M.Srinivas Rao vs The State Of A.P.,Rep.,Pp And ...
2022 Latest Caselaw 5135 AP

THE HONOURABLE SRI JUSTICE K. SREENIVASA REDDY

           CRIMINAL PETITION NO.11675 OF 2015

ORDER :-

      The Criminal Petition has been filed to quash the

order dated 07.10.2015 in Crl.M.P.No.367 of 2014 in

M.C.No.2 of 2008 passed by the learned Judicial First

Class Magistrate, Nandalur.



2.    Originally, 2nd respondent herein, who is the wife of

the petitioner herein, filed the above M.C under Section 125

of the Code of Criminal Procedure, 1973, claiming

maintenance. By an order dated 26.06.2009, the learned

Magistrate allowed the above M.C. directing the petitioner

herein to pay maintenance amount of Rs.5,000/- p.m. to

2nd respondent herein from the date of filing of the petition.

Thereafter, 2nd respondent filed Crl.M.P.No.367 of 2014 in

the above M.C. for enhancement of maintenance, stating as

follows:

The parents of 2nd respondent have become sick. As

there is a phenomenal change in cost of living for the past

six years and prices are soaring, the maintenance amount

awarded at Rs.5,000/- p.m is inadequate and meager. The

petitioner herein is a Railway employee and getting

Rs.34,599/- p.m. Hence, she prayed to enhance the

maintenance amount from Rs.5,000/- p.m. to Rs.15,000/-

p.m.

3. The petitioner herein filed his counter, resisting the

said application.

4. During pendency of the said Crl.M.P., a joint memo

dated 07.10.2015 came to be filed by the counsel for the

petitioner herein and 2nd respondent herein in the court

below, which reads thus :

"It is agreed by both parties in the above petition to enhance the maintenance amount from Rs.5,000/- to Rs.6,500/- per mensem commencing from 1st November, 2015 and the respondent agreed to send the amount of Rs.6,500/- (Six thousand and five hundred) to the credit of the petitioner's State Bank of India account No.31927325593 of Nandalur Branch."

In view of the joint memo filed, the learned Magistrate

closed Crl.M.P., vide the impugned order dated 07.10.2015,

recording the compromise, which reads as under:

"Petitioner and respondent are called absent. Petition is filed for respondent and the same is allowed. The counsels for petitioner and respondent have filed joint memo stating that the matter is settled out of court and the respondent agreed to enhance the maintenance amount from Rs.5,000/- to Rs.6,500/- per month.

Petitioner also agreed for the same. As per settlement the respondent agreed to send the enhanced maintenance amount from 01.11.2015 onwards to the bank account of petitioner bearing No.31927325596, State Bank of India, Nandalur Branch. Hence, as per compromise the respondent is directed to send an amount of Rs.6,500/- to the account bearing No.31927325596 of petitioner, State Bank of India, Nandalur Branch commencing from 01.11.2015. Accordingly, compromise is recorded and this petition is closed."

Against the said order, the petitioner herein preferred

the present Criminal Petition.

5. Learned counsel for the petitioner contends that the

petitioner herein had not signed in the joint memo filed by

both the parties before the trial Court and it is only the

learned counsel for the petitioner, who signed the said joint

memo, and that the petitioner is not willing to pay the

enhanced amount. In support of his contention, he placed

reliance on the judgment reported in Himalayan Coop.

Group Housing Society v. Balwan Singh1.

6. Learned counsel for 2nd respondent seeking to sustain

the order passed by the learned Magistrate in view of the

joint memo filed by both the parties and further stated that

(2015)7 Supreme Court Cases 373

the learned counsel of the respective parties have signed

the joint memo.

7. Perused the record. Admittedly, in the Maintenance

Case filed by the wife/2nd respondent, the learned

Magistrate, granted maintenance of Rs.5,000/- p.m. After

lapse of six years, she filed the Crl.M.P. in the said M.C.

seeking enhancement of the maintenance amount from

Rs.5,000/- to Rs.15,000/- per month on the grounds that

the parents of 2nd respondent herein had become sick and

due to phenomenal change of cost of living, the

maintenance granted by the Court below is inadequate and

meager, and that the petitioner herein is a Railway

employee and getting Rs.34,599/- p.m. Pending the said

Crl.M.P, a joint memo came to be filed by both the counsel

for the parties before the Court below, wherein the

maintenance amount of Rs.5,000/- p.m. had been agreed

to be enhanced to Rs.6,500/- p.m. The same was reflected

in the impugned order.

