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Whether the statement of the counsel conveying that the parties have settled and modified the decree without a

                                                               REPORTABLE 

               IN THE SUPREME COURT OF INDIA

                 CIVIL APPELLATE JURISDICTION

             CIVIL APPEAL NOs.4641-4642 OF 2009

Bakshi Dev Raj & Anr.                                     .... Appellant(s)

            Versus

Sudhir Kumar                                               .... Respondent(s)

                            J U D G M E N T

P.Sathasivam,J.

1)      These   appeals   are   directed   against   the   final   judgment 

and   orders   dated   18.03.2008   and   08.09.2008   passed   by   the 

High   Court   of   Jammu   &   Kashmir   at   Jammu   in   Civil   Second 

Appeal No. 19 of 2005 and Review Petition (C) No. D-5 of 2008 

respectively   whereby   the   High   Court   dismissed   the   second 

appeal and the review petition filed by the appellants herein.

2)  Brief facts:

(a)    Shri Harbans Lal, father of the appellant No.1, purchased 

the   land   in   dispute   measuring   40   kanal   4   marlas   bearing 

                                                                               1

Khasra No. 65 in Village Chak Gainda, Tehsil Kathua from one 

Gurdas by way of a registered sale deed dated 18.03.1959. The 

said   land   falls   in   Khasra   No.   109/65   and   the   same   was 

recorded  in  the   name  of  the   father   of  the   appellant   No.1   and 

after   his   father's   death   the   name   of   appellant   No.1   was 

recorded from Kharif 1987.  

(b)      The   plot   of   Sudhir   Kumar-the   respondent   herein   is   on 

the   southern   side   of   the   land   of   the   appellants.     On 

29.04.1991,   the   respondent   herein  filed   a  civil  suit  being  No. 

17/Civil/1991   in   the   Court   of   sub-Judge,   Kathua   seeking   a 

declaratory   decree   to   the   effect   that   he   is   the   owner   and   in 

possession   of   the   suit   land   measuring   and   bounded   by   East 

Kathua   Kalibari   Road   90'   West   Police   Line   measuring   96', 

North   Land   of   Bakshi   Dev   Raj   (appellant   No.   1   herein)   and 

South, Lane 460' situated at Ward No.1 Village Chak Gainda, 

Tehsil   Kathua   and   further   sought   decree   for   permanent 

injunction   restraining   the   appellants   herein   in   the   suit   land. 

On   06.04.1993,   the   appellants   herein   filed   a   joint   written 

statement   in   the   above   civil   suit.     The   trial   Court,   vide 

                                                                                 2

judgment   dated   25.04.2003,   dismissed   the   suit   filed   by   the 

respondent herein.

(c)    Aggrieved by the said judgment, the respondent filed Civil 

First   Appeal   No.6   in   the   Court   of   District   &   Sessions   Judge, 

Kathua.     The   first   appellate  Court,   vide  judgment   and  decree 

dated   09.06.2005,   set   aside   the   judgment   and   order   dated 

25.04.2003, passed by the trial Court and allowed the appeal 

in favour of the respondent.  

(d)    Challenging the same, the appellants filed Second Appeal 

No. 19 of 2005 before the High Court of Jammu & Kashmir at 

Jammu.   Vide judgment dated 18.03.2008, the second appeal 

was   disposed   of   by   the   High   Court   by   modifying   the   decree 

with the consent of both the parties. 

(e)    Against   the   said   order,   a   special   leave   petition   bearing 

S.L.P. (C) No. 10939 of 2008 was filed by the appellants herein 

before   this   Court   and   the   same   was   dismissed   as   withdrawn 

on 14.05.2008.     On 21.05.2008, the appellants filed a review 

petition   being   Review   Petition   (C)   No.   D-5/2008   before   the 

High Court for review of the order dated 18.03.2008 passed in 

Second Appeal. The learned single Judge of the High Court, by 

                                                                               3

order dated 08.09.2008, dismissed the review petition filed by 

the appellants.  

(f)    Aggrieved by the final orders dated 18.03.2008 passed by 

the   High   Court   in   Second   Appeal   and   the   order   dated 

08.09.2008   in   the   review   petition,   the   appellants   filed   the 

present   appeals   before   this   Court   by   way     of   special   leave 

petitions.

3)     Heard   Mr.   Dinesh   Kumar   Garg,   learned   counsel   for   the 

appellants   and   Mr.   Ranjit   Kumar,   learned   senior   counsel 

appearing for the respondent.

4)     The   questions   which   arise   for   consideration   in   these 

appeals are:

i)     Whether Review Petition (C) No. D-5/2008 filed before the 

       High   Court   against   the   judgment   in   Second   Appeal   No. 

       19 of 2005 is maintainable in view of dismissal of SLP (C) 

       No.  10939  of  2008  dated   14.05.2008  by  this  Court   filed 

       against the said Second Appeal?  

ii)    Whether the statement of the counsel conveying that the 

       parties   have   settled   and   modified   the   decree   without   a 

                                                                            4

        written   document   or   consent   from   the   appellants   is 

        acceptable?   and

iii)    Whether dismissal of SLP as withdrawn without leave of 

        the Court to challenge the impugned order therein before 

        an   appropriate   court/forum   is   a   bar   for   availing   such 

        remedy?

