JUDGMENT R.M. Sahai, J.
1. This is plaintiff's second appeal arising out of a suit for cancellation of the compromise decree dated 22nd September 1962 in suit No. 403 of 1956 Rajeshwar Pandey and Ors. v. Chandradeo Pandey and Ors.
2. The facts giving rise to this second appeal are simple but interesting. Series of litigation have been fought out between the parties ranging over 25 years without any decision on merits. Normally compromise is adjustment as a result of reciprocal feeling to bury the differences but this is a peculiar case where anxiety to adjust has been off set thrice.
3. A suit for declaration of tenancy right filed under Section 59/61 of the U. P. Tenancy Act was compromised as early as 17th January 1952. An application to set aside the compromise failed and the order was maintained up to the Board of Revenue. Not satisfied with the orders of the revenue courts a civil suit No. 603 of 1957 was filed before Munsif Ballia. Strange as it may appear but this suit, also, was compromised on 22nd September 1962. Immediately thereafter suit No. 348 of 1963 was filed by the appellant for setting aside of this compromise decree. The trial court decreed the suit but the lower appellate court allowed the appeal. Aggrieved against the order passed by the lower appellate court the plaintiffs filed this second appeal.
4. The compromise decree is challenged by the two appellants on two different grounds. Chandradeo Pandey appellant No. 1 assailed the decree on the ground that he had not instructed the lawyer to act on his behalf. He based his claim on the ground that he was not present either on the date when the compromise was filed or when it was verified.
5. The lawyer has appeared as a witness and his statement has been characterised as candid and fair. He has admitted that he was engaged by the father of the appellant who had brought a Vakalatnama duly signed by the appellant. The signature on the Vakalatnama is not disputed nor the authority of the father to engage the lawyer is challenged. The plaintiff further does not challenge that the Vakalatnama authorised the lawyer to enter into compromise.
6. Instruction to the lawyer to appear on behalf of the appellant was given by no less a person than his father who himself was a party. The lower appellate court has recorded a finding that the lawyer acted fairly on the instructions of the appellants' agent. In Jamila Bai v. Shankar Lal, AIR 1975 SC 2202 at page 2210 it was held by the Supreme Court:
"While we are not prepared to consider in this case whether an Advocate or pleader is liable to legal action in case of deviance or negligence, we must uphold the actual, though implied, authority of a pleader (which is a generic expression including all legal practitioners as indicated in Section 2(15) Civil Procedure Code to act by way of compromising a case in which he is engaged even without specific consent from his client subject undoubtedly to two overriding considerations: (i) He must act in good faith and for the benefit of his client; otherwise the power fails (ii) It is prudent and proper to consult his client and take his consent if there is time and opportunity."
As observed earlier the lawyer acted in good faith. Moreover as father of the appellant was present on all dates there was no imprudence or impropriety in not consulting the appellant.
7. Apart from the finding recorded by the court below absence of appellant on the date when the compromise was entered to instruct his lawyer is a slender ground io assail the decree unless lack of bona fide on the part of the lawyer is itself established. Order III Rule 4 C P.C. enjoins a duty on a lawyer not to act on behalf of a person unless he has been appointed for that purpose. The power to appoint is confined not only to a party but also to the recognised agent or other person duly authorised. Monoharbahal Colliery v. K. N. Misra. (AIR 1975 SC 1632) a compromise entered by the counsel who was found to be duly authorised to appear on behalf of the client was upheld. For the reasons stated above the challenge to the decree on the ground that the appellant was not present to instruct the lawyer on the material date when the compromise was entered is devoid of any substance.
8. Appellant No. 2 challenged the decree on a technical plea that he was a minor on the date when the compromise was entered on his behalf. It is not disputed that a compromise entered on behalf of a minor is not sustainable in law.
9. The minority of the appellant is however disputed and the two courts below have differed on the question whether the appellant was a minor on the material date i.e. the date on which the compromise was entered The trial court based his finding on an entry in scholar's register, opinion of the Civil Surgeon and his statement on oath supported by the oral statement of his elder brother.
10. The lower appellate court on the other hand preferred to rely on a rule of presumption contained in Section 114(g) of the Indian Evidence Act. The reason to invoke the presumption was the appellants' failure to produce horoscope or kutumb register. The evidentiary value of horoscope or Kutumb register is an aspect which does not arise in this case. The question however is whether the lower appellate court was justified in its approach. It has not been pointed out that these two documents were available with the plaintiff and he was withholding them. An adverse inference could be drawn only if it was established that the plaintiff was possessed of those documents and he deliberately failed to pro-
duce them. It was held in Devi Das v. Shrishailappa, (AIR 1961 SC 1277 at page 1280).
"If in the course of a trial the court is satisfied that a document having an important bearing on the dispute which is pending trial is withheld by a party an inference adverse to the party withholding the document that if produced, the document would not support that party's case may properly arise. But there is no evidence on the record to show that the tippan was with the plaintiffs or within their power and it was withheld from the court. Basalingappa the plaintiff's father is dead; Rachappa and Mallappa stated that the tippan was not with them, and in the absence of any evidence to show that the tippan was with the plaintiffs or other person in the same interest as the plaintiffs, and it was not produced, we think that the trial court was right in refusing to raise an adverse inference against the plaintiffs."
The mere fact therefore that the horoscope or kutumb register were not produced could not be a valid ground for drawing an adverse inference against the appellant. The scholar's register, the doctor's evidence, the recital in the application dated 29-8-59 filed on behalf of the respondent showing that the appellant was a minor in another litigation cannot be said to be evidence which were either irrelevant or inadmissible. All this documentary evidence was substantiated by the oral testimony of the elder brother. The lower appellate court in the circumstances committed an error of law in not only overlooking these documents and circumstances but also in drawing a presumption which was not warranted in law. The finding therefore that the appellant No. 2 was not a minor on 4th June 1962 cannot be sustained.
11. The result is that the appeal succeeds and is allowed in part. The compromise decree dated 22-9-1962 in Suit No. 348 of 1963 is set aside only against the appellant No. 2 (Sri Kant Pandey). In view of the divided success the parties shall bear their own costs in this court and in the courts below as well.