Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1185 OF 2009
(Arising out of SLP (C) No.23262 of 2008)
Saroj Anand & Ors. … Appellants
Versus
Prahlad Rai Anand & Ors. … Respondents
J U D G M E N T
S.B. Sinha, J.
1. Leave granted.
2. Effect of a statement made by a counsel on the merit of a lis is in
question in this appeal which arises out of a judgment and order dated
28.7.2008 passed by a Division Bench of the Delhi High Court dismissing
an appeal from a judgment and order dated 20.7.2007 passed by learned
Single Judge of the said Court.
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3. Parties hereto were members of a joint family.
4. First respondent filed a suit for partition in respect of the properties
fully described in Schedule appended to in the plaint. In the said suit, his
brother, sisters and mother as well as children of the pre-deceased brother
and Shri Amar Nath Anand, father of the appellants were impleaded as
parties.
The matter came up before a learned Single Judge of the said Court
on 14.10.1999. One Shri Y.K. Kapoor, learned advocate, appeared for all
the defendants. He made a statement on their behalf that they were not
disputing the share of the appellant in all the properties in suit. On that
premise, the question which arose for consideration of the Court was to
explore the possibilities of partition by metes and bounds and/or sale of the
joint properties. The counsel stated that the defendants were ready and
willing to get the property sold and the plaintiff-first respondent may take
his share therefrom.
Learned Single Judge recorded the order as under :
“It is stated by the counsel for the defendants that
the defendants do not dispute the share of the
plaintiff in respect of all the properties. He further
states that it is not possible to partition the
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property. The defendants are ready and willing to
get it sold, allowing the plaintiff to take his own
share. In case the properties are not partible, the
parties may get a joint advertisement published in
the news paper in the name of all the parties,
giving their contact number after consulting each
and within two weeks, so that the family property
brings better price instead of making it a disputed
property and selling it at a lower price.
Interim order to continue till the next date subject
to above modification.”
5. Shri Ravi Gupta, advocate appearing on behalf of the plaintiff served
a notice on Shri Y.K. Kapoor, advocate for the defendant, stating :
“1. Reference is invited to your appearance and
statement made on behalf of the defendants
on 14.10.1999 before the Hon’ble the High
Court of Delhi at New Delhi in Suit No.844
of 1999 entitled Shri P.R. Anand vs. Shri
A.N. Anand and Ors. and the order passed
by the Hon’ble Court pursuant thereto,
please note that as per instructions from my
client Shri Prahlad Rai Anand resident of
2/32, First Floor, Double Storey, Tilak
Nagar, New Delhi – 110 018, the properties
being subject matter of the said suit are
capable of partition. As such no occasion
arises for effecting sale of the immovable
properties as suggested by you.
2. Take notice of the above position
accordingly.”
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6. An interlocutory application was filed in the said suit. Notice was
issued thereon. Contention of the plaintiff-first respondent therein was that
he was not interested in the sale of the properties and prayed for partition
thereof. The matter was taken up on 16.12.1999. The counsel appearing for
the defendants, as also the plaintiffs, were asked to specify their respective
stand in the matter.
The original first defendant Shri Amar Nath Anand expired on
7.5.2000.
Defendants thereafter changed their stand. An application was filed
on behalf of the defendant No.5 purported to be under Section 151 of the
Code of Civil Procedure in November 2002, alleging :
“That at the time of hearing on 14.10.1999 the
counsel for the defendants made the statement
before the Hon’ble Court as under :
‘the defendants do not dispute the share of
the plaintiff in respect of all the properties.
He further states that it is not possible to
partition the property. The defendants are
ready and willing to get it sold, allowing the
plaintiff to take his own share.’
That the above statement was given by the counsel
of the defendants wrongly without verifying the
facts of the case and without proper instructions
from the defendants. In fact the said statement
was to be made only in respect of the property
bearing No.1/13, Double Storey, Tilak Nagar,
New Delhi which is an ancestral property. The
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said property is in the name of defendant No.1,
i.e., late Shri Amar Nath Anand.
