Om Prakash vs Suresh Kumar on 30 January, 2020


Supreme Court of India

Om Prakash vs Suresh Kumar on 30 January, 2020

Author: A.M. Khanwilkar

Bench: A.M. Khanwilkar, Ajay Rastogi

                                                1

                                                                    REPORTABLE


                             IN THE SUPREME COURT OF INDIA
                              CIVIL APPELLATE JURISDICTION


                             CIVIL APPEAL NOS.833­834 OF 2020
                          (arising out of SLP(C) Nos. 5926­5927/2017)

  Om Prakash                                                      …Appellant(s)

                                             Versus

  Suresh Kumar                                                     …Respondent(s)

                                        JUDGMENT

A. M. KHANWILKAR, J.

1. Leave granted.

2. These appeals are directed against the judgments and orders

dated 12.5.2016 in Civil Revision No. 227/2015 and 24.8.2016 in

Review Petition No. 65/2016 passed by the High Court of Himachal

Pradesh at Shimla (for short, ‘the High Court’).

3. The facts very briefly are that the appellant being owner of the

premises having three rooms with one veranda, admeasuring 36.53

square meters situated in Ward No. 6, M.C. Area, near Sabji Mandi,
Signature Not Verified

Up Mahal, Hamirpur, Himachal Pradesh (for short, “the suit
Digitally signed by
CHARANJEET KAUR
Date: 2020.01.30
18:39:53 IST
Reason:

premises”), had inducted the father of the respondent as its monthly
2

tenant in the year 1969 to use it for non­residential purpose and the

respondent was in occupation thereof when the appellant filed

eviction proceedings before the Rent Controller for possession. The

respondent, at the relevant time, was carrying on business as cloth

merchant in the suit premises. The Rent Controller vide order dated

28.11.2013 decreed the suit directing eviction of the respondent from

the suit premises on the ground that the suit premises was required

bonafide by the appellant for the purpose of reconstruction, which

could not be carried out without vacating the same followed by

demolition thereof. That decree was confirmed by the appellate

Court, against which civil revision being C.R. No. 227/2015 came to

be filed before the High Court. During the hearing of the said

petition, the learned counsel for the respondent­tenant had urged

before the High Court that the tenant was ready and willing to

handover possession of the suit premises subject to the landlord

(present appellant) agreeing to re­induct him as tenant in equivalent

area occupied by him in the suit building. In response to the said

submission, the learned counsel appearing for the present appellant,

unequivocally, stated before the High Court that the appellant was

not averse to the offer so made by the tenant. That statement has
3

been recorded by the High Court and on that basis the civil revision

came to be disposed of in the following words: ­

“5. Mr. R.K. Sharma, learned Senior Advocate
assisted by Ms. Anita Pramar, Advocate is not averse to
the offer so made on behalf of the petitioner­tenant. It
is stated at the Bar that construction work will be
completed within one year from the date i.e. 30 th October,
2016, when the possession of the demised premises is to be
handed over to the respondent­landlord. Mr. Sharma
further submits that the petitioner­tenant will be re­
inducted in equal area in the newly constructed
building within one month i.e. on or before 30 th
November, 2017 from the date of completion of the
construction work i.e. 31.10.2017. Mr. Sharma also
agreed to the fixation of rent on re­induction of the
petitioner­tenant at the market rates prevalent in the area
where the demised premises situate by the Rent Controller
concerned.

