JUDGMENT

Sulaiman, C.J.

56. The learned Judges before whom this appeal came for hearing differed on some points. They considered that they differed on certain questions of law arising in the case and, accordingly directed that the case should be referred to a single Judge, or a larger Bench, for the determination of those questions and disposal of the case.

57. In my opinion the order directing certain points to be referred is perfectly justified, but the reference of the whole case, so that the new Bench should dispose of it, is neither warranted by Section 98, Civil P.C., not by the Letters Patent. Under the former section when a Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by another Bench. It is obvious that the hearing by the other Judges is confined to the specific points stated and cannot cover the whole case over again. The object obviously is that there should not be a further hearing of questions on which there has been no difference of opinion at all. Section 98 is confined to points of law only, but the newly added Sub-section (3) makes it subject to the provisions of our Letters Patent. Section 98 would apply only when there is no similar provision in the Letters Patent; but if there is a specific provision, Section 98 would not apply to a chartered High Court.

58. Under Clause 27 of our Letters Patent, the Judges who differ on any points on which the decision of the case rests are bound to state those points and refer them, to the other Bench. It will be seen that Clause 27 is wider in the sense that points both of law and fact should be referred, and that such reference is not only discretionary but obligatory. But this clause also makes it necessary that the points on which they have differed should be stated and it is those points only which should be referred, and not the whole case.

59. I am therefore of opinion that the reference of the whole case for disposal by us is not competent, but that we should confine our attention to the three specific points referred to us, provided the Judges have differed on them.

60. The first point referred to us is:

Can the parties to a suit agree, apart from the Indian Oaths Act, that they will abide by the statement of a witness, including one who is a party to the suit and can they leave the decision of all points including costs arising in the ease to be according to his statement?

61. The facts of this case are given at length in the judgment of the learned Judges who have made the reference. This was a suit for recovery of their shares brought by two daughters of the deceased against three brothers. The defendants set up two registered deeds of gift of 1912 and also two oral gifts made by the deceased in 1925, in which year he died. The eldest brother Rahmat Husain did not claim any benefit under the oral gifts. On the 16th of May 1929 which was the date fixed for the production of evidence, a joint application was filed signed by the husband of one of the plaintiffs, describing himself as their pairokar, and by defendants 2 and 3. It was also signed by Mr. Abdul Rauf, and advocate for the plaintiffs, and by the pleaders for the defendants 2 and 3. The application was not signed by Rahmat Husain, defendant 1, nor by any one of his pleaders; nor did it parport to be an application made on his behalf. The application states as follows:-

We, the petitioners, leave the decision of all the points in dispute in the case, including costs, on the statement of Munshi Rahmat Husain, defendant 1. Whatever statement the aforesaid gentleman makes with regard to the decision of the case, shall be accepted by the applicants, and the case be decided in accordance therewith The parties do not want to produce any other evidence.

62. Rahmat Husain was present in the Court room, was put into the witness box and oath also was administered to him. He made a statement against the plaintiffs and in favour of the defendant on all the important points, and expressed his opinion that the parties should bear their own costs. No one appears to have objected to his statement. The Court pronounced judgment on the same day in accordance with the statement of Rahmat Husain and dismissed the suit.

63. The application did not in express terms say that the statement of Rahmat Husain should be made on oath, though, in fact, he did take oath. Accordingly, the learned Judges have assumed that it was not intended that he should make his statement on oath and that accordingly the case did not fall under the Indian Oaths Act. Under Section 8 of that Act the Court can tender

oath or affirmation to a party or a witness who offers to give evidence on oath or solemn affirmation in any form common amongst, or held binding by, persons of the race and persuasion to which he belongs and not repugnant to justice or decency and not purporting to affect any third person.

64. Section 9 provides for an offer by one party to be bound by any such oath or solemn affirmation made by another party or witness and the acceptance by such other party or witness. Then Section 11 lays down that the evidence so given shall as against the person who offered to be bound by any such oath be conclusive proof of the matter stated. It does not seem necessary for the application of the Oaths Act that the oath should be in any particular form, or that even it need be an oath at all. and not a mere solemn affirmation. The learned Judges have interpreted the application as implying that the statement was not to be made on an oath or solemn affirmation as contemplated in Section 8 of the Act, and they accordingly agreed in holding that the Oaths Act does not apply. This point has therefore not been referred to us.

65. On the question, whether parties can agree to abide by the statement of g. witness or a party to the suit, Niamatullah, J., has held that it is open to the parties to agree to abide by the statement of a third person to be. made on oath administered in the manner in which witnesses are sworn in Court; while Bennet, J., is of opinion that this would set up another form of procedure contrary to the provisions of the Code of Civil Procedure and, inasmuch as such an agreement would defeat the provisions of that law and it must therefore be deemed to be forbidden by Jaw, it is void under Section 23 of the Indian Contract Act.

