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2015 DIGILAW 525 (ORI)

PRAFULLA KUMAR DASH v. JAGANNATH DAS

2015-09-04

A.K.RATH

body2015
JUDGMENT : Dr. Akshaya Kumar Rath, J - By this petition under Article 227 of the Constitution of India, the petitioner seeks to quash the order dated 24.2.2005 passed by the learned Addl. District Judge, Fast Track, Aska in FAO No. 8 of 2004 dismissing the same and thereby confirming the order dated 28.7.2001 passed by the learned Civil Judge (Senior Division), Aska in MJC No. 14 of 1997 whereby and whereunder the application filed by the petitioner to review the order dated 4.2.1997 passed in Execution Proceeding No. 16 of 1989 was rejected. 2. The short facts of the case are that the petitioner as plaintiff filed a suit being T.S. No. 34 of 1987 for a declaration of right, title and interest and recovery of possession of suit schedule land in the court of learned Subordinate Judge, Aska (now designated as Civil Judge (Senior Division), Aska). The suit was decreed on 6.1.1989. Thereafter, he filed Execution Case No. 16 of 1989 for execution of the decree. The case was posted to 4.2.1997. The advocate for the petitioner filed a memo stating therein that the decree-holder did not want to press the execution proceeding. On the basis of the said memo, executing court closed the execution proceeding. 3. While the matter stood thus, on 18.2.1997 a petition was filed under Order 21 Rule 106 CPC by the petitioner-decree-holder to set aside the order dated 4.2.1997 and to restore the case to file on the ground that he had not instructed his advocate not to press the execution proceeding, nor any compromise was effected between the parties. The said petition was registered as MJC No. 14 of 1997. During pendency of the said case, the petitioner filed a petition on 16.3.2001 to amend the original petition to convert the same to a petition under Order 47 Rule 1 CPC read with Section 151 CPC. The same was allowed by the learned court below. The opposite party filed a counter to the said petition contending, inter alia, that the compromise entered into between the parties out of court for which the advocate for the petitioner filed a compromise petition on 4.2.1997. By order dated 28.7.2001, the learned Executing Court dismissed the petition and dropped the execution case. The petitioner had unsuccessfully challenged the same before the learned Addl. District Judge, Fast Track, Aska in FAO No. 8 of 2004. By order dated 28.7.2001, the learned Executing Court dismissed the petition and dropped the execution case. The petitioner had unsuccessfully challenged the same before the learned Addl. District Judge, Fast Track, Aska in FAO No. 8 of 2004. The same was eventually dismissed on 24.2.2005. 4. Heard Mrs. Sujata Jena, learned counsel for the petitioner. None appears for the opposite party in spite of valid service of notice. 5. The seminal point that hinges for consideration of this Court is as to whether the learned Civil Judge (Senior Division), Aska was justified in closing Execution Proceeding No. 16 of 1989 on the basis of a memo filed by the learned counsel for the decree-holder, when the decree-holder had not authorised the learned counsel to do so? 6. The subject-matter of dispute is no more res integra. An identical matter came up for consideration before the apex Court in the case of Himalayan Cooperative Group Housing Society Vs. Balwan Singh(2015) 9 AD (SC) 501 : AIR 2015 SC 2867 : (2015) 3 RCR(Civil) 394 : (2015) 6 SCALE 731 : (2015) 7 SCC 373 . The appellant therein is a Cooperative Society registered under the provisions of the Delhi Cooperative Societies Act. The appellant-Society comprised of 150 members, including the respondents, who had enrolled themselves with the Society for allotment of residential quarters/apartments. The appellant-Society raised a demand for payment towards allotment of residential quarters/apartments on 28.05.1998. The respondents failed to comply with the demand. They continued to be defaulters in spite of continuous demand notices. Thereafter, the appellant-Society had passed a resolution expelling the respondents from the membership of the Society after following the due procedure. Since the resolution required confirmation of the Registrar of the Co-Operative Societies under Rule 36 of the Delhi Co-Operative Societies Rules, the same was placed before the Registrar for his consideration and approval. By order dated 29.01.2004, the Registrar, Cooperative Societies approved the resolution passed by the appellant-Society. The Registrar provided a last opportunity to the respondents to pay their outstanding dues to the appellant-Society within four weeks, failing which, their expulsion from the appellant-Society would come into effect. The respondents had not complied with the aforesaid order. The said resolution