Allahabad High Court
Ramashraya And 4 Others vs Dharmdeo And 3 Others on 9 May, 2024
Author: Jayant Banerji
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:83561
RESERVED
In Chamber
Case :- CIVIL MISC REVIEW APPLICATION No. - 573 of 2023
Applicant :- Ramashraya And 4 Others
Opposite Party :- Dharmdeo And 3 Others
Counsel for Applicant :- Jitendra Nath Sharma
Hon'ble Jayant Banerji,J.
1. Heard Shri Jitendra Nath Sharma, Advocate for the applicant.
2. This application has been filed seeking review of the order dated 28.10.2023 passed in Matters Under Article 227 No. 8059 of 2023 whereby the petition was dismissed in view of the oral statement made by Shri Pratik Kumar Sharma, Advocate, that the suit was for injunction simplicitor which was filed without seeking a decree for partition; that the plots in disputes are agricultural in nature and that the defendants in the suit are family members of the plaintiffs.
3. It is stated that this application has been filed on the ground that property in dispute is not agricultural and neither are the defendants family members of the plaintiff-petitioners. It is contended that the Advocate, who argued the petition before this Court at the time when the order dated 28.10.2023 was passed, was a junior of the Advocate for the petitioner and that he had never made those admissions. In this regard, the Advocate has referred to ground no. 2 of the review application and paragraph no. 4 of the affidavit of the Advocate- Pratik Kumar Sharma son of Jitendra Nath Sharma filed in support of the review application.
The ground no. 2 of the review application is as follows:
"2. Because the petitioner/applicant has never pleaded/stated that the defendants in the suit are the family members of the plaintiffs. As such there is no question of seeking a decree of partition."
The paragraph no. 4 of the affidavit is as follows:
"4. That the petitioner/applicant has never pleaded/stated that the defendants in the suit are the family members of the plaintiffs. As such there is no question of seeking a decree of partition."
Thus there is no averment that the Advocate arguing the petition had not made any admission as recorded in the order dated 28.10.2023.
4. The Advocate in the instant application has referred to paragraph no. 4 and 5 of the plaint filed alongwith the petition under Article 227 of the Constitution of India which is enclosed therein as Annexure No. 2 in support of his contention that the plaintiffs and defendants are not family members. The two paragraphs read as follows:
"4:- यह कि प्रतिवादीगण जमीन नेजाई हम वादीगण से बिल्कुल लावास्ता है।
5:- यह कि प्रतिवादीगण की नियत वद हो गयी है और जमीन नेजाई से बिल्कुल लावास्ता व लाताल्लुक होते हुए भी बराबर हम वादी की जमीन को तरह- तरह ते हड़पने की उनकी नियत बनी रहती है उसी नियत के तहत् प्रतिवादीगण चन्द दुश्मनान हम वादीगण के साजिश में हो करके अपना बिल्डिंग मटेरियल गिरा रहे हैं और उसमें अपनी तामीरात कायम करने के फिराक में पड़े हुए है।"
"4. That the defendants have no concern at all with the land-in-question of the plaintiffs.
5. That the intention of the defendants has become malafide and even after having no concern with the land-in-question, they are constantly eyeing to usurp the land of the plaintiffs in some way or the other. With the same malafide, the defendants, after colluding with our enemies, are putting their building material (on the land) and are bent upon erecting their constructions thereat."
(English Translation by Court)
The aforesaid two paragraphs in the plaint do not reflect whether or not the defendants are the family members of the plaintiffs. The Advocate has not been able to point out any averment in the petition under Article 227 that the respondents are not their family members.
5. A perusal of the vakalatnama filed by the Advocates of the petitioners in the petition under Article 227 of the Constitution of India reflects that both the Advocates appearing in the petition, that is, Jitendra Nath Sharma and, the Advocate who made his submissions on 28.10.2023 when the petition under Article 227 was heard and who has also filed his personal affidavit in this review application, namely, Pratik Kumar Sharma, are named as the Advocates in that vakalatnama and have signed as such on the same.
6. Therefore, Pratik Kumar Sharma, Advocate was duly authorized to appear on behalf of the petitioners in the petition under Article 227.