66. Now there is an overwhelming authority in favour of the view that a decree passed on the basis of such an agreement when carried out by the statement of the referee is binding upon the parties. The only difference of opinion that seems to have arisen is as to whether the binding character of the decree should be based on the supposition that such a reference amounts to a reference to arbitration or an adjustment of the claim, or is an admission of the parties of an offer amounting to an estoppel...

67. The trend of the authorities in this Court appears to be more in favour of the view that such an agreement is in substance a compromise or adjustment of the suit, and neither a mere admission capable of being rebutted nor strictly speaking a reference to arbitration.

68. Although in some cases the right to resile from such an agreement has been doubted, in some others it has been held that such an agreement can be resiled from in special circumstances. But it has never been held so far that if the agreement has been acted upon and the referee has made the statement in pursuance of the agreement, the party against whom the statement goes is entitled to go back upon it after having come to know what it amounts to.

69. In Ram Narain Singh v Babu Singh (1895) 18All 46, the plaintiff had applied to be bound by the statement which the defendant might make on oath holding the arm of his son: the defendant accepted the proposal, took the required oath and made a statement against the plaintiff. The plaintiff had attempted to revoke his proposal when the defendant came into Court ready to take the oath. Konx, Offg. C.J. and Aikman, J., held that such a form of oath ought not to have been administered; but when one party offered to be bound by the oath of the other party and such other party accepted the proposal the party was offering to be bound and not to be allowed to revoke his proposal except upon the strongest possible grounds proved to the satisfaction of the Court to be genuine grounds for revoking the proposal.

70. In Muhammad Asghar Ali Khan v. Muhammad Imtiaz Ali (1898) A W N 200, a defendant to a suit agreed to be bound by whatever statement might be made by the plaintiff upon oath as prescribed by law; the plaintiff accordingly was examined on oath administered in the usual manner. It was held by Blair and Aikman JJ., that though the statement thus made by the plaintiff might not be-binding under the special provisions of Section 11 of the Oaths Act, nevertheless the defendant must be held bound by his agreement to rest the decision of the case upon the plaintiff's statement on-oath.

71. In Kesho Ram v. Peare Lal AIR 1923 All 443, it was held by Walsh J., following the ruling in Muhammad Asghar Ali v. Muhammad Imtiaz Ali (1898) A W N 200, that

where a document was made and it bound the parties to abide by the defendant's statement. made on ordinary oath, there is nothing illegal in. such a contract; it is merely a binding contract for good consideration.

72. In Mithu Lal v. Sri Lal AIR 1924 All 126, a party had agreed to abide by the oath" of the other party and the Court, notwithstanding such an agreement, entered into the evidence as to the truth or falsehood of the statement made. It was held by Daniels J., that the Court acted illegally and with material irregularity and that the procedure adopted by the Court below had the effect of entirely nullifying the agreement, and therefore, could not be supported.

73. In Himanchal v. Jatwar Singh AIR l924 All 570, decided by a Division Bench, of which one of us was a member, the plaintiff and the contesting defendants and their respective pleaders had entered into an agreement duly signed by them to the effect that a certain vakil should hear out the whole affair and that they shall accept any statement that he might make before the Court. A sworn statement was made by the referee named to the Court and a decree in accordance thereof was duly passed. It was held that the parties could not be permitted to resile from the agreement entered into by them and that the decree must stand. It was pointed out that the case might be looked at from two points of view. The statement amounted to an agreement to be bound by the statement of the referee who was a person to whom the parties had expressly referred for information in reference to the matters in dispute. and the statement was an admission within the meaning of Section 20 of the Indian Evidence Act. The Bench regarded it as an admission made by the parties in a pending suit and the statement of the nominee of the party-was considered to be an admission of the party. It was also remarked that the agreement amounted to a compromise of their dispute and that there was nothing to prevent the parties from compromising the suit and agreeing to a decree being passed in terms to be stated by a person named and that such an agreement would be an adjustment of the suit and a party could not be allowed to go back upon it.

74. In Ram Sundar v. Jai Karan AIR 1925 All 271, the defendant had made an offer to the plaintiff that, if a certain witness in the case would eat kachcha food served by the plaintiff, the suit should be decreed. The plaintiff accepted the offer and the witness did eat kachcha food served by the plaintiff. It was held by Mears, C.J., and Ryves, J., that the offer was perfectly lawful, and as it had been complied with the suit must be decreed even though Order 23, Rule 3 did not apply to the case. The learnt ed Judges held that the case must be regarded as one of an offer capable of acceptance or rejection by the person to whom it was made and that if the offer was accepted in proof of the terms and complied with the promise made by the offerer must be carried out by him.