8. In the present Criminal Petition, it is the contention of

the learned counsel for the petitioner that the petitioner

had not signed the joint memo which was filed before the

court below and the petitioner is not willing to pay the

maintenance amount which was agreed to be enhanced in

the said joint memo. Learned counsel for the petitioner

relied on a decision in Himalayan Coop. Group Housing

Society (referred supra), wherein, in paragraphs Nos.22,

31 and 32, it is held as under:

"22. Apart from the above, in our view lawyers are perceived to be their client's agents. The law of agency may not strictly apply to the client - lawyer's relationship as lawyers or agents, lawyers have certain authority and certain duties. Because lawyers are also fiduciaries, their duties will sometimes more demanding than those imposed on other agents. The authority-agency status affords the lawyers to act for the client on the subject matter of the retainer. One of the most basic principles of the lawyer-client relationships is that lawyers owe fiduciary duties to their clients. As part of those duties, lawyers assume all the traditional duties that agents owe their principals and, thus, have to respect the client's autonomy to make decisions at a minimum, as to the objectives of the representation. 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 law is now well settled that a lawyer must be specifically authorised to settle and compromise a claim, that merely on the basis of his employment he has no implied or ostensible authority to bind his client to a compromise/ settlement. To put it alternatively that a lawyer by virtue of retention, has the authority to choose the means for achieving the client's legal goal, while the client has the right to decide on what the goal will be. If the decision in question falls within those that clearly belong to the client, the lawyers conduct in failing to consult the client or in making the decision for the client, is more likely to constitute ineffective assistance of counsel.

31. Therefore, it is the solemn duty of an advocate not to transgress the authority conferred on

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. He is the only link between the Court and the client. Therefore his responsibility is onerous. He is expected to follow the instructions of his client rather than substitute his judgment.

32. 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. 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 right."

From the above, it is clear that the duty of an

advocate is not to transgress the authority conferred on

him by the client and he has to follow the instructions of

the client and should not behave, which affect the

rightful legal right of his client. There cannot be any

dispute with regard to the said aspects.

9. It is the categorical contention of the learned counsel

for the petitioner is that the petitioner is not the signatory

to the joint memo filed before the court below, and going by

the order passed by the court below, it shows that both the

petitioner and the respondent herein were absent as on the

date of passing the impugned order, recording the

compromise. It is borne on the face of it that the petitioner

might not be aware of the fact that the joint memo, signed

by his counsel, has been filed before the court below. In

view of the facts and circumstances of the case, this Court

deems it appropriate to set aside the impugned order and

remand the matter to the court below for disposal of the

maintenance enhance petition afresh in accordance with

law affording an opportunity to the petitioner as well as 2nd

respondent to establish their case on merits. It is needless

to observe that if really the counsel for the petitioner before

the court below had signed the joint memo filed before the

court below without knowledge of the petitioner, the court

below is directed to take appropriate steps against the

counsel in accordance with law.

10. Accordingly, the order dated 07.10.2015 in

Crl.M.P.No.367 of 2014 in M.C.No.2 of 2008 passed by the

learned Judicial First Class Magistrate, Nandalur. The

matter is remanded to the Court below for disposal of

Crl.M.P. No.367 of 2014 afresh in accordance with law after

affording an opportunity to the petitioner as well as 2nd

respondent to establish their case on merits. The court

below is directed to dispose of the Crl.M.P. within a period

of three months from the date of receipt of a copy of this

order. Both the parties shall co-operate for disposal of the

petition within the time stipulated by this Court.

However, in view of increase in the cost of living, the

amount that has been paid by the petitioner herein is

meager. Having regard to the facts and circumstances of

the case, this Court feels that the petitioner shall continue

to pay an amount of Rs.6,500/- per month towards

maintenance to 2nd respondent till disposal of the petition

filed for enhancement of maintenance.

11. Accordingly, the Criminal Petition is disposed of.

Miscellaneous Petitions, if any, pending shall stand

closed.

___________________________________ JUSTICE K. SREENIVASA REDDY

12.08.2022 Pab/DRK