Statements Made By Party's Advocate Acting As Authorised Agent Are Binding, Operate As Estoppel, Bar Subsequent Challenge On Mere Change Of Mind; J&K&L High Court
Deekshitha Sharmille
The High Court of Jammu & Kashmir and Ladakh, Single Bench of Justice Wasim Sadiq Nargal, has held that consent given by an advocate before a court, in the capacity of an authorised agent of the litigant, is binding on the party represented and operates as an estoppel in law, leaving no room for a subsequent challenge on grounds of mere change of mind. The Court dismissed a writ petition filed by a co-sharer in agricultural land who had sought to reopen a consent order directing the revenue authority below to proceed afresh with partition proceedings in accordance with applicable rules, after affording hearing to all interested parties. Vacating the interim stay granted earlier, the Court restored the consent order and remitted the matter to the competent authority for adjudication on merits.
The dispute arose from an application for partition filed before the Tehsildar by certain co-sharers of land measuring about 182 kanals in Village Surara, Tehsil Hiranagar. The Tehsildar, by order dated 21.10.2019, kept the application in abeyance, recording that the petitioner was not in possession of the land and directing the applicants to file a suit for possession under Rule 12 of the Jammu and Kashmir Land Revenue (Partition) Rules, 1970.
Subsequently, the Deputy Commissioner, Samba, issued a communication on 23.11.2019 directing the Tehsildar to attend his office with the partition file. On 19.10.2020, the Tehsildar directed the Naib Tehsildar to deliver possession of the land to the private respondents by evicting the petitioner. The petitioner challenged this order before the Revisional Authority, i.e., the Additional Commissioner, Jammu, who on 06.01.2021 remanded the matter to the Tehsildar to proceed with partition in accordance with the Partition Rules after hearing all interested parties.
The petitioner assailed this remand order, contending that the private respondents were not in possession of the land and had not filed a suit for possession as required under Rule 12. The private respondents argued that they were co-sharers entitled to seek partition under Section 105 of the Land Revenue Act.
Justice Wasim Sadiq Nargal recorded: “The order passed by the Revisional Authority was limited to directing the Court below to proceed with the partition in accordance with the applicable Partition Rules and, that too, after affording an opportunity of being heard to all interested persons/parties, and thereafter to pass an appropriate order.”
The Court stated: “Once the order, which is the subject matter of the present petition, was passed by the Revisional Authority with the consent of learned counsel for the parties, the petitioner is estopped in law from questioning the same through the medium of the present petition.”
It further observed: “A bare perusal of the operative portion of the said order shows that no prejudice has been caused to the petitioner, as the direction to the Court below is only to proceed in accordance with the Partition Rules after providing an opportunity of hearing to the interested persons/parties.”
Quoting precedent, the Court noted: “Advocates of both the parties are authorized agents for the parties and their statements before the court would bind the parties and the parties are estopped from resiling there from in appeal by saying that it was not a decree u/s 96(3) C.P.C.”
The Court also referred to the Supreme Court’s view: “A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the Court at the end of a long drawn-out fight. A compromise decree creates an estoppel by judgment.”
It recorded: “The law, therefore, stands settled that consent given by learned counsel, acting within the scope of their authority, binds the parties whom they represent. In the absence of any allegation of fraud, misrepresentation or patent mistake, a consent order cannot be permitted to be challenged merely because a party subsequently wishes to resile from the position taken through its counsel.”
Finally, the Court stated: “Applying this settled position to the present facts, since the order of the Revisional Authority was passed with such valid consent and remains unchallenged on grounds of fraud or mistake, the procedural mandate contained therein must now be given full effect.”
The Court directed: “Accordingly, the ends of justice would be met if the interim restraint imposed by this Court is lifted and the order passed by the Revisional Authority is revived by relegating the parties to the court below, with a direction to proceed with the partition in accordance with the Partition Rules, after affording an opportunity of being heard to the interested persons/parties.”
“Accordingly, the interim order dated 01.02.2021 passed by this Court is vacated. The order dated 06.01.2021 passed by the Revisional Authority is upheld and the matter is remitted to the court below to proceed strictly in accordance with the Partition Rules, after granting opportunity of hearing to all concerned, and to pass an appropriate reasoned order.”
Advocates Representing the Parties
For the Petitioners: Mr. R.K.S. Thakur, Advocate
For the Respondents: Ms. Priyanka Bhat, Advocate vice Mrs. Monika Kohli, Sr. AAG; Mr. Ajay Abrol, Advocate
Case Title: Sikander Sharma v. Additional Commissioner, Jammu and Others
Case Number: WP(C) No. 128/2021
Bench: Justice Wasim Sadiq Nargal