6. In view of the above, nothing is left to be
adjudicated upon in this petition on merits. The same,
therefore, is disposed of with a direction to the
petitioner­tenant to hand over the vacant possession of
the demised premises to respondent­landlord on or
before 31st October, 2016. He shall pay the use and
occupation charges till 31st October, 2016 at the rates,
he is paying at present. On his failure to hand over the
vacant possession by the aforesaid date, the
respondent­landlord shall have the right to execute the
order of eviction and in that event the petitioner­
tenant shall also have no right to claim his re­
induction in the newly constructed building. There
shall be a direction to the respondent­landlord to
complete the construction on the spot on or before 31 st
October, 2017. He shall re­induct the petitioner­tenant
in equal area i.e. 36.53 square meters, presently
occupied by him in the demised premises within one
month thereafter i.e. by 30th November, 2017. On the
failure of the respondent­landlord to compete the
construction within the stipulated period and re­
induction of the petitioner­tenant in the newly
constructed building, he shall be liable to pay the
damages at the rate of Rs.1,000/­ per day from
1.12.2017 onwards till he is re­inducted as tenant.
4

7. As regards the rent on re­induction, the parties
shall file a joint application for the purpose in the Court of
learned Rent Controller at Hamirpur. The application so
filed shall be decided by learned Rent Controller, in
accordance with law and taking into consideration the
rates prevalent in the area where the demised premises
situate, after affording an opportunity of being heard to the
parties on both sides. Pending application(s), if any, shall
also stand disposed of.”
(emphasis supplied)

4. The appellant changed his Advocate and then filed review

petition before the High Court being Review Petition No. 65/2016,

asserting that he had never instructed his counsel to make such

statement before the Court regarding re­induction of the respondent­

tenant in the newly constructed shops. The said review petition came

to be dismissed vide order dated 24.8.2016. Consequently, both

these decisions (dated 12.5.2016 and 24.8.2016) passed by the High

Court are subject matter of challenge in the present appeals.

5. The principal argument of the appellant is that the statement

made by his counsel before the High Court was not binding on him,

as it was made without his instructions. For that, reliance has been

placed on the decision of this Court in Himalayan Coop. Group

Housing Society vs. Balwan Singh & Ors.1.

6. When the special leave petitions were listed for admission on

9.1.2017, this Court deferred the hearing by passing the following

order: ­

1 (2015) 7 SCC 373
5

“On a query as to whether the petitioner would be
in a position still to spare a small room for the
respondent, learned counsel prays for some time to
produce a plan of the shop.

List the matter after three weeks.”
(emphasis supplied)

The matter was then listed on 15.2.2017 when the Court noted the

submission of the learned counsel for the appellant and issued notice

to the respondent. That order reads thus: ­

“Delay condoned.

The learned counsel for the petitioner submits that
the respondent is not even permitting the petitioner to
demolish the building and go for construction.

In view of the above submission, issue notice,
returnable in four weeks.”

7. Thereafter, the matter was listed on 14.11.2017 when the Court

after noting the submissions of the parties, passed the following

order:­

“The petitioner is permitted to complete the
construction of the building.

There shall be no obstruction whatsoever caused by
the respondent or his men for doing the construction
work. The respondent shall also not cause any obstruction
for the ingress and egress of the petitioner.

The petitioner is directed to complete the
construction within four months from today.

List on 1.5.2018, when the parties are directed to be
present before this Court.

In view of the order, as above, the petitioner
shall not be liable to pay the amount of Rs.1000/ per
day, as ordered by the High Court for the delayed
construction.

We make it clear that before the petitioner
making the actual use of the premises, permission
shall be sought from this Court so that this Court may
6

pass appropriate orders to protect the interests of the
respondent as well.”
(emphasis supplied)
It has come on record that during the pendency of these cases, the

appellant transferred the abutting plot being khasra No. 778 to his

son on 14.3.2018.

8. Be that as it may, in view of the deliberations in Court, the

learned counsel for the appellant sought time to take instructions, as

is noted in the order dated 21.8.2019 which reads thus: ­

“List these matters after three weeks to enable the
counsel for the petitioner to get instructions in the
matter.”
(emphasis supplied)
Again on 22.11.2019, the matter was deliberated upon, whereafter

the learned counsel appearing for the respondent took time to file

affidavit of a qualified Architect to show that the building constructed

after demolition of the suit premises can be provided with access to

the upper floors (first and second floors) from outside the building.

