Gujarat High Court
Jitendrakumar Chunilal Bosmiya vs State Of Gujarat And Anr. on 21 February, 1995
Equivalent citations: (1995)2GLR1547
JUDGMENT A.N. Divecha, J.
1. Rule. Service of Rule is waived by learned Assistant Government Pleader Shri D.C. Dave for the respondents. By consent of the learned Lawyers appearing for the parties, this application is taken up for hearing today itself.
2. The petitioner has moved this application for setting aside the order passed by this Court on 15th March 1994 disposing of Special Civil Application No. 6606 of 1991 as withdrawn and for its restoration to file. No reply affidavit has come to be filed by or on behalf of the respondents. Shri Dave for the respondents has, however, resisted this application at the time of its hearing.
3. In support of this application, the learned Advocate for the petitioner in the writ petition has filed his affidavit. The original affidavit does not appear to be on record. Shri Nanavati for the petitioner states at the Bar that an affidavit of the learned Advocate for the petitioner in the writ petition has already been filed. In that view of the matter, I have accepted its ordinary copy for the purpose of deciding this case. Shri Nanavati for the petitioner has assured that he would supply a second affirmed copy of the affidavit on or before 28th February 1995 if by that time the original could not be traced.
4. It has clearly been admitted in the affidavit that this Court was disinclined to admit the matter at the stage of its preliminary hearing and thereupon the then learned Advocate for the petitioner got it disposed of as withdrawn. Learned Advocate Shri Bhatt has now filed an affidavit saying that such withdrawal was on account of some misunderstanding between him and his client, that is, the petitioner herein.
5. It cannot be gainsaid that every Advocate has an implied authority to compromise a case on behalf of his client at an appropriate stage. I am fortified in my view by the binding ruling of the Supreme Court in the case of Jamilabai v. Shankarlal . It has been held therein:
A pleader which includes all legal practitioners as indicated in Section 2(15), Civil Procedure Code has the actual, though implied, authority of a pleader to act by way of compromising a case in which he is engaged even without specific consent from his client, subject undoubtedly to two over-riding 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.
6. The implied authority to compromise or to settle a case on behalf of a litigant would include its withdrawal as a part thereof at an appropriate stage. It has been observed on the basis of some foreign case law in Mulla's 'Code of Civil Procedure' edited by Justice J.M. Shelat (Fourteenth Edition - Reprinted 1986) at page 32:
Counsel has an implied authority to withdraw an action. As regards Vakils or pleaders it has been held that a vakalatnama couched in general terms suffices prima facie to authorise him to apply on behalf of his client for leave to withdraw a suit, and in the absence of anything to show that the Vakil had acted contrary to the client's instructions, or otherwise was guilty of misconduct in making the application, the client is bound by the act of his Vakil.
An implied authority to compromise a case on behalf of his litigant on the part of an Advocate would certainly include an implied authority to withdraw it if the situation so requires. As observed by the Supreme Court in its aforesaid ruling, it is always prudent and proper to consult his client and take his consent if there is time and opportunity. However, at times it is not possible to consult the litigant before withdrawal of a case on his behalf. In a given situation, the case might have been listed for its hearing and, if the other side is present and is able to show to the Court some record which might require the Court to pass some strictures against the litigating or the petitioning party, an Advocate would be justified in exercise of his implied authority to withdraw the case on behalf of his litigant instead of inviting strictures against him. At that stage, he may not have any time or opportunity to consult his client and/or to take his consent. At that stage, it might be prudent and proper for him not to do so.
7. Once such implied authority to withdraw the case has been exercised by the Advocate appearing for the litigant, the latter cannot thereafter be permitted to resile therefrom and to contend otherwise before the Court which disposes of such case as withdrawn on the basis of such implied authority.
8. It is difficult to believe the case of the applicant that the petition was withdrawn by his Advocate on account of some misunderstanding between them. The reason therefor is quite simple. The misunderstanding between the Lawyer and the litigant is not borne out by the correspondence annexed with the affidavit filed by the Advocate in this proceeding. The order disposing of the petition as withdrawn was passed on 15th March 1994. The correspondence between the Lawyer and the litigant is found to have been exchanged nearly seven months thereafter in October 1994. It is difficult to believe that the Advocate informed the litigant about withdrawal of the petition some seven months after the date of its actual withdrawal. This appears to be an afterthought with some ulterior motive. This is one more reason why I am disinclined to consider the present application on merits.
9. Shri Nanavati for the petitioner submits that the vakalatnama of the learned Advocate for the petitioner in the writ petition does not confer any express authority on the learned Advocate for withdrawal of a case. That would be a case of express authority. In absence of such a clear-cut instruction, the implied authority can be exercised. Besides, the vakalatnama in the original petition does expressly give an authority to the then learned Advocate "to negotiate for compromise or to compromise" the matter. Such express authority would obviously include an authority to withdraw the matter.
10. I am unable to agree with the submission urged before me by Shri Nanavati for the petitioner to the effect that the implied authority stood revoked by the express negation thereto by the litigant as transpiring from the affidavit filed by the then learned Advocate for the petitioner in this proceeding. As indicated by me earlier in this order, that appears to be an afterthought. The correspondence in that regard is of October 1994 and the order disposing of the petition as withdrawn was passed seven months prior thereto on 15th March 1994.
11. It appears from the record that the petition came to be withdrawn at the stage of its preliminary hearing as to admission. It appears that the preliminary hearing on 15th March 1994 was in presence of the other side. It is possible that the other side had kept the record of the case before the Court and the Court might have been inclined to pass some strictures against the petitioner and at that stage the learned Advocate for the petitioner might have thought it fit to withdraw the petition instead of inviting some strictures. It is possible that the Court was disinclined to grant any time to the Advocate to consult his litigant for the purpose. It is difficult to remember what exactly might have transpired at that time. No fault can be found with the learned Advocate for the petitioner in withdrawing the petition on 15th March 1994 after its preliminary hearing when this Court was not inclined to issue Rule on this petition as admitted by the then learned Advocate for the petitioner in his affidavit in support of this application.
12. In view of my aforesaid discussion, I have found no merit or substance in this application. It deserves to be rejected.
In the result, this application fails. It is hereby rejected. Rule is accordingly discharged with no order as to costs.