Can the court accept a compromise petition if the party has not given authority to his advocate to compromise the case through a special Vakalatnama?

 The third question that arises for our consideration in context with the legality and validity of the settlement is whether the learned advocate appearing for the cross-objector i.e., Defendant No. 2 could have signed the compromise petition without an express consent. It is an imperative duty of the Court to ascertain the genuineness and lawfulness of the compromise deed. Indisputably, in the case on hand, the First Appellate Court had neither recorded the statements of the parties in the Court nor had made any inquiry into the terms of the settlement. It is in such circumstances that the High Court in its impugned order has observed that the Compromise Petition was signed by the advocate without any express authority or without special vakalatnama executed in favour of the advocate. In fact, the authority was expressly curtailed in the compromise deed. {Para 100}

103. Almost six decades back, the Madras High Court speaking through Justice Ramaswami (as His Lordship then was) in the case of Govindammal v. Marimuthu Maistry and Ors. reported in MANU/TN/0103/1959 : AIR 1959 Mad 7 had sounded the note of caution observing as under:

5.... The decisions appear to be fairly clear that even in cases where there is no express authorization to enter into a compromise, under the inherent authority impliedly given to the Vakil he has power to enter into the compromise on behalf of his client. But in the present state of the clientele world and the position in which the Bar now finds itself and in the face of divided judicial authority and absence of statutory backing prudence dictates that unless express power is given in the vakalatnama itself to enter into compromise, in accordance with the general practice obtaining a special vakalatnama should be filed or the specific consent of the party to enter into the compromise should be obtained. If an endorsement is made on the plaint etc., it would be better to get the signature or the thumb impression of the party affixed thereto, making it evident that the party is aware of what is being done by the Vakil on his or her behalf.

104. Thus, in view of the aforesaid discussion, we hold that the High Court committed no error in holding that the settlement between the Defendant Nos. 1 and 2 was unlawful.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2913-2915 of 2018

Prasanta Kumar Sahoo and Ors.  Vs.  Charulata Sahu and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Decided On: 29.03.2023

Citation: MANU/SC/0326/2023.

Read full Judgment here: Click here

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Whether the court can allow the compromise of a suit if Advocates of parties only sign the compromise petition?

We may, however, hasten to add that it will be prudent for counsel not to act on implied authority except when warranted by the exigency of circumstances demanding immediate adjustment of suit by agreement or compromise and the signature of the party cannot be obtained without undue delay. In these days of easier and quicker communication, such contingency may seldom arise. A wise and careful counsel will no doubt arm himself in advance with the necessary authority expressed in writing to meet all such contingencies in order that neither his authority nor integrity is ever doubted.

This essential precaution will safeguard the personal reputation of counsel as well as uphold the prestige and dignity of the legal profession.

47. Considering the traditionally recognised role of counsel in the common law system, and the evil sought to be remedied by Parliament by the C.P.C. (Amendment) Act, 1976, namely, attainment of certainty and expeditious disposal of cases by reducing the terms of compromise to writing signed by the parties, and allowing the compromise decree to comprehend even matters falling outside the subject-matter of the suit, but relating to the parties, the legislature cannot, in the absence of express words to such effect, be presumed to have disallowed the parties to enter into a compromise by counsel in their cause or by their duly authorised agents. Any such presumption would be inconsistent with the legislative object of attaining quick reduction of arrears in Court by elimination of uncertainties and enlargement of the scope of compromise.

48. To insist upon the party himself personally signing the agreement or compromise would often cause undue delay, loss and inconvenience, especially in the case of non-resident persons. It has always been universally understood that a party can always act by his duly authorised representative. If a power-of-attorney holder can enter into an agreement or compromise on behalf of his principal, so can counsel, possessed of the requisite authorisation by vakalatnama, act on behalf of his client.

Not to recognise such capacity is not only to cause much inconvenience and loss to the parties personally, but also to delay the progress of proceedings in court.

If the legislature had intended to make such a fundamental change, even at the risk of delay, inconvenience and needless expenditure, it would have expressly so stated.

