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.  

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 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 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 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

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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 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.”

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

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