Amarendra
Komalam & Anr Vs. Usha Sinha & Anr [2005] Insc 228 (7 April 2005)
Ashok
Bhan & Dr. Ar. Lakshmanan
(Arising
out of S.L.P. (Civil) No. 21945 OF 2003) Dr. AR. Lakshmanan, J.
Leave
granted.
The
main issue that arises for consideration in this appeal is whether an issue,
already settled in a suit between the same parties in respect of certain
subject matter, can be allowed to be raised again between the very same parties
in regard to the same subject matter, but in a different suit.
The
issue involved in the earlier proceedings was whether respondent No.1 could
raise the issue that there was interpolation in the clause relating to renewal
of lease deed in the agreement between the parties dated 02.09.1978. The High
Court held that the said respondent could not raise that issue as she had
expressly given it up. This was affirmed by this Court when the respondent
challenged the order of the High Court before this Court in S.L.P.(C) No. 16513
of 2001 dated 13.09.2002. Now respondent No.1 seeks to re-agitate the very same
issue in another suit between the same parties. According to the appellants,
the said issue cannot now be raised as the said respondent is barred by the
principles of res judicata, waiver and estoppel.
However,
the sub-Judge as also the High Court of Patna have now allowed the respondent
to raise the said issue.
To
appreciate the above question, the following facts are necessary to be stated:
Appellant
No.1, Amarendra Komalam, is a lessee of a piece of land situated at Mauza Dujra,
Lodhipur Market, now in the city of Patna. Appellant No.2, M/s S.K. Puri Service Station, is a petroleum
dealership firm. Respondent No.1, Smt. Usha Sinha, is the land owner and
respondent No.2 is M/s I.B.P. Co. Ltd., a Government of India Undertaking
company, which has given the dealership of the petroleum outlet to appellant
No.1.
Pursuant
to the negotiations between the parties for taking the land in question on
lease for opening of the petroleum outlet, an application was filed by the
appellant to M/s I.B.P. Co. Ltd. for approval of the site of the land in
question for motor spirit outlet.
A
letter was issued by M/s I.B.P. Co. Ltd. to appellant No.1 specifying in detail
the requirement of a renewal clause in the Lease Deed Agreement. Vide Memo No.
4788, the office of the District Magistrate, Patna issued no objection certificate for installation of HSD
filling station on the aforesaid land in question in favour of appellant No.1.
Lease
deed for a period of 15 years was executed by respondent No.1 in favour of
appellant No.1 with respect to aforesaid property on 01.06.1978 and the same
was registered on 12.08.1978 and given effect to between the parties from
01.06.1978. A Clarification Agreement was appended to the main registered lease
deed on 12.08.1978. A written agreement for being appended as Clarification
Agreement to the main registered lease deed dated 12.08.1978 was executed on
02.09.1978 mainly incorporating two clauses firstly, the renewal of lease deed
and the second clause was that private passage to respondent No.1's bounded
land behind the land in question.
The
stamp paper for the written agreement dated 02.09.1978 was purchased by
respondent No.1 who got it typed and signed after fully understanding the same,
as admitted by her in her deposition. Thus respondent No.1 executed fresh
agreement dated 02.09.1978 inserting the following words in the original deed
in compliance to the I.B.P company's demand:
"Whereas
as per the IBP guidelines renewal option is must so the following words at the
end of paragraph 5 of the deed No. 5115 dated 12.8.1978 is added." "Provided
if it is required to be renewed by Lessee then possession shall not be
given." After expiry of the lease, the appellant, as per the terms of the
renewal agreement dated 02.09.1978, gave a notice through registered post to
respondent No.1 on 28.05.1993 for execution of a fresh lease deed renewing it
for a further period of 15 years. Respondent No.1 instead of renewing the lease
filed Title Suit No. 382 of 1993 seeking the following reliefs:
a)
That on adjudication the decree of eviction be passed in favour of the
plaintiff as against the defendant (appellant No.1 herein) and plaintiff be put
in possession by process of law at the cost of the defendants over schedule I
premises.
b) That
by grant of interim injunction defendant No.1 be restrained to run the petrol
pump, namely, M/s S.K. Puri Service Station and defendant No.3 be restrained to
supply fuelling of the said pump pending the suit in breach of the contract.
c)
Cost of the suit be awarded to the plaintiff.
d) Any
other relief or reliefs to which the plaintiff be found entitled be awarded to
the plaintiff."
