Punjab-Haryana High Court
Satish Kumar vs S.D.O. (Operation) Sub Division, ... on 18 December, 2023
Author: Archana Puri
Bench: Archana Puri
2023:PHHC:162382
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR-8270-2016(O&M)
Date of Decision: December 18, 2023
Satish Kumar
...Petitioner
Versus
SDO (Operation) Sub Division, DHBVN Narwana and others
...Respondents
CORAM: HON'BLE MRS. JUSTICE ARCHANA PURI
Present: Mr.Naveen Gupta, Advocate
for the petitioner.
Mr.Arvind Seth, Advocate
for the respondents.
****
ARCHANA PURI, J.
Challenge in the present revision petition is to the order dated
25.05.2016 (Annexure P-1), passed by learned lower Appellate Court,
whereby, an appeal of the petitioner against the judgment and decree dated
22.01.2016, was dismissed as withdraw. Besides the same, the petitioner
also challenged the order dated 16.09.2016 (Annexure P-5) passed by
learned lower Appellate Court, whereby, an application for restoration of the
appeal has been dismissed.
In pursuance of the notice issued, the respondents made
appearance through counsel.
Learned counsel for the parties heard.
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The essential facts, as culled from the paperbook, are as
follows:-
That, initially, the petitioner (who was plaintiff before learned Court
below) had filed a suit against the respondents (who were defendants before
learned Court below), thereby, seeking declaration qua the legality and
validity of the checking report and subsequent memo, as detailed therein, by
way of which, a penalty of Rs.15,55,657/- had been assessed. The copy of
the plaint is Annexure P-3. The said suit was dismissed vide judgment and
decree dated 22.01.2016, copy whereof is Annexure P-6. Feeling aggrieved
by the aforesaid judgment and decree, the petitioner-plaintiff had filed the
appeal. During the pendency of the appeal, on 25.05.2016, learned counsel
making appearance on behalf of the petitioner-appellant, had made a
statement, which reads as under:-
"Stated that I do not want to proceed further with this appeal.
Withdraws the same. Be consigned to the record room."
Thus, the appeal was dismissed. However, feeling aggrieved
by the aforesaid order of dismissal of the appeal, in this manner, the
petitioner had filed an application for restoration of the appeal and the same
was also dismissed vide order dated 16.09.2016, copy whereof is Annexure
P-3.
Feeling aggrieved by the order of dismissal of the application
for restoration of the appeal, the petitioner had filed the present revision
petition.
At the very outset, it is submitted by learned counsel for the
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petitioner that in fact, the counsel making appearance on behalf of the
petitioner-appellant before learned lower Appellate Court, had erroneously
made the statement for withdrawal of the appeal, though, there were no
instructions, at the behest of the petitioner-appellant. Rather, withdrawal, as
such, was made by learned counsel, goes against the express instructions of
the petitioner.
In the given circumstances, it is submitted that the counsel, as
such, had transgressed the authority, which was given to him, to pursue the
appeal. As such, a prayer has been made for acceptance of the revision
petition and to restore the appeal in question.
On the other hand, learned counsel for the respondents has
assiduously resisted the claim of the petitioner. He submits that in fact, by
way of filing of the power of attorney, in favour of the counsel, there was an
implied authority extended to the advocate concerned, to withdraw,
compromise or for the disposal of the case on merits. In the given
circumstances, it is submitted that learned lawyer had very rightly
withdrawn the appeal, by making statement before the Court and in these
circumstances, it was only at the behest of the statement, so made, that the
appeal was withdrawn. In such circumstances, no case is made out for
restoration of the appeal. As such, the order qua dismissal of the restoration
application, has been correctly passed by learned lower Appellate Court.
As already reproduced aforesaid, the appeal was withdrawn by
the counsel by making statement that he does not want to proceed further
with the appeal. In the said statement, he had not stated about any such
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instructions, having received from the petitioner, who was appellant before
learned lower Appellate Court. 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.
In the given circumstances, learned counsel, as such, had no
authority to bind his client, by way of making of the statement. The
authority, which the counsel has, to work upon, is for achieving the client's
legal goal, while the client has the authority to decide on, what the goal will
be. If the statement so made, fall within the parameters, which vouchsafe
the interest of the legal goal of the client, then, the lawyer, as per the
attorney, executed in his favour, shall be within his right to make their
statement, but however, if the statement is made, without consulting the
client, it is more likely to constitute, ineffective assistance of the counsel. In
the given circumstances, when there is nothing, as such, coming on record,
about any authority given, to simply make a statement of withdrawal of the
appeal, when no reason, as such, is assigned, it gives rise to the probability
of the statement made by the counsel, of his own, more specifically, keeping
in view the tone and tenor of making of the said statement. Otherwise also,
it is always appropriate about the Court not to shut rights of the parties
concerned on technicalities. Rather, it is interest of justice, that the matter
should be decided on merits, while providing an opportunity of hearing to
both the sides.
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Considering the aforesaid observations, the impugned order
dated 16.09.2016 is hereby set aside and the appeal, as such, before learned
lower Appellate Court, stands restored, to its original number. The parties
are directed to make appearance before lower Appellate Court on
18.01.2024.
In view of the aforesaid terms, the present revision petition
stands allowed.
December 18, 2023 (ARCHANA PURI)
Vgulati JUDGE
Whether speaking/reasoned Yes
Whether reportable Yes/No