XXX XXX XXX
That earlier counsel engaged by the defendants
had never gave the proper feed back of court
proceedings as such the written statement could
not be filed within the given period of four weeks
from the last hearing i.e. 16.5.2000.
That the mistake on the part of the counsel is
neither intentional nor delebrate but due to
misunderstanding of the instructions of the
defendants for which the defendants apologize
from the Hon’ble Court for the inconvenience
cause to the Hon’ble Court. The defendants assure
the Hon’ble Court that in future no such type of
mistake will be repeated again.”
7. On or about 12.5.2003, the plaintiff-first respondent filed a reply
thereto, contending :
“(b) After the death of the Defendant No.1, who
unfortunately expired on 7.5.2000, the
remaining Defendants, under undue
influence, motivatedly, tortured the
Defendant No.5 (Defendant No.1’s widow).
The Defendant No.1, who resides with the
other defendants was not taken out of the
house for weeks together and kept under
lock and key by the remaining Defendants
and even denied food and fought with
daily, till she helplessly, was forced to sign
certain blank papers, including a purported
will prepared for her by the defendants and
the present application which seeks to
change her stand. The present application is
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fraudulent as are the other documents,
which the defendant No.5 has been forced
to sign.
(c) In the garb of seeking modification of the
order dated 14.10.1999, by way of the
present application, the Defendants have
changed their earlier counsel and are now
malafidely seeking to change the stand of
the Defendant No.1 recorded on 19.10.1999
which is nothing but seeking a review of the
said order, after his death, which is not
permissible in law.
(d) That the present application is made by the
remaining defendants with the oblique and
fraudulent motive to eschew the admissions
made before this Hon’ble Court by the
Defendant Nos. 1 and 5 is apparent as no
such mention was made on 16.12.1999 and
21.1.2000 when this matter was heard by
this Hon’ble Court and no such application
was moved for more than eight months from
19.10.1999 during which period the
Defendant No.1 was alive. It is only after
the death of the Defendant No.1, who is no
longer alive to reiterate his stand that the
present application has been moved after
coercing his hapless widow, after more than
one year of passing of the said order.”
8. A rejoinder thereto was filed by the defendant No.5. The said
application for modification was dismissed by a learned Single Judge of the
said Court by an order dated 20.7.2007, stating:
“Counsels act on instructions of their clients.
Consequently, when Mr. Y.K. Kapoor, Advocate
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appeared and made a statement on 14.10.1999
before the court, conceding to the demand of the
Plaintiff for partition ‘in respect of all the
properties’ (See order dated 14.10.1999) it is clear
that this statement was made on instructions from
the defendants and was within the knowledge of
the Defendants including Defendant No.5. This
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statement was maintained on 16 December 1999
and 21.1.2000, since it was not sought to be
retracted, or challenged by the defendants. Even
when the Plaintiff’s Counsel issued a notice
stating that the suit properties be partitioned by
meets and bounds, there was no challenge to the
same by contending that it was only the first
property bearing no.1/13, Double Storey, Tilak
Nagar, New Delhi, which was subject to partition
and not the others. The conduct of Defendants in
not filing their written statement during the
lifetime of the Defendant No.1 is also indicative of
the fact that the Defendants during the lifetime of
the Defendant no.1 did not dispute the claims of
the Plaintiff as made in the suit.”
9. The Court noticed that Shri Y.K. Kapoor had all along been
representing all the defendants. It was furthermore noticed that defendants
did not file their written statement during the life time of the original
defendant No.1. It was opined :
“From the aforesaid, it is evident that Mr. Kapoor
is also not in agreement with the stand taken by
the Defendants that the statement made before
court on 14.10.1999 was a result of any mistake or
misunderstanding. Pertinently, no action has been
initiated by the Defendants/applicants against their
erstwhile Counsel. It appears that he has not even
been put to notice of the alleged mis-statement or
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misunderstanding, and his response has not been
elicited by the Defendants.”
