• Statement of advocate without consulting his client, whether binds the party

I wish to file SLP in SC challenging the order, which is passed by HC (at the time of hearing WP, filed against the order of LAC in Exh 5), on the basis of specific request made by my Advocate in my presence but without consulting me. 

According to me, the admission of SLP or reliefs, if to be issued by SC is 99.99% depend upon “that statement made by the Senior Counsel before High Court regarding the acceptance of Block in a building under construction and that also in the presence of Respondant No. 1* (i.e. We), which was against my prayer made by me in a pending suit of partition. Therefore on this point itself the SLP shall not be get admitted. 

I have taken a big search on this issue (the statement made by advocate (without consulting party) do not bind the party, I found no reply till today. In Fact I got few citations of SC and various HC, stating that, *A consent or statement or compromise, made by Advocate binds the party* being the inherent power of Advocate, he gets through Vakalatnama, signed by the party.

In view of above, my mind says that, unless I find the solution / reply to this crucial question, there is no point going ahead for SLP. 

You all are requested to find out the reply or let me understand how we can argue the said issue. You are also requested to inform landmark judgment of SC, if any. I am ready to pay extra charges, if any one has reply and citations in this regards. 

Thanks.
Asked 6 years ago in Civil Law

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10 Answers

See since the Advocate was authorised by you ad you were present in the court the statement shall be binding on the party. I guess in your earlier question i have cited a judgement on the issue.

You can go for a petition in SC and can try that all i can suggest as you can take chance on the issue. 

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

Generally the consent is given through vakalatnama.  An advocate never takes consent for each and every fact from client.  But if it can be shown by client that an act of advocate caused substantial damage to him and was without his consent then he can argue the same before court

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

Sir i have gone through number of cases in the above issue since the advocate was duly authorised there was vakaltnama and he was appearing with authority such plea that advocate did not take consent is not considered though in your case you can take chance and approach the SC court seeking relief.

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

Rule 26 of code of ethics prescribed by bar council of India thereunder mandates that an “advocate shall not make any compromise or concession without the proper and specific instructions of his/her client.”

 

2) is expected of the lawyers to obtain necessary instructions from the clients or the authorized agent before making any concession/ statement before the Court for and on behalf of the client.

 

 

3) The Privy Council in the case of Sourendra Nath Mitra vs. Tarubala Dasi, AIR 1930 PC 158

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 interests of his client, his remedy is to return his brief.”

 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

Jamilabai Abdul Kadar vs.. Shankarlal Gulabchand, (1975) 2 SCC 609, Svenska Handelsbanken vs. Indian Charge Chrome Ltd, 1994 SCC (2) 155)

10. It is the solemn duty of an advocate not to transgress the authority conferred him by the client. It is always better to seek appropriate instructions from the client or his authorized agent before making any concession which may, directly or remotely, affect the rightful legal right of the client. The advocate represents the client before the Court and conducts proceedings on behalf of the client

11. Generally, admissions of fact made by a counsel is binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the Court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions. Furthermore, a client is not bound by a statement or admission which he or his lawyer was not authorised to make. Lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed. We hasten to add neither the client nor the Court is bound by the lawyer’s statements or admissions as to matters of law or legal conclusions. Thus, according to generally accepted notions of professional responsibility, lawyers should follow the client’s instructions rather than substitute their judgment for that of the client. The learned hon’ble judges the Supreme Court held that we may add that in some cases, lawyers can make decisions without consulting client. While in others, the decision is reserved for the client. It is often said that the lawyer can make decisions as to tactics without consulting the client, while the client has a right to make decisions that can affect his rights. We do not intend to prolong this discussion.

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

If the senior counsel made the statement, then he cannot be your advocate

An advocate files a vakalat

Whereas a senior counsel cannot file a vakalat and is engaged to make oral submission and espouse the cause of the client before the court

So first check whether at the time when this statement was made by the counsel, was that counsel also accompanied by your advocate on record

Or whether there was not advocate engaged by you and you had filed the petition as party in person and engaged the counsel for oral submissions ?

Also check what were the reliefs sought in your petition and was this statement given in furtherance of such reliefs?

As informed before the writ court only has to see whether the order impugned before it has been passed by the lower court within the bounds of its jurisdiction and not in excess of jurisdiction. The writ court either has to held the impugned order as rightly passed by lower court or whether it requires to be set aside in the facts of the case

If the impugned order itself is not sustainable then it doesn't matter if the statement is recorded or not

I guess you have already filed a review to the order passed in WP

Also the entire order needs to be read to understand it in perspective. Without seeing the order it's difficult to advise on basis of the limited information you give in your queries 

There are also judgments which have held that a party should not suffer due to the fault of his lawyer

I do not need your rating or your remark. In order to find out something favorable the client must work with the lawyer by giving him as much information as possible which you never gave, despite being requested several times in my responses to your previous queries 

Also please remember it is highly derogatory and insulting for a lawyer when you say that you are willing to pay extra charges if he would find citations on the issue

That's not how any lawyer should be addressed

The reason why in my previous response i asked, how much are you willing to pay extra for finding the citation, was on a sarcastic note! 

 

 

Yusuf Rampurawala
Advocate, Mumbai
7899 Answers
79 Consultations

Admission/statement of advocate adversely effects the right of party is not binding.

Yogendra Singh Rajawat
Advocate, Jaipur
23079 Answers
31 Consultations

The advocate while conducting his client's case in the court need not consult his client on each and every matter that  is being argued in court.

Your statement that your advocate did not consult you before making a specific request before court is not maintainable, his act is binding on you because you have empowered him through a vakalatnama for all such acts that are necessary for the conduct of the case.

Your statement on this basis is not maintainable and this cannot be a ground for SLP against the case lost in the high couirt.

 

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

 

Byram Pestonji Gariwala Vs. Union Bank of India & Ors [1991] INSC 247 (20 September 1991)

Thommen, T.K. (J) Thommen, T.K. (J) Sahai, R.M. (J)

CITATION: 1991 AIR 2234 1991 SCR Supl. (1) 187 1992 SCC (1) 31 JT 1991 (4) 15 1991 SCALE (2)625

The above case  may throw some light to your case.

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

1. There is always a clause in the vakalatnama "AND I/We hereby agree to ratify and confirm all acts done by the advocate or his associate(s) or his substitute(s) in the above case and/or in the above court/premises as my/our own acts, as if done by me/us to intents and purposes".  Any statement made by the counsel is binding on the party.

2. It is immaterial if the party was present in the courtroom or not at the time of hearing of the case where the statement is made. How do you prove in the first place that consent of party was not obtained in the first place? The consent does not have to be obtained in writing.  Just because you say that consent was not obtained it cannot be assumed that it was not obtained. 

 

Ashish Davessar
Advocate, Jaipur
30840 Answers
981 Consultations

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