Delhi High Court
Manju Taneja vs L S Pawar & Ors on 17 February, 2017
$~36
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 17.02.2017
+ C.R.P. 39/2017 & CM Nos.6285-86/2017
MANJU TANEJA ..... Petitioner
Through Ms.Suman Chauhan, Advocate
Versus
L S PAWAR & ORS ..... Respondents
Through
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
1. By the present petition filed under Section 115 of the CPC read with
Article 227 of the Constitution of India, the petitioner seeks to challenge the
order dated 24.01.2017 by which an application filed under Section 114 read
with Order 47 CPC seeking review of judgment dated 14.07.2016 was
dismissed.
2. The grounds taken in the review application were that the counsel
appearing for the petitioner has made a concession to the court and has
confined his argument to the issue of damage/mesne profits and did not
challenge the finding of the trial court regarding the other reliefs. It is
submitted that the petitioner had never authorised her counsel to challenge
the decree of the trial court dated 04.03.2015 only limited to the issue of
quantum of damage/mesne profits.
3. The respondents filed a suit for permanent injunction, possession and
damages. It was claimed in the plaint that the respondent/plaintiff is the
absolute owner of the property at Kalkaji and had purchased the said
CRP No.39.2017 Page 1 of 4
property from the previous owner on 08.06.2005 vide sale documents duly
registered with the Sub-Registrar. The contention was that the petitioner has
unauthorisedly entered into the suit property.
4. The petitioner filed a written statement where she has denied that the
respondent is the owner of the suit property. It has been averred that the wife
of the respondent had taken a sum of Rs.5 lacs from the petitioner as part
consideration amount for sale of the property in question and the remaining
amount of Rs.2.5 lacs were to be paid to the wife of the respondent at the
time of execution of the sale deed and other documents. It was urged that the
wife of the respondent handed over peaceful vacant possession of the suit
property to the petitioner.
5. The trial court had decreed the suit and had also passed a decree of
mesne profits entitling the respondent to recover damages at the rate of
Rs.10,000/- per month from the petitioner w.e.f. 01.05.2006 till the vacant
possession of the suit property shall be handed over to the respondent.
6. An appeal was filed by the petitioner where the learned counsel
appearing for the petitioner had argued only regarding the findings of the
mesne profits and damage. The appellate court also dismissed the appeal.
The appellate court while dismissing the appeal noted that as per rules 15,
19 and 26 of the Bar Council of India, Rules 1975 there is nothing required
to show that an advocate has no right to make any compromise or
concession without proper and specific instructions of his/her client in
writing. The appellate court also perused the Vakalatnama and noted that the
counsel was given an authority to withdraw and compromise the appeals etc.
It was also noted that the petitioner has not filed any complaint against the
counsel and the application was accordingly dismissed.
CRP No.39.2017 Page 2 of 4
7. I have heard the learned counsel for the petitioner.
8. In my opinion, there is no reason to differ with the view taken by the
appellate court. There is nothing on record to show that there was no
instruction to the counsel to address the court only limited to the issue of
mesne profits and damages for the petitioner. In this context reference may
be had to the judgment of this Court in Paul Properties Pvt. Ltd. & Anr. v.
Estate Officer Life Insurance Corporation of India & Anr., LPA 298/2010
(MANU/DE/1511/2010), wherein this court held as follows:
"33. At this juncture, we think it appropriate to observe that on a
keener scrutiny of the order of the proceedings before the learned
Single Judge, it is clear that it is an unequivocal concession with
regard to a finding of fact which has been arrived at by the Estate
Officer. While the learned Singe Judge was going to dismiss the
writ petition, time was sought for and thereafter, concession was
given. The concession of a counsel in a court of law has its own
sacrosanctity. It is not the case where there was no consultation
whatsoever. On a scrutiny of the entire gamut of the facts, it
emerges with utmost clarity which can be envisioned that a
maladroit attempt was made to take a somersault and wriggle out
of the same. In case the same, if we allow ourselves to say so, is
permitted, it will usher in a state of anarchy in the process of
adjudication and the high tradition of the Bar and the acceptance
of statements made at the Bar would be in jeopardy. The law does
not countenance the same either in the expanse of substantive law
or in the expansion of adjective law."
9. In the light of the above judgment, in my opinion, the petitioner
cannot be permitted to resile/back out from the concession/statement made
in court.
10. I have in any case perused the record of the case. In my opinion, no
prejudice has been caused to the petitioner by the act of the counsel. The
CRP No.39.2017 Page 3 of 4
trial court in the decree specifically recorded that the respondent showed
their title to the suit property on the basis of the Registered General Power
of Attorney, Agreement to Sell etc. On the other hand, the petitioner has
neither in the written statement nor in the documents filed alleged that these
documents relied upon the by the respondent were false, fabricated or
forged. Further the petitioner has not brought on record even an iota of
evidence to show that Smt.Kiran was the wife of the respondent or that she
had any right title or interest in the suit property or that she had transferred
the same in favour of the petitioner after receiving consideration of Rs.5
lacs.
11. I may add that the written statement filed by the petitioner inspires no
confidence. The only argument raised is that the sum of Rs.5 lacs was
handed over to the wife of the respondent as part consideration and Rs.2.5
lacs were to be paid at the time of execution of the sale deed. Based on this
alleged transaction, it is claimed that the wife of the respondent handed over
peaceful vacant possession of the suit property to the petitioner. From the
pleadings and other evidence on record, it is clear that the facts pleaded and
sought to be proved do not give rise to any right in favour of the petitioner.
Hence, the concession of the counsel for the petitioner did not cause any
prejudice to the petitioner.
12. There is no merit in the present petition and the same is dismissed. All
the pending applications are also dismissed.
JAYANT NATH, J.
FEBRUARY 17, 2017/v