That has been recorded in the order dated 22.11.2019, which reads

thus: ­

“Learned counsel for the sole respondent prays for
time to place on record affidavit of a qualified Architect
indicating therein the feasibility of providing access to first
and second floor of the building from outside the building.

List the matters on 5th December, 2019.”

Pursuant to the liberty given, the respondent has filed an affidavit of

one Ram Swaroop, son of Mr. Prithvi Chand, a qualified Architect,
7

accompanied by the relevant sketches/plan(s) and photographs of the

building from outside, as well as, floor­wise in support of the stand

taken earlier that the appellant can provide access to the upper floors

through the staircase outside the newly constructed building, without

disturbing the possession of the respondent on the ground floor

thereat. The appellant, however, by filing affidavit dated 20.1.2020,

has pointed out that the staircase already constructed is on the rear

side of the building within the premises (being triplex house) and it is

not possible to provide additional access to the first and second floors

from outside the building. The appellant is also placing reliance on

the photographs in support of this submission.

9. The moot question is: whether the appellant should be bound by

the statement made by his counsel before the High Court that the

respondent­tenant will be re­inducted in equal area in the newly

constructed building within one month i.e. on or before 30.11.2017

from the date of completion of the construction work i.e. 31.10.2017.

From the tenor of the statement made before the High Court on behalf

of the appellant, it is obvious that it is an unequivocal statement

made by the counsel engaged by the appellant to espouse his

(appellant’s) cause before the High Court. It is not the case of the

appellant that he had expressly instructed his counsel not to make
8

such a statement. Further, the statement was in respect of the

commitment of the appellant qua the subject matter of the

proceedings in which the counsel was engaged and instructed to

appear. Not only that, right from the beginning and even before this

Court, an attempt was made by the parties to explore possibility of

working out an amicable solution, as is evident from the order dated

9.1.2017 before the respondent was put to notice of these appeals,

and more particularly, dated 14.11.2017.

10. Considering the above, the appellant cannot now be allowed to

resile from the statement made before the High Court, which the High

Court justly declined to undo in the review petition filed by the

appellant for that purpose. In the peculiar facts of this case, the

decision of this Court in Himalayan Coop. Group Housing Society

(supra) will be of no avail to the appellant. Inasmuch as, it is not a

case where the counsel, who made the statement was not engaged by

the appellant before the High Court. The engagement was in respect

of eviction proceedings and the statement was in relation to the

commitment of the appellant qua the subject matter thereof and

being an unequivocal statement, it will be binding on the appellant.

In any case, even this Court showed indulgence to the appellant on

the basis of impression given to this Court about the possibility of at
9

least sparing a small room for the respondent, which was the basis

for issuing notice to the respondent, as is evident from the orders

dated 9.1.2017 and 15.2.2017.

11. Reverting to the exposition in paragraph 22 of the reported

decision, the same reads thus: ­

“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 client­lawyer’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 authority­agency status
affords the lawyers to act for the client on the subject­
matter of the retainer. One of the most basic principles
of the lawyer­client 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.”
Our attention was also invited to paragraph 31 of the same decision,

which reads thus: ­
10

“31. Therefore, it is the solemn duty of an advocate not to
transgress the authority conferred on him by the client. It
is always better to seek appropriate instructions from the
client or his authorised agent before making any
concession which may, directly or remotely, affect the
rightful legal right of the client. The advocate represents
the client before the court and conducts proceedings on
behalf of the client. He is the only link between the court
and the client. Therefore his responsibility is onerous. He
is expected to follow the instructions of his client rather
than substitute his judgment.”
In addition, we may usefully refer to paragraph 32 of the said

decision, which reads thus: ­

“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.”
(emphasis supplied)
As aforesaid, in the present case, the counsel who was engaged by the

appellant and had appeared for him before the High Court did not,
11

stricto sensu, transgress the authority conferred on him by the

appellant. Notably, the appellant filed review petition before the High

Court by engaging another Advocate for reasons best known to him.

