Supreme Court of India
SAROJ ANAND & ORS.versusPRAHLAD RAI ANAND & ORS.
- Citation
- 2009 INSC 264
- Decided
- 25 February 2009
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
A counsel may make concessions on both law and facts that are binding on the parties, and a decree can be passed on such concessions under Order XXII Rule 6 of the Code of Civil Procedure.
Summary
The case involved a partition suit among members of a joint family where counsel Y.K. Kapoor, appearing for all defendants, stated in court on 14 October 1999 that the defendants did not dispute the plaintiff's share in all the properties and were willing to sell them. A preliminary decree was passed on the basis of that statement. The defendants later claimed the statement was made without proper instructions and sought its modification under Section 151 of the CPC, arguing that the concession was limited to only one property. The Supreme Court held that a counsel can make concessions on both law and facts that bind the parties, and a decree may be passed on such concessions under Order XXII Rule 6 of the CPC, irrespective of the presence or absence of a vakalatnama. The Court found that the parties were present, could have instructed the counsel, and had acted upon the decree, so they could not later repudiate the concession. Consequently, the appeal was dismissed.
Issues considered
- Whether a counsel can make a concession on facts and law that is binding on the parties.
- Whether a decree can be passed on the basis of such concession under Order XXII Rule 6 of the CPC.
- Whether the absence of a vakalatnama defeats the authority of the counsel.
- Whether parties can later retract a concession made by their counsel.
Legislation cited
- Code of Civil Procedure, 1908s. Order XII Rule 3, s. Order XXII Rule 6, s. Section 151
Subjects
counsel authorityconcessiondecreepartition suitCPC Order XXII Rule 6vakalatnamajoint family propertycivil procedure
Judgment
[2009] 3 S.C.R. 428
A SAROJ ANAND & ORS.
v.
PRAHLAD RAI ANAND & ORS.
(Civil Appeal No. 1185 of 2009)
FEBRUARY 25, 2009
B
[S.8. SINHA AND V.S. SIRPURKAR, JJ.]
Practice and procedure - Concession by counsel -
Binding effect of - Held: Counsel can make concession on
c question of law as also on facts which would be binding on
the parties - Decree can be passed on the basis of such
concession of parties in terms of 0. XX/I, r. 6 CPC - On facts
preliminary decree was passed on basis of statement made
by counsel - Parties were present in the court when order was
D passed and could instruct their counsel - Subsequently,
parties acted upon it- Thus, they cannot take a contrary stand
afterwards - It was for them to spell out the purported
misunderstanding between them and counsel - Code of Civil
Procedure, 1908- 0. XX/I, r. 6.
E The question which arose for consideration in this
appeal was whether counsel could have made
concession on behalf of the parties and what was the
effect of the statement made by a counsel.
Dismissing the appeal, the Court
F
HELD: 1. 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 of the parties in terms of Or
G XXll, r. 6 CPC. [Para 15) [440-D]
2.1. In the instant case, 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
H 428
SAROJ ANAND & ORS. v. PRAHLAD RAI ANAND & 429
ORS .
. -.1¥, presence of all the defendants. K represented all the A
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. SD
died in December 2003. Appellant in his application filed
in November 2002 categorically admitted that K was B
engaged as a counsel. If any is understanding 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 c
have been given by AN and his wife also during their life
time. It is difficult to accept that K would make appearance
on behalf of the defendants without any authority. Again
if that was so, the parties who had been appearing before
..
,J-
the courts should not have allowed him to represent them. D
It is unfortunate that with a view to wriggle out of the
admission, appellant went to the extent of maligning a
counsel who happens to be the son-in-law of the first
respondent. [Para 14] [438-H; 439-A-B]
2.2. The parties were present in court on 14.10.1999. E
Thus, they could instruct their counsel. As on the basis
of the statements made by a counsel for all intent and
purport, a preliminary decree was passed and the parties
' thereafter had been exploring the possibilities of
' partitioning the property by metes and bounds and/or F
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. Therefore, it
is too late in the day to allow the parties to take a stand
contra. Having regard to the fact that they were present G
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
H
430 SUPREME COURT REPORTS [2009] 3 S.C.R.
A whether the properties were joint properties or self-
,..,
acquirnd properties. There were three items of the
property in suit. To say now that the instruction was
confined only to one of the properties-1/13, First Floor,
Double Storey, Tilak Nagar, New Delhi cannot be
B accepted. [Para 15] [439-F-H; 440-A-C]
Jamilabai Abdul Kadar vs. Shankar/a/ Gulabchand and
Ors. AIR 1975 SC 220; Pushpa Devi Bhagat v. Rajinder
c
Singh (2006) 5 SCC 566 and BSNL and Ors. v. Subash
Chandra Kanchan and Anr. (2006) 8 SCC 279, relied on. "
Case Law References:
AIR 1975 SC 2202 Relied on. Para 15
(2006) 5 sec 566 Relied on. Para 15
(2006) s sec 219 Relied on. Para 15
D •
~
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1185 of 2009.