5)      The   present   appellants   filed   Second   Appeal   No.   19   of 

2005   before   the   High   Court   questioning   the   judgment   and 

decree   dated   09.06.2005   of   the   first   appellate   Court   in   First 

Appeal   No.6.     While   admitting   the   above   second   appeal,   the 

High   Court   framed   two   questions   of   law,   one,   as   to   whether 

the report of the Commissioner is admissible evidence without 

its   formal   proof   and   the   other,   whether   the   reliance   can   be 

placed on a site plan prepared by an Architect when the same 

record   is   available   with   the   Revenue   Authorities   which   has 

been withheld by the plaintiff.  It is further seen from the order 

of the High Court that during the course of submissions, both 

the   counsel   agreed   that   without   addressing   the   questions   of 

law so formulated, the matter can be settled by modifying the 

decree   impugned   in   appeal   by   incorporating   the   area   of   land 

                                                                              5

under   Survey   No.   110/65   with   the   boundary   between   the 

lands   thereunder   and   Survey   No.   109/65   belonging   to   other 

side   being  the   Sheesham   and   Shreen   trees  currently   existing 

on   the   spot.     They   further   conceded   that   whatever   of   their 

respective land falling on either side would not be claimed by 

them   and   the   Sheesham   and   Shreen   trees   would   be 

respondent's   property   to   be   cut   by   him   within   a   reasonable 

period of time.   Based  on the  above submissions by both the 

counsel, the High Court modified the impugned decree in the 

following manner:

      "(a)    The suit of respondent/plaintiff  is decreed restraining 

      other   side   from   interfering   or   causing   any   interference   or 

      encroaching   upon   any   portion   of   his   land   measuring   11 

      kanals   12   marlas   under   survey   No   110/65   along   with   his 

      other proprietary land whatever existing on spot.

      (b)     The sheesham and shreen trees existing on spot would 

      be the boundary line between two parcels of land belonging 

      to rival sides as aforementioned with the exact demarcating 

      line running from centre of trees, which would be property of 

      respondent/plaintiff to be cut by him at an appropriate time 

      without undue delay.

      (c)     Whenever   proprietary   land   of   either   parties   falls   on 

      other   side   of   the   trees   to   form   part   of   Opposite   Party   land 

      stands   conceded   to   each   other   by   respective   parties   over 

      which   their   claims   would   be   deemed   to   have   been 

      abandoned.

      (d)     No costs."

                                                                                            6

6)    By pointing out that the concession given by the counsel 

for the appellants before the High Court was not lawful and in 

violation   of   Section   23   of   the   Indian   Contract   Act,   1872   and 

that   the     second   appeal   was   disposed   of   without   hearing   on 

substantial   questions   of   law   framed   by   the   Court,   the 

appellants   filed   Review   Petition   (C)   No.   No.D-5/2008.     Even 

before   the   High   Court,   an   objection   was   raised   as   to   the 

maintainability   of   the   review   petition   by   pointing   out   the 

following objections:

      "(a)    that once the petitioner had preferred an appeal before 

      the Supreme Court, the review was barred under O. 47 Rule 

      1 Sub-Rule (1) of C.P.C.

      (b)     that   application   is   time   barred,   period   of   limitation 

      prescribed for filing review in terms of Rule 66 Sub Rule (3) 

      of J&K High Court Rules is 30 days.

      (c)     that review application can be maintained only if some 

      evidence or matter has been discovered and it was not within 

      the   knowledge   of   petitioner   when   the   decree   was   passed   or 

      where there was a mistake or an error apparent on the fact 

      of record."

7)    In view of the above objections, the learned single Judge 

heard   the   review   petition   both   on   merits   and   its 

maintainability   at   length.     A   contention   was   raised   with 

                                                                                      7

reference to Order XXIII Rule 3 of the Code of Civil Procedure, 

1908   (hereinafter   referred   to  as  "CPC")   and   Order   XLVII   sub-

rule   (1)   of   Rule   1,   ultimately,   after   finding   that   the   question 

raised  is   not  a  question   of  law  and  not  an  error   apparent   on 

the   face   of   the   record,   dismissed   the   review   petition.   In   the 

present   appeal,   the   appellants   challenged   not   only   the 

dismissal   of   the   review   petition   but   also   final   judgment   in 

second  appeal filed  before the High Court. With these  factual 

details,   let   us   consider   the   questions   posed   in   the   earlier 

paragraphs.     Inasmuch   as   Mr.   Ranjit   Kumar,   learned   senior 

counsel   for   the   respondent   raised   an   objection   as   to   the 

maintainability of the present appeal, let us consider the same 

at the foremost and finally the merits of the impugned order of 

the High Court. 

Compromise of Suit

8)  Order XXIII of CPC deals with "Withdrawal and Adjustment 

of Suits".   Rule 3 of Order XXIII speaks about "compromise of 

suit" which reads as under:

      "3.  Compromise   of   suit.-  Where   it   is   proved   to   the 

      satisfaction of the Court that a suit has been adjusted wholly 

      or in part by any lawful agreement or compromise in writing 

      and   signed   by   the   parties,   or   where   the   defendant   satisfies 

                                                                                        8

      the plaintiff in respect of the whole or any part of the subject 

      matter   of   the   suit,   the   Court   shall   order   such   agreement, 

      compromise or satisfaction to be recorded, and shall pass a 

      decree   in   accordance   therewith   so   far   as   it   relates   to   the 

      parties to the suit, whether or not the subject matter of the 

      agreement,   compromise   or   satisfaction   is   the   same   as   the 

      subject matter of the suit:

      Provided that where it is alleged by one party and denied by 

      the other that an adjustment or satisfaction has been arrived 

      at, the Court shall decide the question; but no adjournment 

      shall   be   granted   for   the   purpose   of   deciding   the   question, 

      unless   the   Court,   for   reasons   to   be   recorded,   thinks   fit   to 

      grant such adjournment.

