR 1930 PC 153 (A). Their Lordships laid down that:

An advocate of the High Court has, when briefed on behalf of a party in a subordinate court, the implied authority of his client to settle the suit. The power to compromise a suit is inherent in the position of an advocate in India. The considerations which have led to this implied power being established in the advocate of England, Scotland and Ireland, apply in equal measures in India.

The only qualification which their Lordships laid down to this general power of an advocate to compromise was that:

Where the legal representative in Court of a client derives his authority from an express written authority, such as a Vakalatnama, different considerations may well rise, and in such cases their Lordships express no opinion as to the existence of any implied authority of the kind under discussion.

We are, therefore, of opinion, firstly, that Sri Seervai was authorised by defendant No. 1 on behalf of himself and his sons to compromise, and secondly, as Sri Seervai was appearing without any Vakalatnama, he had an implied authority on behalf of his clients to compromise the suit and there is nothing to show that there were any express directions of his clients to him not to Compromise the suit, countermanding the implied authority which he had.

The next question is whether clause (b) of S. 13 Civil P.C., applies to this case. A foreign judgment is conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except where it has not been given on the merits of the case. Learned counsel for the appellant urges that as the decree was based on compromise, it was not given on the merits of the case and, therefore, it is not a conclusive judgment. He has been unable to show us a single authority in support of the very wide proposition which he asks us to accept. We may in this connection briefly refer to certain authorities.

In - ''Keymer v. Viswanatham'', AIR 1916 PC 121 (B), a question arose whether a foreign judgment which had been entered on failure by defendant to answer interrogatories was a judgment on the merits or not. Their Lordships of the Privy Council held that such a judgment was not a judgment on the merits, as the contentions raised in the action had not in fact been the subject of direct adjudication by the foreign court, and its judgment was not one given on the merits within the meaning of the exception in S. 13(b) Civil P.C.

The facts of that case, however, were entirely different. The judgment appears to have been passed as a penalty for not answering interrogatories, and no evidence seems to have been taken to support the case of the plaintiff even ''ex parte''. This case, therefore, does not help the appellant.

The next case is - Gudemetla China Appalaraju Vs. Kota Venkata Subba Rao, The facts of that case were of a peculiar nature. What happened there was that both parties went to the Yanam court in the French possession in India with a drafted compromise and a decree was passed on the strength of that compromise. The decree appeared to have been given mechanically in accordance with a prescribed rule and it was in effect a mere recognition by the court of an arrangement already arrived at between the parties. Therefore, the Madras High Court held that it could not be said that the decree of the Yanam Court was a decision on the merits.

That seems to us to be a very peculiar case based on some rule in Yanam in French India. The decision in such a peculiar case does not in our opinion, apply to a case of an ordinary compromise in what were British Indian courts formerly, and is no authority for the view that judgments of foreign courts on compromise are not judgments on merits.

The next case is - B. Nemichand Sowcar Vs. Y.V. Rao, In that case the judgment of the Mysore court was to be enforced in Madras under S. 13 Civil P.C. The defendant had appeared in the Mysore court and filed a written statement but on the day of hearing, he remained absent, and the court thereupon without taking any evidence whatsoever passed a decree in favour of the plaintiff. It was then held that the judgment was not given on merits and was not, therefore conclusive. The learned Judge was, however, careful to point out that had the plaintiff given sufficient evidence to cover the contents of his plaint, no objection whatsoever could have been raised to the decree.

If, therefore, an ''ex parte'' decree which was based on evidence is a judgment on merits, we feel that a judgment based on a compromise entered into by the parties is in no worse position, the place of evidence in such a case being taken by the consent of the defendants. What happened in this case was that the defendants originally contested the suit and filed their written statements. Later on, they decided to compromise the matter and a decree was passed on the basis of the compromise arrived at between the parties. We are of opinion that such a decree must be held to be conclusive and cannot be held to be one not on the merits. It may incidentally be mentioned that under the law in force in Bombay, it was not possible for the defendant even to appeal in view of S. 96(3), Civil P.C. We are therefore, of opinion that there is no force in this contention, and the decree must be held to be conclusive being on the merits.

Learned counsel for the appellant wanted to raise a new point in this Court for the first time today, viz., that by the time the judgment came to be passed by the trial court, namely, 10-3-1951, the Bombay court was no longer a foreign court and, therefore, the suit should not have been proceeded any further. The matter is not free from difficulty, and as the point was not raised either in the trial Court at any stage or in the grounds of appeal, we are not prepared in the circumstances of this case to allow the appellant to raise this point for the first time today.

There is no force in this appeal and it is hereby dismissed with costs to the plaintiffs respondents.