75. In the Full Bench case of Gajendra Singh v. Durga Kumari AIR 1925 All 503, Walsh and Kanhya Lall, JJ., (Mukherji, J., dissenting) held that, where the plaintiff and the defendant had come to an agreement that a certain appeal pending in the High Court and an application for leave to appeal to the Privy Council were to be withdrawn and the defendant was to pay certain sums of money to the plaintiff on account of claims for costs to be ascertained by the Collector as arbitrator, and the Collector arbitrated and made an award and the plaintiff applied for the dismissal of the appeal, the agreement and arbitration operated as an adjustment of the matters in dispute between the parties within the meaning of Order 23. Rule 3, Civil P.C. Walsh, J., further held that

on general principles of law, even independently of any provision in the Code the High Court had inherent discretion to decline to allow an appellant to prosecute an appeal the moment he was satisfied that the appellant had by his solemn act and deed testified to by his signature, for what he considered adequate consideration, expressly abandoned his right and undertaken to withdraw his appeal.

76. Mukherji, J., held that the main consideration had failed and that therefore the award fell to the ground; but in any case the agreement and award could not be treated as an adjustment by an agreement of parties.

77. In Sita Ram v. Piari Lal AIR.995 All 553, decided by a Bench of which one of us was a member, the sole question at issue in the Munsif's Court was whether a certain rain water spout belonging to the defendant should be closed or left open; the parties agreed that they would not call any more evidence but would abide by the decision of the Munsif after he had inspected the locality. The Munsif made an inspection and then decided in favour of the plaintiff. On appeal the appellate Court set aside the decision and remanded the case for trial de novo. It was held by the Bench that the parties could not resile from their agreement and were bound by the decision of the Munsif, whether it was right or wrong, and that the decision must be treated as one based on compromise between the parties and was not open to appeal.

78. In Ram Devi v. Ganeshi Lal AIR 1926 All 501, the parties agreed to refer the whole matter in dispute to arbitration without the intervention of the Court, the agreement providing that the award would be accepted by the parties. When the award was delivered, and filed in Court it was held by the Bench that the award was binding on the parties and that it must be deemed to be an adjustment under Order 21, Rule 2, Civil P.C.

79. In the case of Madan Mohan v. Munna Lal AIR 1928 All 497, the ownership of two adjoining houses was in dispute and the parties agreed that the Court might pass any decision it liked after inspecting the locality in the presence of the parties and their pleaders. The Subordinate Judge inspected the premises, called for certain documents and then heard arguments on points of law. Before he actually delivered the judgment one party came to the High Court for a transfer repudiating the agreement. Weir & Sen, JJ., dismissed the application holding that no case had been made out for transfer and that they should not take a course which would enable the applicant by a side wind to repudiate the agreement which he had made with the respondents. They quoted the remark of Lord Halsbury, L.C, in Burgess v. Marlon (1896) AC 136 (at 138):

It has been held in this house that where, with the acquiescence of both parties a Judge departs from an ordinary coarse of procedure and as in this case, decided upon a question of fact, it in incompetent for the parties afterwards to assume that they have then an alternative mode of proceeding and to treat the matter as if it had been heard in due course.

80. The learned Judges expressed the view that it may not be improper for a Judge to try a question of fact by some method other than that prescribed by law governing this Court if the parties request him to do so.

81. In Salik Ram v. Wali Ahmad AIR 1927 All 590, Lindsay, J., held that where in a case falling under the Indian Oaths Act the plaintiff wanted to retract, the proper course for the Court was to examine the ground upon which the plaintiff wanted to withdraw from the reference1 and it had in a proper case discretion to refuse to administer the oath.

82. In Gordhan Das v. Husain (A.I.R. 1927 All. 659), the parties to a proceeding agreed to abide by the statement of a third person. Dalai, J. held that the statement made by such a person was a statement made within the meaning of Section 20 although it was true that ordinarily mere admissions are not conclusive, but admission of this kind must be taken to be admissions made in a suit by the nominee of a party thereto and are therefore conclusive and effectual, the effect being to prevent each party from resiling from the statement made by such a nominee.

83. In Deo Narain Singh v. Ajodhya Prasad AIR 1927 All 575, decided by two of us, the parties had agreed to abide by the statement of one A, but before, A's statement had been recorded the defendant resiled from the agreement; but the Court in suite of it passed a decree in terms of A's statement, it was held that the defendant could not be pinned down to his statement and that the agreement did not come within the purview of Order 23, Rule 3, as that rule refers only to adjustments which have already been made.

84. The latest case of this Court which has been cited before us is the case of Bishambhar v. Radha Kishunji AIR 1931 All 557 decided by a Bench of which one of us was a member. The parties agreed to abide by the statement of a pleader without an oath being administered to-him, but before the pleader had made a statement and before any decree had been passed by the Court in accordance with that statement the plaintiff resiled from the agreement. It was held that it was open to the plaintiff to resile from the agreement and that the agreement did not amount to an adjustment but only to an agreement on a procedure which might eventuate in an adjustment, and that until the referee had given his statement there could be no question of any adjustment, and also that as the pleader had not made any statement of fact, there was no question of any admission by the pleader which would have any binding effect on the plaintiff.

85. It would be noted that in the last three cases the question of resiling from the agreement, before it had been carried out by the statement of the referee, arose. That question does not arise in the present case.

