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Kailash Chandra Vs. Ratan Prakash and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 2081 of 1969
Judge
Reported inAIR1974All138
ActsCode of Civil Procedure (CPC) , 1908 - Order 10, Rules 1 and 2
AppellantKailash Chandra
RespondentRatan Prakash and anr.
Appellant AdvocateDeoki Nandan and ;Tej Pal, Advs.
Respondent AdvocateS.P. Gupta, Adv.
DispositionRevision allowed
Excerpt:
civil - recording of statement of counsel - order 10 rule 1 and 2 of code of civil procedure, 1908 - statement made by counsel under misapprehension of fact or lack of authority - counsel duty bound to bring the error to notice of the court - statement of counsel to be recorded under rule 1 and not under rule 2 of the code - court could go into the question as to whether statement was made under misapprehension or not. - - the court in that event could go into the question to find out if the statement was made due to any inadvertence or under some misapprehension of fact or lack of authority or other reasons of the like nature......of admission or denial of such allegations of fact as are made by the respective parties to the suit. rule 2 of order 10 provides for the oral examination of a party to the suit or his companion. it did not provide for the oral examination of the counsel for the party. it was, therefore, urged that the statement of the counsel purported to have been recorded under rule 2of order 10, civil p.c. by the court below was not an admission of the plaintiff and, was, therefore, not binding on him. he could, therefore, point out the inaccuracy in the statement and seek withdrawal thereof. the learned counsel for the opposite party, however, contended that the statement of the counsel for the plaintiff was recorded by the court below for ascertaining the dale or the period when the sub-tenancy.....
Judgment:
ORDER

T.S. Misra, J.

1. This is an application of the plaintiff for revision of the order dated 10th December, 1969 rejecting his application to withdraw a statement made by his counsel under Order 10, Rule 2, Civil P.C. The material facts are as follows:--

2. The plaintiff applicant filed a suit for ejectment of the defendants from the premises in question and for recovery of arrears of rent and damages, inter alia, alleging that the defendant No. 1 was the tenant of the premises and the defendant No. 2 was a sub-tenant. He alleged that defendant No. 1 had illegally and without thepermission of the plaintiff sub-let the said premises to the defendant No. 2. Both the defendants filed their separate written statement. The defendant No. 1 in his written statement pleaded that after about 11/2 or 2 years of the taking of the shop in suit on rent an agreement was arrived at between defendant No. 1 and defendant No. 2 who was working at the shop as one of the employees of defendant No. 1 under which the tenancy of the shop in suit, the establishment and the business running therein were to belong to defendant No. 1 but the work at the shop was handed over to the defendant No. 2 who was to pay to the defendant No. 1 charges for each garment made or tailored at the shop according to the agreed rates. He further alleged that the defendant No. 1 sub-let the shop in suit to the defendant No. 2. In this written statement the defendant No. 2 alleged that he was not sub-tenant of the defendant No. 1 and supported the case set up by the defendant No. 1. On 26fh May, 1967, the trial Court after framing the issues recorded the statement of the counsel for the plaintiff under Order 10, Rule 2, Civil P.C. The learned counsel for the plaintiff stated, inter alia, that the tenancy was created in 1966 in favour of the defendant No. 1 and the defendant No. 1 sub-let the portion to the defendant No. 2 about 5, 6 months prior to the issue of notice. On 2nd December, 1969, an application 70-A-1 was filed by the plaintiff for withdrawing the said statement. It appears that when the application was taken up on 2nd December, 1969 the learned counsel for the parties agreed that the said application should be decided at the time of the final disposal of the suit. The Court below therefore fixed 10th December, 1969 for final hearing. However, on 8th December, 1969, the defendant filed an objection to the said application of the plaintiff dated 2-12-3969 and by another application he prayed that the application of the plaintiff and the objections thereon should be disposed of before the hearing of the suit. The Court below, therefore, heard the parties on the application 70-A of the plaintiff and the objections thereon filed by the defendant and opposed the impugned order.

3. It was contended on behalf of the applicant that the aforesaid statement was not recorded under Rule 1 of Order 10, Civil P.C. but was recorded under Rule 2, of that order. The learned counsel argued that the provisions of Rule 2 did not entitle the Court below to record any statement of a counsel for the parties, such statement could be recorded only under Rule 1 and that too for the purpose of admission or denial of such allegations of fact as are made by the respective parties to the suit. Rule 2 of Order 10 provides for the oral examination of a party to the suit or his companion. It did not provide for the oral examination of the counsel for the party. It was, therefore, urged that the statement of the counsel purported to have been recorded under Rule 2of Order 10, Civil P.C. by the Court below was not an admission of the plaintiff and, was, therefore, not binding on him. He could, therefore, point out the inaccuracy in the statement and seek withdrawal thereof. The learned counsel for the opposite party, however, contended that the statement of the counsel for the plaintiff was recorded by the Court below for ascertaining the dale or the period when the sub-tenancy was said to have been created by the defendant No. 1 in favour of the defendant No. 2. The counsel for the plaintiff was therefore, called upon to make that clarification. Having made that statement on behalf of the plaintiff the latter was not entitled to resile therefrom and keep the matter vague and indefinite as before.