From the Judgment & Order dated 28.7.08 of the High
Court of Delhi at New Delhi in F.A.0.(0.S.) No. 317 of 2008.
E R.C. Kaushik for the Appellants.
Sunil Gupta, J.K. Sethi and Indra Sawhney for the
Respondent.
F
The Judgment of the Court was delivered by •
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
G 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.
3. Parties hereto were members of a joint family.
H 4. First respondent filed a suit for partition in respect of
SAROJ ANAND & ORS. v. PRAHLAD RAI ANAND & 431
ORS. [S.B. SINHA, J.]
•' the properties fully described in Schedule appended to in the A
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
8
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/ c
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 : D
"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 property. The defendants are ready
E
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 F
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." G
5. Shri Ravi Gupta, advocate appearing on behalf of the
plaintiff served a notice on Shri Y.K. Kapoor, advocate for the
defendant, stating :
H
)
432 SUPREME COURT REPORTS [2009] 3 S.C.R.
"1. Reference is invited to your appearance and
\.
A
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
B 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
c 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."
6. An interlocutory application was filed in the said suit.
...
D "
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
E 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. \,
F 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
G
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
H states that it is not possible to partition the property.
SAROJ ANAND & ORS. v. PRAHLAD RAI ANAND & 433
.,J ORS. [S.B. SINHA, J.]
The defendants are ready and willing to get it sold, A
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
8
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 said property is
in the name of defendant No.1, i.e., late Shri Amar Nath
Anand.
c
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 D
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 E
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 F
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, G
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 H
434 SUPREME COURT REPORTS [2009] 3 S.C.R.
I
.
'
A 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 fraudulent as are the other
documents, which the defendant No.5 has been
B 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
c change the stand of the Defendant No.1 recorded
or.1 19.10.1999 which is nothing but seeking a
review of the said order, after his death, which is
not permissible in law.
"
D (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
E 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
F 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.
G 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,
H when Mr. Y.K. Kapoor, Advocate appeared and made a
SAROJ ANAND & ORS. v. PRAHLAD RAI ANAND & 435
ORS. [S.B. SINHA, J.)
,,1 statement on 14.10.1999 before the court, conceding to A
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 statement was B
maintained on 16th December 1999 and 21.1.2000, since
it was not sought to be retracted, or challenged by the
) defendants. Even when the Plaintiffs Counsel issued a
notice stating that the suit properties be partitioned by
meets and bounds, there was no challenge to the same c
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 D
' 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 E
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 F
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
G
,,.. 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 :
H
436 SUPREME COURT REPORTS (2009) 3 S.C.R.
A "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
B 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 i..
him on account of a misunderstanding. Consequently, in
c 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 :
D
"As it has been pointed out, when the statement was made
on 14th 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,
E 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 given to the
counsel only in respect of one property does not inspire
any confidence and cannot be believed. Not only this, the •
F statement was reiterated again on 16th 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
G 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."
H 11. Mr. Munish Tyagi, learned counsel appearing on behalf
SAROJ ANAND & ORS. v. PRAHLAD RAI ANAND & 437
ORS. [S.B. SINHA, J.]
.ii
of the appellant, would contend that a counsel who had no A
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 B
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 c
provisions of Order XII Rule 3 of the Code of Civil Procedure
having not been complied with, the provisions of Order XXll,
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 D
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 E
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
F
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 G
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 :
H
438 SUPREME COURT REPORTS [2009] 3 S.C.R.
A "(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 misunderstood instructions of the
defendants and made the wrong statement in the court in
B 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.. .. "
c
(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." •
D
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
E 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
F 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
G made upon the petitioners
15... Order dated 16.12.1999 reflects that the petitioners/
defendants were not present. .. "
14. Different stands taken by the appellant at different
H point of time is pointer to the conduct of the appellant. The
SAROJ ANAND & ORS. v. PRAHLAD RAI ANAND & 439
ORS. [S.B. SINHA, J.)
-.r records of the proceedings clearly show that the first Order A
dated 14.10.1999 was passed in presence of all the
defendants.
Shri Kapdor represented all the defendants. If that be so,
it was not unusual that in presence of their parents, all the
B
.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
c
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 D
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, appellant has
now gone to the extent of maligning a counsel who happens E
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. F
- 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 metes and bounds and/or taking recourse to sale thereof
G
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
H
440 SUPREME COURT REPORTS (2009] 3 S.C.R.
A 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
B
were joint properties or self-acquired properties.
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
c 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
•
D passed on the basis of such concession in terms of Order
XXll, Rule 6 of the Code of Civil Procedure. [See Jamilabai
Abdul Kadar vs. Shankar/al Gu/abchand 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]
E
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).
F
N.J. Appeal dismissed.
-
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