      Explanation--An agreement or compromise which is void or 

      voidable   under   the   Indian   Contract   Act,   1872   (9   of   1872), 

      shall not be deemed to be lawful within the meaning of this 

      rule."  

9)    The   very   same   rule   was   considered   by   this   Court   in 

Gurpreet Singh vs. Chatur Bhuj Goel, (1988) 1 SCC 270.  In 

that   case,   the   respondent   therein   Chatur   Bhuj   Goel,   a 

practising   advocate   at   Chandigarh   first   lodged   a   criminal 

complaint   against   Colonel   Sukhdev   Singh,   father   of   the 

appellant,   under   Section   420   of   the   Indian   Penal   Code   1860 

(hereinafter referred to as "the IPC"),   after he had served the 

respondent   with   a   notice   dated   11.07.1979   forfeiting   the 

amount of Rs.40,000/- paid by him by way of earnest money, 

alleging   that   he   was   in   breach   of   the   contract   dated 

04.06.1979   entered   into   between   Colonel   Sukhdev   Singh, 

                                                                                          9

acting   as   guardian   of   the   appellant,   then   a   minor,   and   the 

respondent,   for   the   sale   of     residential   house   No.     1577, 

Sector-18-D, Chandigarh for a consideration of Rs,2,85,000/-. 

In terms of the agreement, the respondent was to pay a further 

sum   of   Rs.1,35,000/-   to   the   appellant's   father   -   Colonel 

Sukhdev Singh by 10.07.1979 when the said agreement of sale 

was   to   be   registered   and   vacant   possession   of   the   house 

delivered to him, and the balance amount of Rs.1,10,000/- on 

or  before 31.01.1980 when  the deed of conveyance  was to be 

executed. The dispute between the parties was that according 

to Colonel Sukhdev Singh, there was failure on the part of the 

respondent   to   pay   the   amount   of   Rs.1,35,000/-   and   get   the 

agreement registered, while the respondent alleged that he had 

already  purchased   a  bank  draft   in  the   name  of  the  appellant 

for Rs.1,35,000/- on 07.07.1979 but the appellant's father did 

not   turn   up   to   receive   the   same.     Although   the   Additional 

Chief Judicial Magistrate by order dated 31.10.1979 dismissed 

the   complaint   holding   that   the   dispute   was   of   a   civil   nature 

and   no   process   could   issue   on   the   complaint,     the   learned 

Single   Judge,   by   his   order   dated   11.02.1980   set   aside   the 

                                                                             10

order   of   the   learned   Additional   Chief   Judicial   Magistrate 

holding   that   the   facts   brought   out   clearly   warranted   an 

inference   of   dishonest   intention   on   the   part   of   Colonel 

Sukhdev   Singh   and   accordingly   directed   him  to  proceed   with 

the   trial   according   to   law.     Aggrieved   Colonel   Sukhdev   Singh 

came up in appeal to this Court by way of special leave.  While 

construing   Order   XXIII   Rule   3   of   CPC,   this   Court   concluded 

thus: 

      "10.  Under   Rule   3   as   it   now   stands,   when   a   claim   in   suit 

      has been adjusted wholly or in part by any lawful agreement 

      or   compromise,   the   compromise   must   be   in   writing   and 

      signed   by   the   parties   and   there   must   be   a   completed 

      agreement   between   them.   To   constitute   an   adjustment,   the 

      agreement   or   compromise   must   itself   be   capable   of   being 

      embodied   in   a   decree.   When   the   parties   enter   into   a 

      compromise during the hearing of a suit or appeal, there is 

      no reason why the requirement that the compromise should 

      be reduced in writing in the form of an instrument signed by 

      the   parties   should   be   dispensed   with.   The   court   must 

      therefore   insist   upon   the   parties   to   reduce   the   terms   into 

      writing."

It is clear from this decision that during the course of hearing, 

namely,   suit   or   appeal,   when   the   parties   enter   into   a 

compromise,   the   same   should   be   reduced   in   writing   in   the 

form   of   an   instrument   and   signed   by   the   parties.     The 

                                                                                          11

substance   of   the   said   decision   is   that   the   Court   must   insist 

upon the parties to reduce the terms into writing.               

10)    In  Pushpa   Devi   Bhagat   (dead)   through   LR.   Sadhna  

Rai   (Smt.)  vs.  Rajinder   Singh   and   Others,   (2006)   5   SCC 

566,   the   term   `instrument'   used   in   above-referred  Gurpreet  

Singh's case  (supra) refers to a writing a formal nature, this 

Court explained that when the hearing of letters patent appeal 

commenced   before   the   High   Court,   the   parties   took   time   to 

explore the possibility of settlement and when the hearing was 

resumed,   the   appellant's   father   made   an   offer   for   settlement 

which was endorsed by the counsel for the appellant also.  The 

respondent   was   also   present   there   and   made   a   statement 

accepting   the   offer.     The   said   offer   and   acceptance   were   not 

treated as final as the appeal was not disposed of by recording 

those   terms.     On   the   other   hand,   the   said   proposals   were 

recorded and the matter was adjourned for payment in terms 

of the offer.  When the matter was taken up on the next date of 

hearing,  the  respondent  stated  that  he  is not agreeable.   The 

High   Court   directed   that   the   appeal   would   now   be   heard   on 

merits   as   the   respondent   was   not   prepared   to   abide   by   the 

                                                                             12

proposed   compromise.   The   said   order   was   challenged   before 

this Court by the appellant by contending that the matter was 

settled by a lawful compromise by recording the statement by 

appellant's   counsel   and   the   respondent's   counsel   and   the 

respondent   could   not   resile   from   such   compromise   and, 

therefore, the High Court ought to have disposed of the appeal 

in terms of the compromise.   It is in this factual background, 

the   question   was   considered   with   reference   to  Gurpreet  

Singh's   case  (supra).     This   was   explained   in  Pushpadevi's  

case    (supra) that the distinguishing feature in that case was 

that   though   the   submissions   made   were   recorded   but   that 

were   not   signed   by   the   parties   or   their   counsel,   nor   did   the 

