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Miscellaneous Appeal No. 64 of 1954, decided on 16th January 1958.

‑Means settlement of dispute by mutual con cession or adjustment of conflicting claims.

, O. III, r. 1‑"Acting" in cludes all steps which pleader is expected to take in proper conduct of case‑Counsel can withdraw interlocutory applications.

The Governor‑General in Council v. Bhagwan Sahai A I R 1948 E P 61 rel.

Thenal Ammal and another v. Sokkammal and 46 others I L R 41 Mad. 233 ; .R. Pillai v. Bodra Mayakar and others A I R 1920 Mad. 232 ; Jagapati Mudaliar v. Ekmmbara Mudaliar I L R 21 Mad. 274 and Din Muhammad and another v. Farooq Mirza P L D 1955 Sind 62 ref.

Umar Khan for Appellant.

D. C. Agha for Respondents.

‑ The appellant filed a suit for dec laration and injunction against the respondents to restrain them from obstructing the passage of rain water flowing from the roof of her house into the courtyard and from the courtyard through the plot of .land of respondent No. 1 to the Municipal drains. An application for interim injunction was made and ex parte orders were granted on it. An allegation was then made on behalf of the appellant that respondents 1, 2 and 4 had committed a breach of the order and the Court was requested to attach the property of these respondents for the disobedience of the order. These applications came up for hearing on the 27th of September 1954, when the advocate of the appellant namely Mr. Castellino made a statement that he wanted to drop the applications. The Court recorded the order as follows :

"Mr. Castellino drops the applications".

This appeal has been preferred against this order on the ground that the advocate did not have the power to do so because he neither had the authority under the terms of the Vakalatnama nor was .he instructed by the appellant to drop the two applications. The statement made by him was, therefore, without authority and is not binding on the appellant. The appellant has filed an affi davit in which she has deposed that her brother, M. Moosa came to know of the fact that the applications were dropped by Mr. Castellino when he made inquiries from him respecting the applications. Two counter‑affidavits have been submitted in which it is stated that the suit was looked after by the brother of the appellant who had carried the Vakalatnama of the appellant to her advocate, that the appellant had never visited the office of her advocate and that the advocate had taken instructions from the brother for dropping the applications before doing so. The brother is alleged to have been present in Court from whom Mr. Castellino asked whether he should drop the applications and he gave instructions to drop them by nodding his head in the affirmative. It is pointed out in the counter‑affidavits that no affidavit of Mr. Castellino has been filed in support of the allegation that he dropped the applications without instructions.

The learned counsel for the appellant has cited Jagapatti Mudaliar v. Ekmmbara Mudaliar (I L R 21 Mad. 274), Din Muhammad and another v. Farooq Mirza (P L D 1955 Sind 62) in support of the proposition that an advocate cannot compromise a suit without a specific authority to do so. It is admitted by‑the parties that the Vakalatnama of Mr. Castellino was in the form which is printed in the Chief Court Rules on the Original Side. The form is very simple and short and consists of three lines only. According to it the client says that he or she appoints a named advocate to appear and act as an advocate in the matter the cause title of which is stated at the top of the Vakalatnama. The counsel has argued that Mr. Castel lino was authorised generally to act' for his client and this autho rity cannot be interpreted to include the authority to make a compromise. This argument is based on the assumption that his act of dropping applications amounted to a compromise. This however is not correct because compromise means settlement of disputes by mutual concession or adjustment of conflicting claims. In the present case Mr. Castellino has dropped the applications for some reason which we do not know. He was authorised to act' for his client and acting for the purposes of Order III, Rule 1, C. P. C. includes all steps which the pleader is expected to take B in the proper conduct of the case. See The Governor‑General in Council v. Bhagwan Sahai (A I R 1920 Mad. 232). It is possible that the counsel thought it right for the proper conduct of the case as a whole and in the general interest of his client that the two applications should be dropped. There is no allegation that he was prompted by improper considerations or that there was lack of bona fides in this case. The counsel of the appellant has cited Thenal Ammal and another v. Sokkammal and 46 others (2) in which it was held, on the interpretation of the terms of a Vakalatnama that the client "did not intent that the Vakil should have unlimited powers to settle the claim of his clients". It was further held that it was not the ordinary duty of an advocate to negotiate terms, without reference to his client, with the opposite party and their Lordships observed that they did not think it desirable in the interest of the profession that such a power should vest in the advocates. In R. Pillai v. Bodra Nayaker and others (3) Aiyer, J. has held that the power to compromise a matter does not include the power to withdraw the appeal unconditionally. We are not concerned in this case with the power to compromise or the power to withdraw unconditionally an appeal or a suit. All that has been done by Mr. Castellino is that he gave up the interlocutory applications which he had made. If this was a step which he could take for the proper conduct of the case then he was clearly entitled to take it in the exercise of the general authority to act' for his client. The counsel for the respondents has stated at the Bar that the trial Court had inspected the cite after issuing notices on the appli cations but before the date of their hearing and had passed an order which contained strictures on the brother of the appellant for the manner in which the case was being conducted and for harass ing the opposite parties. This fact is not denied by the counsel of the appellant. It is not necessary for us to find out the reasons which could impel Mr. Castellino for taking the step of dropp ing the two applications but the fact that adverse remarks were made by the Court in his note of inspection assists us in the speculation that situations can rise in which an advocate may consider it proper in the general interest of his client not to pres a point or, to use the words of Mr. Costellino, to drop interlocutor (1) AIR 1948 E P 61 at p. 63 (2) I L R 41 Mad. 233 applications. Such an act would be within the broad scope of his power to act' and cannot be objected to unless it is shown that there was lack of straightforwardness in his conduct.

The only point which has been raised before us is the scope of the authority of the learned counsel. In this connection we may with advantage refer to a Division Bench reported in 5 Suth. W B 80. Seton‑Karr, J. has observed in it as follows :

"The Vakalatnama, which we have read, is broad and general in its terms and empowers the pleader to act and take any steps in the case. The withdrawal is not in the nature of a regular compromise by Razeenamah ; and looking to the sudden and irre gular way in which the appellant came before the Court, and his as sudden withdrawal, I should say that, in this particular instance, the client is bound by the acts of his Vakil, especially when nothing appears on the face of the proceedings to disclose any bad motive on the Vakeel's part, or to show that the lower Court acted improperly".

The counsel of the appellant has cited 16 Cal. W N 932 in support of the proposition that a Vakeel cannot compromise a case or withdraw a claim unless he is specifically empowered to do so. We find however that the ruling is against his contention. The learned Judges have observed as follows :

We do not think that in the circumstances of the present case, we ought to exercise our revisional powers in setting aside the order. The Vakalatnama authorised the pleader "to choose arbitrators, prefer objections to awards, file Solenamah or Refanamah when necessary and do all necessary acts in connec tion with the suit that will be for our benefit and the said act will be deemed as done by ourselves". When such wide powers were specially given to the pleader, we are inclined to think that the words "all necessary act" should legitimately be construed as including an application under O. XXIII, r. 1.

1t is clear that according to the terms of the Vakalatnama quoted by the Judges the pleader was not authorised to make an applica tion under O. XXIII, r. 1, Civil P. C. but it was held that he could be taken to be in enjoyment of this power because he had the authority to do all necessary acts. In the present case the Vakalatnama is .as general as it could be, because it authorises the advocate without any qualification or restriction to act' on behalf of his client.

We accordingly hold that Mr. Castellino had the authority to drop the applications and that he did not exercise that authority otherwise than for the proper conduct of the case. The appeal is dismissed with costs.

K. M. A. Appeal dismissed.

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