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order 3 and summons through whatsapp

Supreme Court of India

Janki Vashdeo Bhojwani & Anr vs Indusind Bank Ltd. & Ors on 6 December, 2004

Court in the case of Vidhyadhar vs. Manikrao and Another, (1999) 3 SCC 573 observed at page 583 SCC that "where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct". In civil dispute the conduct of the parties is material. The appellants have not approached the Court with clean hands. From the conduct of the parties it is apparent that it was a ploy to salvage the property from sale in the execution of Decree. On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri Vs. State of Rajasthan, 1986 2WLL 713 it was held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.


The aforesaid judgment was quoted with the approval in the case of Ram Prasad Vs. Hari Narain & Ors. AIR 1998 Raj. 185. It was held that the word "acts" used in Rule 2 of Order III of the CPC does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but be cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of the CPC.



Supreme Court of India

Jamilabai Abdul Kadar vs Shankerlal Gulabchand & Ors on 30 April, 1975

"Two observations may be added. First, the implied authority of counsel is not an appendage of office, a dignity added by the Courts to the status of barrister or advocate at law. It is implied in the interests of the client, to give the fullest beneficial effect to his employment of the advocate. Secondly, the implied authority can always be countermanded by the express directions of the client. No advocate has actual authority to settle a case against the express instructions of his client. If he considers such express instructions contrary to the interests of his client, his remedy is to return his brief."

"Our answer to the second question is that counsel in India, whether Barristers, Advocates, or pleaders, have inherent powers, both to compromise claims, and also to refer disputes in Court to arbitration, without the authority or consent of the client, unless their powers in this behalf have been expressly countermanded, and this, whether the law requires a written authority to 'act' or 'plead' or not."

(emphasis, ours) The legal deduction is contained in these emphatic words :

"Brush unrealities aside and what do we get but a contract ? How much more is that the case in those parts of India where no solicitor intervenes and counsel and client meet face to face ? How much more when there is an actual instrument of engagement or a power of attorney ? How much more when the law requires writing ?" (p. 24) "The Privy Council tells us that there is inherent in the position of counsel an implicit authority to do all that is ex-

pedient, proper and necessary for the conduct of the suit and the settlement of the dispute." (p. 25) "Turning next to 0.3, R. 4, consider again the case in which a pleader is appointed simply to 'act' without any attempt to set forth the scope of his acting.

"A barrister cannot pick or choose his clients. He is bound to accept a brief for any man who comes before the courts. No matter how great a rascal the man may be. No matter how given to complaining. No matter how undeserving or unpopular his cause. The barrister must defend him to the end. Provided only that he is paid a proper fee, or in the case of a dock brief, a nominal fee. He must accept the brief, and do all he honorably can on behalf of his client. I say I all he honorably can' because his duty is not only to his client. All those who practice at the Bar have from time to time been confronted with cases civil and criminal which they would have liked to refuse, but have accepted them as burdensome duty. This is the service they do to the public. Counsel has the duty and right to speak freely and independently without fear of authority, without fear of the judges and also without fear of a stab in the back from his own client. To some extent, he is a minister of justice."

"It is a mistake to suppose that he is the mouth-piece of his client to say what he wants : or his tool to do what he directs. lie is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously misstate the facts. He must not knowingly conceal the truth. He must not unjustly make a: charge of fraud, that is, without evidence to support it. He must produce all the relevant authorities, even those that are against him. He must see that his client discloses, if ordered, the relevant documents, even those that are fatal to his case. He must disregard the most specific instructions of his client, if they conflict with his duty to the court. The code which requires a barrister to do all this is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to its discipline."