86. It is not necessary to cite cases decided by the other High Courts where the trend of opinion seems to be in line with the course of decisions in this Court. But I may refer to the Full Bench case of Chanbasappa v. Basalingayya AIR 1927 Bom 565. In that case the parties to a suit had referred their differences to arbitration without an order of the Court, and an award was made. It was held that a decree in terms of the award thus made could be passed by a Court under Order 23, Rule 3, Civil P.C., but not otherwise. The Full Bench held that he words "agreement" or "compromise" in the rule had a wide scope? and included even an arbitration out of Court.

87. No case has been cited before us in which a decree passed on the basis of a settlement of a referee made in strict accordance with the agreement of the parties entered into in the suit and acted upon by the Court has been held to be ultra vires and therefore not binding on the party against whom it goes, on the ground that the agreement and the whole procedure were contrary to public policy or were in any other wav illegal. The main difficulty has arisen in ascertaining what the true basis for the binding character of the agreement is.

88. Now, an agreement that the parties will abide by the statement of a witness may amount to (1) A reference under the Oaths Act. (2) A reference to arbitration. (3) A mutual admission of the parties creating an estoppel. (4) If carried out, an adjustment of the claim.

89. If the case comes under Section 8 of the Oaths Act, admittedly there can be no difficulty. Under Section 11 the evidence so given shall, as against the person who offered to be bound, as aforesaid, be conclusive proof of the matter stated. In the present case both the learned Judges agreed that the Oaths Act does not apply; so the question of its applicability does not arise before us. It is therefore not necessary to decide in this case, as the matter has not been referred to us, whether the oath contemplated in Section 8, is necessarily exclusive of the oath referred to in Section 7 of the Oaths Act. Indeed, it may well be argued that the form of the oath adopted by the Courts under Section 7, has now become a recognised form common amongst the people of this Province. If such a view were accepted the reference would then be under the Oaths Act itself. Similarly both the learned Judges have thought that this was not a case of a reference to arbitration. So far as that opinion may be based on the language of the statement it cannot be questioned in this reference. But as the true nature and the legal effect of the agreement has to be considered the position may be briefly examined.

90. If any matter, owing to difference between the parties is actually referred to arbitration then the case would fall within para. 1 of the second schedule and the reference would be one to arbitration. But for the purposes of arbitration it is necessary that all the parties interested should agree to it and should apply to the Court for an order of reference; their application must be' in writing though it need not be signed by all of them.

91. In concurrence with the opinions of the learned Judges who have made this reference, I hold that an agreement to abide by the statement of a particular witness is in substance not a reference to arbitration. The essence of arbitration is that the arbitrator decides the case and his award is in the nature of a judgment which is later on incorporated into a decree of the Court. The arbitrator can either proceed on the basis of his own knowledge or make enquiries and take evidence and then give his decision on such evidence. But where parties agree to abide by the statement of a third person or a referee, the referee merely makes a statement according to his knowledge or belief and the Court then decides the case and pronounces its judgment on the basis of such a statement and passes a decree thereon. The referee is not authorised to make enquiries and take evidence, and then announce his decision on the basis of such evidence. He is called upon to make a statement according to his knowledge or belief. In the case of an arbitration, as the arbitrator's award is an expression of an opinion and his procedure resembles that of Court, a party is entitled to file objections and challenge the validity of the award. The making of a statement by a referee or a third person has no resemblance to a proceeding conducted by him as if he were a Court of law, and accordingly there can be no procedure for filing objections as to its validity. It is for the Court, in pronouncing judgment, to consider its effect. But under Section 20 of the Indian Evidence Act statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are deemed to be admissions of the party himself. If the parties have agreed to abide-by the statement of a third person to be made in Court, he may well be a person to whom the parties have expressly referred for information in reference to the matter in dispute.

92. It may be noted in this connection that for purposes of a reference to a third party under Section 20 of the Indian Evidence Act it is not necessary that the reference should be on questions of fact within the knowledge of the referee. In Taylor on Evidence Vol. 1, para. 761, it is stated that

these principles 'apply whether the question referred be one of law or of fact; whether the persons to whom reference is made, have or have not any peculiar knowledge on the subject, and whatever the nature of the action in which the statements of the referee are proposed to be adduced in evidence.

93. Accordingly, where two parties agreed to abide by the opinion of counsel upon the construction of a statute,, the party against whose interest the 'opinion operated was held bound thereby ; and a disputed fact regarding a mine having been referred by consent to a miners' jury, their decision was afterwards received in evidence.