7. The submission that Shri Pratik Kumar Sharma never made the concession/submission before this Court is completely false and no such specific averment has been made either in the grounds of revision or in the affidavit. Moreover, the order under review was dictated in open Court in the presence of Pratik Kumar Sharma, Advocate for the plaintiff-petitioners and on his admission.
8. Further, in ground no. 1 of the review application and in paragraph no. 3 of the affidavit of the Pratik Kumar Sharma, Advocate, in this review application, while stating that the plots in dispute are abadi plots as pleaded by the petitioners, it has been admitted that they are used for agricultural purpose in 'Rabi' and 'Kharif' seasons for sowing and harvesting. As such, the submission of the Advocate that the land in dispute is not used for agricultural purposes is belied.
9. The Supreme Court in Himalayan Cooperative Group Housing Society Vs. Balwan Singh1 has observed as follows:
"22. Apart from the above, in our view lawyers are perceived to be their client's agents. The law of agency may not strictly apply to the client-lawyer's relationship as lawyers or agents, lawyers have certain authority and certain duties. Because lawyers are also fiduciaries, their duties will sometimes be more demanding than those imposed on other agents. The authority-agency status affords the lawyers to act for the client on the subject-matter of the retainer. One of the most basic principles of the lawyer-client relationship is that lawyers owe fiduciary duties to their clients. As part of those duties, lawyers assume all the traditional duties that agents owe to their principals and, thus, have to respect the client's autonomy to make decisions at a minimum, as to the objectives of the representation. Thus, according to generally accepted notions of professional responsibility, lawyers should follow the client's instructions rather than substitute their judgment for that of the client. The law is now well settled that a lawyer must be specifically authorised to settle and compromise a claim, that merely on the basis of his employment he has no implied or ostensible authority to bind his client to a compromise/settlement. To put it alternatively that a lawyer by virtue of retention, has the authority to choose the means for achieving the client's legal goal, while the client has the right to decide on what the goal will be. If the decision in question falls within those that clearly belong to the client, the lawyer's conduct in failing to consult the client or in making the decision for the client, is more likely to constitute ineffective assistance of counsel.
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27. Further, the "Code of Ethics" prescribed by the Bar Council of India, in recognition of the evolution in professional and ethical standards within the legal community, provides for certain rules which contain canons of conduct and etiquette which ought to serve as general guide to the practice and profession. Chapter III of the said Code provides for an "Advocate's duty to the client". Rule 26 thereunder mandates that an "advocate shall not make any compromise or concession without the proper and specific instructions of his/her client". It is pertinent to notice that an advocate under the Code expressly includes a group of advocates and a law firm whose partner or associate acts for the client.
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32. Generally, admissions of fact made by a counsel are binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions. Furthermore, a client is not bound by a statement or admission which he or his lawyer was not authorised to make. A lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed. We hasten to add neither the client nor the court is bound by the lawyer's statements or admissions as to matters of law or legal conclusions. Thus, according to generally accepted notions of professional responsibility, lawyers should follow the client's instructions rather than substitute their judgment for that of the client. We may add that in some cases, lawyers can make decisions without consulting the client. While in others, the decision is reserved for the client. It is often said that the lawyer can make decisions as to tactics without consulting the client, while the client has a right to make decisions that can affect his rights."
Therefore, concessions of fact made by Advocate is, generally, binding on his clients particularly where they stem from an authority by his principal to make such admissions.
10. Be that as it may. A perusal of the plaint reflects that the plaintiffs have furnished their family tree in paragraph no. 2 of the plaint. The names of the defendants do not appear therein. Even though the admission made by the Advocate appearing for the petitioners in the petition under Article 227 was recorded and would, generally, be binding, however, in the written statement of the defendants that has been enclosed as Annexure No. 3 to the petition, which was never referred to by the Advocate for the petitioners or for the applicants, there does not appear to be any indication that the defendants are family members of the plaintiffs. The valuable rights of the plaintiffs ought not to be jeopardized due to a wrong admission made by his Advocate and his false posturing before this Court.
11. Under the facts and circumstances of the case, the review application is allowed and petition under Article 227 is restored to its original number. The petition shall accordingly be listed before the appropriate Court in due course for its consideration.
12. This matter shall not be treated as part heard or tied up to this Bench.
Order Date :- 9.5.2024
A. V. Singh
(Jayant Banerji, J.)
