Punjab-Haryana High Court
Sunita Attary vs Tarun Attary on 20 January, 2000
Equivalent citations: I(2001)DMC26
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. This revision is directed against the order dated 2.2.1999 passed by the learned District Judge, Chandigarh. The husband Tarun Attary filed a petition under Section 13 of the Hindu Marriage Act against his wife Smt. Sunita Attary for dissolution of the marriage on the ground of adultery and on the facts narrated in that petition. In this petition, the wife had filed an application under Section 24 of the Hindu Marriage Act (hereinafter referred as the Act) praying for the grant of interim maintenance at the rate of Rs. 7,000/-per month and Rs. 16,000/- on account of litigation expenses. The husband contested the application while the divorce petition was being contested by the wife.
2. However, during the course of hearing of the application under Section 24 of the Act, the learned Counsel appearing for the husband on 6.3.1998 made the following statement:
"I offer to pay a sum of Rs. 4,000/- p.m. as maintenance pendente lite w.e.f. December, 1996, and lumpsum of Rs. 10,000/- towards litigation expenses. The entire amount would be paid in three equal instalments."
3. This statement was accepted by the other side and the Court passed the order accordingly. However, an application under Sections 151, 152 and 153 of the Code of Civil Procedure was filed by the husband stating that in the order dated 6th March, 1998, vide which the maintenance and litigation expenses were granted, a typographical error has crept in. It was stated that instead of 'with effect from December, 1996' in fact 'with effect from December, 1997' should have been typed. It was stated that the application under Section 24 of the Act was filed on 20th November, 1997, as such, the maintenance, even under law could not be directed prior to the date of filing of the application. This application was contested by the wife, who stated that parties were bound by the compromise and the statement of the Counsel for the husband had been correctly recorded. The husband was liable to make the payment in terms of the said order. The learned District Judge held as under :
"Therefore, there is innate merit in the case of the husband that his learned Counsel had made a statement on 6.3.1998 that he would be prepared to pay maintenance pendente lite Rs. 4,000/- per month w.e.f. December, 1997, but inadvertently or by typographical error, the year 1996 was typed in the record instead of the year 1997. Consequently, it is directed that the correction in the record, i.e. statement of the learned Councel for the parties, and statement of Smt. Sunita Attary, and the order of my learned predecessor dated 6.3.1998 under Section 24 of the H.M.A. be made and the word "December, 1997" be substituted in place of December, 1996 wherever these occur. This application stands disposed of accordingly."
4. Learned Counsel for the husband relied upon judgments in the cases of Asha Sharma (Smt.) v. Judge Meerut and Anr. Family Courts, 1995 (2) All India Hindu Law Reporter Allahabad 612=11 (1995) DMC 67; Kanta Rani v. Joginder Singh, 1983 HLR 423, to contend that in the discretion of the Court, the maintenance should be granted from the date on which the application for grant of maintenance is filed under Section 24 of the Act or from the date of the order as the Court may deem fit and proper. Such proposition of law cannot be disputed and has been settled by the pronouncements of various Courts. But the question that falls for consideration is whether the statement alike the one made by the learned Counsel for the husband would be illegal per se or not. Provision of Section 24 of the Act do not postulate any such date with effect from which date interim maintenance should be granted to a spouse. Once the ingredients of Section 24 of the Act are satisfied, the Court would grant maintenance in its discretion and keeping in view the facts and circumstances of a case from a particular date which normally is either from the date of the application or the date of the order. This does not place any absolute embargo upon the power of the Court to grant maintenance from a date other than the date, aforenoted. Even this controversy precisely does not arise in this case. This is precisely for the reason that the learned Additional District Judge has come to the conclusion that there was a bona fide typographical error in typing the statement and the date should have been December, 1997 in place of 1996 and accordingly allowed the first application filed by the husband. As a proposition of law, as noticed above, it would not be necessary for this Court to accept that view but there being a typographical error, I do not wish to interfere in the impugned order even in relation to fixation of date.
5. The question in this case is whether the statement of the learned Counsel for the parties recorded on 6.3.1998 and consequential order passed by the Court suffer from any legal infirmities. The answer has to be in the negative. The parties can arrive at a settlement, which is convenient to both of them and regarding which they are at ad-idem. A compromise between the parties to pay maintenance from a date prior to the date of institution of the application under Section 24 of the Act cannot be said to be hit by any statutory provisions or opposed to public policy. An application under Section 24 of the Act can only be filed where some proceedings are pending before the Court of competent jurisdiction. In other words, pendency of the proceedings under any of the provisions of the Act is a condition precedent. With regard to the authority of the Counsel, I will fully endorse the conclusion arrived at by the learned District Judge that he had the authority and the statement was made with full responsibility and upon instruction. Even otherwise, such matter is apparently a finding of fact, which does not call for any interference. The statement was made before the learned District Judge and the same Court has not permitted the husband to wriggle out of the statement of the Counsel in the garb of correction of an order in relation to the date from which the maintenance is payable. The authority in favour of the Counsel binds his client is fully accepted in law. The compromise recorded upon the statement of the Counsel has to be enforced on parties to the agreement and none of them can be permitted to wriggle out of the same on flimsy pretext like one taken by the husband in the present case.
6. At this stage, it may also be relevant to make reference to the judgment of this Court in the case of Baij Nath and Anr. v. Yog Ram and Ors., R.S.A. No. 2307 of 1996 decided on 10.9.1996, where the Court held as under :
"It is well-settled principle of law that a Counsel who has been properly engaged and is duly authorised to appear on behalf of a party, can bind the party by his statement. However, it cannot be termed as an absolute proposition of law but has to be decided keeping in view the facts and circumstances of each case. The authority in favour of the Advocate empowers him to settle the matter or to make such statements before the Court as he1 may deem necessary in the interest of his client. Advocates are officers of the Courts besides being representing a party in the Court. If the plea of the appellant before this Court is accepted, to my mind, it would amount to causing a serious dent not only in the relationship of Bar and Bench but even day to day administration of justice. Fair dispensation of justice to the litigants and public at large is based upon fair dealings of the Counsel. The Courts to some extent have to rely upon the statements made by the Counsel appearing for parties and act thereupon. In view of the terms of the authority the Counsel is supposed to have acted within his authority. In any case there is no document on record to show that the learned Counsel appearing before the Appellate Court had transgressed or exceeded the power vested in him by the party concerned."
In the case of Byram Pestonj Gariwala v. Union Bank of India and Ors., AIR 1991 SC 2234, the Hon'ble Supreme Court while making observations with regard to scope of authority of the Counsel made the following observations:
"Counsel's role in entering into a compromise has been traditionally under stood to be confined to matters within the scope of the suit. However, a compromise decree may incorporate not only matters falling within the subject-matter of the suit, but also other matters which are collateral to it."
"There is no reason to assume that the Legislature intended to curtail the implied authority of Counsel engaged in the thick of proceedings in Court, to compromise or agree on matters relating to the parties, even if such matters exceed the subject-matter of the suit. The relationship of Counsel and his party or the recognised agent and his principal is a matter of contract; and with the freedom of contract generally, the Legislature does not interfere except when warranted by public policy and the legislative intent is expressly made manifest."
7. As a result of the above discussion, I have no hesitation in dismissing this revision petition. Revision is dismissed without any order as to costs.