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Chuni Lal Mandal Vs. Hira Lal Mandal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1928Cal378
AppellantChuni Lal Mandal
RespondentHira Lal Mandal and anr.
Cases ReferredNeale v. Gordon Lennox.
Excerpt:
- .....for the plaintiff and by mr. mitter for defendant 2, though it does not appear that any of the learned counsel actually signed the proposed terms. thereupon an order was made by consent embodying the terms recorded, giving the parties liberty to apply during the enquiry which was to be held by mr. h.k. mitter, barat-law. on the following day mr. mitter informed the court that his client nistarini dassi was not prepared to accept the terms embodied in the agreement. notice was thereupon given to the other two learned counsel and the matter was heard upon affidavit.4. mr. mitter informed the court from his place at the bar that, in consenting to the terms proposed, he was acting under a misapprehension as to the extent of the rights which his client had conferred upon him. he was not.....
Judgment:

Chotzner, J.

1. This is an application to vacate a decree made by this Court by consent of parties on 15th December 1926.

2. The parties to the litigation are related to each other as sons and mother, the plaintiff and defendant 1 being sons and defendant 2 being the mother.

3. After the case had been opened and one witness was being examined certain terms were put in by Mr. Roy who appeared for defendant 1 and these were accepted by Mr. Ghose for the plaintiff and by Mr. Mitter for defendant 2, though it does not appear that any of the learned Counsel actually signed the proposed terms. Thereupon an order was made by consent embodying the terms recorded, giving the parties liberty to apply during the enquiry which was to be held by Mr. H.K. Mitter, Barat-Law. On the following day Mr. Mitter informed the Court that his client Nistarini Dassi was not prepared to accept the terms embodied in the agreement. Notice was thereupon given to the other two learned Counsel and the matter was heard upon affidavit.

4. Mr. Mitter informed the Court from his place at the Bar that, in consenting to the terms proposed, he was acting under a misapprehension as to the extent of the rights which his client had conferred upon him. He was not clear at the time when he consented that any restrictions had been put upon them and, therefore, he did not consider himself justified in maintaining the position he had taken in regard to the agreement.

5. Learned Counsel, on the other side, have argued that learned Counsel acting on behalf of their clients have complete authority to deal with all matters arising in the course of a trial and to dispose of them in their client's interest to the best of their knowledge and ability.

6. It is, I think, a well established principle that learned Counsel is vested with full authority to deal with all matters in his control relating to and affecting the interests of his client. Cases may arise and have arisen, as in the case of Neal v. Gordon Lennox [1902] 1 A.C. 465, where learned-counsel went beyond the powers that had b9en given to him and it was there pointed out that when learned Counsel exceeded his authority the Court would not ratify it.

7. Now, there can be no question here that when he accepted the terms of settlement Mr. Mitter was acting under the impression that he had full powers to deal with all matters connected with the present litigation. He now states from his place at the Bar that that impression was mistaken and that his client had not vested him with an absolute but with only restricted authority, and he is supported herein by an affidavit filed by the lady herself and by another affidavit filed by her solicitor, and I have no hesitation in accepting his statement. I should personally have thought that no great injustice was being done to the lady if she had consented to the terms proposed but, as apparently, she feels it a grievance that the matters should be concluded upon the lines indicated, I am opinion that the settlement decree should be vacated.

8. I think, in the circumstances, it is only fair to the other two parties that the lady should pay the costs of the application and of the hearing.

9. The case will be restored and will be placed at the head of the list on 10th January 1927, subject to any part'heard case.

Rankin, C.J.

10. In this case defendant Chunl Lal Mandal complains of an order made by Mr. Justice Chotzner whereby he set aside an order previously made by him, the effect of which was to declare certain shares of parties by consent in a partition suit, to appoint Mr. H.K. Mitter, Barrister-at-Law to partition a certain estate and to direct Mr. H.K. Mitter to take certain accounts and to make certain enquiries.

11. There were three parties to this suit : two brothers and their mother. The mother is said to be siding with the plaintiff Hira Lal and there appear to have been great many steps in the various disputes in which these parties unfortunately seem to have taken part one against the other. We are not at the moment concerned with anything which happened prior to the date the 15th December 1926, when this partition suit came on for hearing. It seems to be a suit in which both parties were liable to account as having various intromissions with the estate left by the father. Defendant Chuni Lal's case was that there was a large quantity of money and valuables in a certain iron safe in the house where Hira Lal and his mother lived and he was desirous of establishing that he was entitled to a certain share of these. In these circumstances, when the suit came on for hearing before Mr. Justice Chotzner, the first thing which happened was that the plaintiff was called on his own behalf as a witness and it was while the plaintiff's evidence was being taken that the incident happened with which we are now concerned.

