Bidha v. Board of Revenue, U. P — 1986 DIGILAW 131 (ALL)

ORDER 1. By the present petition under Article 226 of Constitution the order dated 17th April, 1985 passed by the Board of Revenue is sought to be assailed. 2. The facts of the case lie in a narrow compass and they are these. A suit under S. 176 of the U. P. Zamindari Abolition and Land Reforms Act (for short the Act) for division of holdings was filed by respondent 2, Prem Pal Singh for partition of his ?th share in the land in dispute against the petitioner and respondents 3, 4 and 5. It is also pertinent to mention that the petitioner and respondents 3, 4 and 5 are real brothers. The suit was decreed for partition of ?th share on 30th Dec. 1982 and preliminary decree was directed to be prepared. Thereafter final decree was prepared on 24th Feb. 1983 and thereafter proceedings for dakhal started and dakhal was given on 14th May, 1983. Against this order of dakhal the petitioner along with respondents 3, 4 and 5 filed a joint application (Paper No. 9A/2) for recalling the order dated 14th May, 1983 and not for recalling the order dated 24th Feb. 1983 by which the final decree was prepared. This joint application of the petitioners and respondents 3 to 5 was dismissed by order dated 31st Dec. 1983. This order has been,filed as Annexure `CA 11' to the counter-affidavit filed by Prem Pal Singh. Thereafter the appeal was filed by the petitioner and the same has been dismissed on 22nd April, 1985. Thereafter the revision was filed by the petitioner before the Board of Revenue and the same was also dismissed on 1st Aug. 1985 by the Board of Revenue and a true copy of that order has already been filed as Annexure `1' to the supplementary counter- affidavit. 3. The present petitioner again filed a restoration application on 6th August, 1983 against the same order of delivery of possession. A true copy of this restoration application purporting to be under O. 9, R. 13, C.P.C. against the order of delivery of possession has been filed as Annexure `2' to the writ petition. An affidavit was also filed by the petitioner in support of the same and a true copy of the same has been filed as Annexure 1"2" to the petition. An affidavit was also filed by the petitioner in support of the same and a true copy of the same has been filed as Annexure 1"2" to the petition. In para 11 thereof it has been stated that the petitioner was deceived by Sri S. P. Garg, Advocate who was only engaged to file written statement and not to file joint objection earlier on 9th May, 1983 and that fraud was committed by the other brothers namely, Mohan etc. and respondent 2 and that he was reprimanded by Sri S. P. Garg, Advocate and thereafter he made an inspection of the record and then filed restoration application. That restoration application was allowed (also dismissed?) by the order dated 24th Feb. 1983. Thereafter a revision was filed by respondent 2 and the same was also dismissed by order dated 20th Sept. 1984 (Annexure `5' to the writ petition). Thereafter a revision was filed by respondent 2 which has been allowed by the Board of Revenue by the impugned order dated 17th April 1985. It is against this order that the present petition has been filed. 4. Sri R. N. Sharma, learned counsel for the petitioner, urged that the second proviso to R. 13 of O. 9, C.P.C. could not apply and that in the revision under S. 333 of the Act the findings of fact have been set aside. These findings of fact were that the petitioner had no knowledge about the order by which the delivery of possession was effected and that the counsel Sri Garg was authorised only to file written statement and not to file joint application to set aside the order of delivery of possession, that the petitioner was deceived by his real brothers respondents 3 to 5 and he did not put thumb impression or signature on the application dated 19th May, 1983. The dismissal of the restoration application filed by Mohan, respondent 3, the real brother of the petitioner or the second restoration application filed by Babu Lal, respondent 5 and another real brother of the petitioner shall have no effect on the present restoration application and the same has illegally been dismissed by the impugned order. 5. The dismissal of the restoration application filed by Mohan, respondent 3, the real brother of the petitioner or the second restoration application filed by Babu Lal, respondent 5 and another real brother of the petitioner shall have no effect on the present restoration application and the same has illegally been dismissed by the impugned order. 5. The learned counsel for the respondents, on the other hand, urged that the subsequent restoration of the petitioner was barred by second proviso to O. 9, R. 13, C.P.C. inasmuch as in view of the joint application filed by the petitioner on 19th May, 1983 (Paper No. 9-A2) it was clear that the petitioner had knowledge of the proceedings for delivery of possession and it was open for him to have challenged the final decree or the order directing delivery of possession either on that date or before that date. The petitioner had filed the restoration application on 6th Aug. 1983, hence he had knowledge about the order directing delivery of possession and even if there was any irregularity in the service of summonses on that account the restoration application cannot be allowed, and that Sri Garg, the counsel engaged by the petitioner for filing joint application dated 19th May, 1983, has an authority on the basis of vakalatnama (the power) executed in his favour to file written statement and also to file an application for setting aside the ex parte decree or any order that was ex parte and that the earlier applications