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B.N. Sen and Bros. Vs. Chunni Lal Dutt and Co. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1924Cal651
AppellantB.N. Sen and Bros.
RespondentChunni Lal Dutt and Co.
Cases ReferredNeale v. Lennox
- .....1922. the case came on for hearing on the 27th of july, the defendants were not present and the learned counsel who was appearing for the defendants, agreed to the settlement of the suit, and consented to a decree for rs. 22,177 odd in favour of the plaintiff's. hrishikesh alleged that he was under the impression that the suit had been fixed for hearing on the 28th of july. i do not know why he was under that impression. there is no explanation in the affidavit, and it is difficult to understand how he was under the impression that the case, was fixed for the 28th of july, having regard to the two adjournments to which i have referred, and the order of the learned judge which was made on the 20bh of july. he further alleged that he attended the office of his attorney on the 27th of.....

Sanderson, C.J.

1. This is an appeal by the defendants in the suit against an order of my learned brother, Mr. Justice Greaves, whereby he dismissed the application made by the defendants. The application was that a certain consent decree which was made on the 27th of July, 1922, should be set aside, and that the suit should be duly proceeded with. The consent decree was to this effect:

It is ordered and decreed with the consent of the parties by the respective counsel that the defendant firm do pay to the plaintiff firm the sum of rupees twenty-two thousand one hundred and seventy-seven, annas five, pies three with interest thereon at the rate of six per cent, per annum...and this decree is without prejudice to the right of the defendant firm, if any, to proceed with its claim, in its own suits.

2. The suit was brought to recover the sum of Rs. 11,024 alleged to be due for goods sold and delivered and a sum of Rs. 4,853 as interest. There was a further claim for damages in respect of goods of which it was alleged that the defendants had refused to take delivery making a total of Rs. 25,508. The defendants apparently admitted that there was due from them the sum of Rs. 10,829 in respect of goods sold and delivered and interest to the extent of Rs. 1,782 making a total of Rs. 12,611.

3. The defendants then claimed that there: was due to them from the plaintiffs a sum of about Rs. 58,000. That claim by the defendant, as I understand, is the claim which is referred to at the end of the consent decree.

4. The suit was in the Daily List on the 5th of July, 1922, before Mr. Justice Rankin. On that day, an application was made to the learned Judge for a month's adjournment on the ground that Hrishikesh Sen, a member of the defendant firm, had sprained his leg and was unable to attend Court. The learned Judge granted a fortnight's adjournment. When the case was again in the List on the 20th of July, an application was made for a further adjourament, and on this occasion the learned Judge ordered that the suit should be adjourned for a week. The result was that the case adjourned until the 27th of July, 1922. The case came on for hearing on the 27th of July, the defendants were not present and the learned Counsel who was appearing for the defendants, agreed to the settlement of the suit, and consented to a decree for Rs. 22,177 odd in favour of the plaintiff's. Hrishikesh alleged that he was under the impression that the suit had been fixed for hearing on the 28th of July. I do not know why he was under that impression. There is no explanation in the affidavit, and it is difficult to understand how he was under the impression that the case, was fixed for the 28th of July, having regard to the two adjournments to which I have referred, and the order of the learned Judge which was made on the 20bh of July. He further alleged that he attended the office of his attorney on the 27th of July for the purpose of holding a consultation with his attorney and the learned Counsel; that when he reached the attorney's office at; about 12-15 P.M. he was informed, that the suit had already been disposed of by the learned Judge on that day. He then proceeded to allege that the defendants had instructed their attorney to contest the suit on its merits and. that the attorney duly briefed certain learned Counsel with instructions to them to contest the suit on behalf of the defendants that the learned leading Counsel without instructions either from the defendants or their attorney settled this suit on his own responsibility and allowed a consent decree to be made therein without consulting the attorney who was present in Court at the time. He then alleged that the learned Counsel had no authority either express or implied to settle this suit as aforesaid.

5. A letter from the learned leading counsel to the attorney was exhibited to this effect:

I understand Mr. Hrishikesh Sen is aggrieved by the settlement. I remember very well that yon never asked me to settle. The responsibility is mine. If Sen has any grievance he can see me. He should be grateful for whole claim being not decreed.

6. There is, therefore, no doubt that the learned Counsel settled this suit on his own responsibility and there is no doubt that the attorney did not ask him to settle the suit. At the same time the attorney was in Court, and it is not suggested that he limited the authority or the discretion of the learned Counsel in any respect.