stood confirmed and the respondents ceased to be the members of the appellant-Society. Thereafter, the respondents filed an appeal before the Presiding Officer, Delhi Co-operative Tribunal challenging, inter alia, the aforesaid order. The respondents had not complied with the aforesaid order. The said resolution stood confirmed and the respondents ceased to be the members of the appellant-Society. Thereafter, the respondents filed an appeal before the Presiding Officer, Delhi Co-operative Tribunal challenging, inter alia, the aforesaid order. On a later date, they withdrew the said appeal and preferred Revision before the Financial Commissioner, Government of NCT of Delhi. The Revisional Authority came to hold that Registrar has rightly confirmed the expulsion of the membership of the Society and dismissed the revision petitions by order dated 24.02.2005. Thereafter, the respondents approached the writ court. In the writ petition filed, their main prayer was to set aside the orders passed by the Registrar and the revisional authority by exercising supervisory jurisdiction of the Court. The writ court on consideration of the contentions raised in the writ petition came to hold that the Registrar and the revisional authority had not committed any error in arriving at their respective conclusions and had rightly confirmed the resolution expelling the respondents from the membership of appellant-Society. It was observed that the respondents had not made out a case for interference with the orders of the authorities below. However, on a request made by the respondents seeking issuance of direction to the appellant-Society for consideration of their request to construct and allot the additional quarters/apartments to them, the same being agreeable to by the learned counsel appearing for the appellant- Society, the Court had issued certain directions to the appellant-Society for construction of additional quarters/apartments and their allotment to the respondents, by judgment and order dated 25.11.2010. Thereafter, the appellant-Society had filed review petitions against the aforesaid common judgment and order of the writ court contending, inter alia, that the appellant-society had not authorized the learned counsel to appear for them before the writ court to make any concession in favour of the respondents. The said review petitions were confined to the limited question of feasibility of implementation of the directions issued by the writ court in the impugned judgment and order. The High Court dismissed the review petitions on 12.10.2012. Thereafter, the appellant-society filed special leave petitions before the apex Court assailing the judgment and order of the High Court. Interpreting the provisions of the Bar Council of India Rules, 1975, the apex Court in paragraphs 22, 31, 32 and 33 of the report held as follows: "22. The High Court dismissed the review petitions on 12.10.2012. Thereafter, the appellant-society filed special leave petitions before the apex Court assailing the judgment and order of the High Court. Interpreting the provisions of the Bar Council of India Rules, 1975, the apex Court in paragraphs 22, 31, 32 and 33 of the report held as follows: "22. Apart from the above, in our view lawyers are perceived to be their client's agents. The law of agency may not strictly apply to the client - lawyer's relationship as lawyers or agents, lawyers have certain authority and certain duties. Because lawyers are also fiduciaries, their duties will sometimes be more demanding than those imposed on other agents. The authority-agency status affords the lawyers to act for the client on the subject matter of the retainer. One of the most basic principles of the lawyer-client relationship is that lawyers owe fiduciary duties to their clients. As part of those duties, lawyers assume all the traditional duties that agents owe to their principals and, thus, have to respect the client's autonomy to make decisions at a minimum, as to the objectives of the representation. Thus, according to generally accepted notions of professional responsibility, lawyers should follow the client's instructions rather than substitute their judgment for that of the client. The law is now well settled that a lawyer must be specifically authorised to settle and compromise a claim, that merely on the basis of his employment he has no implied or ostensible authority to bind his client to a compromise/settlement. To put it alternatively that a lawyer by virtue of retention, has the authority to choose the means for achieving the client's legal goal, while the client has the right to decide on what the goal will be. If the decision in question falls within those that clearly belong to the client, the lawyer's conduct in failing to consult the client or in making the decision for the client, is more likely