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2016 Supreme(Del) 988
IN THE HIGH COURT OF DELHI AT NEW DELHI
PRADEEP NANDRAJOG AND MUKTA GUPTA, JJ.
SHAHNAZ ALI & ANR - Appellants
versus
SURESH KUMAR GERA & ANR - Respondents
FAO(OS) 543/2015
Decided On : 23-02-2016
Mr. K.B. Upadhyay, Advocate
Mr. Ravi Gupta, Sr. Advocate Mr. Vinay Gupta and Ms. Bhoomija Verma
The main legal point established in the judgment is that the appellants would be bound by the admissions made by their predecessor-in-interest and cannot question the liability acknowledged by the deceased defendant No.1.
Headnote:
Negligence - Civil Procedure - Code of Civil Procedure, 1908 - Order 37 Rule 4(5), Order 37 Rule 3(4), Order 37 Rule 3(5), Order 37 Rule 2(2), Order 7 Rule 11, Order 9 Rule 4, Order 1 Rule 10, Order 6 Rule 17, Order 22 Rule 9, Order 22 Rule 4 - The judgment discusses the negligence of the lawyer, the confusion and delay caused by multiple applications, and the dismissal of the appeal due to the predecessor-in-interest's acknowledgment of the liability.
Fact of the Case:
The plaintiff filed a suit under Order 37 of the Code of Civil Procedure, 1908, seeking to recover Rs. 2 crores paid to the deceased defendant No.1 with interest. The suit involved multiple defendants, including a Senior Advocate and a lawyer, and was protracted due to various applications and confusion in the court.
Finding of the Court:
The court found that the suit should have been decreed once the applications seeking leave to defend were dismissed, but it survived without any decree being passed. The court dismissed the appeal filed by the legal heirs of the deceased defendant No.1, as the predecessor-in-interest had acknowledged the liability.
Issues: The issues included the negligence of the lawyer, confusion caused by multiple applications, and the acknowledgment of liability by the predecessor-in-interest.
Ratio Decidendi: The court clarified that the appellants would be bound by the admissions made by their predecessor-in-interest and dismissed the appeal, stating that the appellants cannot question the liability acknowledged by the deceased defendant No.1.
Final Decision: The court dismissed the appeal, clarifying that the appellants would be entitled to raise the issue of not having inherited anything from the estate of the deceased when the decree is put into execution.
PRADEEP NANDRAJOG, J.
1. The record of CS(OS) 2457/2009 has left us sad and filled with pain. One could not have imagined that the learned counsel who appeared for the defendants could have fallen so low in the understanding of the procedures of the law, more so when defendant No.2 himself is a lawyer of standing and was defending not only himself but also his daughter-in-law, impleaded as defendant No.3. We would only say that when representation by a counsel falls to such abyss of depth, that the trial ceases to be adversarial, the Court would have to come to the rescue of the client, but the task is difficult for the reason : Why should the opposite party suffer for the delay. Who recompenses? With regret we note that today, in the very preceding matter, we had to deal with a supine negligence by a learned member of the Bar which caused grave injury to the client and to un do the harm caused to the client we had to recompense the opposite party with cost which was borne from the pocket of the unfortunate client. The only difference in the instant case is that the negligent lawyer was a party himself and so was his daughter-in-law. As regards the two, they were just not bothered about their fate. But unfortunately the appellants are the sufferers because the lawyer concerned engaged to defend their late father went along with his senior colleague and remained equally negligent.
2. Time has come to make learned counsel personally liable for cost if it is found that the negligence by the lawyer is of a kind where, as a figure of speech, one can say that the lawyer has murdered the brief.
3. Impugned order dated August 03, 2015, has dismissed IA No.15435/2015 filed under Order 37 Rule 4(5) of the Code of Civil Procedure, 1908 by the legal heirs of deceased defendant No.1, who died on June 20, 2013 and whose legal heirs were brought on record on September 10, 2014. The application sought leave to defend the suit filed by respondent No.1. The reason for dismissal is that during his lifetime defendant No.1 had withdrawn IA 2091/2010 praying for leave to defend being granted.
4. The reason for our pain and anguish is that the record of the suit and the orders passed therein, some of which are laughable. The orders warrant a cry of anguish to be made for being heard by those who are a part of the adjudicatory system. The system is collapsing.
5. The first respondent : Suresh Kumar Gera, instituted a suit under Order 37 of the Code of Civil Procedure, 1908, pleading that Syed Faiz Murtaza Ali (defendant No.1) was the owner of property bearing municipal No.A-4, Chirag Enclave New Delhi. S.C. Maheshwari (defendant No.2), was a designated Senior Advocate. Archana Maheshwari (defendant No.3), was the daughter-in-law of defendant No.2, and was a lawyer herself. Amar Chand Goel (defendant No.4) was a family friend of the plaintiff. The plaintiff pleaded that defendants No.2 and No.3 were representing defendant No.1 in litigations concerning his properties. It was pleaded that the plaintiff was interested in purchasing the property at Chirag Enclave and was told that possession thereof was with a tenant. After negotiations, defendant No.1 agreed to sell the property to him for Rs.3.25 crores. Plaintiff agreed to purchase the same along with defendant No.4. Terms and conditions of the same were reduced into writing on January 28, 2005, on which date Rs.30 lakhs were paid in cash to defendant No.1. Time passed, and defendant No.1 did not sell the property to him and defendant No.4. On October 06, 2005 another agreement to sell was executed recording that the sale price stood enhanced to Rs.9 crores, with an undertaking that defendant No.1 would get the property vacated and deliver possession to the plaintiff at the time of sale. A fresh written agreement was executed on October 06, 2005, recording Rs.50 lakhs (including Rs.30 lakhs paid earlier) being received in cash and Rs.2 crores paid by cheque. The amount of Rs.2 crores was pai
