- (1.) THIS is plaintiff's second appeal arising out of a suit for cancellation of the compromise decree dated 22nd September 1962 in suit No. 403 of 1956 Rajeshwar Pandey and others v. Chandradeo Pandey and others.
(2.) THE facts giving rise to this second appeal are simple but interesting. Series of litigation have been fought out between the parties ranging over 25 years without any decision on merits. Normally compromise is adjustment as a result of reciprocal feeling to bury the differences but this is a peculiar case where anxiety to adjust has been off set thrice. A suit for declaration of tenancy right filed under S.59/61 of the U. P. Tenancy Act was compromised as early as 17th January 1952. An application to set aside the compromise failed and the order was maintained up to the Board of Revenue. Not satisfied with the orders of the revenue courts a civil suit No. 603 of 1957 was filed before Munsif Ballia. Strange as it may appear but this suit, also, was compromised on 22nd September 1962. Immediately thereafter suit No. 348 of 1963 was filed by the appellant for setting aside of this compromise decree. The trial court decreed the suit but the lower appellate court allowed the appeal. Aggrieved against the order passed by the lower appellate court the plaintiffs filed this second appeal. The compromise decree is challenged by the two appellants on two different grounds. Chandradeo Pandey appellant no. 1 assailed the decree on the ground that he had not instructed the lawyer to act on his behalf. He based his claim on the ground that he was not present either on the date when the compromise was filed or when it was verified.
(3.) THE lawyer has appeared as a witness and his statement has been characterised as candid and fair. He has admitted that he was engaged by the father of the appellant who had brought a Vakalatnama duly signed by the appellant. THE signature on the Vakalatnama is not disputed nor the authority of the father to engage the lawyer is challenged. THE plaintiff further does not challenge that the Vakalatnama authorised the lawyer to enter into compromise. Instruction to the lawyer to appear on behalf of the appellant was given by no less a person than his father who himself was a party. The lower appellate court has recorded a finding that the lawyer acted fairly on the instructions of the appellants' agent. In Jamila Bai v. Shankar Lal, AIR 1975 SC 2202 at page 2210 it was held by the Supreme Court: "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) Civil Procedure Code 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." As observed earlier the lawyer acted in good faith. Moreover as father of the appellant was present on all dates there was no imprudence or impropriety in not consulting the appellant.;