Section 2(15) of the Civil Procedure Code 1908: “Pleader” means any person entitled to appear and plead for another in Court, and includes an advocate, a vakil and an attorney of a High Court.
pleader is here used in a much larger than its ordinary signification as a convenient term to designate all persons who are entitled to plead for another in Court. “Pleader” in its ordinary sense, is synonymous with vakil.
Before the enactment of Advocates’ Act, 1961 there were various classes of persons entitled to practice law like, vakkil, Attorney, Barrister, Solicitor etc. Their authority to represent the client also was different.
An attorney or solicitor is entitled in the exercise of his discretion to enter into a compromise on behalf of his client, if he does so in a bona fide manner. And so is counsel. But a pleader cannot enter into a compromise on behalf of his client without his client’s express authority. The reason is that both counsel and solicitor have an implied authority to compromise, the former by reason of his retainer and the latter by virtue of his position of agent in relation to his client.
The result is that the consent of the client is not needed for a matter which is within the ordinary authority of counsel, and if a compromise is entered into by counsel, it binds the client though his consent was not taken. But what if the authority of counsel has been expressly limited by the client, and counsel has consented to an order or decree in spite of the dissent of the client, or of terms differing from those which the client authorized ? In such a case, if the limitation of authority is communicated to the other side, consent by counsel outside the limits of his authority would be of no effect. If the limitation is not communicated to the other side, the question arises whether, having regard to the fact that the ^other side entered into the compromise believing that the oppomont’s counsel had the ordinary unlimited authority, the Court has power to interfere. It has been held by the House of Lords that it has, and that it is not prevented by the agreement of counsel from setting aside or refusing to enforce a Compromise that it is a matter for the discretion of the Court, and that when, in the particular circumstances of the case, grave injustice would be done by allowing the compromise to stand, the compromise may be set aside, even although the limitation of counsels authority was unknown to the other side.
The authority of counsel and solicitor to compromise a suit is limited to the issues in the suit ; a compromise will not therefore be binding on a client if it extends to matters outside the scope of the particular case in which the counsel or solicitor is retained. And since a compromise is no more than an agreement, it can be set aside at the instance of the client if it has been made by the counsel or solicitor under a misrepresentation or mistake to the same extent as any other agreement entered into under similar circumstances by the client would be : see Indian Contract Act, 1872, sections 17-22. The application to set aside a consent decree should be made before the decree is sealed.
The law is the same as regards reference to arbitration. Counsel has an implied power to consent to a reference and so has a solicitor on the record. But the authority does not extend to referring the case to arbitration on terms different from those which the client has authorised. A pleader or vakil has no power to refer a case without the express authority of his client.
Counsel has an implied power to withdraw an action. As regards vakils or pleaders it has been held that a vakaltnama couched in general terms suffices prima facie to authorize him to apply on behalf of his client for leave to withdraw a suit, and in the absence of anything to show that the vakil had acted contrary to the client’s instructions, or otherwise was guilty of misconduct in making the application, the client is bound by the act of his vakil.
Counsel, solicitors, and pleaders or vakils have an implied authority to bind their clients by admissions of fact, provided such admissions are made during the actual progress of litigation and not in mere conversation. Thus an admission of liability by a vakil is sufficient to warrant a decree against his client in the suit. The result is that the client will be bound by the admission even though it may be erroneous. But neither counsel nor solicitor nor vakil can bind his client by an admission on a point of law. Hence if the admission be erroneous, the client is free to repudiate it. It may here be observed that the omission of a pleader or counsel either to argue a question of law, or his abandoning a question of law, does not disentitle the Court to go into the question.
A pleader’s general powers in the conduct of a suit include the power to abandon an issue which in his discretion he thinks it inadvisable to press.