Delhi High Court
Gulshan Sahni vs Faquir Chand Sahni (Since Deceased Thr ... on 19 July, 2016
Author: Jayant Nath
Bench: Jayant Nath
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 19.07.2016
+ CM(M) 1171/2015
GULSHAN SAHNI ..... Petitioner
Through Mr.Rajat Aneja, Mr.Toyesh Tiwari
and Ms.Shifa Nagar, Advs.
versus
FAQUIR CHAND SAHNI
(SINCE DECEASED THR LRS) ..... Respondent
Through Mr.Jinender Jain, Adv. with
Ms.Aastha Chopra, Adv. for LR3
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. By the present petition the petitioner seeks to impugn the order of the trial Court dated 17.10.2015. The petitioner had filed an Eviction Petition under Section 14(1) (e) read with Section 25-B of the Delhi Rent Control Act,1958. On 27.01.2014 when the application for leave to defend of the respondent was listed in Court the trial Court noted the contention of counsel for both the parties and allowed the application for leave to defend. The relevant portion of the order reads as follows:-
"Arguments on leave to defend application heard. During the course of arguments, it is jointly conceded by both the parties that the documents relied upon by respondent and their counter documents by the petitioner are such which requires to be proved by leading evidence and hence triable issues for which the leave to defend application be allowed.
Accordingly, in these circumstances, in view of the submissions made by the parties, the application of leave to defend is hereby allowed."
2. The petitioner thereafter on 28.2.2014 moved an application under order 47 Rule 1 CPC seeking review/modification of the order dated 27.1.2014. Alongwith the application the petitioner filed an affidavit of Mr.R.S.Malik, Advocate, i.e. counsel who had appeared for the petitioner on 27.1.2014. The affidavit states that during the course of arguments no consent was given by the learned counsel as recorded by the Court in its order dated 27.1.2014. The application also repeats the same averment. It states that on 27.1.2014 the matter was heard by the Court and Court kept the matter for orders on the said application. It further states that on 28.1.2014 the petitioner came to the Court to enquire about the order and was told that the application of the respondent seeking relief to defend was allowed by the Court. A certified copy was applied for on 30.1.2014 and was received on 5.2.2014 and it is stated that the petitioner came to know that the leave to defend application had been allowed on the alleged concession of the learned counsel for the parties.
3. By the impugned order dated 17.10.2015 the trial Court has dismissed the said review petition. The trial Court noted the submissions of the respondent that during the course of arguments learned counsel for the petitioner had given a consent and hence the Court did not reserve the order. The Court also noted that whereas Shri R.S.Malik, Advocate, had argued on behalf of the petitioner on 27.1.2014 but the present application has been filed by another counsel. The Court concluded that in the facts and circumstances of the case it is writ large on the face of the application itself that the learned counsel for the petitioner had given consent on 27.1.2014 and that the present petitioner has on this ground chosen to terminate the services of Shri R.S.Malik, Advocte and has engaged another counsel. The Court also noted that the order of 27.1.2014 appears to have been passed on the very same date. Accordingly, the application was dismissed.
4. Learned counsel for the petitioner has strenuously urged that the petitioner has strong case on merits and there is very strong possibility of the application for leave to defend being allowed and the question of giving concession would not arise. He also relies upon the affidavit filed by the previous counsel Mr.R.S.Malik, Advocate, where he submits that the counsel has clearly said that no such consent was made.
5. In my opinion, the petitioner is himself guilty of having moved an application for review in a belated manner, in the peculiar facts and circumstances of the case. The petitioner himself is stated to have been present when the order dated 27.1.2014 was passed. On 28.1.2014 he knew that the application for leave to defend had been dismissed. Instead of moving the trial Court immediately with his own affidavit pointing out that no such concession was given, the petitioner has delayed the matter and filed the application one month after the order dated 27.1.2014. In my view, if a concession had not been given by a counsel, the present application should have been moved with utmost urgency as facts and events would be fresh in the mind of the Court and the counsels. I may add that learned counsel for the petitioner had tried to explain the delay in moving the review based on the fact that a new counsel was engaged and the old counsel who had allegedly made the concession was persuaded to give his affidavit to support the application. However, these contentions in my opinion do not help the petitioner.
6. 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."
7. In the light of the above judgment, in my opinion, the appellant cannot be permitted to resile/back out from the concession/statement made in court.
8. The trial Court has refused to exercise discretion in favour of the petitioner holding that the consent has been granted by the learned counsel for the petitioner. Accordingly, I see no grounds to interfere in the present petition. Same is dismissed.
9. In the facts of this case I request the trial Court to expeditiously complete recording of evidence in the case. Both parties except in exceptional circumstances may not be granted any adjournments if any such request is made by them.
10. Petition stands disposed of.
JAYANT NATH, J.
JULY 19, 2016/n