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NaraIn Singh and ors. Vs. Har Bux Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Case NumberSecond Appeal No. 71 of 1944
Judge
Reported inAIR1953All312
ActsOaths Act, 1873 - Sections 9
AppellantNaraIn Singh and ors.
RespondentHar Bux Singh and ors.
Appellant AdvocateR.B. Lal and ;R.B. Chaudhri, Advs.
Respondent AdvocateHyder Husain, Adv.
DispositionAppeal dismissed
Excerpt:
.....that if an advocate is authorised to conduct the case as well as to file and withdraw applications which are material in the course of the case, he must also be deemed to be authorised to make an offer under section 9, oaths act......present in person with their advocate, mr. durga dayal, and the defendants were represented by mr. ajodhia prasad. only one of the defendants, jagmohan singh, respondent 4 was present in person. on 20-10-1943 the court recorded the following proceedings: 'parties and their pleaders agree that if raj bahadur singh, plaintiff 2 states with 'gangajali' in his hand that the defendants have encroached upon the plaintiffs' land and the encroached portion is not on the old foundation, the suit be decreed with costs, otherwise dismissed.' this proceeding is signed by the pleaders of the parties as well as by jagmohan singh. thereafter raj bahadur singh stated on oath, with 'gangajali' in his hand, that the defendants had encroached on the plaintiffs' land as shown by the commissioner in his plan.....
Judgment:

Kidwai, J.

1. Respondents 1 to 3 instituted a suit in the Court of the Munsif, Barabanki, for recovery of possession of certain land which formed part of 'ahata no. 1 in village Telwari in the district of Barabanki by demolition of constructions standing upon it and by removal of certain pegs and other alleged encroachments. The suit was contested by the defendants and the trial Court framed four issues.

2. On the date fixed for evidence namely 20-10-1943 the plaintiffs were present in person with their advocate, Mr. Durga Dayal, and the defendants were represented by Mr. Ajodhia Prasad. Only one of the defendants, Jagmohan Singh, respondent 4 was present in person. On 20-10-1943 the Court recorded the following proceedings:

'Parties and their pleaders agree that if Raj Bahadur Singh, plaintiff 2 states with 'Gangajali' in his hand that the defendants have encroached upon the plaintiffs' land and the encroached portion is not on the old foundation, the suit be decreed with costs, otherwise dismissed.'

This proceeding is signed by the pleaders of the parties as well as by Jagmohan Singh. Thereafter Raj Bahadur Singh stated on oath, with 'Gangajali' in his hand, that the defendants had encroached on the plaintiffs' land as shown by the commissioner in his plan and the encroached portion is not on the old foundation. The parties closed their case and the judgment was delivered on the same day. The plaintiffs' suit for possession by demolition of constructions and by grant of perpetual injunction was decreed.

3. All the defendants except Jagmohan Singh appealed. In appeal before the learned Civil Judge id was contended that Pt. Ajodhia Prasad had no authority to abide by the special oath of plaintiff 2 and that in any case the Court should have determined the objections to the commissioner's report filed by both the parties. The learned Civil Judge held that Pt. Ajodhia Prasad had the necessary authority and that it was not necessary in view of the statement of plaintiff 2 on oath, to go into the objections to the commissioner's report. He accordingly dismissed the appeal.

4. The same defendants have now come up in appeal and their learned advocate has pressed the first point of objection, namely that Pt. Ajodhia Prasad had no authority. The Vakalatnama under which Pt. Ajodhia Prasad acted authorised him to present appeals or any other application or to make oral statements or to confess judgment or to file compromise or to withdraw the suit or any application. It further authorised him to prosecute the case (Original in Urdu). The last paragraph stated that the vakil should not have authority to do anything else without the permission of his client. On a constructin of this vakalatnama the learned lower Court, in accordance with the principle laid down in Mathura Prasad v. Sita Ram, 1940 oudh W. n. 662 at pp. 666 to 668, held that Pt. Ajodhia Prasad had authority to abide by the special oath of one of the plaintiffs.

5. It is contended that Mathura Prasad v. Sita Ram, 1940 oudh W. N. 662, does not lay down the correct law. The appellants' learned advocate contended that whatever is required by Section 9, Oaths Act, to be done is required to be done by the party himself and cannot be done through an agent. In support of this contention he relied upon Sadashiv Rayaji v. Maruti Vithal, 14 Bom. 455, in which that interpretation has been placed upon Section 9. This interpretation does not seem to be borne out by the words of Section 9 itself. A proviso to that section is as follows :

'Provided that no party or witness shall be compelled to attend personally in Court solely for the purpose of answering such question.'

If the word 'party' in this section meant a party himself then the word personally is redun-dant and should not have been used. We cannot ascribe to the Legislature any intention of using redundant word and, if it is possible to do so, meaning must be given to every word used. In the present case the use of this word 'personally' means that an answer may be given through an agent, that is to say the offer to abide by the special oath under Section 9 may be accepted not by party personally but by a party through an agent even. There is no reason why the offer itself may not be made through an agent. In this connection the Arbitration Act may be referred to. If under Section 21, Arbitration Act, which authorises a party interested to agree to refer a matter to arbitration, a reference may be made through a vakil or mukhtar, there is no reason why it should not be possible to make an offer under Section 9 also through an agent. Reference can also be made to Order 3, Civil P. C. Thus it is not possible to agree with the opinion of the Bombay High Court that it is the party alone that could offer to abide by the special oath under Section 9, Oaths Act.

6. In Wasi-ul-zaman Khan v. Mt. Faiza Bibi, 38 ALL. 131, a Bench of the then Allahabad High Court also differed from Sadashiv Rayaji v. Maruti Vithal, 14 Bom. 455, and held that it was possible for a duly authorised agent of a party to make an offer contemplated under Section 9. The same view was taken in Amir v. Mohamad Bakhsh, 5 oudh W. N. 1070. In the present case, therefore, it was possible for the client of Pt. Ajodhia Prasad to act through him in making the offer.

7. Another question that arises is whether Pt. Ajodhia Prasad had authority in his vakalatnama to make the offer which he did. The purport of the power has already been stated. Pt. Ajodhia Prasad was authorised to do 'pairvi' and to present all applications. He could even confess judgment or withdraw a case or any application made by him. His power was, therefore, very extensive, It is true that it was not unlimited because it is specifically stated in the last paragraph that if he does anything which is beyond the scope of the authorised provisions of the vakalatnama it will not be binding upon his clients. In Mathura Prasad v. Sita Ram, 1940 oudh W. N. 662, it is further laid down that the power to make an offer under Section 9, Oaths Act, is inherent in the conduct of the case by an advocate and that if an advocate is authorised to conduct the case as well as to file and withdraw applications which are material in the course of the case, he must also be deemed to be authorised to make an offer under Section 9, Oaths Act. As I have already stated the correctness of the law laid down in this decision is challenged. I do not, however, see my way to differ from this authority on the point but there are at least two earlier Avadh cases, namely, Amir v. Mahomde Bakhsh 5 oudh w. N. 1070 and Mt. Jasoda v. Gopal, 8 oudh W. N. 880. I, therefore, agree with the lower appellate Court that Pt. Ajodhia Prasad had authority to abide by the special oath of plaintiff 2.

8. The result, therefore, is that the appeal fails and is dismissed with costs. Stay order dated 7-3-1944 is vacated.


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