This authority not only consists in putting forward such arguments as be thinks proper, but also to settle the client's litigation if he feels that a settlement would be in the interests of his client and it would be foolish to let the litigation proceed to a judgment, This implied authority has also been described as an actual authority of counsel or an advocate. This authority may be limited or restricted or even taken away. If a l imitation is put upon counsel's authority, his implied or actual authority disappears or is destroyed. In such a case he has only an ostensible authority as far as the other side is concerned. When the actual authority is destroyed and merely the ostensible authority remains, then although the other side did not know of the limitation put upon the authority of an advocate, the Court will not enforce the settlement when in fact the client had withdrawn or limited the authority of his advocate."

"But whatever may be the authority of counsel, whether actual or ostensible, if frequently happens that actions are compromised without reference to the implied authority of counsel at all. In these days communication with actual principals is much easier and quicker than in the days when the authority of counsel was first established. In their Lordship's experience both in this country and in India it constantly happens that counsel do not take upon themselves to compromise a case without receiving express authority from their clients for the particular terms : and that this position in each particular case is mutually known between the parties." (p. 22) (s upra) Ramaswami J., also in Govindammal (supra) in the paragraph already extracted, has referred to a disturbing aspect which must alert the public and the profession to the lurking dangers of a carte blanche to counsel to compromise a case without client's precedent permission. The learned Judge quotes, what may be a cautionary signal. from Thenal Ammal v. Sokkummal (ILR 41 Mad. 233, 235AIR 1918 Mad. 656) "It is not the ordinary duty of an Advocate to negotiate terms, without reference to his client, with the opposite party. Such an action is calculated to place the practitioner in a false position. We do not think it is desirable that such a power should vest in him in the interest of the profession. From the point of view of the client, we think that it is not safe that he should be regarded by engaging a vakil to have given him authority to dispose of his right in any way he chooses. Therefore we think that the general power claimed is not in consonance with the highest ideals of the profession or of justice. For these reasons we think that a very strict interpretation should be placed upon vakalat containing powers of this kind."


"While we are not prepared to consider in this case whether an Advocate or pleader is liable to legal action in case of deviance or negligence, we must uphold the actual, though implied, authority of a pleader (which is a generic expression including all legal practitioners as indicated in S.2(15), C.P.C.) to act by way of compromising a case in which he is engaged even without specific consent from his client, subject undoubtedly to two overriding, considerations: (i) He must act in good faith and for the benefit of his client; otherwise the power fails (ii) it is prudent and proper to consult his client and take his consent if there is time and opportunity. In any case, if there is any instruction to the contrary or withdrawal of authority, the implicit power to compromise in the pleader will fall to the ground. We need hardly emphasise that the bar must sternly screen to extirpate the black-sheep among them, for Caesar's wife must be above suspicion, if the profession is to command the confidence of the community and the court."


The last posting was for reporting the compromise. But, on that date, the Court declined further adjournment and the party being absent and away, the pleader for the appellant had no alternative but to suffer an eviction decree or settle it to the maximum advantage of his Ordinarily when a junior and senior appear in the case, it would be an adventurist act exposing himself to great risk on the part of the junior to report a compromise without consulting his senior, even assuming that the party was not available. Nevertheless, we have had an over-all view of the facts of the present case and do not feel inclined to the view that the implied authority of the pleader has been abused. The courts below were right in fastening the settlement of the suit upon the appellant.


Nevertheless, it is right to stress that counsel should not rush in with a razi where due care will make them fear to tread, that a junior should rarely consent on his own when there is a senior in the brief, that a party may validly impugn an act of compromise by his pleader if he is available for consultation but is by-passed. The lawyer must be above board, especially if he is to agree to an adverse verdict. As for classes of legal practitioners, we are equally clear that the tidal swell of unification and equalisation has swept away all professional sub-castes.



