1. This is an application by Haribux Goberdhonedas that a consent decree made by my learned brother Buckland J., on, 14th August last be set aside.
2. The suit was one for Rs. 3052-9-2,-being the price of goods sold and delivered, the applicants being impleaded as guarantors. The applicants entered1 appearance and filed a written statement by which they put the factum of the guarantee in issue. The suit came on for hearing on 11th August last. Mr. B.C. Ghose was briefed as counsel for the defendants to ask for an adjournment. He applied for the adjournment which was refused and he was thereupon instructed to continue to represent the defendants in the ease itself, the brief having previously been delivered to him. The applicant's account of the only important incident with which I am concerned is to be found in para. 10 of their petition which runs as follows:
A short time after the case was opened by Mr. A.K. Roy who appeared for the plaintiff Mr. Boy read to his Lordship the Honble Mr. Justice Buckland the translation of a portion of the said letter and on Mr. Ghose asking Mr. Roy to show it to him the same was handed to Mr. Ghose. Mr. Ghose perused same, suddenly turned round and asked your petitioner's attorney to tell your pertitioner's to consent to a decree and just as your petitioner's attorney Mr. J.K. Mukherji was going to ask Goberdhonedas Deora who was present in Court if your petitioners were agreeable to consent to a decree, Mr. Ghose suddenly stood up and told the Court that your petitioners consented to a decree for the amount claimed in the plaint without the consent or authority of your petitioners.
3. Thereafter a decree was passed to which the applicants now take exception saying that counsel had no authority to consent and in fact consented against their wishes.
4. The petition is verified by Goberdhonedas Deora who describes himself as a partner in the defendant firm. In opposition an affidavit has been used in which the plaintiff swears that he was present in Court and that he overheard Goberdhonedas distinctly give authority to his counsel Mr. B.C. Ghose to use his discretion in the matter. Upon that affidavit I should not in any case have acted. I was at first disposed to take the view urged upon me by Mr. A.K. Roy that even if all the statements in the petition were correct, yet they disclosed no ground for setting aside the decree. That opinion, however, has not survived a closer examination of the authorities, and it has therefore become necessary for me to come to a conclusion as to the facts, and with the concurrence of counsel on both sides I have adopted the course taken by the Court in Hickman v. Berns  2 Ch. 638 and have requested Mr. Ghose to make a statement from the. Bar as to what occurred. The material parts of Mr. Ghose's statement are as follows:
Mr. Roy relied strongly on a certain letter in Nagri and was opening that letter when I got up and objected and said that it was not disclosed in the affidavit of documents and therefore I was entitled to time upon that ground. Mr. Roy then pointed out to me much to my disappointment that inspection of this letter had been given, and although in fact it had not been disclosed by affidavit it was disclosed by a letter. Not being able to read Nagri myself I handed the original letter over to my solicitor or client and, in the meantime perused the pleadings. From the pleadings I came to the conclusion that if the letter had in fact been written by my client then the story of having nothing to do with the transaction or with the possession of the goods under the contract could not but be false, and thereupon I turned round and asked my lay client in the presence of my solicitor as to whether he admitted that this letter bore the signature of my client. I further enquired whether my client was present in Court and was going to give evidence. I then discovered that the gentleman present was not my client but his son. He further admitted that the letter bore his father's signature. Thereupon I turned round and said that there was no case and I will consent to a decree, and I got up and consented to a decree because I thought I would not take the risk of having my client put into trouble.
5. I accept that as a correct picture of what took place subject only to this. It is now agreed that Goberdhonedas, to whom Mr. Ghose spoke on this occasion, is in fact a member of the defendant firm and therefore a defendant himself, and Mr. Ghose was under a misapprehension when he treated the matter upon the basis that Goberdhonedas was merely a relative of one of the defendants and not one of his clients.
6. These being the facts it is urged upon me that the case is covered by the cases of Mathews v. Munster  20 Q.B.D. 141 and B.N. Sen Bros, v. Ghuni Lal Dutt & Co. : AIR1924Cal651 . Now, Mathews v. Munster  20 Q.B.D. 141 was an action for damages for malicious prosecution. When the case was part heard defendants' counsel, before the defendants' arrival in Court and without the defendant's instructions consented to a verdict for 350 and costs, and also agreed that all imputations should be withdrawn against the plaintiffs. I assume, though it is not expressly stated, that the plaintiff's claim was for a larger amount than that mentioned in the consent decree. In the other case, B.N. Sen v. Chuni Lal Dutt & Co. : AIR1924Cal651 , after negotiations outside Court, counsel on both sides appeared in Court and consented to a decree for some Rs. 3,000 less than the amount claimed. The defendant was not present in Court owing, it was alleged, to a misapprehension as to the date fixed for the trial, and has given counsel no authority to consent to a decree. In each case the Court refused to set aside the decree.
7. It appears to me that the present case differs from those I have referred to in two particulars. Those were cases of genuine compromise in the sence that the plaintiff abandoned some of his claim and was willing to accept less than he possibly might have got had the case been carried to a conclusion. In the case before me counsel submitted to judgment for the full amount claimed and costs. I am not prepared to say whether this alone takes the present ease out of those to which I have referred. -I prefer to distinguish it by what appears to me a far more important feature, namely, that in neither of the former cases was the defendant present. In Court when the decree was consented to. That this is a matter which affects the situation seems to me clear from the language used by Lord Esher, M.R. in Mathews v. Munster  20 Q.B.D. 141., At p. 144, he says:
If the client is in Court and desires that the case should go on and counsel refuses, if after that he does not withdraw his authority to counsel to act for him and acquaint the other side with this, he must be taken to have agreed to the course proposed. This case is a still stronger one for the client was not present and it is not pretended that ha ever withdrew his authority to counsel.
8. Lord Esher's words seem to me to presuppose that if the client is present, then he should be consulted and given the opportunity of withdrawing his authority if he sees fit. The language used by Bowen, L.J., at p. 145, is still more striking:
What is to be done if the client is in Court? Is it the duty of counsel to consult him? I should say 'yes', with regard to important matters in which the client has an interest. It does net follow that counsel will submit to carry out the view of the client if it appears that it would be injurious to the client's interest. He has the alternative of returning his brief. I should be sorry to say that counsel ought not to consult his client on such a matter as a compromise of the action, but that is a point we have not got to consider, for in the present ease the client was not present and cannot complain if his counsel, who was in command and had authority to do the best for his client, compromised the suit within the reasonable limits of his authority to compromise.
9. I have therefore come to the conclusion that in this case as the client was in fact present in Court, although his counsel did not appreciate the fact, the client had a right to be consulted before counsel gave his consent to a decree, that he was not in fact consulted, and that therefore counsel's consent was without authority express or implied. In my view it would not be in accord with the principles laid down by Lord Halsbury in Neale v. Gordon Lennox  A.C. 465 or with the application of them by Sir George Rankin and Mitter, J., in Joharmall Bhutra v. Kedar Nath Bhutra : AIR1927Cal714 to let his decree stand. No doubt Mr. Ghose did what he did in what he conceived to be and in fact very possibly was his client's best interests. None the less where in Bowen, L.J's. opinion there is a duty upon counsel to consult his client and take his instructions, and the performance of that duty is omitted for whatever reason, I consider it would be contrary to principle for the Court to enforce a decree passed in such circumstances.
10. I therefore set aside the decree. The applicants must pay the costs of the trial before Buckland, J. As regards the costs of this application, in as much as it has been successful and the opposition to it has been supported by an affidavit made by the plaintiff which I hold to be wilfully false, I make no order.