This Court has deprecated the conduct of such petitioners and has

opined that such review petitions should not be encouraged and need

to be dismissed, as expounded in Tamil Nadu Electricity Board &

Anr. vs. Raju Reddiar & Anr.2 Not only that, even before this Court,

the appellant, advisedly, showed willingness to explore possibility of

settlement as is evident from different orders recorded above. It is

obvious that the delivery of possession of the suit premises, then in

possession of the respondent, was expedited and made over to the

appellant only after intervention of this Court, which indulgence was

shown because the appellant had expressed inclination to spare

portion of premises for the respondent. Only after this Court

intervened, the appellant could take the construction of proposed

building forward and completed it on 19.6.2018. In terms of the

order dated 14.11.2017 of this Court, it was made absolutely clear

that the appellant will not put the newly constructed premises to use

without seeking prior permission of this Court. That permission is

yet to be given to the appellant.

2 (1997) 9 SCC 736
12

12. The argument of the appellant that the respondent cannot take

benefit of amendment to Section 14(3)(c) of the Himachal Pradesh

Urban Rent Control Act, 1987 in the form of Himachal Pradesh Rent

Control (Amendment) Act, 2008, will be of no avail to the fact

situation of the present case. For, in this case, the appellant is

obliged to abide by the unequivocal statement made before the Court

to re­induct the respondent­tenant in the newly constructed building

and to provide him same area which was being used by him earlier,

namely, 36.53 square meters. Considering the above, the appellant

cannot be permitted to extricate himself from the obligation flowing

from the impression given to the Court (before the High Court and

again before this Court) and need to be bound by the same.

13. However, from the subsequent affidavits filed before this Court,

it is obvious that the entire ground floor cannot be given to the

respondent. Initially, the appellant had given an offer to

accommodate the respondent on the upper floor, but it is noticed that

the staircase going towards the upper floors (namely, first and second

floor) in the newly constructed building passes through the ground

floor itself. The same is erected at the rear side within the building

(being triplex house). The photographs produced before us, however,

depict that an opening (exit door) is provided on the rear side of the
13

building, on the ground floor, which opens towards plot No. 778

(which the appellant had transferred in favour of his son during the

pendency of these appeals). In other words, it is possible to provide

access to the upper floors from the rear side of the building, which

also opens on the road (as a car parked at that entrance can be seen

in the photographs) or portion of plot being khasra No. 778 (now

owned by the appellant’s son). The fact remains that the staircase

has been erected in such a manner, for the reasons best known to the

appellant, that the access to first and second floors would be possible

only through the ground floor premises, as it is inside the building

and not outside the building.

14. At the conclusion of the proceedings, the learned counsel for the

appellant without prejudice, gave offer to provide portion of the

marked ground floor premises to the respondent, admeasuring 2.25

meters x 7.57 meters by carving out a passage within the ground floor

providing access for upper floors through the staircase from the front

door of the newly constructed building. The proposed ground floor

plan, as submitted by the appellant through counsel is as follows: ­
14

15. This offer has been turned down by the respondent, firstly

because the area of the premises will get reduced to just about

17.0325 square meters instead of the original area, admeasuring

36.53 square meters. Moreover, the premises, as offered, would be

unusable for carrying on the business as cloth merchant therefrom.

The width being just 2.25 meters (7.382 feet) will not be enough to
15

accommodate sale counter and stock storage space; and moreso

leaving no space for free movement of customers/sales persons.