The
defendant-respondent purposely suppressed the existence of written agreement
dated 02.09.1978 in the original plaint of Title Suit No. 382 of 1993.
Appellant
No.1 (the defendant in Title Suit No. 382 of 1993) filed written statement and
in paragraph 7 of the written statement averted as follows:
"That
when the deed was sent to the company for approval they pointed out that there
should be renewal clause in the deed as per guidelines of the Company
(Marketing Manual). Respondent No.1 in compliance to the company demand,
thereafter executed a fresh agreement and gave option of renewal in these words:-
"Whereas as per IBP guidelines, renewal option is must. So the following
words at the end of para 5 of the deed No. 5315 dated 12.08.1978 is added
"provided if it is required to be renewed by the lessee then the
possession shall not be given." It is thus apparent from the pleadings
that at the earliest point of time, the plaintiff-appellant pleaded about the
renewal clause as the renewal clause is incorporated in the agreement dated
02.09.1978.
When
the lease was not renewed, then on the basis of the renewal clause incorporated
in the agreement dated 02.09.1978, the appellants filed Title Suit No. 15 of
1996 for a suit of specific performance in which respondent No.1, Smt. Usha Sinha,
was made the defendant. The following reliefs were sought by appellant No.1 :
a)
Decree of specific performance of agreement for lease dated 2.9.1978 executed
by the defendant No.1 and the plaintiff in respect of land described in
Schedule 1 of the plaint be passed in favour of the plaintiff and against the
defendant and defendant No.1 be directed to execute the registered lease deed
in respect of the land in suit for a further period of 15 years on the terms
and conditions as mentioned in para 3 of this plaint, within a reasonable time
fixed by the Court failing which the said lease deed be executed and registered
by the Court on behalf of the defendant No.1 aforesaid.
b) The
defendant No.1 be injuncted from taking any step for vacation of the plaintiff
from the premises in suit fully detailed in schedule 1 below till the disposal
of the suit.
c)
Cost of the suit be awarded to the plaintiff and against the defendant.
d) Any
other relief or reliefs for which the plaintiff may be found entitled be passed
in favour of the plaintiff and against the defendant." Respondent No.1
filed written statement and denied the existence of agreement dated 02.09.1978
in following words:
"The
said alleged deed, if any, is forged manufactured and antedated and this
defendant never executed such alleged deed nor there was any such
negotiation." It is relevant to state here that vide order dated
03.09.1998 passed in Title Suit No. 382 of 1993, the sub-Judge-VI, Patna
ordered that both the suits bearing Title Suit No. 382 of 1993 and 15 of 1996
will be tried simultaneously as agreed by the parties though it will be decided
by separate judgments. This was done only because the conflicting judgments may
not be delivered in the matter. As such both the suits are pending in one and
the same Court.