94. There is considerable difficulty in basing the binding character of the agreement only on the hypothesis that they are mere admissions under Section 20 of the Evidence Act. Such admissions primarily are unilateral. Under Section 31 of the Indian Evidence Act they are not conclusive. It would therefore follow that if there were other evidence on the record it may be open to the parties to argue and it may be quite proper for the Court to accept such other evidence and give a go-by to the admission. Furthermore, in such an event, in spite of an agreement by the parties that the statement of the third person should be accepted as final and that there should be no appeal from it, parties may yet appeal and urge that the case should be decided on the basis of the other evidence on the record which outweighs the inconclusive admission. Obviously such a course of action cannot be tolerated. If any party be allowed to go behind the admission on the ground that it is not conclusive the whole object of the agreement would be frustrated. It. is therefore unsafe to rest the finality of the agreement on the basis of a mere admission under Section 20 of the Indian Evidence Act. Nor can one base it solely on the ground of estoppel by admission. The estoppel will only arise by the circumstance that the other party has been prevented from producing evidence in view of the agreement to abide by the statement of the third person. But if the trial Court, or for the matter of that, an appellate Court is prepared to allow the opposite party as well, full opportunity to produce additional evidence, it may well be said that there1 is no prejudice and that accordingly there is no estoppel under Section 115 of the Indian Evidence Act. In such a view the agreement can be reopened and the agreement utterly nullified. I do not think that such a course can be allowed.

95. When both parties make such admission simultaneously it amounts to an offer by one and acceptance by the other. Such reciprocal admissions would therefore be a valid agreement between them. Consideration is good because there is reciprocity. The statement of the referee would then be the admission of both the parties binding upon them. No doubt admissions are not conclusive; but where there has been mutuality of this kind and they have matured into an agreement, their conclusiveness follows from the principle of estoppel. The parties cannot be allowed to go back upon it and therefore the admission is conclusive as against both, and can be said to operate as an estoppel.

96. In my opinion the true basis of the binding character of such an agreement is that the original contract to abide by the statement of a third person is perfected into an adjustment of the claim in terms of the statement made, as soon as the referee makes the statement. After that stage, neither party can resile from the agreement because the claim has been duly adjusted and it has become the duty of the Court not only to record it, but also to pass a decree in terms of it, It is true that under Order 23, Rule 3, before a Court can order an agreement or compromise to be recorded, and pass a decree in accordance therewith, it has to be satisfied that the suit has been adjusted wholly or in part by such agreement or compromise. Where the parties agree to abide by the statement of a third person their agreement is still in the nature of a contract, and it may well be said that so long as that third party has not made his statement, and the contract has not been carried out, there is yet no adjustment of the suit. Matters have not proceeded beyond the domain of an agreement and the stage of the adjustment of the claim has not yet been reached. Strictly speaking an agreement is not identical with a compromise of the suit, and may amount to a mere contract. But as no decree can be passed forthwith in terms of a mere contract to abide by the statement of a third person, I am prepared to hold that there can be no adjustment of the suit by such a contract until the statement has been made. But as soon as the agreement has been fully carried out by the Court and the referee has made his statement in favour of one party or the other, it is too late for either party to go back upon the agreement; and at this stage the agreement must be deemed to have eventuated into an adjustment of the claim in accordance with the statement already made. A party cannot be allowed to retract his solemn promise for consideration made before that Court after he has come to know the nature of the statement by which he had agreed to abide. It is no longer a question of the carrying out of a promise or the specific performance of a contract. The compromise must be deemed to have been carried out and accordingly the claim already adjusted. The Court cannot therefore entertain an application to withdraw from the previous agreement and to resile from it unless fraud, misrepresentation, coercion, influence or mutual mistake were established.

97. In the present case there can be no doubt that there was a valid agreement between the parties to accept the statement of Rahmat Husain if made in Court and not to produce any other evidence. Such an agreement is not contrary to any provisions of the Contract Act. An agreement not to product further evidence can, in no sense, be against public policy, or in any way illegal. Even an agreement to accept the statement of a named person as final is not necessarily repugnant to any of the provisions of the Code of Civil Procedure, nor does it defeat the provisions of that Code, nor is it forbidden by any law. Indeed, inasmuch as such a course may save the parties considerable expense, and also save the time of the Court which would otherwise be taken up in examining witnesses, it may be considered to be salutary and not at all opposed to public policy. It is therefore impossible to hold that the argument ab initio was illegal and was void in law.

98. Nor can it be said that the Court in acting upon that agreement acted illegally to such an extent as to make its procedure ultra vires. It may be that there was a slight deviation from the ordinary course which the suit would have otherwise taken, but this departure was with the full concurrence and indeed in pursuance of an express agreement of the parties. The. moment Rahmat Husain made his statement the agreement was fully carried out, and it became binding upon the parties and the suit could not be decided otherwise than in accordance with that statement.

99. My answer to the first question referred to us is that the parties to a suit can validly agree, even apart from the Indian Oaths Act, that they will abide by the statement of a witness, including one who is a party to the suit and that they can leave the decision of all points including costs arising in the case to be made according to the statement. The second question is:

Did the vakalatnama in favour of Mr. Abdur Rauf authorize him to make the application dated 16th May 1929?