were filed by the real brothers of the petitioner. Mohan, respondent 3, has filed application for restoration on 19th May, 1983 and the second restoration application was filed on 24th May, 1983 by Babu Lal, respondent 5 and both these applications were dismissed on 6th July, 1983 and thereafter no appeal or revision was filed by them and the same became final and the third time-barred restoration application has been filed by the petitioner on 6th Aug., 1983 was illegally allowed by the trial Court and the Additional Commissioner in revision and was correctly dismissed by the Board of Revenue allowing revision of contesting respondents. The earlier order dated 6th July, 1983 would also operate as res judicata inasmuch as two earlier restoration applications for the same purpose and between the same parties have been dismissed and that order became final and the delivery of possession was maintained. The earlier order dated 6th July, 1983 would also operate as res judicata inasmuch as two earlier restoration applications for the same purpose and between the same parties have been dismissed and that order became final and the delivery of possession was maintained. Board of Revenue correctly allowed the revision of respondents. The error committed by the Additional Commissioner and the trial Court in ignoring the provisions and correct import of Second Proviso to O. 9, R. 13, C.P.C. was corrected in the exercise of revisional jurisdiction under S. 333 of the Act which was equivalent to the provisions of S. 115, C.P.C. 6. In the present case as regards the applicability of the Second Proviso to R. 13, O. 9, C.P.C. if concerned, it is convenient to set out the same as below : "Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim." 7. From the bare reading of this Second Proviso it is apparent that if the Court deciding the restoration application comes to the conclusion that the defendant had notice.of the date of hearing and had sufficient time to appear and answer the plaintiffs claim and failed to do so, in that event even though there might be some irregularity in the service of the summons on the defendant but that would not justify the setting aside the ex parte order. The Board of Revenue, in my view, has taken the view that the Second Proviso to O. 9, R. 13, C.P.C. was lost sight of by the trial Court and the Additional Commissioner. 8. Before making the present application the petitioner had already filed an application along with his other brothers on 19th May, 1983 which was dismissed on 30th Dec., 1983 (Annexure `9' to the counter-affidavit). Against that the present petitioner has also filed an appeal and the revision which were dismissed on 22nd April, 1985 and on 1st Aug. 1985 (Annexure `1' to the supplementary counter-affidavit). The petitioner has concealed these facts and orders. 9. Against that the present petitioner has also filed an appeal and the revision which were dismissed on 22nd April, 1985 and on 1st Aug. 1985 (Annexure `1' to the supplementary counter-affidavit). The petitioner has concealed these facts and orders. 9. The moot point for consideration is whether Sri S. P. Garg, Advocate, was engaged only to file written statement in the suit and was not authorised to file a joint application dated 19th May, 1998 for restoration which was in favour of the petitioner. The statutory provision, bearing on the question, in so far as it is relevant is set out below : "Order 3, R. 4, - C.P.C. Appointment of pleader (1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised against or by some other person duly authorised by or under a power-of- attorney to make such appointment. (2) Every such appointment shall be filed in Court and shall, for the purposes of sub-rule (1), be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client. Explanation.......... (3) Nothing in sub-rule (2) shall be construed (a) as extending, as between the pleader and his client, the duration for which the pleader is engaged, or (b) as authorising service on the pleader of any notice or document issued by any Court other than the Court for which the pleader was engaged, except where such service was expressly agreed to by the client in the document referred to in sub-rule (1). (4) The High Court may, by general order, direct that, where the person by whom a, pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the order. (4) The High Court may, by general order, direct that, where the person by whom a, pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the order. (5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance signed by himself and stating- (a) the names of the parties to the suit; (b) the name of the party for whom he appears; and (c) the name of the person by whom he is authorised to appear : Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party." To this R. 4, O. 3, C.P.C. there is an explanation also indicating that proceeding in the suit would also include making an application for review of the decree or order in the suit and making an application for revision or to prefer an appeal etc. A bare reading of the aforesaid provision makes it clear that the authority of the advocate engaged is very comprehensive. The vakalatnama executed in favour of the advocate contains a number of powers that can be exercised including to appear, to enter into compromise and to make an application on behalf of the client. In the instant case, the joint application dated 19th May, 1983 was filed on behalf of the petitioner and his brothers for restoration for the benefit of the petitioner and similar another application was filed for restoration on 24th May, 1983 even though finally these applications were dismissed. Now the