Published on: January 7, 2024 at 19:05 IST
Court: Supreme Court of India
Citation: Byram Pestonji Gariwala V. Union Bank of India (1992)
Honourable Supreme Court of India has held that the expression “signed by parties” would include “signed by his pleader”. It is held that once a vakalatnama had been executed by a party in favour of his advocate, the said advocate was competent to do such acts as could be done by the party himself.
9. The role of counsel in court in England is described in Halsbury’s Laws of England, (4th edn. vol. 3, para 1181) as follows:
“1181. Counsel’s authority. At the trial of an action, counsel’s authority extends, when it is not expressly limited, to the action and all matters incidental to it and to the conduct of the trial, such as withdrawing the record, challenging a juror, calling or not calling witnesses, cross-examining or not cross-examining witnesses, consenting to a reference to arbitration, a compromise, or a verdict, undertaking to appear, or, on the hearing of a motion for a new ∼trial, consenting to a reduction of damages.
The client’s consent is not needed for a matter which is within the ordinary authority of counsel : thus if, in court, in the absence of the client, a compromise or settlement is entered into by counsel whose authority has not been expressly limited, the client is bound. If an action is settled in court in the presence of the client, his consent will be inferred, and he will not be heard to say that he did not understand what was going on ….”
39. 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.
Drafted By Abhijit Mishra