Delhi High Court
Ashok Kumar Sharma vs Sh. Ram Kumar Sharma on 9 August, 2016
$~A-5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 09.08.2016
+ C.R.P. 62/2014 & CM No.8488/2014
ASHOK KUMAR SHARMA ..... Petitioner
Through Mr.Bineesh K., Adv. alongwith
petitioner in person
versus
SH. RAM KUMAR SHARMA ..... Respondent
Through Mr.D.N.Goburdhun and Mr.Balendru
Shekher, Advs.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
1. By the present petition petitioner seeks to impugn the order dated
24.3.2014 by which order the application of the petitioner for revival of the
suit was dismissed.
2. Brief facts are that the plaintiff filed a suit for partition against the
defendant with respect to the suit property. On 19.10.2010, Mr.C.B.Garg,
the counsel who had been engaged by the petitioner made a statement
without oath that he had been instructed to withdraw the present suit as the
plaintiff does not want to claim any right, title or interest to the suit property.
In view of the statement recorded of the learned counsel for the petitioner,
the suit was dismissed as withdrawn on 19.10.2010.
3. The petitioner thereafter moved the present application stating that no
instructions had been given to his counsel to withdraw the suit. It is also
CRP 62.2014 Page 1 of 4
stated that a complaint has been filed against the counsel before the Bar
Council of Delhi. The trial court by the impugned order dismissed the
application of the petitioner noting that the vakalatnama given by the
petitioner in favour of his Advocate Mr.C.B.Garg shows that the petitioner
had authorised the counsel to appear and to withdraw the suit.
4. Learned counsel appearing for the petitioner has vehemently argued
that no such instructions were given to the counsel to withdraw the suit. He
submits that the petitioner has been agitating for several years and there was
no reason or occasion to abandon his claim. To a question posed by the court
as to the outcome of the complaint filed before the Bar Council he has
pointed out that the complaint has been dismissed by the Bar Council by an
order dated 30.8.2013 whereby the Bar Council came to the conclusion that
there is no sufficient evidence on record to hold the concerned advocate
guilty of professional misconduct.
5. Learned counsel appearing for the respondent has relied upon
judgments of the Supreme Court in Jagtar Singh vs. Pragat Singh and
Others, (1996) 11 SCC 586 and Bakshi Dev Raj(2) and Another vs.
Sudheer Kumar, (2011) 8 SCC 679 to contend that in similar facts and
circumstances the Supreme Court has held that the order of withdrawal
cannot be challenged on the ground that the counsel did not have a right to
make a statement. The remedy of the petitioner in case no such instructions
were given lie somewhere else.
6. I may only note two facts. Firstly, a perusal of the application filed by
the petitioner shows that there appears to have been some interactions
between the petitioner and the counsel as there is an allegation made that the
counsel had threatened the petitioner to misuse blank cheques, stamp papers
CRP 62.2014 Page 2 of 4
and pronotes. Purpose of the petitioner having executed blank cheques,
stamp papers and pronotes is not shown but presumably the petitioner had
confidence in the counsel. Secondly, I cannot help noticing that the Bar
Council of Delhi has by a detailed order dated 30.8.2013 come to a
conclusion that there is no sufficient evidence to form an opinion that the
counsel was guilty of professional misconduct.
7. The Supreme Court in the case of Jatar Singh vs. Pargat Singh and
Others (supra) held as follows:-
"3. The learned Counsel for the petitioner has contended that the
petitioner had not authorised the counsel to withdraw the appeal.
The Court after admitting the appeal has no power to dismiss the
same as withdrawn except to decide the matter on merits
considering the legality of the reasoning of the trial Court and the
conclusions either agreeing or disagreeing with it. We find no
force in the contention. Order III, Rule 4, CPC empowers the
counsel to continue on record until the proceedings in the suit are
duly terminated. The counsel, therefore, has power to make a
statement on instructions from the party to withdraw the appeal.
The question then is: whether the court is required to pass a
reasoned order on merits against the decree appealed from the
decision of the Court of the Subordinate Judge? Order XXIII,
Rule 1(1) and (4) give power to the party to abandon the claim
filed in the suit wholly or in part. By operation of
Section 107(2) of the CPC, it equally applies to the appeal and
the appellate Court has co-extensive power to permit the
appellant to give up his appeal against the respondent either as a
whole or part of the relief. As a consequence, though the appeal
was admitted under Order XXXXI, Rule 9, necessarily the Court
has the power to dismiss the appeal as withdrawn without going
into the merits of the matter and deciding it under Rule 11
thereof.
4. Accordingly, we hold that the action taken by the counsel is
consistent with the power he had under Order III, Rule 4, CPC. If
CRP 62.2014 Page 3 of 4
really the counsel has not acted in the interest of the party or
against the instructions of the party, the necessary remedy is
elsewhere and the procedure adopted by the Court below is
consistent with the provisions of CPC. We do not find any
illegality in the order passed by the Additional District Judge as
confirmed by the High Court in the revision."
8. The above proposition was followed by the Supreme Court in the case
of Bakshi Dev Raj (2) vs. Sudheer Kumar (supra).
9. It is clear that the vakalatnama executed by the petitioner permitted
the counsel to withdraw the suit. The counsel has accordingly as stated on
instructions as per powers given to him by the petitioner has sought to
withdraw the suit. The conduct of the counsel for the petitioner is in
consonance with the powers under Order 3 Rule 4 CPC.
10. In view of the legal position as stated by the Supreme Court and the
facts as stated above, in my opinion, there is no infirmity in the impugned
order. The petition is accordingly dismissed.
JAYANT NATH, J.
AUGUST 09, 2016/n