Court   treat   the   submissions   as   a   compromise.                       In 

Pushpadevi's  case   (supra),   the   Court   not   only   recorded   the 

terms of settlement but thereafter directed that the statements 

of the counsel be recorded.  The statement of the counsel were 

also  recorded  on  oath  read over  and  accepted  by  the  counsel 

to be correct and then signed by both counsel.   In view of the 

same,   in  Pushpadevi's   case  (supra),   it   was   concluded   that 

there was a valid compromise in writing signed by the parties 

                                                                               13

(represented counsel). 

11) In the earlier part of our order, we have already recorded 

that   during   the   course   of   hearing   of   second   appeal,   both 

counsel agreed that without addressing the questions of law so 

formulated, the matter can be settled by modifying the decree 

impugned   in   appeal   by   incorporating   the   area   of   land   under 

Survey   No.   110/65   with   the   boundary   between   the   lands 

thereunder and Survey No.109/65 belonging to the other side 

being   the   Sheesham   and   Shreen   trees   currently   existing   on 

the spot. 

Role of the counsel

12)    Now,   we   have   to   consider   the   role   of   the   counsel 

reporting   to   the   Court   about   the   settlement   arrived   at.     We 

have already noted that in terms of Order XXIII Rule 3 of CPC, 

agreement or compromise is to be in writing and signed by the 

parties.   The impact of the above provision and the role of the 

counsel   has   been   elaborately   dealt   with   by   this   Court   in 

Byram   Pestonji   Gariwala  vs.  Union   Bank   of   India   and  

Others,   (1992)   1   SCC   31   and   observed   that     courts   in  India 

have consistently recognized the traditional role of lawyers and 

                                                                            14

the extent and nature of implied authority to act on behalf of 

their   clients.     Mr.   Ranjit   Kumar,   has   drawn   our   attention   to 

the   copy   of   Vakalatnama   (Annexure-R3)   and   the   contents 

therein.     The   terms   appended   in   Vakalatnama   enable   the 

counsel   to   perform   several   acts   on   behalf   of   his   client 

including   withdraw   or   compromise   suit   or   matter   pending 

before   the   Court.     The   various   clauses   in   the   Vakalatnama 

undoubtedly   gives   power   to   the   counsel   to   act   with   utmost 

interest   which   includes   to   enter   into   a   compromise   or 

settlement.     The   following   observations   and   conclusions   in 

paras 37, 38 and 39 are relevant:

      "37. We may, however, hasten to add that it will be prudent 

      for   counsel   not   to   act   on   implied   authority   except   when 

      warranted   by   the   exigency   of   circumstances   demanding 

      immediate   adjustment   of   suit   by   agreement   or   compromise 

      and   the   signature   of   the   party   cannot   be   obtained   without 

      undue   delay.   In   these   days   of   easier   and   quicker 

      communication, such contingency may seldom arise. A wise 

      and   careful   counsel   will   no   doubt   arm   himself   in   advance 

      with the necessary authority expressed in writing to meet all 

      such   contingencies   in   order   that   neither   his   authority   nor 

      integrity   is   ever   doubted.   This   essential   precaution   will 

      safeguard   the   personal   reputation   of   counsel   as   well   as 

      uphold the prestige and dignity of the legal profession.

      38.  Considering   the   traditionally   recognised   role   of   counsel 

      in   the   common   law   system,   and   the   evil   sought   to   be 

      remedied   by   Parliament   by   the   C.P.C.   (Amendment)   Act, 

      1976,   namely,   attainment   of   certainty   and   expeditious 

      disposal   of   cases   by   reducing   the   terms   of   compromise   to 

      writing   signed   by  the   parties,  and   allowing   the   compromise 

                                                                                      15

       decree   to   comprehend   even   matters   falling   outside   the 

       subject   matter   of   the   suit,   but   relating   to   the   parties,   the 

       legislature cannot, in the absence of express words to such 

       effect,   be   presumed   to   have   disallowed   the   parties   to   enter 

       into a compromise by counsel in their cause or by their duly 

       authorised   agents.   Any   such   presumption   would   be 

       inconsistent   with   the   legislative   object   of   attaining   quick 

       reduction of arrears in court by elimination of uncertainties 

       and enlargement of the scope of compromise.

       39.  To  insist   upon   the   party  himself   personally   signing   the 

       agreement   or   compromise   would   often   cause   undue   delay, 

       loss   and   inconvenience,   especially   in   the   case   of   non-

       resident persons. It has always been universally understood 

       that   a   party   can   always   act   by   his   duly   authorised 

       representative.   If   a   power-of-attorney   holder   can   enter   into 

       an   agreement   or   compromise   on   behalf   of   his   principal,   so 

       can   counsel,   possessed   of   the   requisite   authorisation   by 

       vakalatnama,   act   on   behalf   of   his   client.   Not   to   recognise 

       such capacity is not only to cause much inconvenience and 

       loss to the parties personally, but also to delay the progress 

       of   proceedings   in   court.   If   the   legislature   had   intended   to 

       make such a fundamental change, even at the risk of delay, 

       inconvenience   and   needless   expenditure,   it   would   have 

       expressly so stated."

