1. Order on C. M. A. No. 1603 of 1981 NAIMUDDIN, J.-,The facts giving rise to this application under section 151, C. P. C. Are as follows The appellant filed an application for eviction of the respondent on the ground of default in payment of the rent. The Controller after deciding the Preliminary issue of relationship of landlord and tenant in favour of the appellant/landlord, dismissed the application holding that there was no wilful default. However, the appellant succeeded in appeal before the III Additional District Judge, Karachi, but on further appeal the order was set aside by this Court. Therefore, the petitioner filed the present Letters Patent Appeal which was admitted to regular hearing by the order dated 8-3- 1972, passed by a Division Bench of this Court on the ground that this was a certified appeal.
2. At the final hearing the learned counsel for the parties filed 49 compromise application for disposal of the appeal by consent in thefollowing terms.
3. The parties have settled their disputes and they pray that the appeal may be disposed of by consent in the terms of the following: If the respondent deposits in this appeal in this Court the sum of Rs. 5,400 (five thousand four hundred) only within three months, minus amount paid by him after 9-9-1962 to the KMC, Excise & Taxation departments on account of water, conservancy and Fire Brigade charges or on account of Property Tax. If the respondent fails to deposit the amount as mentioned above within the time stipulated, the appellant shall be entitled to vacate the respondent forthwith."
4. The appeal was accordingly disposed of by the order dated 17-3-1981.
5. Thereafter, on 23-5-1981, the respondent filed the present application through Mr. Dastgir Ghazi Advocate praying to withdraw or quash the order dated 17-3-1981 passed on the basis of compromise which according to the respondent was without his knowledge and signature and to decide the Letters Patent Appeal on merits.
6. The ground urged in support of the application by Mr. Dastgir Ghazi learned Counsel for the respondent is that the Advocate who was then appearing for the respondent had entered into the compromise without the knowledge and consent of the respondent and that the respondent was kept in complete darkness as to the alleged compromise.
7. However. It is not denied that Mr. Muhammad Ali Shaikh Advocate who was previously appearing for the respondent was expressly authorised to compromise as his Vakalarnama contains such power. Therefore, it cannot be said that the compromise entered in t o by the then Advocate for the respondent was without authority from the respondent. The: Consent of the respondent is implied in the power expressly given to the Advocate.
8. It is submitted by Mr. 1. M. Patel learned counsel for the appellant that not only the Advocate for the respondent namely Mr. Muhammad Ali Shaikh was expressly authorised by the respondent to enter into the compromise but the compromise was also acted upon as the respondent had deposited in Court the amount of arrears of rent mentioned in the compromise application. However, the learned Counsel for the respondent, Mr. Dastgir Ghazi, in reply, submitted that the respondent had done so to avoid the consequence of default as he had already filed the application for setting aside the order. Be that as it may, the fact remains that the compromise entered into was with the expressed` authority and we do not find anything illegal about the compromise.1p It was held by the Privy Council in Sourendra Nath Mitra and others v. Tarubala Dasi (A IR 1930PC158), that they regard the power to compromise a suit as inherent in the position of an advocate in India. Lord Atkin who delivered the opinion on behalf of the Judicial Committee had further opined that the considerations which have led to this implied power being established in the advocates of England, Scotland and Ireland, apply in equal measure to India. He further observed that "It is a power deemed to exist because its existence is necessary to effectuate the relations between Advocate and client to make possible the duties imposed upon the Advocate by his acceptance of the cause of his client. The advocate is to conduct the cause of his client to the utmost of his skill and understanding. He must in the interest of his client be in the position hour by hour, almost minute by minute, to advance this arguments to withdraw that; he must make the final decision whether evidence is to be given or not on any question of fact ; skill in advocacy is largely the result of discrimination. These powers in themselves almost amount to powers of compromise : one point is given up that another may prevail. But in addition to these duties, there is from time to time thrown upon the Advocate, the responsible task of deciding whether in the course of a case he shall accept an offer made to him, or on his part shall make an offer on his client's behalf to receive or pay something less than the full claim of the full possible liability. Often the decision must be made at once. If further evidence is called or the Advocate has to address the Court the occasion for settlement will vanish. In such circumstances, if the Advocate has no authority unless he consults his client. Valuable opportunities are lost to the client. On such grounds as these Advocates in England, Scotland and Ireland have long been considered to have an implied power to settle a suit in which they have received a brief."
9. The Privy Council however, added two observations "First, the implied authority of counsel is not an appendage of office, a dignity added by the Courts to the status of barrister or advocate at law. It is implied in the interests of the client, to give the fullest beneficial effect to his employment of the advocate. Secondly, the implied authority can always be countermanded by the express directions of the client. No advocate has actual authority to settle a case against the express instructions of his client. If he considers such express instructions contrary to the interest of his client, his remedy is to return his brief."
10. The hon'ble Judges further proceeded "Their Lordships are unable to see why the above considerations should not apply to an advocate in India, whose duties to his client in the conduct of a suit is no were different from those of advocates in England, Scotland and Ireland. 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 could 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."
11. They further observed "Where the legal representative in Court of a client derives his authority from an express written authority, such as a vakalatnama, different considerations may well arise, and in such cases their Lordships express no opinion as to the existence of any implied authority of the kind under discussion."
12. The rule laid down by the Privy Council has been followed by the Supreme Court in Dr. Ansar Hassan Riavi v. Syed Mazahir Hussain Zaidi and 3 others (1971 SCMR 634), wherein Salahuddin, J.
13. Who delivered the opinion of the Court observed that unless there is specific authority to the contrary, and in the absence of written authority such as a Vakalatnama, an advocate has implied authority of his client to settle the suit. It may be advantageous it' we may here quote the relevant passage which appears on pages 636 and 637 of the report.
14. "The contention that the Advocate of the petitioner had no authority to compromise the matter on behalf of the petitioner is untenable. The Privy Council has held in the case of Sourendra Nath Mirra and others v. Tarubala Dasi (AIR 1930 P C 158), that unless there is specific authority to the contrary, and in the absence of a written authority such as a vakalatnama an Advocate has implied authority of his client to settle the suit. It has not been contended that the learned Advocate concerned held any vakolatnama which expressly or impliedly debarred him from entering into a com--promise. Nor anything has been produced to show that the, learned Advocate's implied authority was countermanded by the express direction of his client."
15. We therefore, find no substance whatsoever, in this application and accordingly, dismiss it with special costs of Rs. 200.
16. Order on C. M. A. No. 1606 of 1981