12. That the issues which were settled by the learned Judge were fairly complicated there can be no doubt, and the question of the amount of money that was to go to the brothers and to the mother involved accounts and enquiries of a somewhat difficult character. Mr. A.K. Roy, who appeared for Chuni Lal, took the point that it was waste of time before the learned Judge to go into evidence on the part of the plaintiff or anybody else as to the various details of the accounts as it was quite obvious that in this case there would have to be an order directing the taking of accounts, and accordingly he suggested that a Court officer should be appointed. Somebody else suggested that a particular named advocator Mr. H.K. Mitter, should be appointed, the intention being that he would act as commissioner of partition and also as the person to whom the accounts' and enquiries should be referred; in other words, he should be appointed1 as a special referee. In the end what happened was that Mr. J.N. Mitter, the learned Counsel who appeared for the mother, accepted the suggestion that Mr. H.K. Mitter should be appointed and Mr. Mitter was appointed accordingly as appears from the consent decree passed by the Court.

13. That decree having been made, purporting to be a consent decree, the lady moved the learned Judge to set that aside. She made the case that she had given certain specific instructions to her attorney who had passed them on to her counsel. These instructions were directed to the question whether an arbitration or a reference to some persons other than an officer of the Court should be agreed to. It may be mentioned that, the parties had had previous experience of disputes being referred to arbitration and that it had been disastrous. Her case was that she had given express instructions that certain things were not to be referred in any way and she gave evidence to that effect herself. She filed an affidavit and her solicitor also filed an affidavit to the effect that he had specific instructions not to consent to any private arbitration or reference to any private individual of matters in dispute in the suit without getting tried by the Court certain questions, and further not to consent until another suit in which his client was the plaintiff was agreed to be tried along with the present suit, and all charges made against her by Chuni Lal Mandal in his written statement and by his counsel in her cross-examination were withdrawn.

14. Now, it is quite true, as Mr. Chatterji, in a very careful and able argument before us has pointed out, that at first sight a good deal of suspicion attaches to a story of this sort. That suspicion is not lessened by the fact that the attorney's affidavit does not give any dates. But the matter does not stop there because the learned Judge, at the time when he considered the lady's application to set aside the previous decree, had before him Mr. Mitter, the learned Counsel who had consented on behalf of the lady. Mr. Mitter informed the Court from his place at the Bar that in consenting to the terms proposed he was under a misapprehension as to the authority which had been conferred upon him by Ms client. He said that he was acting tinder the impression that he had full power to deal with all matters connected with the present litigation but that that impression was mistaken and he had only a restricted authority. In these 'Circumstances, the learned Judge has acted upon the basis that this story of limited authority of the learned Counsel is a true story. I am not prepared to reverse that finding.

15. The main argument of Mr. Chatterji before us has been upon the principle which is to be found in certain cases which he has cited, that if special restriction is put upon the general and apparent authority of a counsel to effect a settlement of matters in a suit, that restriction will not be binding on the other side unless it is communicated to him; In other words, every person is entitled to presume, till it is said to the contrary that learned Counsel has a general authority. For that proposition certain cases have bean cited to us. Strass v. Francis [1886] 1 Q.B. 379 reaffirmed in the case of Welsh v. Roe [1918] 87 L.J.K.BN. 520 and the Calcutta case of Asharam Choutmal v. E.I. Ry. Co. [1918] 87 L.J.K.B. 520 decided by my learned brother Mr. Justice Page. On the other hand, we have to consider the case in the House of Lords, the well known case of Neale v. Gordon Lennox : AIR1925Cal696 .

16. The first thing we have to ask ourselves here is what was the nature of this order. In so far as it is complained of it is complained of because it is an order referring to a private individual - an advocate of this Court - certain matters sol account which were involved in the suit itself. It may be perfectly in the right of the learned Judge to refer matters of account to an officer of Court or to somebody else if he thinks it necessary; but in this particular case the reference was, by consent, to a particular named individual, and in these circumstances we have to consider whether the learned Judge was right in being satisfied that the reference in all these matters of account to this particular individual by consent was a reference which should stand after it had been discovered that the learned Counsel who had consented to it had done so contrary to his client's instructions. I do not want to put this case on its facts too high, and I do not think that it can be put as high as the case of Neale v. Gordon Lennox from the point of view of the interest of the lady client. This is not a case in which the aspersions upon the lady's character were a very prominent feature of the suit. It is not a case in which it would be at all unreasonable for the lady to agree to the proposition put forward as, indeed, the learned Judge thinks.

17. But, on the other hand, if it is really true that the lady had objected to these important matters of account (from her point of view) being referred to private arbitration and to a private referee, and if that was done by mistake of her counsel, I am not prepared to hold that the learned Judge was wrong in taking steps to see that the suit should proceed in the ordinary way. If any order of reference can be made without the lady's consent it can still be made notwithstanding that this appeal is dismissed. I say nothing whatever upon that aspect of the case. I do not think that there was any lack of jurisdiction on the part of the learned Judge to make the order which he has made. I do not think that it is open in a case of this sort to the appellant Chuni Lal to say that he will hold the other parties to this bargain at all costs whether the Court thinks fit to do so or not. In my judgment the position is that the learned Judge has chosen the better course. He dealt with it as a case of the same essential type as Neale v. Gordon Lennox and it certainly is a case in which the order of reference which the Court has made involves that the Court's assistance is being asked in the sense in which Lord Halsbury referred to that matter in his speech in the House of Lords in the case of Neale v. Gordon Lennox.

18. On the whole, I am of opinion that this appeal should be dismissed with costs.

Mitter, J.

19. I agree.


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