Ulichi Kotayya vs Nallamalli Sreeramulu and Others

Beasley, J.—The appellant here was the plaintiff in the District Munsif''s Court and his suit there was for a declaration that the plaint

scheduled property was not liable to be attached in O.S. Nos. 529 and 537 of 1919 against defendant 3 by defendants 1 and 2, as ''the plaintiff

had purchased the property from defendant 3 for full and valuable consideration under a registered sale-deed-dated 16th August 1919. The issues

raised in the District Munsif''s Court were five in number, but there are only two which are of any importance Issue 1. was

Whether the attachments made in O.S. Nos. 537 and 529 of 1919 are not valid?

And issue 2:

Whether the plaintiff is entitled to the property?

If I may pause here, I think I ought to point out that the issues are in the wrong. order and that the first and in fact the most important matter to

be decided was whether the plaintiff was entitled to the property. The District Munsif in his judgment held that the transaction set up by the plaintiff

to establish his right to the property was a sham transaction. He therefore found issue 2 against the plaintiff and he then further proceeded to find

issue 1 also against the plaintiff. In the lower appellate Court issue 2 was not argued by the appellant''s vakil. The learned Subordinate Judge states

as follows in para. 2 of his judgment:

The main points for determination in this appeal are those covered by issues i and 2. The appellant''s vakil has not argued before this Court the

question covered by issue 2 stating that a finding in his favour on issue 1 would be quite enough for his client.

The position therefore was that the appellant had a finding against him on a most important point, namely, that he had no title to the property.

That was a finding of fact. The vakil in the Court below did not choose to attack that finding of fact; In the lower appellate Court, the appellate

Judge found issue 1 also against the appellant and upheld the decision of the District Munsif. Now, we are asked to decide this matter with regard

to issue 2. I take the view that, as there has been a finding of fact in the District Munsif''s Court and as that finding of fact stands, not having been

attacked by the vakil in the lower appellate Court, we cannot interfere. In the circumstances, this second appeal must be dismissed with costs.

Ananthakrishna Aiyar, J.

I agree. With reference to the argument of Mr. Somayya on the question of law, I -wish to add a few words. Mr. Somayya, the learned vakil

for the appellant, was asked how he was entitled to raise in second appeal the question of fact covered by issue 2 (the question regarding title)

when the vakil for the plaintiff in the lower appellate Court did not seek to impugned the finding already recorded against him by the District Munsif

on that issue In answer to this question, the learned vakil replied that the principle of law which makes the client bound by admission of fact made

by his counsel apply only to suits and that only to that stage of the suit when evidence was being recorded; the reason of the rule, according to him

being that by virtue of such an ad-mission made by the pleader of one party the other party was precluded from adducing evidence that he might

otherwise have adduced upon the particular issue. I am afraid I cannot agree with this conation. No doubt the decision of the Privy ''Council

reported in Venkata Narasimha Naidu v. Bhashyakarlu Naidu [1902] 25 Mad. 367, (the Vallur case) was a case where the counsel appearing for

the party did make an admission in the course of the trial of the suit in the first Court, but I do not at all agree to the proposition contended for by

Mr. Somayya that so long as nothing ''had happened in the way of precluding the other party from adducing all the evidence that he might choose

to let in parties are not bound by admissions of fact made by their counsel.

Let us see what one would be driven to if Mr. Somayya''s proposition is accepted. If his proposition is accepted, the state of things would be

this: After the first Court records a finding against his client on a particular issue of fact, his client appeals to the lower appellate Court. He does not

invite the lower appellate Court to examine the correctness of the finding arrived at by the first Court on that question of fact but takes his chance

of succeeding by agitating some other question of law Failing on that question of law he comes here in second appeal and here wants to re-open

the question of title. Mr. Somayya argues that the decision of the Privy Council would not apply to such a case and that his client would be entitled

to re-open in second appeal the finding of fact, since there is no finding on that point by the lower appellate Court. No doubt, the facts in the Privy

Council case are slightly different, but the principle is there, namely, that though a party might not be bound by admissions made by his counsel on

pure questions of law, yet on questions of fact, parties are bound by admissions made by their counsel, whether the admissions be made in the

course of the trial in the first Court or in the course of the hearing of the appeal before the lower appellate Court, A pleader''s general powers in

the conduct of an appeal include in ordinary oases the abandonment of an issue which in his discretion he thinks inadvisable to press. Otherwise

very inconvenient results would follow. No special circumstances are alleged in the case. Not being able to accept the contention of Mr. Somayya

that the principle should be restricted as stated by him, I am of opinion that he is not entitled to argue here the question of fact regarding title in the

circumstances of the case. On the merits. I agree with what has fallen from my learned brother.