The relationship of counsel and his party or the recognised agent and his principal is a matter of contract

Courts in India have consistently recognised the traditional role of lawyers and the extent and nature of their implied authority to act on behalf of their clients. Speaking for a Full Bench of the Kerala High Court in Chengan Souri Nayakam v. A. N. Menon, AIR 1968 Kerala 213, K. K. Mathew, J. (as he then was) observed:

“The construction of a document appointing an agent is different from the construction of a vakalat appointing counsel. In the case of an agent the document would be construed strictly and the agent would have only such powers as are conferred expressly or by necessary implication. In the case of counsel the rule is otherwise because there we are dealing with a profession where well-known rules have crystallised through usage. It is on par with a trade where the usage becomes an additional term of the contract, if not contrary to the general law or excluded by express agreement.” (p. 215).

The relationship of counsel and his party or the recognised agent and his principal is a matter of contract; and with the freedom of contract generally, the legislature does not interfere except when warranted by public policy, and the legislative intent is expressly made manifest. There is no such declaration of policy or indication of intent in the present case. The legislature has not evinced any intention to change the well recognised and universally acclaimed common law tradition of an ever alert, independent and active Bar with freedom to manoeuvre with force and drive for quick action in a battle of wits typical of the adversarial system of oral hearing which is in sharp contrast to the inquisitorial traditions of the ‘civil law’ of France and other European and Latin American countries where written submissions have the pride of place and oral agruments are considered relatively insignificant. (See Rene David, English Law and French Law Tagore Law Lectures, 1980). ‘The civil law’ is indeed equally efficacious and even older, but it is the product of a different tradition, culture and language; and there is no indication whatever that Parliament was addressing itself to the task of assimilating or incorporating the rules and practices of that system into our own system of judicial administration.

31. The Indian legal system is the product of history. It is rooted in our soil; nurtured and nourished by our culture, languages and traditions; fostered and sharpened by our genius and quest for social justice; reinforced by history and heritage:it is not a mere copy of the English common law; though inspired and strengthened, guided and enriched by concepts and precepts of justice, equity and good conscience which are indeed the hallmark of the common law. In the words of M. C. Setalvad:

“….. the common law of England with its statutory modifications and the doctrines of the English courts of equity has deeply coloured and influenced the laws and the system of judicial administration of a whole sub-continent inhabited by nearly four hundred million people. The law and jurisprudence of this vast community and its pattern of judicial administration are in many matters different from those of England in which they had their roots and from which they were nurtured. Yet they bear the unmistakable impress of their origin. The massive structure of Indian law and jurisprudence resembles the height, the symmetry and the grandeur of the common and statute law of England. In it one sees English law in the distant perspective of a new atmosphere and a strange clime.”

Speaking of the common law in the wider sense, the learned author continues:-

“……. But the English brought into India not only the mass of legal rules strictly known as the common law but also their traditions, outlook and techniques in establishing, maintaining and developing the judicial system. When, therefore, I speak of the common law in India I have in view comprehensively all that is of English origin in our system of law. In that wide meaning the expression will include not only what in England is known strictly as the common law but also its traditions, some of the principles underlying the English statute law, the equitable principles developed in England in order to mitigate the rigours of the common law, and even the attitudes and methods pervading the British system of the administration of justice.”

The Common Law in India, 1960- The Hamlyn Lectures, Twelfth Series, pp. 1-4.

32. After the attainment of independence and the adoption of the Constitution of India, judicial administration and the constitution of the law Courts remained fundamentally unchanged, except in matters such as the abolition of appeals to the Privy Council, the constitution of the Supreme Court of India as the apex Court, the conferment of writ jurisdiction on all the High Courts, etc. The concept, structure’ and organisation of Courts, the substantive and procedural laws, the adversarial system of trial and other proceedings and the function of judges and lawyers remained basically unaltered and rooted in the common law traditions in contradistinction to those prevailing in the civil law or other systems of law.

33. In our own system of judicial administration, if strains have developed and cracks have appeared by the stresses and pressures of the time; if aberrations have become too obvious to be ignored or too deep-rooted to be corrected by an internal mechanism; if the traditional role of the legal profession requires urgent legislative scrutiny with a view to remedying the defects and strengthening and safeguarding the system; it is a matter exclusively for Parliament to consider; but the amendment in question is not addressed to that purpose.

34. Aberrations the real ways have been in every system of administration; but whether they are merely peripheral or transient in character – mere ripples on a placid pool – or symptomatic of deeper malady requiring structural modification by prompt legislative intervention is a matter of grave significance for the jurist, sociologists and political scientists to ponder over.

35. So long as the system of judicial administration in India continues unaltered, and so long as Parliament has not evinced an intention to change its basic character, there is no reason to assume that Parliament has, though not expressly but impliedly reduced counsel’s role or capacity to represent his clients as effectively, as in the past. On a matter of such vital importance, it is most unlikely that Parliament would have resorted to implied legislative alteration of counsel’s capacity or status or effectiveness. In this respect, the words of Lord Atkin in Sourendra (supra) comparing the Indian advocate with the advocate in England, Scotland and Ireland, are significant:

“There are no local conditions which make it less desirable for the client to have the full benefit of an advocate’s experience and judgment. One reason, indeed, for refusing to imply such a power would be a lack of confidence in the integrity or judgment of the Indian advocate. No such considerations have been or indeed could be advanced, and their Lordships mention them but to dismiss them….. (Page 161).

36. Similar is the view expressed by the Rajasthan High Court in Mohan Bai v. Jai Kishan, AIR 1983 Raj 240; Smt. Mohan Bai v. Smt. Jai Kishan, AIR 1988 Raj 22, and by the Gujarat High Court in Nadirsha Hirji Baria v. Niranjankumar alias Nireshkumar Dharamchand Shah, 1983 (1,24 G ‘LR 774. A contrary view has been expressed by the Andhra Pradesh High Court in Kesarla Raghuram v. Dr. Narsipalle Vasundara, AIR 1983 Andh Pra 32, and it does not commend itself to us.

37. 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.

38. 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 itself 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. [ AIR 1991 SC 2234 : (1991) 1 Suppl. SCR 187 : (1992) 1 SCC 31 : (1991) (4) JT 15 : (1991) 2 SCALE 625 Byram Pestonji Gariwala Versus Union Bank of India and others ]