13)    In  Jineshwardas   (D)   by   LRs   and   Others  vs.  Jagrani  

(Smt)   and   Another,   (2003)   11   SCC   372,   this   Court,   by 

approving   the   decision   taken   in  Byram   Pestonji's  case 

(supra),  held  that a judgment  or decree  passed  as a result of 

consensus arrived at before Court, cannot always be said to be 

one  passed on compromise or settlement and  adjustment.   It 

may, at times, be also a judgment on admission. 

14)    In  Jagtar   Singh  vs.  Pargat   Singh   and   Others,   (1996) 

11   SCC   586,   it   was   held   that   counsel   for   the   appellant   has 

                                                                                            16

power  to make a statement on instructions  from  the  party  to 

withdraw   the   appeal.     In   that   case,   respondent   No.1   therein, 

elder   brother   of   the   petitioner   filed   a   suit   for   declaration 

against the petitioner and three brothers that the decree dated 

04.05.1990   was   null   and   void   which   was   decreed   by 

subordinate Judge, Hoshiarpur on 29.09.1993.  The petitioner 

therein   filed   an   appeal   in   the   Court   of   Additional   Distruct 

Judge,   Hoshiarpur.     The   counsel   made   a   statement   on 

15.09.1995 that the petitioner did not intend to proceed with 

the appeal.  On the basis thereof, the appeal was dismissed as 

withdrawn.     The   petitioner   challenged   the   order   of   the 

appellate court in the revision.  The High Court confirmed the 

same   which   necessitated   filing   of   SLP   before   this   Court. 

Learned   counsel   for   the   petitioner   contended   that   the 

petitioner   had   not   authorized   the   counsel   to   withdraw   the 

appeal.     It   was   further   contended   that   the   court   after 

admitting   the   appeal   has   no   power   to   dismiss   the   same   as 

withdrawn   except   to   decide   the   matter   on   merits   considering 

the   legality   of   the   reasoning   of   the   trial   Court   and   the 

conclusions   either   agreeing   or   disagreeing   with   it.     Rejecting 

                                                                            17

the said contention, the Court held as under: 

       "3.  The   learned   counsel   for   the   petitioner   has   contended 

       that   the   petitioner   had   not   authorised   the   counsel   to 

       withdraw   the   appeal.   The   Court   after   admitting   the   appeal 

       has   no   power   to   dismiss   the   same   as   withdrawn   except   to 

       decide   the   matter   on   merits   considering   the   legality   of   the 

       reasoning   of   the   trial   court   and   the   conclusions   either 

       agreeing   or   disagreeing   with   it.   We   find   no   force   in   the 

       contention.   Order   III   Rule   4   CPC   empowers   the   counsel   to 

       continue on record until the proceedings in the suit are duly 

       terminated.   The   counsel,   therefore,   has   power   to   make   a 

       statement   on   instructions   from   the   party   to   withdraw   the 

       appeal. The question then is whether the court is required to 

       pass a reasoned order on merits against the decree appealed 

       from   the   decision   of   the   Court   of   the   Subordinate   Judge? 

       Order   23   Rules   1(1)   and   (4)   give   power   to   the   party   to 

       abandon   the   claim   filed   in   the   suit   wholly   or   in   part.   By 

       operation  of Section 107(2) of the CPC, it equally applies  to 

       the appeal and the appellate court has co-extensive power to 

       permit   the   appellant   to   give   up   his   appeal   against   the 

       respondent   either   as   a   whole   or   part   of   the   relief.   As   a 

       consequence,  though   the  appeal  was  admitted  under  Order 

       41   Rule   9,   necessarily   the   Court   has   the   power   to   dismiss 

       the appeal as withdrawn without going into the merits of the 

       matter and deciding it under Rule 11 thereof.

       4. Accordingly, we hold that the action taken by the counsel 

       is consistent with  the  power he  had under Order III Rule  4 

       CPC. If really the counsel has not acted in the interest of the 

       party or against the instructions of the party, the necessary 

       remedy is elsewhere and the procedure adopted by the court 

       below   is   consistent   with   the   provisions   of   CPC.   We   do   not 

       find   any   illegality   in   the   order   passed   by   the   Additional 

       District   Judge   as   confirmed   by   the   High   Court   in   the 

       revision."

15)    The analysis of the above decisions make it clear that the 

counsel   who   was   duly   authorized   by   a   party   to   appear   by 

executing   Vakalatnama   and   in   terms   of   Order   III   Rule   4, 

                                                                                           18

empowers   the   counsel   to   continue   on   record   until   the 

proceedings   in   the   suit   are   duly   terminated.     The   counsel, 

therefore, has power to make a statement on instructions from 

the   party   to   withdraw   the   appeal.   In   such   circumstance,   the 

counsel   making   a   statement   on   instructions   either   for 

withdrawal   of   appeal   or   for   modification   of   the   decree   is   well 

within his competence and if really the counsel has not acted 

in   the   interest   of   the   party   or   against   the   instructions   of   the 

party,   the   necessary   remedy   is   elsewhere.     Though   learned 

counsel   for   the   appellant   vehemently   submitted   that   the 

statement   of   the   counsel   before   the   High   Court   during   the 

course   of   hearing   of   Second   Appeal   No.   19   of   2005   was   not 

based   on   any   instructions,   there   is   no   such   material   to 

substantiate   the   same.     No   doubt,   Mr.   Garg   has   placed 

reliance on the fact that the first appellant was bedridden and 

hospitalized,   hence,   he   could   not   send   any   instruction. 