100. The plaint has been originally filed by Mr. Jiaram Saxena, advocate, and had been signed by the plaintiffs. It was attested by Hikayat Yar Khan, husband of plaintiff 2. On 19th January 1929, Mr. Abdul Rauf of Lucknow also appeared for the plaintiffs and filed a vakalatnama, paper No. 90. Its operative portion is in the following terms:

We have of our own free will and accord appointed Maulvi Abdul Rauf, Vakil, High Court, to conduct the case on our behalf, to take other proceedings, to put questions, to set up defence in the above case on the prescribed fee. We do covenant that whatever is done by the above named person shall be accepted as done by us. The said Vakil may take back court-fee, appoint arbitrators, file a deed of compromise, realize money, execute receipt, file and take back papers, verify plaint, draw lots, verify arbitration agreement and deed of compromise, obtain copies, take out execution of decree on our behalf. We shall have no objection. We have, therefore, executed this so that it may serve as evidence.

101. The learned Judges have assumed that Hikayat Yar Khan who signed the application as a pairokar of the plaintiffs, did not have authority to bind them, and that the whole question turns on the authority of Mr. Abdur Rauf.

102. No doubt their Lordships of the Privy Council in the leading case of Sourendranath Mitra v. Tarubala Dasi AIR 1930 PC 158 laid down that a power to compromise a case was inherent in the position of an advocate of a High Court in India, but that no advocate had actual authority to settle a case against the express instructions of his client. But their Lordships also made it clear that they desired to confine their decision on this point to the case of advocates, whatever their qualifications, admitted as such by the respective appropriate Courts in India who derived their general authority from being briefed in a suit on behalf of a client. 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 expressed no opinion as to the existence of any implied authority of the kind under discussion. In the case of an ordinary power of attorney their Lordships in Bank of Bengal v. Ramanthan Chetty AIR 1915 PC 121 (at p. 540 of 43 Cal.) quoted the observation made In an English case with approval and observed:

Where an act purporting to be done under a power of attorney is challenged as being in excess of the authority conferred by the power, it is necessary to show that on a fair construction of the whole instrument the authority in question is to be found within the four corners of the instrument, either in express terms or by necessary implication.

103. In the present case Mr. Abdur Rauf was merely a vakil of the Court and not an advocate and the authority was conferred by a written document. There could therefore be no question of any inherent authority outside the terms of that document.

104. Now under the vakalatnama first of all a general authority was given to conduct the case and to take other proceedings, and it was covenanted that whatever was done by the vakil shall be accepted by the executants. In the second place there was an express authority given to appoint arbitrators. In the third place there was authority given for a deed of compromise. It is not necessary to mention other matters expressly referred to therein. No doubt the use of an expression which is equivalent to "an authority of (really for) deed of compromise" is a defective expression, but there can be no doubt that it does not mean merely the filing of a deed of compromise duly executed by the ladies, but that it means the power to compromise the suit.

105. A similar view was expressed by Walsh and Piggott, JJ., in Hukum Singh v. Tunda (1921) 60 IC 912. I am accordingly of opinion that there was a general power to conduct the case and take all necessary proceedings in the case and, in particular, to appoint arbitrators and to compromise the suit apart from doing other minor matters.

106. No doubt it has been held in several cases that in the case of an ordinary power of attorney the document should be construed strictly against the attorney. In 1870 it was held in the case of Mt. Sardar Begum v. Mt. Izzafunnissa (1870) 2 NWPHCR 149 that even pleaders, unless specially empowered so to do have1 no authority to compromise cases conducted by them. But in the case of Jang Bahadur Sjngh v. Shankar Rai (1891) 13 All 272, Sir John Edge, C.J., presiding over a Full Bench of five Judges, after laying down that a counsel, unless his authority to act for his client is revoked and such revocation is notified to the opposite side, has, by virtue of his retainer and without need of further authority, full power to compromise a case on behalf of his client, referred to Sardar Begum's case (1870) 2 NWPHCR 149 and observed at p. 276:

When the authority of vakils to bind their clients is called in question that authority must depend entirely on the terms of the particular vakalatnama. For my part, I should read a. vakalatnama widely and liberally unless it appears that the client intended to limit the authority of his vakil.

107. The other four learned Judges were of the same view and concurred in the view expressed by the learned Chief Justice. It was not the solitary opinion of the Chief Justice, but the unanimous opinion of all. The following observations of Lord Bowen, C. J., and Fry, were quoted:

This state of things raises the question of the relationship of counsel and his client which is sometimes expressed as if it were that of an agent and principal. For myself, I do not adopt and never have adopted that phraseology, which seems to me to be misleading....The duty of counsel is to advice a client out of Court and to act for him in Court and until his authority is withdrawn, he has, with regard to all matters that properly relate to the conduct of the case, unlimited power to do that which is best for his client.

108. The observation of Cotton, L.J., in another case was also quoted:

The questions were raised in argument whether an undertaking not to appeal could be given at all by counsel without express authority and if it could, whether it could be given after decision on the merits. Now every compromise involves an undertaking; it therefore cannot be beyond the authority of counsel to undertake that his client shall not appeal....That is a compromise. The undertaking therefore is prima facie binding.

