Sinesh M.M. v. Salim

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 04TH DAY OF FEBRUARY 2020 / 15TH MAGHA, 1941** **Con.Case(C).No.246 OF 2020 IN WA. 2119/2019** **AGAINST THE JUDGMENT DATED 26.11.2019 IN WA NO.2119/2019 OF HIGH COURT OF KERALA** ## **PETITIONER/APPELLANT:** **SINESH M.M., AGED 38 YEARS S/O.MANI, MATHIRAMPILLIL HOUSE, ANACHAL, KUNCHITHANNY VILLAGE, CHITHIRAPURAM P.O., IDUKKI DISTRICT, PIN-685 565.** **BY ADVS. SRI.P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE** ## **RESPONDENT/RESPONDENT NO.3:** **SALIM, AGED 50 YEARS S/O.HASSAN RAWTHER, KOLOTH VEEDU, ANACHAL, IDUKKI DISTRICT, PIN-685 565.** **THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 04.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Cont. Case (C) No.246/2020 2 ## **JUDGMENT** Dated this the 4[th] day of February, 2020 S.Manikumar, CJ Alleging wilful disobedience of the judgment dated 26.11.2019 in W.A.No.2119 of 2019, instant contempt petition has been filed. 2. Short facts leading to the contempt are that, petitioner herein is the appellant in W.A. No.2119 of 2019. Writ appeal has been filed against judgment dated 23.09.2019 in W.P.(C) No.17198 of 2019. In the writ petition, petitioner has contended that a building permit was originally obtained by the respondent herein, suppressing the existence of a 12 feet wide private road leading to the petitioner's property. Permit was under challenge before the Tribunal. 3. Writ court recorded the submission made on behalf of the respondent that construction is complete, and directed Pallivasal Grama Panchayat to number the building, provisionally and subject to further orders to be issued by the Tribunal in Appeal No.416 of 2019, on condition that in the event of litigation ending to the detriment of the respondent, numbering of the building on completion of the construction would not save it from all necessary consequences, including its demolition, in terms of law. Cont. Case (C) No.246/2020 3 4. Against the above judgment, appeal has been filed contending, inter alia, that the writ court was misled into believing that construction of the entire building has been completed and, therefore, was not justified in issuing a mandamus directing the Panchayat to provisionally number the building. A Hon'ble Division Bench of this Court disposed the writ appeal by judgment dated 26.11.2019 (Annexure-A) holding that when appropriate directions had been issued curtailing the right of the respondent in the event of a finding by the Tribunal that there is violation of the Kerala Panchayat Building Rules, there is no reason to interfere with the judgment of the writ court. 5. Contempt petitioner has contended that Annexure-A judgment has been passed based on the submission of learned counsel for the respondent that the respondent therein does not intend to proceed with the construction of first floor of the building. However, he has started the construction in violation of the above submission. To substantiate the same, petitioner has produced Annexure-B photographs of the construction made by the respondent. According to the petitioner, action of the respondent amounts to deliberate disobedience and wilful violation of Annexure-A judgment and hence, this contempt petition has been filed. 6. Heard learned counsel for the parties and perused the material available on record. Cont. Case (C) No.246/2020 4 7. Inviting our attention to paragraph 3 of Annexure-A judgment dated 26.11.2019 and placing reliance on the decision of the Hon'ble Supreme Court in **Om Prakash** v. **Suresh Kumar** (Civil Appeal Nos.833-834 of 2020 dated 30.01.2020), learned counsel for the petitioner contended that the undertaking given by the respondent that he would not proceed with the construction of the first floor, has been flouted and, therefore, action under the provisions of the Contempt of Courts Act, 1971, has to be taken. Paragraphs 9 to 12 of the judgment in _**Om Prakash'** s case (cited supra)_ are extracted hereunder: “9. The moot question is: whether the appellant should be bound by the statement made by his counsel before the High Court that the respondent tenant will be re-inducted 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 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 Cont. Case (C) No.246/2020 5 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 v. Balwan Singh & Ors.