R.S.Narula, C.J. - (1.) In a suit for specific performance of an alleged agreement by which defendant-appellant agreed to execute a deed transferring the ownership rights of a specific piece of land measuring 17 Kanals and 18 Marlas, an agreement was arrived at between the counsel for the parties in the trial Court after a good deal of evidence had already been led by them. This happened on August 19, 1971. Shri Brij Mohan Lal, counsel for the plaintiff, made the following statement:- "Suit of the plaintiff may be dismissed, if Thakar Singh defendant takes oath in the Kandh Sahib Gurdwara that suit land is not of the plaintiff and he has not made any agreement of it in favour of plaintiff. In case he does not take oath suit of the plaintiff may be decreed." The statement was signed not only by Brij Mohan Lal Advocate but also by the plaintiff's son Sohan Singh. On that statement being made on behalf of the plaintiff, Thakar Singh defendant made the following statement on oath before the trial Court:-- "I accept the offer of the counsel of the plaintiff; suit may be decided according to it." Thakar Singh's statement was thumb-marked by him and also signed by his Advocate. The following order was thereupon passed by the trial Court on that date:-- "In view of the statements of counsel of parties and defendant Thakar Singh, I appoint Gurmukh Singh to administer oath to Thakar Singh defendant as stated by the counsel of the plaintiff, that Thakar Singh made no agreement in favour of plaintiff of the suit land. If he takes oath suit will be dismissed, otherwise the same would be decreed. His fee is fixed at Rs. 30 to be paid half and half by parties." It may be noticed et this stage that Inder Singh plaintiff (who is present before us today) is stated to be more than 100 years old. It is the common case of both sides that his son Sohan Singh has been actively prosecuting this litigation on his behalf. It may also be of interest to note that Inder Singh plaintiff and Thakar Singh, contesting defendant, are real brothers and the claim relates to certain land which is alleged to have been allotted in excess to Thakar Singh in lieu of the joint land which had been left behind by the parties in Pakistan. What happened in pursuance of order of the Court dated August 19, 1971, was that Gurmukh Singh who is stated to be the Reader of the Court of Shri A.C. Rampal, the learned Sub-Judge before whom the case was pending at the trial stage, went to the Kandh Sahib Gurdwara along with plaintiff's son Sohan Singh, defendant Thakar Singh and certain counsel. On his return, he submitted his report on the same day in the following words:-- "I am appointed as Local Commissioner for administration of oath to Thakar Singh. Thakar Singh has taken oath as per statement in Court in the presence of Sohan Singh son of Inder Singh plaintiff. Submitted." On the receipt of the above report, the trial Court recorded the statement of plaintiff's counsel, which is also signed by plaintiff's son Sohan Singh wherein it is recorded that the suit of the plaintiff may be dismissed and it is added that Thakar Singh defendant had taken an oath. After that statement of the counsel for the plaintiff, the suit of the plaintiff was dismissed by the Court of Shri A.C. Rampal "in view of statement of counsel of plaintiff". No objections were filed against the report of the Commissioner. Mr. Sarin's case is that his client was not even given breathing time and there was no opportunity to file any objections.
(2.) An appeal against the decree was preferred by the plaintiff to the Court of the District Judge. Shri Ved Parkash Sharma District Judge, Gurdaspur, allowed the plaintiff's appeal by his judgment dated May 31, 1972. The learned Dist. Judge held that Shri Brij Mohan Lal, Advocate for the plaintiff, had no power to consent to the settlement of the case by an oath being taken by the opposite party under S. 9 of the Indian Oaths Act, 1873, nor did Section 36 of the Code of Civil Procedure. 1882, give him any such authority as no specific power to that effect had been given to him in the Vakalatnama executed in his favour by the plaintiff. In addition, he held that the trial Court acted in an indecent haste to decide the case inasmuch as the report of the Commissioner did not specifically show that Thakar Singh had actually stated in the Gurdwara and the Commissioner had not even reported as to where and in whose presence the statement was made by Thakar Singh. An objection was taken by the learned District Judge to the words spoken by Thakar Singh not having been recorded by the Local Commissioner. Notice was also taken of the difference in the statement required to ba given by Thakar Singh on oath between what had been stated by the Advocate for the plaintiff and what had been recorded in the order of the trial Court The decree of the trial Court was set aside for the foregoing reasons and the case was odrered by the lower appellate Court to be remanded to the trial Court for re-decision on merits.
(3.) The unsuccessful defendant then filed this appeal against the order of the learned Additional District Judge When the appeal came up before a learned Single Judge of this Court, he noticed the contention of the counsel for the defendant-appellant that an Advocate has an inherent right to enter into a compromise and that even if the provisions of the Indian Oaths Act, 1873, could not apply on account of the repeal of that Act by the Oaths Act 44 of 1969, nothing could stop the Advocate of the plaintiff-respondent in settling the case on the basis of certain conditions. Since, in the opinion of the learned Single Judge, this question was one of importance and there is also some judicial opinion to the effect that the provisions of the Act were against public policy, the learned Judge thought it proper that the case should be decided by a larger Bench and, therefore made this reference on October 4, 1973.;