109. It therefore follows that in the case j of an appointment of a vakil by vakalatnama to conduct a case, it is prima facie implied that he has full power to conduct the case in the way he considers best, and that therefore such! a document should be Construed liberally. If one finds that a vakalatnama confers very wide powers in very general terms on the vakil, and authorises him to conduct the case and to take other proceedings and expressly states that whatever is done by the above-named person should be accepted by the litigant, and then it goes on to specify certain particularly in portent powers like those of appointing arbitrators and compromising disputes, etc., it would seem, that unless there is a special clause excluding his authority to act in a particular way in the course of the suit, such an authority should be implied. The mere fact that certain important powers are emphasised in particular does not in any way derogate from the general authority conferred upon him. Indeed, the conduct of a case in accordance with rules of procedure and evidence must necessarily be within his authority by necessary implication.

110. The observation made by a Single Judge in Ramjiwan Ram v. Kali Charan Singh (1907) 29 All 429 that authority in general terms was wholly insufficient to authorise a vakil to refer to arbitration was in the nature of an obiter dictum as the decree was actually upheld in revision, and in any case it applied to power to refer to arbitration where no such specific authority had been given. In the case of Sadashiv Rayaji v. Maruti Vithat (1890) 14 Bom 455 no doubt it was held that an agent holding a power of attorney authorising him to act and appear for a party to the suit cannot bring a suit to a close by offering to be bound by the opposite party in a particular form; nor can a pleader so bind his client. The learned Judges of the Bombay High Court thought that the general words implying authority to do all that the defendant could do himself did not give him any such authority, and they went further and held: that the power to refer under the Oaths Act is confined to the party himself and not to his agent.

111. This case was expressly dissented from by a Division Bench of this Court in Wasiuzzaman Khan v. Faiza Bibi (1916) 38 All 131. In that case the husband of a lady had a special power of attorney to conduct the case in her behalf as he should deem fit and was authorised to compromise or withdraw the suit, to refer it to arbitration and to nominate arbitrators and it was stated that every step that be might take in the conduct of the case shall be considered as having been taken by herself. In the course of the suit the husband slated to the Court that if the defendant would take his oath on the Quran and swear against the plaintiff the latter would abide by that oath and the case should be decided accordingly The learned Judges dissenting from, the view expressed in Sadashiv Rayaji's case (1890) 14 Bom 455 held that the authority conferred was wide enough to include the agreement to be bound by such an oath. It is noteworthy that this was the case of a special attorney, and not even a vakil of the Court. Sitting as a Single Judge I followed this Division Bench ruling in Mt. Mnsita Babi v. Khuda Bakhsh A.I.R. 1923 All. 65. In that case the parties had agreed to abide by the statement of a mukhtar, but later on one of them resiled from the agreement. The Court did not accept the statement and disposed of the case, on the merits. It was held that the case was 'not that of a reference to arbitration and that it not being understood that the statement was to be on oath or solemn affirmation the case did not fall under the Oaths Act; and that therefore it was open to the Court to refuse to refer the matter to the referee if sufficient cause were shown. But as regards the vakalatnama it was held that the vakalatnama executed by the plaintiff gave sufficient authority to the vakil to proceed with the case in any way he liked and that whatever he did in the case was accepted as binding on the plaintiff. In the case of Deoraj Misra v. Abhairaji AIR 1927 All 584, a case, in which a minor was a defendant, was referred to a pleader at the instance of the parties who undertook to abide by his decision and the suit was ultimately decreed on the basis of the pleader's statement. It was held that the minor was bound by the statement of the pleader in view of the provisions of Section 11, Oaths Act. As regards the contention that the defendant was not bound by the undertaking given by the pleader and not by the parties, as under the vakalatnama special power was not given to refer the matter, the learned Judges repelled it and considered that there was no force in it and relied on Wasiuzzaman Khan's case (1916) 38 All 131. They also treated the mukhtar as a witness who gave his statement before the Court and who had been specially referred to by the parties.

112. It would thus appear that at least in this High Court so far as vakalat-namas in favour of qualified vakils are concerned they are construed liberally, particularly when there are general powers to conduct the case conferred upon them. And it may be fairly assumed that since the pronouncement of the Full Bench in Jang Bahadur Singh's case (1891) 13 All 272, a vakalatnama which says that whatever is done by the vakil in the conduct of the case will be accepted, has been considered to be very comprehensive.