to constitute ineffective assistance of counsel. xxx xxx xxx 31. Therefore, it is the solemn duty of an advocate not to transgress the authority conferred on him by the client. It is always better to seek appropriate instructions from the client or his authorized agent before making any concession which may, directly or remotely, affect the rightful legal right of the client. xxx xxx xxx 31. Therefore, it is the solemn duty of an advocate not to transgress the authority conferred on him by the client. It is always better to seek appropriate instructions from the client or his authorized agent before making any concession which may, directly or remotely, affect the rightful legal right of the client. The advocate represents the client before the court and conducts proceedings on behalf of the client. He is the only link between the court and the client. Therefore his responsibility is onerous. He is expected to follow the instructions of his client rather than substitute his judgment. 32. Generally, admissions of fact made by a counsel are binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions. Furthermore, a client is not bound by a statement or admission which he or his lawyer was not authorised to make. A lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed. We hasten to add neither the client nor the court is bound by the lawyer's statements or admissions as to matters of law or legal conclusions. Thus, according to generally accepted notions of professional responsibility, lawyers should follow the client's instructions rather than substitute their judgment for that of the client. We may add that in some cases, lawyers can make decisions without consulting client. While in others, the decision is reserved for the client. It is often said that the lawyer can make decisions as to tactics without consulting the client, while the client has a right to make decisions that can affect his rights. 33. We do not intend to prolong this discussion. While in others, the decision is reserved for the client. It is often said that the lawyer can make decisions as to tactics without consulting the client, while the client has a right to make decisions that can affect his rights. 33. We do not intend to prolong this discussion. We may conclude by noticing a famous statement of Lord Brougham: "an advocate, in the discharge of his duty knows but one person in the world and that person is his client." The law laid down by the apex Court in the case of Balwan Singh (supra) applies with full force to the facts and circumstances of the present case. 7. The Execution Proceeding was posted to 4.2.1997. On that day, the learned counsel for the decree-holder entered appearance and filed a memo stating therein not to proceed with the case. Basing on the said memo, learned court below dropped the case. Immediately thereafter the petitioner filed a petition to set aside the said order on the ground that neither he had instructed his counsel not to proceed with the execution proceeding, nor there was any compromise between the parties. Though subsequently an application for amendment was filed to convert the same to a petition under Order 47 Rule 1 CPC, but this Court is of the opinion that the same is misconceived. The petitioner, who was examined as P.W., in his evidence stated that he had not authorized his advocate not to proceed with the case. Though he was subjected to extensive cross-examination, but nothing substantial was elicited. The judgment debtor-opposite party had no occasion to know what transpired between the petitioner and his advocate. He made a bald statement that there was a compromise between the parties out of court, which had been categorically denied by the petitioner. 8. Thus the irresistible conclusion is that the learned counsel for the petitioner in the court below had travelled beyond his jurisdiction and filed a memo. The valuable right of the petitioner to execute the decree cannot be extinguished on the basis of a memo filed by the learned counsel. The courts below have not considered the case in its proper perspective and adopted a hyper-technical approach. 9. In view of the same, the order dated 24.2.2005 passed by the learned Addl. The valuable right of the petitioner to execute the decree cannot be extinguished on the basis of a memo filed by the learned counsel. The courts below have not considered the case in its proper perspective and adopted a hyper-technical approach. 9. In view of the same, the order dated 24.2.2005 passed by the learned Addl. District Judge, Fast Track, Aska in FAO No. 8 of 2004 and the order dated 28.7.2001 passed by the learned Civil Judge (Senior Division), Aska in MJC No. 14 of 1997 are quashed. The learned trial court is directed to proceed with the Execution Proceeding No. 16 of 1989. The petition is allowed. Final Result : Allowed