after referring to the decisions rendered in Digbijoy Roy v. Ata Rahman : (1918) 17 C.W.N. 156, Nundo Lall Bose v. Nistrini Dasi : (1900) 27 Cal. 428, Strauss v. Francis : (1866) 1 QB 379, Swinfen v. Swinfen (1857) 1 CB (NS) 364, Mathews v. Munster (1887) 20 QBD 141, Ellworthy v. Bird : Pamlya 38, B.N. Sen Bros v. Chuni Lal Dutt & Co : AIR 1924 Cal. 651, Bhut Nath v. Ram Lal (1902) 6 CWN 82, Swinfen v. Lord Chelmsford (1859) 1 F& F 619, In the Court of Exchequer Chambers v. Mason : (1859) 5 CB (NS) 59, Dwar Buz Sirkar v. Fatik Jali (1898) 26 Cal. 250, and Beery v. Mullen (1871) 5 IR 368, culled out the following principles:

"(1) A counsel has authority to make admissions in Court on behalf of his client on matters of fact relevant to the issues in the case in which he is engaged. Admissions on questions of law would not bind the client.

(2) A counsel has authority to confess judgment, withdraw or compromise, or refer to arbitration the suit in which he is instructed if his doing so is for his client's advantage or benefit even though he has no express authority from his client.

(3) A counsel cannot without express authority agree to compromise or refer to arbitration matters unconnected with the subject-matter of the suit in which he is instructed.

(4) Where, in the course of a suit, a counsel makes an admission as to a collateral matter or gives up a doubtful claim which is not a subject-matter of the suit, there is a presumption that the counsel acts under instructions if the admissions or the giving up of the doubtful claim is for the benefit of the client.

(5) It is a question of fact in each case whether the counsel acts under instructions when he compromises or refers to arbitration matters not involved in the suit and the Court on a consideration of the probabilities and the circumstances of the case can find that the counsel acted on instructions even though there is no direct evidence on the point.

(6)A counsel has no power to make an admission in, or compromise or refer to arbitration, a suit if he is instructed not to do so, without express authority from his client."


In this context, we may refer with profit to the dictum in Smt. Jamilabai Abdul Kadar v. Shankarlal Gulabchand and others AIR 1975 SC 2202, wherein a three-Judge Bench of the Apex Court, while dwelling upon the implied power of a counsel to enter into a compromise, opined thus:


"While we are not prepared to consider in this case whether an Advocate or pleader is liable to legal action in case of deviance or negligence, we must uphold the actual, though implied, authority of a pleader (which is a generic expression including all legal practitioners as indicated in S.2(15), C.P.C.) to act by way of compromising a case in which he is engaged even without specific consent from his client, subject undoubtedly to two overriding, considerations: (i) He must act in good faith and for the benefit of his client; otherwise the power fails (ii) it is prudent and proper to consult his client and take his consent if there is time and opportunity. In any case, if there is any instruction to the contrary or withdrawal of authority, the implicit power to compromise in the pleader will fall to the ground. We need hardly emphasise that the bar must sternly screen to extirpate the black-sheep among them, for Caesar's wife must be above suspicion, if the profession is to command the confidence of the community and the court."


Delhi High Court

Paul Properties Pvt Ltd & Anr vs Estate Officer Life Insurance ... on 28 May, 2010


the principles that clearly emerge are that:


i) Admission by a counsel on a question of law would not bind the client.


ii) An advocate appearing on behalf of a party would not do something contrary to the statute.


iii) If a Court requires an undertaking to be given and it is done, the right to prefer an appeal cannot be foreclosed.


iv) An undertaking given by the tenant to vacate the premises would not disentitle him to approach the higher Court and seek an interim order.

v) The matters relating to jurisdiction cannot be conceded to by a counsel.


vi) A mere undertaking given by the State and the Union of India to comply with the directions issued to them would not debar them to prefer an appeal.


vii) Directing a party to give an undertaking in a Court cannot scuttle or foreclose a statutory remedy of appeal or revision much less a constitutional remedy.


viii) If a concession is given on a wrong appreciation of law which has led to gross injustice, the appellate court can permit in an appropriate case to resile from a concession on exceptional grounds.


ix) There is implied authority in a legal practitioner to enter into a compromise if it is not malafide and it is always prudent and proper on the part of a counsel to consult the client and take his consent if there is time and opportunity.


x) Statements made before a Judge cannot be contradicted by the statements at the Bar or affidavits or in evidence.


xi) If a party thinks that what has happened in Court had wrongly been recorded in the judgment, it is incumbent upon the party to call the attention of the very Judge who has recorded the same that the statement made with regard to his conduct was a statement that had been erroneously made.


