Judgment :-

S.B. Sinha, J.

1. Leave granted.

2. Effect of a statement made by a counsel on the merit of a lis is in question in this appeal which arises out of a judgment and order dated 28.7.2008 passed by a Division Bench of the Delhi High Court dismissing an appeal from a judgment and order dated 20.7.2007 passed by learned Single Judge of the said Court.

3. Parties hereto were members of a joint family.

4. First respondent filed a suit for partition in respect of the properties fully described in Schedule appended to in the plaint. In the said suit, his brother, sisters and mother as well as children of the pre-deceased brother and Shri Amar Nath Anand, father of the appellants were impleaded as parties.

The matter came up before a learned Single Judge of the said Court on 14.10.1999. One Shri Y.K. Kapoor, learned advocate, appeared for all the defendants. He made a statement on their behalf that they were not disputing the share of the appellant in all the properties in suit. On that premise, the question which arose for consideration of the Court was to explore the possibilities of partition by metes and bounds and/or sale of the joint properties. The counsel stated that the defendants were ready and willing to get the property sold and the plaintiff-first respondent may take his share therefrom.

Learned Single Judge recorded the order as under:

"It is stated by the counsel for the defendants that the defendants do not dispute the share of the plaintiff in respect of all the properties. He further states that it is not possible to partition the property. The defendants are ready and willing to get it sold, allowing the plaintiff to take his own share. In case the properties are not partible, the parties may get a joint advertisement published in the news paper in the name of all the parties, giving their contact number after consulting each and within two weeks, so that the family property brings better price instead of making it a disputed property and selling it at a lower price. Interim order to continue till the next date subject to above modification."

5. Shri Ravi Gupta, advocate appearing on behalf of the plaintiff served a notice on Shri

Y.K. Kapoor, advocate for the defendant, stating:

"1. Reference is invited to your appearance and statement made on behalf of the defendants on 14.10.1999 before the Honble the High Court of Delhi at New Delhi in Suit No.844 of 1999 entitled Shri P.R. Anand vs. Shri A.N. Anand and Ors. and the order passed by the Honble Court pursuant thereto, please note that as per instructions from my client Shri Prahlad Rai Anand resident of 2/32, First Floor, Double Storey, Tilak Nagar, New Delhi - 110 018, the properties being subject matter of the said suit are capable of partition. As such no occasion arises for effecting sale of the immovable properties as suggested by you.

2. Take notice of the above position accordingly."

6. An interlocutory application was filed in the said suit. Notice was issued thereon. Contention of the plaintiff-first respondent therein was that he was not interested in the

sale of the properties and prayed for partition thereof. The matter was taken up on 16.12.1999. The counsel appearing for the defendants, as also the plaintiffs, were asked to specify their respective stand in the matter.

The original first defendant Shri Amar Nath Anand expired on 7.5.2000.

Defendants thereafter changed their stand. An application was filed on behalf of the defendant No.5 purported to be under Section 151 of the Code of Civil Procedure in November 2002, alleging:

"That at the time of hearing on 14.10.1999 the counsel for the defendants made the statement before the Honble Court as under:

‘the defendants do not dispute the share of the plaintiff in respect of all the properties. He further states that it is not possible to partition the property. The defendants are ready and willing to get it sold, allowing the plaintiff to take his own share.

That the above statemen