LAWYERS/BAR/JUDICIARY/COURTS/LAW OF EVIDENCE

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Admission of Fact by Counsel: Is it Inadmissible?
by Justice K.N. Goyal*

Cite as : (2002) 4 SCC (Jour) 9

In Swami Krishnanand Govindanand v. M.P. Oswal Hosiery (Regd.)1 the facts were these. A registered society was the landlord and it filed a suit against the tenant for eviction on the ground that the premises were required for the furtherance of its activities. The tenant in his written statement denied that the landlord was a public charitable institution within the meaning of the relevant provisions of the Rent Control Act and that it required the premises bona fide for furtherance of its activities.

When the case was posted for trial the tenant's counsel conceded the facts which had been disputed by his client in his written statement. The advocate's statement was duly recorded thus: "The respondent's learned counsel has admitted the ground of eviction and also the fact that the applicant is a public charitable institution and for that purpose it required the premises." (SCC p. 40, para 2)

On the basis of this admission the landlord Society's eviction application was allowed. However, within a week thereafter, the tenant filed a review petition. The review petition was dismissed. A writ petition challenging the validity of the order of eviction was thereafter dismissed as withdrawn. An appeal was then filed before the Appellate Tribunal but the same was also dismissed. The objections filed in the execution proceedings were dismissed too. An appeal against that order was also dismissed by the Appellate Tribunal. However, a second appeal was allowed by the High Court.

The landlord then filed an appeal before the Supreme Court. The appellant's counsel contended that the statement made by the respondent's advocate was good and the eviction order based thereon should not have been set aside by the High Court on second appeal.

The Supreme Court disposed of this argument as follows: (SCC p. 41, para 3)

"Whether the appellant is an institution within the meaning of Section 22 of the Act and whether it required bona fide the premises for furtherance of its activities, are questions touching the jurisdiction of the Additional Rent Controller. He can record his satisfaction only when he holds on these questions in favour of the appellant. For so holding there must be material on record to support his satisfaction otherwise the satisfaction not based on any material or based on irrelevant material, would be vitiated and any order passed on such a satisfaction will be without jurisdiction. There can be no doubt that admission of a party is a relevant material. But can the statement made by the learned counsel of a party across the Bar be treated as admission of the party? Having regard to the requirements of Section 18 of the Evidence Act, on the facts of this case, in our view, the aforementioned statement of the counsel of the respondent cannot be accepted as an admission so as to bind the respondent. Excluding that statement from consideration, there was thus no material before the Additional Rent Controller to record his satisfaction within the meaning of clause (d) of Section 22 of the Act." (emphasis supplied)

The admissions in question were not on a point of law but purely on questions of fact.

There is no whisper that the statement made by the respondent's advocate was based on a misunderstanding of his client's instructions or was vitiated by collusion with the opposite party. Nor is it suggested that there was other evidence to show that the admission was factually incorrect. There is no suggestion either that the advocate had exceeded his authority while making the admission. What the Court held was that it was just not admissible.

The Hon'ble Judges have not referred to any case-law on the subject.

In the Code of Civil Procedure there are provisions in Order 10 which provide for examination of parties or their counsel for clarifying the issues.

In Prithwi Chand v. Sukhraj Rai2 it was laid down: (AIR p. 26)

"When counsel take on themselves the responsibility of making statements of fact to the court, the court is entitled to assume that those statements are true in every particular, so that it may implicitly rely upon them. This is a rule which admits of no qualification. It is an honourable obligation of the Bar and of great value in the administration of justice;"

In STO v. Kanhaiya Lal3 a Constitution Bench held, vide para 8, that where a concession had been made by the Advocate-General on behalf of the State in the High Court, the point could not be reagitated by the State in the Supreme Court.

In Veeramma v. Appayya4 the erudite Justice Vishwanatha Sastri expounded the law relating to admission by counsel thus, vide para 2 of the Report: (AIR p. 967)

"It was argued before me that this admission was due to a misapprehension of the law. On question of fact parties are bound by the admissions of their advocates, whether made in the course of the trial or in the appellate court, because an advocate's general powers in the conduct of a suit include the abandonment of an issue of fact, which in his discretion, he thinks it inadvisable to press. (Venkata v. Bashyakarlu5 and Ulichi Kotayya v. Nallamalli Sreeramula6) Such admissions cannot be resiled from merely on the ground that the party or his advocate was not posted with all the facts at the time.

Admissions of counsel on a point of law are, however, not binding on the parties as an estoppel and the court is free to give effect to its view of the law irrespective of such admissions. Jotindramohan Tagore v. Ganendramohan Tagore7, Beng LR at p. 401 (PC), Beni Pershad v. Dudhnath8, ILR at pp. 162-63, Societe Belge de Banque v. Girdhari9, Muthuswami v. Loganatha10 and Nachiappa v. Muthu11" (emphasis supplied)

In Wali Singh v. Sohan Singh12 the statement of the counsel was recorded to the effect that: (AIR p. 266, para 6) "There is no other point in dispute or any issue to be framed. We give it up if a mention of it is made in the pleadings." In view of this statement the Supreme Court held that it was too late to allow any point so given up to be raised before it.

In Ganga Ram Sat Narain v. Gyan Singh & Co.13 it was held by a Division Bench in para 12 that the statements of parties or counsel for the purpose of clarifying the points in dispute are as much part of the pleadings and there can be no doubt about the power of a counsel to give up a plea raised in the pleadings. The Bench relied on Buta Ram v. Sayyad Mohammad14 in which it was held by Bhide and Din Mohammad, JJ. that the lawyer's general power in the conduct of a suit includes the abandonment of issue, and a plea which had been given up could not be revived later.

With the utmost respect to the Hon'ble Bench of the Supreme Court that decided the case referred to at the outset, it is thus difficult to understand why the counsel could not have conceded legitimately that the opposite party's case was correct on facts or that the pleas taken in his own client's pleading were deemed given up as not pressed, or why the client should not have been bound by that admission.

There is nothing in any case-law to suggest that a party or his counsel cannot admit jurisdictional facts as distinguished from other facts. Indeed, it is doubtful if the facts in question can properly be regarded as jurisdictional facts at all.

*   Honorary Chairman, U.P. State Law Commission, Lucknow Return to Text

1. (2002) 3 SCC 39 Return to Text
2. AIR 1940 FC 25 Return to Text
3. AIR 1959 SC 135 Return to Text
4. AIR 1957 AP 965 Return to Text
5. ILR (1902) 25 Mad 367 (PC) Return to Text
6. AIR 1928 Mad 900 Return to Text
7. (1872) 9 Beng LR 377 Return to Text
8. ILR (1900) 27 Cal 156 Return to Text
9. AIR 1940 PC 90 Return to Text
10. AIR 1935 Mad 404 Return to Text
11. AIR 1946 Mad 398 Return to Text
12. AIR 1954 SC 262 Return to Text
13. AIR 1960 Punj 209 Return to Text
14. AIR 1935 Lah 71 Return to Text