In regard to the contention that no vakalatnama was filed by Mr.
Kapoor, the learned Judge held :
“A perusal of paras 2 and 5 of the application,
which is supported by an affidavit of Defendant
No. 5 shows that Mr. Y.K. Kapoor was engaged as
the Counsel for Defendants. Merely because there
is no vakalatnama on record, that would not wash
the fact of his appointment and authorization.
Pertinently, the Defendants are not disowning the
authority given to the Counsel to appear on their
behalf and to make a statement in court. It is their
case that there was a mistake in the statement
made by him on account of a misunderstanding.
Consequently, in my view it makes no difference
whether or not the vakalatnama of Mr. Y.K.
Kapoor is not on record.”
10. An appeal was preferred thereagainst which by reason of the
impugned judgment has been dismissed by a Division Bench of the said
High Court, holding :
. “As it has been pointed out, when the statement
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was made on 14 October, 1999 on behalf of the
defendants that they were disputing the share of
the plaintiff in all the properties, the deceased
defendant no.1 as well as defendant no.5, mother,
were present in the Court. Since the statement was
made by the counsel in the presence of both the
parents, the contention that instructions were
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given to the counsel only in respect of one
property does not inspire any confidence and
cannot be believed. Not only this, the statement
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was reiterated again on 16 December, 1999 and
further proceedings as to how the share of the
plaintiff is to be given in these properties went on,
on that basis.
It is clear from the above that the appellants
have now turned turtle after the death of their
father, which cannot be permitted. We may note
that though there is hardly any satisfactory
explanation given for delay in filing and refilling
the appeal we, therefore, dismiss the appeal not
only on the ground that it is time bared but on
merits as well.”
11. Mr. Munish Tyagi, learned counsel appearing on behalf of the
appellant, would contend that a counsel who had no specific instructions in
the matter could not have made a concession on behalf of the parties.
Drawing our attention to the fact that the property having been mutated in
the name of Smt. Shanti Devi Anand, it was urged that no concession could
have been made that the same was a joint family property or that the
plaintiff had a share therein. In this connection, our attention has
furthermore been drawn to a memorandum dated 1.3.1971 wherein it is
stated that the property stood recorded in the records of the office of the
Land and Development in the name of Shanti Devi. Learned counsel would
urge that the provisions of Order XII Rule 3 of the Code of Civil Procedure
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having not been complied with, the provisions of Order XXII, Rule 6 will
also not apply.
12. Mr. Sunil Gupta, learned senior counsel appearing on behalf of the
respondent, on the other hand, argued that different stands have been taken
by the appellants only after the death of Amar Nath Anand.
13. We have noticed hereinbefore the averments made by the petitioner in
IA No.1889 of 2002. We may also notice that in the rejoinder to the
objection filed by the plaintiff-first respondent thereto, the appellant stated :
“1(a) That the contents of sub para (a) are not
denied to the extent that the Hon’ble Court passed
the order in the presence of the defendants….
3-5. It is respectfully submitted that the presence
of the defendant Nos. 1 and 5 is not denied, but is
also a hard fact.. misunderstanding between the
erstwhile counsel and the defendants which caused
inconvenience to the Hon’ble Court…”
Yet again, before the Division Bench in the Memorandum of Appeal
filed in First Appeal No.317 of 2008 which was filed on 4.12.2007, they
averred as under :
“(f) …In the application u/s. 151 of CPC the
defendant No.5 had honestly admitted the fact that
Mr. Y.K. Kapoor was engaged as the counsel for
defendants…. In fact the counsel Mr. Y.K. Kapoor
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misunderstood instructions of the defendants and
made the wrong statement in the court in respect
of all the suit properties whereas in fact the said
statement was to be made only in respect of
property bearing No. 1/13….”
(g) …defendant No.5 had honestly admitted the
fact of engaging Mr. Y.K. Kapoor as their
counsel….”
(k) …In the present case without filing the
vakalatnama on record, the counsel Mr. Y.K.