According   to   him,   the   statement   made   before   the   Court   that 

too   giving   of   certain   rights   cannot   be   sustained   and   beyond 

the power of the counsel.   It is true that at the relevant time, 

namely, when the counsel made a statement during the course 

                                                                                  19

of   hearing   of   second   appeal   one   of   the   parties   was   ill   and 

hospitalized.     However,   it   is   not   in   dispute   that   his   son   who 

was   also   a   party   before   the   High   Court   was   very   much 

available.  Even otherwise, it is not in dispute that till filing of 

the   review   petition,   the   appellants   did   not   question   the 

conduct   of   their   counsel   in   making   such   statement   in   the 

course   of   hearing   of   second   appeal   by   writing   a   letter   or   by 

sending notice disputing the stand taken by their counsel.   In 

the   absence   of   such   recourse   or   material   in   the   light   of   the 

provisions   of   the   CPC   as   discussed   and   interpreted   by   this 

Court,   it   cannot   be   construed   that   the   counsel   is   debarred 

from   making   any   statement   on   behalf   of   the   parties.     No 

doubt, as pointed out  in  Byram Pestonji  (supra),  in  order  to 

safeguard the present reputation of the counsel and to uphold 

the   prestige   and   dignity   of   legal   profession,   it   is   always 

desirable to get instructions in writing. 

Maintainability of Review Petition

16)    Now,   let   us   consider   the   maintainability   of   the   review 

petition   filed   before   the  High  Court   after   dismissal   of  SLP  (C) 

                                                                               20

No. 10939 of 2008 before this Court.   It is not in dispute that 

the   High   Court,   by   order   dated   18.03.2008,   based   on   the 

statement of both counsel disposed of Second Appeal No. 19 of 

2005   by   modifying   the   decree  as  stated   therein.     Against   the 

said   order   of   the   High   Court,   the   appellants   preferred   the 

above said SLP before this Court.  By order dated 14.05.2008, 

this Court after hearing the counsel for the appellants passed 

the following order: 

      "Learned   counsel   for   the   petitioner   prays   to   withdraw   the 

      petition.  Prayer made is accepted.  The special leave petition 

      is dismissed as withdrawn"

A reading of the above order makes it clear that based on the 

request   of   the   counsel,   the   SLP   came   to   be   dismissed   as 

withdrawn.     It   is   also   clear   that   there   is   no   permission   or 

reservation   or   liberty   for   taking   further   action.     However, 

dismissal of SLP is not a bar for filing review before the same 

Court.  This aspect was considered by a three-Judge Bench of 

this   Court   in  Kunhayammed   and   Others  vs.  State   of  

Kerala   and   Another,   (2000)   6   SCC   359.     The   above   aspect 

was dealt with elaborately in paras 38, 40 and 44.  

                                                                                    21

"38.  The  review   can   be  filed   even  after  SLP  is   dismissed  is 

clear   from   the   language   of   Order   47   Rule   1(a).   Thus   the 

words "no appeal" has been preferred in Order 47 Rule 1(a) 

would   also   mean   a   situation   where   special   leave   is   not 

granted. Till then there is no appeal in the eye of law before 

the superior court. Therefore, the review can be preferred in 

the High Court before special leave is granted, but not after 

it   is   granted.   The   reason   is   obvious.   Once   special   leave   is 

granted   the   jurisdiction   to   consider   the   validity   of   the   High 

Court's   order   vests   in   the   Supreme   Court   and   the   High 

Court   cannot   entertain   a   review   thereafter,   unless   such   a 

review   application   was   preferred   in   the   High   Court   before 

special leave was granted.

40. A petition seeking grant of special leave to appeal may be 

rejected for several reasons. For example, it may be rejected 

(i) as barred by time, or (ii) being a defective presentation, (iii) 

the petitioner having no locus standi to file the petition, (iv) 

the   conduct   of   the   petitioner   disentitling   him   to   any 

indulgence   by   the   court,   (iv)   the   question   raised   by   the 

petitioner   for   consideration   by   this   Court   being   not   fit   for 

consideration   or   deserving   being   dealt   with   by   the   Apex 

Court   of   the   country   and   so   on.   The   expression   often 

employed by this Court while disposing of such petitions are 

-- "heard and dismissed", "dismissed", "dismissed as barred 

by time" and so on. May be that at the admission stage itself 

the opposite party appears on caveat or on notice and offers 

contest to the maintainability of the petition. The Court may 

apply   its   mind   to   the   meritworthiness   of   the   petitioner's 

prayer seeking leave to file an appeal and having formed an 

opinion  may say "dismissed on merits". Such an order may 

be   passed   even   ex   parte,   that   is,   in   the   absence   of   the 

opposite   party.   In   any   case,   the   dismissal   would   remain   a 

dismissal   by   a   non-speaking   order   where   no   reasons   have 

been assigned and no law has been declared by the Supreme 

Court.  The  dismissal is not of the appeal  but  of the  special 

leave   petition.   Even   if   the   merits   have   been   gone   into,   they 

are   the   merits   of   the   special   leave   petition   only.   In   our 

opinion   neither   doctrine   of   merger   nor   Article   141   of   the 

Constitution is attracted to such an order. Grounds entitling 

exercise of review jurisdiction  conferred by Order 47 Rule 1 

CPC or any other statutory provision or allowing review of an 

order passed in exercise of writ or supervisory jurisdiction of 

the   High   Court   (where   also   the   principles   underlying   or 

emerging   from   Order   47   Rule   1   CPC   act   as   guidelines)   are 

not   necessarily   the   same   on   which   this   Court   exercises 

                                                                                     22

discretion   to   grant   or   not   to   grant   special   leave   to   appeal 

while disposing of a petition for the purpose. Mere rejection 

of a special leave petition does not take away the jurisdiction 

of   the   court,   tribunal   or   forum   whose   order   forms   the 

subject-matter of petition for special leave to review its own 

order if grounds for exercise of review jurisdiction are shown 

to   exist.   Where   the   order   rejecting   an   SLP   is   a   speaking 

order,   that   is,   where   reasons   have   been   assigned   by   this 

Court   for   rejecting   the   petition   for   special   leave   and   are 

stated  in the  order  still  the  order  remains  the  one  rejecting 

prayer   for   the   grant   of   leave   to   appeal.   The   petitioner   has 

been   turned   away   at   the   threshold   without   having   been 

allowed   to   enter   in   the   appellate   jurisdiction   of   this   Court. 