We have culled out these broad principles which in no way can be treated as exhaustive but can always be put into the compartment of illustrative. We have said so as there can be cases where rare facts and circumstances can surface.



Supreme Court of India

R.D. Saxena vs Balram Prasad Sharma on 22 August, 2000

Files containing copies of the records (perhaps some original documents also) cannot be equated with the goods referred to in the section. The advocate keeping the files cannot amount to goods bailed. The word bailment is defined in Section 148 of the Contract Act as the delivery of goods by one person to another for some purpose, upon a contract that they shall be returned or otherwise disposed of according to the directions of the person delivering them, when the purpose is accomplished. In the case of litigation papers in the hands of the advocate there is neither delivery of goods nor any contract that they shall be returned or otherwise disposed of. That apart, the word goods mentioned in Section 171 is to be understood in the sense in which that word is defined in the Sale of Goods Act. It must be remembered that Chapter-VII of the Contract Act, comprising sections 76 to 123, had been wholly replaced by the Sales of Goods Act, 1930. The word goods is defined in Section 2(7) of the Sales of Goods Act as every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached, to or forming part of the land which are agreed to be severed before sale or under the contract of sale.


Thus understood goods to fall within the purview of Section 171 of the Contract Act should have marketability and the person to whom it is bailed should be in a position to dispose it of in consideration of money. In other words the goods referred to in Section 171 of the Contract Act are saleable goods. There is no scope for converting the case files into money, nor can they be sold to any third party. Hence, the reliance placed on Section 171 of the Contract Act has no merit.

There is yet another reason which dissuades us from giving approval to any such lien. We are sure that nobody would dispute the proposition that the cause in a court/tribunal is far more important for all concerned than the right of the legal practitioner for his remuneration in respect of the services rendered for espousing the cause on behalf of the litigant. If a need arises for the litigant to change his counsel pendente lite, that which is more important should have its even course flowed unimpeded. Retention of records for the unpaid remuneration of the advocate would impede such course and the cause pending judicial disposal would be badly impaired. If a medical practitioner is allowed a legal right to withhold the papers relating to the treatment of his patient which he thus far administered to him for securing the unpaid bill, that would lead to dangerous consequences for the uncured patient who is wanting to change his doctor. Perhaps the said illustration may be an over-statement as a necessary corollary for approving the lien claimed by the legal practitioner. Yet the illustration is not too far-fetched. No professional can be given the right to withhold the returnable records relating to the work done by him with his clients matter on the strength of any claim for unpaid remuneration. The alternative is that the professional concerned can resort to other legal remedies for such unpaid remuneration.


A litigant must have the freedom to change his advocate when he feels that the advocate engaged by him is not capable of espousing his cause efficiently or that his conduct is prejudicial to the interest involved in the lis, or for any other reason. For whatever reason, if a client does not want to continue the engagement of a particular advocate it would be a professional requirement consistent with the dignity of the profession that he should return the brief to the client. It is time to hold that such obligation is not only a legal duty but a moral imperative.


In civil cases, the appointment of an advocate by a party would be deemed to be in force until it is determined with the leave of the court, (vide order 3, Rule 4(1) of the Code of Civil Procedure). In criminal cases, every person accused of an offence has the right to consult and be defended by a legal practitioner of his choice which is now made a fundamental right under Article 22(1) of the Constitution. The said right is absolute in itself and it does not depend on other laws. In this context reference can be made to the decision of this Court in State of Madhya Pradesh vs. Shobharam and ors. (AIR 1966 SC 1910). The words of his choice in Article 22(1) indicate that the right of the accused to change an advocate whom he once engaged in the same case, cannot be whittled down by that advocate by withholding the case bundle on the premise that he has to get the fees for the services already rendered to the client.


