Decided on October 26,1993

P S N RAWTHER Appellant


- (1.)DEFENDANTS 2 and 3 arc the appellants. Plaintiff filed the suit for partition claiming 5/12 shares in item No. 1 and 5/12 shares in 1/3 right in items 2 to 4. DEFENDANTS 2 to 4 filed written statement raising several contentions including adverse possession. The suit was listed for trial on 10-10-1983. It was adjourned to 28-10-1983. On that day plaintiffs counsel made endorsement on the plaint that he agrees to a partition decree for his 5/12 shares over the entire plaint schedule items to be carved out from items 1 and 2 alone of the plaint schedule, on the same day counsel for defendants 2 to 4 made the following endorsement. " Except 4th defendant others do not come even after repeated requests. The above is agreed to". Case was then adjourned to 31-10-1983 and on that day it was decreed as per the endorsement. DEFENDANTS 2 and 3 challenged the judgment and decree by filing appeal before the Sub Judge, Kottarakkara. The Sub Judge dismissed the appeal on the ground that the decree is passed on consent of parties and hence the appeal is not maintainable. Aggrieved by the same the above appeal is filed.
(2.)MAIN contention of the defendants is that when the endorsement was made by their counsel he did not have instructions to compromise the suit and hence it cannot in any manner bind them. Counsel submitted that as a result of the endorsement defendants 2 and 3 are seriously prejudiced and they have been denied of fair trial and a considered decision by the Court. Counsel for the plaintiff argued that the judgment of the trial Court is not based on compromise but on consideration of all issues involved in the case and so it cannot be assailed.
The question that arises for consideration is whether a counsel can effect compromise in a suit without instructions from the party who had engaged him. The case of defendants 2 and 3 is that they never instructed their counsel to effect any compromise in the suit. Endorsement made by the defence counsel does not show that it has been made at the behest of defendants 2 and 3. In fact it shows that defendants 2 and 3 have not met their counsel when the endorsement was made. The endorsement shows that even after repeated requests defendants 2 and 3 have not met him. This would certainly show that the counsel lacked instructions from defendants 2 and 3 to enter into a compromise on their behalf in the suit. As defendants 2 and 3 persistently refused to meet their advocate, the only course open to him was to have submitted no instructions before the Court and not saddle them with a compromise of his own choice. As the compromise in a suit would be binding on the parties the advocate sought to have consulted defendants 2 and 3 and as obviously there was no such consultation it cannot jeopardise their interests. As defendants 2 and 3 have raised several contentions in their written statement it was not proper or fair on the part of their advocate to have made the aforesaid endorsement without actually ascertaining their stand. In a case where the counsel finds that his party is not vigilent in the prosecution of the case or when he finds that the party keeps off from him despite notice, the course open to him is to submit no instructions before the Court and not to enter into a compromise with the adversary.

As the endorsement made by the counsel for defendants 2 and 3 discloses that he. had no occasion to ascertain from them as to whether they are agreeable to the compromise in the suit I hold that an opportunity should be afforded to them to substantiate their case set up in the written statement. Even if the trial Court has considered the documentary evidence adduced by both parties and has come to a finding of its own notwithstanding the endorsement the judgment and decree cannot be sustained as defendants 2 and 3 were denied opportunity to advance their contentions before the Court due to the unauthorised compromise effected by their advocate.

(3.)FOR the foregoing reasons the judgment and decree of the trial Court which was confirmed by the lower appellate Court are set aside. The case is remanded to the trial Court for denovo consideration after affording opportunity of hearing to the parties concerned. The trial Court is directed to dispose of the suit with utmost expedition and at any rate within a period of three months from the date of receipt of records from this Court. Second Appeal stands allowed. No costs. Transmit the case records to the trial Court immediately. .

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