The Division Bench of the Delhi High Court in the case of Rita Wadhwa vs Sanjeev Sarin (Deceased) Thr Lrs & Anr. consisting of Justices Saurabh Banerjee and Suresh Kumar Kait reiterated that a client is bound by the statement of her own nominated counsel, especially if so authorised.

Facts

Respondent No.1-brother (since deceased) instituted a suit for partition, rendition of accounts, declaration, permanent and mandatory injunction (“suit”) against the appellant-sister and respondent no.2-brother (since deceased) claiming partition and 1/3rd share of the entire estate of their deceased mother, including a property in New Delhi (“property”).

Procedural History

Learned Single Judge, after recording the terms of compromise inter se the parties through their respective counsels, passed the consent judgment and decree for partition wherein it was recorded that the appellant is agreeable to partition of the estate. Aggrieved, appellant filed an application u/s 151 CPC without mentioning the provisions of Section 114 read with O47 CPC, for review/modification of impugned decree clandestinely contending that the concession given by her was conditional; that there was a typographical error in paragraph-6 thereof; and that her plea qua other properties has not been dealt in the decree. Learned Single Judge dismissed the said application. Hence the present appeal by the appellant challenging the impugned decree as well as the impugned order.

Contentions Made

Appellant: It was contended that the impugned decree was liable to be set aside as there was no compromise inter se the siblings at the time of passing of the impugned decree; and the said terms were never discussed amongst the siblings on or before passing the said impugned decree. It was further contended that there was no written or oral compromise amongst the siblings on the date of the decree or even prior thereto and hence prayed that an enquiry under O23R3 CPC be called for as the impugned decree is based upon alleged consent.

Respondent: It was contended that the appellant had given her consent for passing of the impugned decree and she cannot be permitted to turn dishonest and resile from the consent given by her counsel. It was also contended that the present appeal is not maintainable under law in view of the bar u/s 96(3) CPC.

Observations of the Court

The Bench noted that the impugned decree was passed on the basis of compromise entered into between the siblings and was a valid consent decree. It also noted that:

“Appellant herself duly executed Vakalatnama in favour of her counsel…thereby authorising her to represent her, proceed with the suit and act for and on her behalf…Even during the course of hearing before us learned counsel for appellant has not denied having instructions to make statements on behalf of her client before the learned Single Judge, especially at the time of passing of order dated 13.08.2019, based on which the impugned decree was drawn. So, her association and the bond between appellant and her counsel goes back long and she was a satisfied client…It is trite law that a client is bound by admissions of fact made by the counsel, especially if so authorised. The same has been held by the Hon’ble Supreme Court in Om Prakash Vs. Suresh Kumar…The submissions of learned counsel for the appellant that the consent was conditional one does not carry any weight as it is a common practice amongst counsels and clients to be open for change(s) at the time of hearing depending upon the prevailing circumstances and what transpires inside the court.”

Regarding maintainability it was noted that an appeal from impugned decree passed by a court with the consent of the parties, including those passed under O23R3 CPC shall not lie and was barred u/s 96(3). Relying on Triloki Nath Singh v. Anirudh Singh (Decd.) thru LR’s, Ajanta LLP v. Casio Keisanki Kabushiki Kaisha and Banwari Lal v. Chando Devi, reference was also made to O23R3A CPC regarding bar to suit.

It was further opined that the appellant cannot take refuge under two provisions (O23R3 and O47R1 CPC)  for the same cause of action, as she is barred from challenging the impugned order before us under O47R7(1) CPC.

Judgment

The Bench concluded that further appellant was barred from agitating on the ground of estoppels as the impugned decree was legally valid, binding and subsisting and since not set aside, had the force of a decree. The appeal was dismissed with costs of Rs. 10,00,000/- upon the appellant for unlawfully occupying the property in question at the cost of depriving, her brothers, respondent nos. 1 and 2, who have unfortunately since passed away without bearing the fruits of the property post the demise of the deceased mother, to be paid within four weeks in the following manner:-

  1. Rs. 3,00,000/- each in favour of LRs of deceased respondent nos. 1 and 2; and
  2. Rs. 1,00,000/- in the account of Delhi High Court Legal Services Committee; and
  3. Rs. 1,00,000/- in the account of Bharat Ke Veer;
  4. Rs. 1,00,000/- in the account of Govt. Senior Secondary School for Blind Boys, Sewa Kutir, Kindgsway Camp, Delhi;
  5. Rs. 1,00,000/- in the account of Bar Council of Delhi Indigent and Disabled Lawyers Fund.

If the appellant failed to pay the aforesaid cost(s) within the requisite period, same was to be recovered / adjusted from her share in terms of the impugned decree upheld by this Court.

Case: Rita Wadhwa vs Sanjeev Sarin (Deceased) Thr Lrs & Anr.

Citation: RFA(OS) 94/2019

Bench: Justice Saurabh Banerjee, Justice Suresh Kumar Kait

Decided on: 18th August 2022

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Ayesha