Here   also   the   doctrine   of   merger   would   not   apply.   But   the 

law stated or declared by this Court in its order shall attract 

applicability of Article 141 of the Constitution.  

        The   reasons   assigned   by   this   Court   in   its   order 

expressing   its   adjudication   (expressly   or   by   necessary 

implication)   on   point   of   fact   or   law   shall   take   away   the 

jurisdiction   of   any   other   court,   tribunal   or   authority   to 

express any opinion in conflict with or in departure from the 

view taken by this Court because permitting to do so would 

be   subversive   of   judicial   discipline   and   an   affront   to   the 

order   of   this   Court.   However   this   would   be   so   not   by 

reference to the doctrine of merger.

44. To sum up, our conclusions are:

(i) Where an appeal or revision is provided against an order 

passed   by   a   court,   tribunal   or   any   other   authority   before 

superior   forum   and   such   superior   forum   modifies,   reverses 

or affirms the decision put in issue before it, the decision by 

the   subordinate   forum   merges   in   the   decision   by   the 

superior   forum   and   it   is   the   latter   which   subsists,   remains 

operative and is capable of enforcement in the eye of law.

(ii)   The   jurisdiction   conferred   by   Article   136   of   the 

Constitution   is   divisible   into   two   stages.   The   first   stage   is 

upto the disposal of prayer for special leave to file an appeal. 

The second stage commences if and when the leave to appeal 

is granted and the special leave petition is converted into an 

appeal.

(iii)   The   doctrine   of   merger   is   not   a   doctrine   of   universal   or 

unlimited   application.   It   will   depend   on   the   nature   of 

jurisdiction exercised by the superior forum and the content 

or   subject-matter   of   challenge   laid   or   capable   of   being   laid 

shall   be   determinative   of   the   applicability   of   merger.   The 

                                                                                         23

superior   jurisdiction   should   be   capable   of   reversing, 

modifying or affirming the order put in issue before it. Under 

Article   136   of   the   Constitution   the   Supreme   Court   may 

reverse,   modify   or   affirm   the   judgment-decree   or   order 

appealed   against   while   exercising   its   appellate   jurisdiction 

and   not   while   exercising   the   discretionary   jurisdiction 

disposing of petition for special leave to appeal. The doctrine 

of merger can therefore be applied to the former and not to 

the latter.

(iv) An order refusing special leave to appeal may be a non-

speaking order or a speaking one. In either case it does not 

attract   the   doctrine   of   merger.   An   order   refusing   special 

leave   to   appeal   does   not   stand   substituted   in   place   of   the 

order   under   challenge.   All   that   it   means   is   that   the   Court 

was not inclined to exercise its discretion so as to allow the 

appeal being filed.

(v) If the order refusing  leave to appeal  is a speaking order, 

i.e.,   gives   reasons   for   refusing   the   grant   of   leave,   then   the 

order   has   two   implications.   Firstly,   the   statement   of   law 

contained in the order is a declaration of law by the Supreme 

Court within the meaning of Article 141 of the Constitution. 

Secondly,   other   than   the   declaration   of   law,   whatever   is 

stated in the order are the findings recorded by the Supreme 

Court   which   would   bind   the   parties   thereto   and   also   the 

court,   tribunal   or   authority   in   any   proceedings   subsequent 

thereto   by   way   of   judicial   discipline,   the   Supreme   Court 

being   the   Apex   Court   of   the   country.   But,   this   does   not 

amount   to   saying   that   the   order   of   the   court,   tribunal   or 

authority   below   has   stood   merged   in   the   order   of   the 

Supreme Court rejecting the special leave petition or that the 

order of the Supreme Court is the only order binding as res 

judicata in subsequent proceedings between the parties.

(vi)   Once   leave   to   appeal   has   been   granted   and   appellate 

jurisdiction   of   Supreme   Court   has   been   invoked   the   order 

passed   in   appeal   would   attract   the   doctrine   of   merger;   the 

order may be of reversal, modification or merely affirmation.

(vii) On an appeal having been preferred or a petition seeking 

leave to appeal having been converted into an appeal before 

the   Supreme   Court   the   jurisdiction   of   High   Court   to 

entertain   a   review   petition   is   lost   thereafter   as   provided   by 

sub-rule (1) of Rule 1 of Order 47 CPC."

                                                                                      24

17)    In   view   of   the   principle   laid   down   above   by   this   Court, 

even after  dismissal  of SLP, the  aggrieved parties  are  entitled 

to move the court concerned by way of review.  In the case on 

hand,   though   the   appellants   moved   an   SLP   in   this   Court 

against   the   order   of   the   High   Court   in   Second   Appeal, 

admittedly,   the  SLP  was  dismissed  as withdrawn   without the 

leave of the Court.  