[1]**_ 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 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 client-lawyer’s relationship as lawyers or agents, lawyers have certain authority and certain duties. Because lawyers are also 1 (2015) 7 SCC 373 Cont. Case (C) No.246/2020 6 fiduciaries, their duties will sometimes be more demanding than those imposed on other agents. The authority agency status affords the lawyers to act for the client on the subject matter of the retainer. One of the most basic principles of the lawyer-client 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:- Cont. Case (C) No.246/2020 7 “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 Cont. Case (C) No.246/2020 8 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, 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 2 (1997) 9 SCC 736 Cont. Case (C) No.246/2020 9 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. 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 re-induct 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.” 8. Paragraph 3 of the judgment dated 26.11.2019 in W.A. No.2119 of 2019, referred to by the learned counsel for the petitioner, is reproduced: “3. On the other hand, the learned counsel appearing for the 3[rd] respondent, who is the owner of the building, would submit that he only intended that the ground floor of the building had been completed for which he had applied for occupancy certificate. It is pointed out that as matters stand now, he does not intend to proceed Cont. Case (C) No.246/2020 10 with the construction of the 1st floor of the building and he is entitled for an occupancy certificate in terms of Rule 25(4) of the Kerala Panchayat Building Rules, 2011.” 9. Reading of the judgment dated 26.11.2019 in W.A. No.2119 of 2019 entirely, makes it clear that the Hon'ble Division Bench, at paragraph (3), has only recorded the submissions of learned counsel for the respondent therein. But, while considering the challenge in the appeal, has taken note of the factum of construction of ground floor of the building only. Paragraph 7 of the abovesaid judgment is reproduced. “7. Having regard to the fact that the ground floor of the building has already been completed and there is a provision in the Kerala Panchayat Building Rules, 2011 to provide occupancy certificate to the partially completed building in the ground floor, it is for the Panchayat to consider and pass appropriate orders. However, taking into account the fact that the issue regarding violation of Kerala Panchayat Building Rules is pending consideration before the Tribunal for Local Self Government Institutions, we do not find any error being committed by the learned single Judge in issuing a mandamus. The learned single Judge had already directed that in the event of the litigation ending to the detriment of the 3[rd] respondent, the numbering of the building or completion of its construction will not save it from all necessary consequence including demolition. When appropriate directions had been issued curtailing the right of the 3[rd] respondent in the event of a finding by the Cont. Case (C) No.246/2020 11 Tribunal that there is violation of the Kerala Panchayat Building Rules, there is no reason for us to interfere with the judgment of the learned single Judge. It shall be open for the appellant to bring to the notice of the Tribunal the statement filed by the Assistant Engineer before this court, in which event the Tribunal shall consider the same also during final adjudication of the case.” 10. The matter is pending before the Tribunal. If, ultimately the Tribunal arrives at a conclusion against the respondent, appropriate action will have to be taken, which includes cancellation of numbering and demolition of the building. In the light of the above discussion, we are of the view that the judgment of the Hon'ble Apex Court, relied on by the learned counsel for the appellant, is not applicable to the case on hand. There is no contempt much less wilful disobedience of the judgment dated 26.11.2019 in W.A.No.2119 of 2019, warranting action under the provisions of the Contempt of Courts Act, 1971. Contempt petition is dismissed. **Sd/S.MANIKUMAR CHIEF JUSTICE** Krj.22/1 **Sd/SHAJI P.CHALY JUDGE** Cont. Case (C) No.246/2020 12 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A CERTIFIED COPY OF THE JUDGMENT DATED 26.11.2019 IN WA NO.2119 OF 2019. ANNEXURE B TRUE COPY OF THE PHOTOGRAPHS OF THE CONSTRUCTION BEING MADE BY THE RESPONDENT.** **RESPONDENT'S EXHIBITS: -NIL** **//TRUE COPY//** **P.A. TO JUDGE**