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Supreme Court of India
Om Prakash vs Suresh Kumar on 30 January, 2020Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar, Ajay Rastogi
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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
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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
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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.
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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
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“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
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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,
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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
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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
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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:
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“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,
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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
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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
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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:
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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
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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
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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.
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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.
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(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)
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New Delhi;
January 30, 2020.
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