113. When counsel in England have such wide powers, there seems to be no| good ground for holding that vakils in this country who perform the same duties should be debarred from possessing similar powers. It would therefore seem to follow that when general authority to conduct a case is conferred upon a vakil and it is followed by special powers to compromise a case and to refer the dispute to arbitration there is no justification for holding that the power to abide by the oath of a witness whether under the Oaths Act or by way of an agreement or compromise is not by necessary implication implied. A stage may arrive in a case at which the counsel may feel that in view of the paucity or weakness of evidence, his client is likely to lose and may be mulcted in costs. He may, in such circumstances, think that it is in the interest of his client that the decision of the matter may be left on the oath, solemn affirmation or even a mere statement of a person who is considered to be reliable, honest and trustworthy. If the vakil decides to 'examine one of the defendants whose interest, as it happened in this case, was practically not adverse to the plaintiff, as the sole witness for the plaintiff, it cannot be said that his action was so ultra vires as to vitiate the decree biased on that evidence. The vakil is in charge of the conduct of the case, and his client is bound by the decision to produce any witness he likes. I can see no essential difference between such a decision and a joint agreement that only one particular witness should be produced for both the parties. When he has full authority to compromise the case and by implication, authority to withdraw the claim, and also authority to refer the dispute to an arbitrator appointed by himself, it is too much to say that he should not be deemed to have authority to abide by the statement of a particular witness and not to produce any other evidence. Indeed, if after the witness has made the statement, the vakil were to take the further step of agreeing to abide by his statement on condition that the parties are to hear their own costs, the case would clearly be one of compromise or adjustment and it would be binding upon his client. There seems to be no real justification for holding that he cannot under a compromise agree not to produce any evidence except the statement of a particular witness.

114. It is said that an agreement of this kind is a reference to arbitration and the statement made by the witness is in the nature of an arbitration award. On such a hypothesis the plaintiff would be all the more bound, because in the vakalatnama express authority was given to the vakil to "appoint arbitrators...and verify arbitration agreement." Then it is said that inasmuch as the agreement was that the parties would abide by the statement of the witness and the case might be decided in accordance therewith, there was an implied waiver of the right to rile an objection to the award within ten days which took the agreement outside the scope of the vakil's authority. I cannot see that there was any such express waiver. In most agreements for reference to arbitration there is no recital as regards the right to object to the award within ten days, because at the time of the agreement the parties do not contemplate going back upon the award at all; and further because there is a statutory right under Schedule 2, Rule 16, entitling a party to file objection to the award within ten days (Article 158, Limitation Act). If such a view were to be accepted, then one would be compelled to say that the agreement would be within the vakil's authority if it does not imply a waiver of the right to file objections within ten days and would be outside his authority if such a waiver be implied. But the agreement does not say that the case should be decided forthwith without opportunity to either party to file objections. Moreover, I think it would be too much to say that incase of a valid reference to arbitration the client is not bound by the statement of his vakil made in Court that he would not file any objections, and that a decree passed, after such a statement has been made, is not binding on the litigant.

115. It has not been disputed before us that under the "vakalatnama" the vakil would have authority to exempt witnesses for the plaintiff or to state before the Court that he would not produce any other evidence, or even to say that he would produce only one witness whom the defendant also agrees to produce. But it is said that if that witness happens to be one of the defendants to the suit, then the vakil would be acting outside his authority. I see no distinction in law between the witness being a stranger to the suit or being a party to the suit, whom the vakil may consider to be in fact much more reliable. If he has authority to refuse to produce any other witness except one particular witness, who is a stranger to the suit, he has, in my opinion, an equal authority to produce no one but one of the defendants as the sole witness in the case, for in either case he is conducting the case on behalf of the plaintiff and taking proceedings therein within the meaning of the vakalatnama. Of course, if an advocate commits gross negligence in the conduct of the case or acts contrary to the instructions of his client, he may be liable in damages.

116. An agreement to be bound by the statement of a third party is in no way opposed to public policy nor in any way repugnant to the provisions of any law, nor does it defeat any law. Indeed, it may be salutary inasmuch as it tends to shorten the production of evidence and in that way saves the time of the Court. There is nothing in the Contract Act which offends against such an agreement. After all the procedure so adopted is analogous to the procedure referred to in the Oaths Act and also analogous to the admission contemplated in Section 20, Evidence Act, and is also analogous to the agreement or compromise referred to in. Order 23, Rule 3. It is really a waiver of the right to produce any other evidence. It is not in any way more extraordinary, more unusual or more drastric than a compromise or withdrawal of the suit or reference to arbitration or agreement to abide by special oaths under the Oaths Act. There seems to be no good ground why when there are these other matters well within his power, this particular action should be considered to be without authority even though the vakalatnama says that whatever is done by him will be accepted by the client. I therefore think that in view of the opinion expressed in this Court, and particularly the observation made by the Full Bench referred to above, it must be held that the power to abide by the statement of Rahmat Husain was necessarily implied in the general authority given under the vakalatnama. My answer to the second question is therefore in the affirmative. The third question refered to is:

Is it open to the appellant in the present appeal, which is from the original decree, to call in question the propriety of action taken by the lower Court on the subsequent application, dated 22nd May 1929; and if so, whether an opportunity should be given to the plaintiffs to produce evidence to prove that the vakil had not been authorized to make the application dated 16th May 1929?