If a party terminates the engagement of an advocate before the culmination of the proceedings that party must have the entire file with him to engage another advocate. But if the advocate who is changed midway adopts the stand that he would not return the file until the fees claimed by him is paid, the situation perhaps may turn to dangerous proportion. There may be cases when a party has no resource to pay the huge amount claimed by the advocate as his remuneration. A party in a litigation may have a version that he has already paid the legitimate fee to the advocate. At any rate if the litigation is pending the party has the right to get the papers from the advocate whom he has changed so that the new counsel can be briefed by him effectively. In either case it is impermissible for the erstwhile counsel to retain the case bundle on the premise that fees is yet to be paid.


Even if there is no lien on the litigation papers of his client an advocate is not without remedies to realise the fee which he is legitimately entitled to. But if he has a duty to return the files to his client on being discharged the litigant too has a right to have the files returned to him, more so when the remaining part of the lis has to be fought in the court. This right of the litigant is to be read as the corresponding counterpart of the professional duty of the advocate.


Misconduct envisaged in Section 35 of the Advocates Act is not defined. The section uses the expression misconduct, professional or otherwise. The word misconduct is a relative term. It has to be considered with reference to the subject matter and the context wherein such term occurs. It literally means wrong conduct or improper conduct.



S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS


SUO MOTO WRIT PETITION (C) NO. 3/2020


IN RE COGNIZANCE FOR EXTENSION OF LIMITATION Petitioner(s)

Under Section 12A of the Commercial Courts Act, 2015, time is prescribed for completing the process of compulsory pre-litigation, mediation and settlement. The said time is also liable to be extended. We, accordingly, direct that the said time shall stand extended from the time when the lockdown is lifted plus 45 days thereafter. That is to say that if the above period, i.e. the period of lockdown plus 45 days has expired, no further period shall be liable to be excluded.


I.A. No. 48461/2020- Service of all notices, summons and exchange of pleadings Service of notices, summons and exchange of pleadings/documents, is a requirement of virtually every legal proceeding. Service of notices, summons and pleadings etc. have not been possible during the period of lockdown because this involves visits to post offices, courier companies or physical delivery of notices, summons and pleadings. We, therefore, consider it appropriate to direct that such services of all the above may be effected by e-mail, FAX, commonly used instant messaging services, such as WhatsApp, Telegram, Signal etc. However, if a party intends to effect service by means of said instant messaging services, we direct that in addition thereto, the party must also effect service of the same document/documents by e-mail, simultaneously on the same date.



In Indian Bank Association & Ors vs Union Of India & Anr (2014) 5 SCC 590, the Supreme Court gave directions and said that while issuing summons by Metropolitan Magistrate/Judicial Magistrate a pragmatic and realistic approach should be embraced. Serving of summons should be proper with right address and must be sent properly by post as well as by the email address received from the complainant. If a need arises, the assistance of the police or the nearby Court to serve notice to the accused may be taken by the court. Furthermore, the Apex Court also said that a short date should be fixed for notice of appearance and if the summons is received back un-served, follow up action should be taken immediately.


In =case of Tata Sons Limited & Ors vs John Does CS(COMM) 1601/2016, Justice Rajiv Sahai Endlaw of the Delhi High Court permitted the right to serve summons to the defendant via Whatsapp texts as well as by emails to a defendant. (see here)


In case, Kross Television India Pvt Ltd & Another vs Vikhyat Chitra Production & Others, on 23rd March 2017 Justice Gautam Patel of Bombay High Court in the case of copyright infringement allowed the serving of the notice of summons through Whatsapp after normal attempts for serving summons failed.



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