18)    Similar   question   was   considered   by   this   Court   in 

Sarguja   Transport   Service  vs.  State   Transport   Appellate  

Tribunal,   M.P.,   Gwalior,   and   Others,   (1987)   1   SCC   5.     In 

this   decision   it   was  held  that  where   a  petitioner   withdraws   a 

petition filed by him in the High Court under Article 226/227 

without permission to institute a fresh petition, remedy under 

Article 226/227 should be deemed to have been abandoned by 

the petitioner in respect of the cause of action relied on in the 

writ   petition   and   it   would   not   be   open   to   him   to   file   a   fresh 

petition in the High Court under the same article though other 

remedies like suit or writ petition before the this Court under 

Article 32 would remain open to him.  It was further held that 

the principle  underlying  Rule 1 of Order  XXIII  of  CPC should 

                                                                                    25

be   extended   in   the   interests   of   administration   of   justice   to 

cases of withdrawal of writ petition also.  The main contention 

urged   by   the   learned   counsel   for   the   petitioner   in   that   case 

was   that   the   High   Court   was   in   error   in   rejecting   the   writ 

petition  on the  ground that the petitioner had  withdrawn the 

earlier   writ   petition   in   which   he   had   questioned   the   order 

passed by the Tribunal on 04.10.1985 without the permission 

of the High Court to file a fresh petition.   It was urged by the 

learned counsel that since the High Court had not decided the 

earlier petition on merits but only had permitted the petitioner 

to   withdraw   the   petition,   the   withdrawal   of   the   said   earlier 

petition   could   not   have   been   treated   as   a   bar   to   the 

subsequent writ petition.  While considering the said question, 

this   Court   considered   sub-rule   3   of   Rule   1   of   Order   23   CPC 

and   its   applicability   to   writ   petitions   filed   under   Article 

226/227 and held as under: 

      "9.  The point for consideration is whether a petitioner after 

      withdrawing   a   writ   petition   filed   by   him   in   the   High   Court 

      under   Article   226   of   the   Constitution   of   India   without   the 

      permission   to   institute   a   fresh   petition   can   file   a   fresh   writ 

      petition  in  the  High  Court  under  that   article.  On  this   point 

      the decision in Daryao case is of no assistance. But we are of 

      the view that the principle underlying Rule 1 of Order XXIII 

      of   the   Code   should   be   extended   in   the   interests   of 

                                                                                             26

       administration   of   justice   to   cases   of   withdrawal   of   writ 

       petition   also,   not   on   the   ground   of   res   judicata   but   on   the 

       ground   of   public   policy   as   explained   above.   It   would   also 

       discourage   the   litigant   from   indulging   in   bench-hunting 

       tactics. In any event there is no justifiable reason in such a 

       case   to   permit   a   petitioner   to   invoke   the   extraordinary 

       jurisdiction   of   the   High   Court   under   Article   226   of   the 

       Constitution   once   again.   While   the   withdrawal   of   a   writ 

       petition   filed   in   a   High   Court   without   permission   to   file   a 

       fresh writ petition may not bar other remedies like a suit or a 

       petition   under   Article   32   of   the   Constitution   of   India   since 

       such   withdrawal   does   not   amount   to   res   judicata,   the 

       remedy under Article 226 of the Constitution of India should 

       be   deemed   to   have   been   abandoned   by   the   petitioner   in 

       respect   of   the   cause   of   action   relied   on   in   the   writ   petition 

       when   he   withdraws   it   without   such   permission.   In   the 

       instant case the High Court was right in holding that a fresh 

       writ petition was not maintainable before it in respect of the 

       same subject-matter since the earlier writ petition had been 

       withdrawn   without   permission   to   file   a   fresh   petition.   We, 

       however, make it clear that whatever we have stated in this 

       order   may   not   be   considered   as   being   applicable   to   a   writ 

       petition   involving   the   personal   liberty   of   an   individual   in 

       which   the   petitioner   prays   for   the   issue   of   a   writ   in   the 

       nature of habeas corpus or seeks to enforce the fundamental 

       rignt   guaranteed   under   Article   21   of   the   Constitution   since 

       such   a   case   stands   on   a   different   footing   altogether.   We, 

       however leave this question open."

19)    In   the   light   of   the   discussion   in   the   earlier   paragraphs 

even   after   dismissal   of   an   SLP   with   or   without   reasons,   the 

aggrieved   party   is   entitled   to   file   a   review.     In   view   of   the 

language  used   in Order  XLVII  Rule  1(a)  of  CPC  which  relates 

to   "Review",   the   present   Review   Petition   (C)   No.   D-5/2008) 

cannot be dismissed on the ground of maintainability.   Based 

on the above discussion and reasons, we hold that the review 

                                                                                               27

petition filed by the appellants was maintainable but in view of 

Order   III   Rules   1   and   4,   Chapter   relating   to   the   role   of 

Pleaders,   and   in   view   of  the   conduct   of   the   appellants   in   not 

raising any objection as to the act of their counsel except filing 

review petition, we are not inclined to accept the claim of the 

appellants.  

20)        Finally,   Mr.   Garg   vehemently   contended   that   by   the 

concession of their counsel, appellants lost their property and 

they suffered huge loss in terms of money.   On perusal of the 

modified decree as available in the order of the High Court in 

Second Appeal No. 19 of 2005 and the sketch produced about 

the   existence   of   Sheesham   and   Shreen   trees   running   as   a 

demarcating  line and  whenever those  trees  fall on either  side 

the   parties  having   ownership   of   the   land   get   right   to   use   the 

same, we are unable to accept the said contention also.  

21)        In  the light  of the  above discussion, we  find no merit in 

both   the   appeals.     Consequently,   the   same   are   dismissed. 

There shall be no order as to costs.          

                                  ...............................................J. 

                                                                               28

                               (P. SATHASIVAM) 

                              ...............................................J. 

                              (H.L. GOKHALE) 

NEW DELHI;

4th AUGUST, 2011.

                                                   29

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