16. After considering the arguments of both parties, we are of the

considered opinion that the appellant must provide the entire front

portion of the ground floor premises, measuring 3.73 meters (width) x

7.57 meters (length) by putting up a brick wall separating the back

end of the ground floor premises, where the staircase has been

erected as is shown in the plan. In other words, instead of width of

2.25 meters, the premises to be given to the respondent will have the

entire frontage width of 3.73 meters with exclusive access from the

front side. The depth or the length of the premises would be 7.57

meters as indicated in the plan. The appellant shall provide access to

the first and second floors from the rear side of the building where

exit door and staircase has already been erected, as is noticed from

the plan/photograph(s). This is the most equitable arrangement that

can be provided in the fact situation of the present case, to do

complete justice to the parties. However, while doing so, as the

respondent­tenant will be deprived of almost 8.2939 square meters of

the original area (36.53 square meters – 28.2361 square meters), the

appellant must compensate the respondent commensurately for the

said loss of area by paying amount quantified at Rs.73,898.649
16

rounded off to Rs.74,000/­ [i.e. equivalent to prevailing circle rate

(Rs.8910/­ per square meter 3) for the concerned locality, that is to

say, 8.2939 x 8910], by way of compensation/damages.

17. The arrangement directed by us would result in compliance of

the statement made on behalf of the appellant before the High Court

and which was made the basis to dispose of the respondent’s revision

petition and at the same time, minimise the loss of area to be made

over to the respondent­tenant and optimize the utility of the premises

to be used by him for non­residential purpose after re­induction and

also adequately compensate him for the loss of area.

18. We may note that this arrangement is in lieu of the liability of

the appellant to pay a sum of Rs.1,000/­ (Rupees one thousand only)

per day from 1.12.2017 towards damages for delayed re­induction of

the respondent as directed by the High Court, which, if given effect to,

would be substantial amount. In other words, to do substantial and

complete justice to the parties, we have modified the impugned decree

to the above extent. In terms of this modified decree, the appellant

shall forthwith erect a brick wall beyond 7.57 meters from the front

door, so as to divide the ground floor premises into two parts as

indicated above. We direct the appellant to re­induct the respondent

3 Per Notification Nos. HMR/DCH/DRA/Circle Rates-2019-20: 1517-37 dt. 30 th March, 2019 and
HMR/DCH/DRA/Circle Rates-2019-20: 247-63 dt. 31st March, 2018 issued by the District Collector, Hamirpur, District
Hamirpur, H.P.

17

in the front portion, admeasuring 3.73 meters x 7.57 meters and the

leftover rear portion can be used by the appellant for providing access

to upper floors (first and second floors) through the staircase already

erected in that area.

19. We, accordingly, modify the order/decree passed by the High

Court vide impugned judgment as under: ­

(i) The appellant shall construct the brick wall separating

ground floor premises in two portions in the manner

mentioned hitherto within six weeks from today and handover

the front portion premises to the respondent, whereafter the

respondent can use the same for non­residential purpose on

monthly rent basis.

(ii) In addition, the appellant shall pay the amount of

Rs.74,000/­ (Rupees seventy four thousand only) towards

compensation/damages and until such payment is made, the

appellant shall desist from using the first and second floor

premises for any purpose.

(iii) We appoint the Chief Administrative Officer, District Court,

Hamirpur as receiver in respect of the newly constructed

building situated at Ward No. 6, M.C. Area, near Sabji Mandi,

Up Mahal, Hamirpur, Himachal Pradesh owned by the

appellant ­ Om Prakash, to ensure proper implementation of

the above terms and submit compliance report to this Court.
18

(iv) In case the appellant commits any breach of the condition of

using the first and second floors until delivery of possession

and payment of damages/compensation, the Chief

Administrative Officer, District Court, Hamirpur shall report

that fact to this Court forthwith and not later than one week

from the knowledge thereof.

(v) For determination of monthly rent upon re­induction of the

respondent in the suit premises, the parties shall file a joint

application before the Rent Controller at Hamirpur. The Rent

Controller shall decide the same expeditiously and not later

than six months from the date of presentation, in accordance

with law after giving fair opportunity to both parties in that

regard.

20. The appeals are partly allowed and the impugned

judgments/decree stand modified in the aforementioned terms. There

shall be no order as to costs. Pending interlocutory applications, if

any, shall stand disposed of.

……………………………, J
(A.M. Khanwilkar)

……………………………, J
(Hemant Gupta)

……………………………, J
(Dinesh Maheshwari)
19

New Delhi;

January 30, 2020.



Source link