Saroj Anand &
Ors. V. Prahlad Rai Anand & Ors.  INSC 417 (25 February 2009)
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
S.B. Sinha, J.
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.
hereto were members of a joint family.
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 3 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."
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."
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.
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 5 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."
or about 12.5.2003, the plaintiff-first respondent filed a reply thereto,
"(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 6 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."
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.
Mr. Y.K. Kapoor, Advocate 7 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 statement was
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 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
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
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 8 misunderstanding, and his response has not been elicited by
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.
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
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 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, 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 9 given to
the counsel only in respect of one property does not inspire any confidence and
cannot be believed. Not only this, the 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 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."
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 10 having not been complied with, the provisions of Order XXII, Rule
6 will also not apply.
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.
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
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 11 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
(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.
...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..."
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.
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, 13 appellant has now gone to the extent of
maligning a counsel who happens to be the son-in-law of the first respondent.
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
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.
14 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]
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
[V. S. Sirpurkar]