49. Accordingly, we are of the view that the words 'in writing and signed by the parties', inserted by the C.P.C. (Amendment) Act, 1976, must necessarily mean, to borrow the language of Order III rule 1 C.P.C.:

any appearance application or act in or to any court, required or authorized by law to be made or done by a party in such court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader, appearing, applying or acting as the case may be, on his behalf:

Provided that any such appearance shall, if the court so directs, be made by the party in person.

(emphasis supplied)

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3698 of 1991

Decided On: 20.09.1991

Byram Pestonji Gariwala Vs. Union Bank of India 

Hon'ble Judges/Coram:

T.K. Thommen and R.M. Sahai, JJ.

Citation: (1992) 1 SCC 31)

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Whether compromise petition should be on affidavit?

Order 6, Rule 15 (1) of C.P.C stipulates that every pleading shall be
varied at the foot by the party or by one of the parties pleading or by some other
person proved to the satisfaction of the Court to be acquainted with the facts of
the case. Sub Rule (4) was inserted to Order 6, Rule 15 of C.P.C by Act No.46 of
1999 w.e.f. 01.7.2002 which stipulates that the person verifying the pleading shall
also furnish an affidavit in support of his pleadings.
14. However, the court below accepting the compromise petition decreed
the suit on the terms and conditions of the said compromise. Though the said
application was defective due to non compliance of the aforesaid provision the
said fact was not taken note of. On the above back ground the court below has not
considered whether fraud has been practised or not taking into consideration the
8
provisions as discussed. It further reveals from the L.C.R. that the order sheet in
which the compromise was recorded is a plain paper one without assigning any
reason why printed form of order sheet was not appended thereto. The court
below while considering the application under Order 23, Rule 3-A of C.P.C should
have also taken note of all these facts.

ORISSA HIGH COURT : CUTTACK
W.P.(C) NO.6535 OF 2011
(In the matter of an application under Articles 226 and 227 of the Constitution of
India)

Barendra Biswal Vs Rama Roy @ Das and another 

P R E S E N T :
 KUMARI JUSTICE S.PANDA
Date of Judgment : 25.03.2015
Citation; AIR 2015 orissa 125

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Whether plaint is public document?

What are public documents are stated in Section 74
of the Evidence Act: Documents forming the acts or
records of the acts of the sovereign authority, of official
bodies and tribunals, and of public officers, legislative,
judicial and executive, of any part of India or of the
Commonwealth or of a foreign country have been
described as public documents. I cannot see how a plaint
filed by a private person in Court to institute a case
against some others can come within the descriptions of
the documents given in that sub-section. Sub-section (2)
of Section 74 can in no way include a plaint. The plaint is
neither an act nor the record of an act of any public
officer. There can be no strength in the contention that
when the plaint is presented and the Court makes an
order admitting or registering it, the plaint becomes an
act or the record of an act of a public officer presiding
over the Court. At the most, it will become a part of the
record maintained by the Court in that case after the

plaint is admitted and registered, but that itself will not
make it a public document. If it were, then anything filed
in a case in a case in a court of law either petitions or
pleadings, private communications or documents which a
party would file in a case would become public
documents for the simple reason that they are on the
record of a case in Court. The judgment and decree
passed in a case are undoubtedly the acts of the Court,
and they will be public documents on that account.
Similarly, a petition of compromise which is made a part
of the decree forms a part of the public document, but
before its incorporation in the decree, it remains a
private document, though filed in Court, forming a part
of the case record.

Considering the above facts and circumstances of the
case and the law governing the field, this Court is of the definite
conclusion that the plaint in C.S. No.80 of 2006 is not a public
document within the meaning of Section 74 of the Evidence Act and
therefore, the same cannot be admitted into evidence and marked as
exhibit without proving the contents thereof. 
ORISSA HIGH COURT, CUTTACK
W.P.(Civil) NO. 10286 OF 2007

Smt.Baijayanti Nanda  Vs Sri Jagannath Mahaprabhu 

PRESENT:-
THE HON’BLE DR. JUSTICE B.R. SARANGI

 Date of judgment : 13.03.2014

Citation;AIR 2014 Orissa 128

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