7. The learned Counsel who argued this appeal, to a large extent based the argument on the case of Neale y. Gordon Lennox (1902) A.C. 465. That ease was, in my judgment, a very different case from the one now before us. In that case the plaintiff had given her learned Counsel authority to refer the suit on one condition, and that condition was that the defendant should state in open Court by her learned Counsel that she never imputed or meant to impute anything against the moral character of the plaintiff and was satisfied that there was no ground for any such imputation. The learned Counsel acting for the plaintiff agreed to refer the case without the defendant's learned counsel making the statement upon which the plaintiff had insisted : and it was held that under those circumstances the learned counsel had no authority to refer the case contrary to the instructions of his client and on terms different from those which his client had authorized. It is clear that in that case the plaintiff had expressly limited the authority of the learned Counsel who was acting for her; and, the learned Lord Chancellor in giving his judgment said:

But when two parties seek as part of their arrangement the intervention of a Court of Justice to say that something shall not be done, although one of the parties to in is clearly not consenting to it, but has in the most distinct form said that the consent to refer - to take it from the jurisdiction of the ordinary tribunal - shall only be on certain terms, to say that any learned Counsel can so far contradict what his client has said, and act without the authority of his client as to bind the Court itself, is a proposition which I certainly will never assent to.

8. And Lord Lindley put the matter in this way:

It would be absolutely wrong, to my mind, for the Court to allow that order to be acted on and to take effect the moment it is judicially ascertained and brought to its attention that it is an order which the Court never would have dreamt of making if the Court had known the facts.

9. That was a case in which the authority of the learned Counsel had been expressly limited by the client and in which the learned Counsel had assented to an order in spite of the express instructions of the client, and on terms different from those which the client had authorised. In such a case the rule is to be found stated at page 399 of the 2nd volume of Lord Halsbury's Laws of England as follows:

But the true rule seems to be that in such cases the Court has power to interfere; that it is not prevented by the agreement of counsel from setting aside or refusing to enforce a compromise; that it is a matter for the discretion of the Court, and that when, in the particular circumstances of the case, grave injustice would be done by allowing the compromise to stand, the compromise may be set aside, even although the limitation of counsel's authority was unknown to the other side.

10. So much for the case in which the authority of learned Counsel is expressly limited.

11. In my judgment the present case is not one in which the authority of the learned Counsel was limited; and, in my judgment, the ordinary rule (which is to be found at page S98 of the same volume of Lord Halsbury's Laws of England) will apply to this case. That is as follows:

The authority of counsel at the trial of an action extends, when it is not expressly limited, to the action and all matters incidental to it and to the conduct of the trial, such as withdrawing the record or a juror, calling or not calling witnesses, consenting to a reference or a stet processus or a verdict, undertaking not to appeal, or on the hearing of a motion for a new trial consenting to the reduction of damages. The consent of the client is not needed for a matter which is within the ordinary authority of counsel, and therefore if a compromise is entered into by counsel in the absence of the client the client is bound.

12. I desire to refer to one case, Mathews v. Munster (1887) L.R. 20 Q.B.D. 141. The bead note is as follows:

On the trial of an action for malicious prosecution the defendant's counsel, in the absence of the defendant, and without his express authority, assented to a verdict for the plaintiff for 350, with costs upon the understanding that all imputations against the plaintiff were withdrawn:

Held : that this settlement was a matter which was within the apparent general authority of counsel and was binding on the defendant.

13. Lord Esher said in that case:

The duty of counsel is to advise his client out of Court, and to act for him in Court and until his authority is withdrawn he has, with regard to all matters that properly relate to the conduct of the case, unlimited power to do that which is best for his client, I apprehend that it is not contended that his power cannot be controlled by the Court. It is clear that it can be, for the power is exercised in matters which are before the Court, and carried on under its supervision. If, therefore, counsel were to conduct a cause in such a manner that an unjust advantage would be given to the other side, or to act under a mistake in such a way as to produce some injustice, the Court has authority to overrule the action of the advocate.

14. I refer to that for the purpose of showing that the Court does retain the power to control a settlement which has been made by learned Counsel in cases where it is necessary for the Court to interfere, to prevent some injustice taking place.