petitioner asserts that he did not engage Sri Garg to file an application for restoration rather he was engaged only to file the written statement. But it has not been averred nor there is any evidence that the authority of Sri Garg as an advocate to appear on behalf of his client, the petitioner, was curtailed or was cancelled by making any application by the petitioner. But it has not been averred nor there is any evidence that the authority of Sri Garg as an advocate to appear on behalf of his client, the petitioner, was curtailed or was cancelled by making any application by the petitioner. Unless the authority given to the counsel to act on behalf of the client was cancelled or curtailed it cannot be assumed that Sri Garg was engaged only to file the written statement and not to file the restoration application which was obviously in favour of the petitioner. In large number of cases it has been held that even though the client may not himself has signed any compromise rather his advocate himself might have compromised it without the consent of the client, nevertheless that is binding on the client as the power to compromise has been given in the Vakalatnama itself. Even earlier where power to compromise was not given in the Vakalatnama it was assumed that the power to compromise was inherent in the engagement of the counsel to act on behalf of the client. In Jang Bahadur Singh v. Shanker Rai, (1891) ILR 13 All 272 a Full Bench of this Court has held that a counsel, unless his authority to act for his client is revoked and such revocation is notified to the opposite side, has, by virtue of his retainer and without need of further authority, full power to compromise a case on behalf of his client, and the Court will not disturb a compromise so entered into, unless it appears that it was entered into under a mistake and that some palpable injustice has been thereby caused to the client. In Surendra Nath Mitra v. Tarubala Dasi, AIR 1930 PC 158 it was held that an advocate has, when briefed on behalf of a party in a subordinate Court, the implied authority of his client to settle the suit. He must be treated as though briefed on the trial of the suit, though he may be engaged to press an interlocutory application. The power to compromise a suit is inherent in the position of an advocate in India In Bhola Nath v. Pannal Lal, AIR 1947 All 382 it was held that an Advocate engaged by the holder of a decree can compromise the decree on behalf of his client without specific authority. The power to compromise a suit is inherent in the position of an advocate in India In Bhola Nath v. Pannal Lal, AIR 1947 All 382 it was held that an Advocate engaged by the holder of a decree can compromise the decree on behalf of his client without specific authority. In Babu Sheonandan Prasad Singh v. Abdul Fateh Mohammad Reza, AIR 1935 PC 119 it was held that legal practitioner has implied authority to compromise the suit, but the authority of the counsel so engaged can be withdrawn or limited by the client. In Employers in relation to Monoharbahal Colliery, Calcutta v. K. N. Mishra, AIR 1975 SC 1632 it was held that a compromise of appeal by the counsel was binding on the client. 10. In view of these cases and bare reading of O. 3, R. 4, C.P.C. makes it clear that the restoration application filed on behalf of the petitioner by Sri Garg was for the benefit of the petitioner himself and it was not an act against his interest even though that application might have been dismissed on merits. It is not open to the petitioner when he is making the subsequent applications to plead that even though the earlier applications made on his behalf were made when his advocate was not authorised to make the restoration applications, rather he was ably authorised to file a written statement. This submission of the learned counsel for the petitioner accordingly is devoid of merits. 11. I turn next to consider the submission whether findings of fact have been interfered with in exercise of revisional powers under S. 333 of the Act which is equivalent to S. 151, C.P.C. suffice it to say that the second proviso to R. 13, O. 9, C.P.C. which was ignored by the trial Court and the Additional Commissioner and the same was correctly noticed and applied by the Board of Revenue, imposes a restriction on the jurisdiction of the trial Court to the effect that even on the finding that there was some irregularity in the service of summons the ex parte decree or order cannot be set aside if the Court is satisfied that the defendant had knowledge or notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim. In the instant case the trial Court completely lost sight of the Second Proviso which was mandatory and in accordance with the scope of this Second Proviso the trial Court should not have allowed the restoration application filed by the petitioner inasmuch as the earlier two restoration applications on behalf of the petitioner have already been dismissed on merits. The petitioner has accordingly full knowledge of the order against him and no notice was required to be served on him. Hence I am of the opinion that there was no question of setting aside the findings of the fact by the Board of Revenue, rather in the circumstances and on the facts of the case the Board of Revenue has correctly applied the provisions of the Second Proviso to R. 13, C.P.C. and the restoration application has been correctly rejected. Under these circumstances this submission is also devoid of merits. 12. In view of the discussions made hereinbefore, the writ petition lacks merit and deserves to be dismissed. 13. In the result, the petition fails and it is accordingly dismissed without any order as to costs.