Kapoor made several appearances on behalf of the
defendants unauthorisedly and the same was never
noticed neither by the court master nor the
concerned dealing section.”
Yet again, in the rejoinder filed before this Court on 24.12.2008, it is
stated:
“3. …It is further submitted that the entire
fraud/cheating was made at the behest of son-in-
law of the plaintiff (now respondent No. 1). It is
submitted that son-in-law of respondent No.1 is an
advocate and practicing in the Hon’ble High Court
of Delhi at New Delhi. He started his career by
joining a law firm of Senior Advocate Shri Arun
Jaitley. Shri Jitender Singh is the main culprit for
the fraud which was committed by Shri Y.K.
Kapoor…”
…In fact, son in law of the plaintiff namely Shri
Jitender Sethi had been managing the aforesaid act
of fraud which was made upon the petitioners
15. ..Order dated 16.12.1999 reflects that the
petitioners/ defendants were not present…”
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14. Different stands taken by the appellant at different point of time is
pointer to the conduct of the appellant. The records of the proceedings
clearly show that the first Order dated 14.10.1999 was passed in presence of
all the defendants.
Shri Kapoor represented all the defendants. If that be so, it was not
unusual that in presence of their parents, all the children accepted that the
plaintiff has also a share in all the properties in the suit. We may notice that
Shanti Devi died in December 2003. Appellant in his application filed in
November 2002 categorically admitted that Shri Kapoor was engaged as a
counsel. If any misunderstanding occurred by and between him and the
defendants as regards the instructions given to him, there was no reason as
to why an application for rectification thereof could not be filed
immediately thereafter. Instructions to that effect could have been given by
Shri Amar Nath Anand and his wife also during their life time. It is difficult
to accept that Shri Y.K. Kapoor would make appearance on behalf of the
defendants without any authority. Again if that was so, the parties who had
been appearing before the courts should not have allowed him to represent
them. It is unfortunate that with a view to wriggle out of the admission,
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appellant has now gone to the extent of maligning a counsel who happens to
be the son-in-law of the first respondent.
15. A decree can be passed on the basis of a concession of the parties.
Such a concession can also be made through a counsel. The parties were
present in court on 14.10.1999. They, thus, could instruct their counsel. As
on the basis of the statements made by a counsel for all intent and purport, a
preliminary decree has been passed and the parties thereafter had been
exploring the possibilities of partitioning the property by meets and bounds
and/or taking recourse to sale thereof there cannot be any doubt whatsoever
that they had knowledge of the said order dated 14.10.1999. The parties
acted upon it. It is, therefore, in our opinion, too late in the day to allow the
parties to take a stand contra. Having regard to the fact that they were
present in court as also having full knowledge about the statement made by
their counsel, it was for them to clearly spell out what could be the
purported misunderstanding between them and the counsel.
In a suit for partition, the principal question which was required to be
gone into was as to whether the properties were joint properties or self-
acquired properties.
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There were three items of the property in suit. To say now that the
instruction was confined only to one of the properties, namely, 1/13, First
Floor, Double Storey, Tilak Nagar, New Delhi cannot be accepted.
It is now a well settled principle of law that a counsel can make not
only concession on a question of law but also on facts which would be
binding on the parties. A decree can be passed on the basis of such
concession in terms of Order XXII, Rule 6 of the Code of Civil Procedure.
[See Jamilabai Abdul Kadar vs. Shankarlal Gulabchand and Ors. AIR 1975
SC 2202, Pushpa Devi Bhagat v. Rajinder Singh, (2006) 5 SCC 566 and
BSNL and Others v. Subash Chandra Kanchan and Another (2006) 8 SCC
279]
16. For the reasons aforementioned, there is no merit in the appeal. It is
dismissed accordingly with costs. Counsel’s fee assessed at Rs.25,000/-
(Rupees twenty five thousands only).
………………………….J.
[S.B. Sinha]
..…………………………J.
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[V. S. Sirpurkar]
New Delhi;
February 25, 2009