15. The learned Counsel for the appellants in this case urged that the learned Counsel who was appearing for them at the trial ought to have proceeded with the conduct of the case, even though his clients were not there and even though the learned Counsel may have thought that he had not sufficient materials to contest the case. He went so far as to suggest that although the learned Counsel was of that opinion it was his duty at all events to have tested by cross-examination the evidence which would have been produced on behalf of the, plaintiffs. I cannot adopt that argument: and, in order that I may make the reasons, for not adopting that argument plain, I-prefer to read what was said by Lord, Blackburn when he was Mr. Justice Blackburn in the case of Strauss v. Francis (1866) L.R. 1 Q.B. 379. The learned Judge referred, to the argument of the learned Counsel for the plaintiff in the following way:

Mr. Kenealy has ventured to suggest that the retainer of counsel in a cause simply implies the exercise of his power of argument and eloquence. But counsel have far higher attributes, namely, the exercise of judgment and discretion on emergencies arising in the conduct of a cause, and a client is guided in his selection of counsel by his reputation for honour, skill and discretion. Few counsel, I hope, would accept a brief on the unworthy terms that he is simply to be the mouth-piece of his client, counsel, therefore, being ordinarily retained to conduct a cause without any limitation.

16. I draw attention to the words 'without any limitation' because they are applicable to this case.

The apparent authority with which he is clothed when he appears to conduct the cause is to do everything which, in the exercise of his discretion, he may think best for the interests of his client in the conduct of the cause : and if within the limits of his apparent authority he enters into an agreement with opposite counsel, as to the cause, on every principle this agreement should be held binding.

17. In my judgment there is no evidence in this case that there was any limitation placed upon the authority of the learned Counsel. I know nothing of the facts of this case beyond what I have already stated, but I have a strong suspicion that the course which the learned Counsel took, on behalf of the defendants, was a wise one, having regard to the nature of the suit and the admissions which the defendants made in the suit. At all events, I am satisfied that the settlement was made within the authority of the learned counsel, and the defendants, who were not present cannot complain if their counsels who was retained to conduct the suit and who had authority to do the best for his clients, compromised the suit within the limits of his authority to compromise.

18. For these reasons, in my judgment this appeal must be dismissed with costs.

19. We give liberty to the plaintiffs respondents to apply as to the money in Court.

Richardson, J.

20. I have always understood that a learned Counsel has, in the usual course, full authority in the exercise of his judgment and discretion, to settle or compromise a case on behalf of the client for whom he appears. It was said that it was unjust that a client should be bound by a compromise agreed to by counsel without reference to him and be thereby deprived of the opportunity of contesting the claims made against him and of obtaining the judgment of the Court thereon. But if the learned Counsel is acting within his authority there is no injustice in holding the client bound. The client by retaining the counsel has clothed the latter with authority to act or him in the usual way, and it would rather appear to be unjust to the opposing party that the compromise should be set aside and the proceedings re-opened.

21. As to the case of Neale v. Lennox (1902) A.C. 465 on which so much of the argument for the appellant was based, the injustice spoken of in the judgments delivered in the House of Lords, as I read those judgments and particularly the judgments of Lord Halsbury and Lord Lindley, was inherent in the proceeding itself in which the consent order was made. The injustice consisted in this, that the learned Counsel there disregarded an express limitation in writing placed by the client upon his general authority to agree to a consent order. It was unjust in those circumstances that the client should be bound when the counsel had thus plainly exceeded the limits of his authority. If the Court had been made aware of the limitation, it would not have set its seal upon the consent order. So again the Court would have discretion to interfere in a case in which counsel has acted under some mistake and the mistake has led to injustice or, more generally, where the impropriety of the consent is apparent with reference to the circumstances in which it was given.

22. On the materials before us, I am clear that in the present case, learned Counsel was not expressly instructed to contest the suit. He received a brief in the usual way to appear for the client. There was no limitation on his general authority. What he did was to act on his own responsibility without reference to the attorney or client. Nor has it been shown or suggested that he was labouring under any mistake in relation to the order to which he consented, or that he acted otherwise than with a full sense of his responsibility in the discharge of his duties.

23. The learned Counsel was Mr. Sircar. It is not and cannot be suggested that he did not act honestly to the best of his judgment and discretion. There is Indian authority, founded no doubt on English cases, for the view that, in the circumstances which here appear, the appellant is bound by the order which was made with the learned Counsel's consent. I refer to the case, cited for the appellant, of Jang Bahadur Singh v. Shankar Rai (1890) 13 All. 272 and to the case in this Court of Nandalal Bose v. Nistarini Dasi (1900) 27 Cal. 428. It may be that since those cases were decided, the view that an express limitation on a counsel's authority is ineffectual unless communicated to the other side, has become untenable. That view may be inconsistent with the decision of the House of Lords in Neale v. Lennox (1902) A.C. 465, but in the present case we have not to consider any limitation on the learned counsel's authority, express or otherwise.

24. I agree with my Lord that the appeal fails and should be dismissed.

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