4. The scope of the provisions of Rules 1 and 2 of Order 10 of the Code of Civil Procedure is quite distinct. Rule 1 of Order 10 makes provision for ascertainment whether the allegations in the pleadings are admitted or denied. It provides that at the first hearing of the suit, the Court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. Rule 2, however, deals with the oral examination of the party or any person able to answer any material questions relating to the suit by whom such party or his pleader is accompanied. Statement of the counsel for the party may he taken under Rule 1, but there is no provision for recording the statement of the counsel for the party under Rule 2. A statement recorded under Rule 1 or Rule 2, however, does not become part of the pleading of the party. Under Rule 3, it forms part of the record. A statement made under Rule 1 is conclusive against the party making the statement whereas a statement made under Rule 2 being part of the record is liable to be considered along with the other evidence and circumstances of the case. It may, however, happen that in a particular case and in particular circumstances an inaccuracy in the statement may creep in. The question which arose for determination in the present case was whether it is open to a party to Withdraw the statement which was alleged to have been made in a particular circumstance resulting in inaccuracy. In the case of Prithvi Chand v. Sukhraj Rai it was observed :--

'When counsel take on themselves the responsibility of making statements of fact to the Court, the Court is entitled to assume that those statements are true in every particular, so that it may implicitly rely upon them. This is a rule which admits of no qualification. It is honourable obligation of the Bar and of great value in the administration of justice; we trust we shall not have occasion to draw attention to it again.'

But this does not mean that under no circumstances the party can come to Court and point out that a mistake had actually occurred in making the statement and recall an admission made on such an error. In fact it would be the duty of the counsel for the party to bring to the notice of the Court the error which had crept in and the circumstances in which the erroneous statement was made so that the error may not perpetuate. The Court in that event could go into the question to find out if the statement was made due to any inadvertence or under some misapprehension of fact or lack of authority or other reasons of the like nature. In the instant case the plaintiff in his application 70-A stated that in the statement of his counsel which had been recorded by the Court under Order 10, it appeared that due to some misapprehension or misunderstanding it had been recorded that the tenancy was created in 1956 in favour of the defendant No. 1 and the defendant No. 1 sub-let the portion to the defendant No. 2 about 5, 6 months prior to the issue of notice. He alleged that the record of statement of the plaintiff's counsel was not accurate and the plaintiff discovered the mistake for the first time on 1st December, 1969 while instructing his counsel for the final hearing. The learned counsel for the applicant submitted that due to misapprehension or misunderstanding an inaccurate statement had thus been recorded. The plaintiff had further alleged in his application that he was not present when the said statement under Order 10 was recorded. No affidavit was filed along with this application. In the objection filed by the defendant, it was alleged that the plaintiff was present when the said statement was recorded. The defendant also, however, did not file any affidavit in support of his objection. The Court below refused to allow the plaintiff to withdraw that statement on the ground that it had become a part of the pleadings and that no inconsistency between the statement and plaint allegations had been pointed out. The Court below, however, did not go into the question as to whether the statement was recorded under misapprehension or misunderstanding. It is not clear from the order sheet as to whether the plaintiff was present at the time when the said statement was recorded. The plaintiff has contended that he was not present at that moment. This was, however, seriously disputed by the defendant It could not therefore be said that the statement recorded under Rule 2 of Order 10 was the statement of a companion of the plaintiff, even if a lawyer could be said to be a companion of a party. In these circumstances, it was necessary for the Court below to find out as to whether the statement was made by the counsel on the instructions of the plaintiff and at the time when the plaintiff was present in Court or not. I would, therefore, send back the case to the Court below for finding out as to whether due to any misapprehension or misunderstanding the statement had been recorded under Rule 2, Order 10,Civil P.C. resulting in the alleged inaccuracy in the statement and whether the plaintiff was present at that moment.

5. In the result the application for revision is allowed with costs. The order dated 10-2-1969 is set aside and the case is remanded to the Court below with the direction to dispose of the application 70-A, and the objection thereto 72-C in the light of the observations made heretofore and in accordance with law.


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