Trial Courts Should Not Pass Decree/ Orders Merely On Memo Filed By Counsels Conceding Substantive Rights Of Parties: Madras High Court

The Madras High Court recently observed that trial courts should refrain from acting solely on memo filed by the counsel of the party conceding the substantive right of the party viz-a-viz the subject matter of the suit, or right of defence, for passing any non-adjudicatory decree or appealable orders.

Justice N Seshasayee observed that though there is not a complete ban on considering the memo filed by the counsel of the parties, what must be looked into is the effect that the memo and the consequential order will have on the rights of the parties.

The court also held that though a lawyer is authorized to act on behalf of his client through the Vakalatnama, there should be an express authority granted to him to enter into compromise and the same could not be implied.

The court further observed that the law in this regard was already settled through the decision of the Supreme court in Himalayan Coop. Group Housing Society v. Balwan Singh, [(2015) 7 SCC 373] where a three-judge bench of the Supreme Court held that An Advocate has no implied authority to concede the substantive rights of his client in a litigation.

The court highlighted that even where the court chooses to act on a memo, it is required to evaluate the consequences of acting on such Memo. No Court, under any circumstances, should pass a decree or an order which it is not competent to pass, or which violates any of the mandatory provisions of law. 

In the present case, a challenge was made against a decree passed by the Subordinate Court, Gudiyatham wherein the court acting upon an alleged memo filed by the counsel for the revision petitioner had decreed a suit. The revision petitioner contended that no such memo was filed on his behalf by the counsel and that the Court was tricked by Plaintiff in the suit (first respondent herein) to pass such order.

The court held that even if it is assumed that the counsel for the revision petitioner (second defendant in the suit) had filed a memo, the subordinate court ought to have looked into the facts of the case and the previous proceeding. The court failed to consider the fact that the revision petitioner had impleaded himself into the suit stating that he was one of the absolute owners of the suit property. The court also should have considered the fact that in previous postings, the very same court was not inclined to allow the suit merely on an unregistered sale deed indicating its doubt over the right of the plaintiff to sustain his claim of declaration of title over the suit property.

The court was, therefore, inclined to allow the revision petition and directed resumption of the suit from the date of carrying out the amendment in the plaint after the restoration of suit in 2015.

Supervisory Power Under Article 227

One of the main challenges that was raised by the respondents was that the High Court did not have any power under Article 227 of the Constitution to travel into the domain of disputed facts.

To this, the court discussed in detail the supervisory power under Article 227 of the Constitution. The court observed that the power of supervision under Article 227 is intended to secure and sustain the public faith in the judicial system. It may be understood as a duty to drone-cam the functioning of the courts subordinate to it to ensure that the quality of its functioning is effective and is worthy of sustaining the trust of the litigant public. 

In the present case, the question was not whether the counsel had filed a memo before the trial court but how the trial court had approached the case. The court ought to have ensured the presence of the revision petitioner (second defendant) and should not have acted merely on a memo.

Case Title: Abdul Rashid Sahib v. Ramachandran and another

Case No: CRP (NPD) No 1 of 2022

Citation: 2022 LiveLaw (Mad) 237

Counsel for Petitioner: Mr.Sharath Chandran

Counsel for Respondent: Mr.G.Vinodh Kumar