The
son of respondent No.1 was examined as a witness in the Title Suit No. 382 of
1993 as PW-1. While being cross-examined, he was shown the signature on the
written agreement dated 02.09.1978 through pin hole method, when he identified
the signature of the plaintiff, his mother-respondent No.1 herein. Then the
document was disclosed to be the bilateral agreement dated 02.09.1978 which
contained the signature of respondent No.1 herein. The son of respondent No.1
has admitted in paragraph 15 of his deposition as follows:
"The
signature on the document of 3 pages is of my mother which I
identify/acknowledge (the witness gives this statement when only signature
portion of the agreement dated 2.9.1978 shown to him through pin hole
method)." When respondent No.1's son admitted the signature on the written
agreement dated 02.09.1978 of his mother, Smt. Usha Sinha, respondent No.1
herein, then took a U-turn in her stand and instead of denying the total
existence of the written agreement dated 02.09.1978, started accepting the
existence of the agreement dated 02.09.1978 but pleaded interpolation in the
renewal clause. Subsequently in the course of cross- examination, respondent
No.1 herself in paragraph Nos. 19 and 26 admitted that while signing the
bilateral lease agreement dated 02.09.1978 she had read the agreement and
thereafter she had signed. She had also admitted that stamp paper on which the
bilateral lease agreement was signed was purchased by her. When respondent No.1
admitted the existence of the agreement dated 02.09.1978 after identification
of her signature by her son in cross-examination on 01.12.1998, she filed a
petition on 04.12.1998 objecting the admissibility of the written agreement
dated 02.09.1978 by changing her stand and stating that only the renewal clause
was interpolated.
Appellant
No.1 filed the rejoinder and contended that the witness of respondent No.1
cannot be examined without deciding the petition dated 04.12.1998 by which
interpolation has been alleged in the renewal clause of agreement dated
02.09.1978.
The
Court below did not allow the prayer of appellant No.1. However, as respondent
No.1 was not ready to press the petition dated 04.12.1998, the sub-Judge
allowed the petition of the appellants dated 01.12.1998 by which the prayer for
appointment of Advocate Commissioner to find out whether the present passage
existing in the west as per the written agreement dated 02.09.1978 or in the
east as per the registered lease deed dated 12.08.1978. The appellants filed
rejoinder to the petition dated 04.12.1998 of respondent No.1 and submitted
that there is no interpolation nor it change the nature of the suit. Respondent
No.1 filed a petition stating that question of interpolation in the renewal
clause of the agreement dated 02.09.1978 alleged through the petition dated
04.12.1978 would not be pressed at present. The appellants filed rejoinder on
09.12.1998 to the petition dated 07.12.1998 to the effect that without deciding
the question of interpolation finally, the evidence cannot be adduced. Hence
they prayed that the petition dated 04.12.1998 of the defendant-respondent may
be disposed of first and then the evidence should proceed. The sub-Judge vide
order dated 09.12.1998 directed the appellants to cross-examine the witness
otherwise they would be discharged, since respondent No.1 was not pressing the
petition dated 04.12.1998 at present and when the petition would be pressed by
respondent No.1, the appellants would get the chance of rebuttal.
The
appellants filed Civil Revision No.18 of 1999 before the High Court of Patna
against the order dated 09.12.1998 of the sub-Judge contending therein that if
the contention of respondent No.1 raised vide petition dated 04.12.1998 that
there is interpolation in the renewal clause is not decided finally, then after
closing of the evidence if such petition is pressed and allowed then the whole
evidence has to be recorded de novo. As such the contention of the appellants
was that the issue in respect of the interpolation of the agreement be decided
first before proceeding with the evidence. Respondent No.1 appeared in Civil Revision
No. 18 of 1999 and submitted that the pleading of interpolation would never be
raised at later stage also and the objection to that effect shall be considered
as withdrawn. In such view of the matter and in view of the aforesaid
undertaking, the High Court vide order dated 15.02.1999 disposed of the Civil
Revision No. 18 of 1999 as infructuous recording the statement of the counsel
of respondent No.1 which reads as under:
"A
petition was filed by the plaintiff alleging some interpolation in respect of
bilateral unregistered document which was introduced in the evidences.
Objection was filed. Then there was prayer from the side of the petitioners to
dispose of that matter prior before proceeding further in recording evidences.
The plaintiff then filed Ann.4 stating that she was not pressing her earlier
petition "at that stage". The learned Court below accepted that
petition and ordered for proceeding further in the suit.
Hence
this revision petition.
Learned
counsel for the O.P. submits that she is not at all inclined to press her
earlier petition regarding interpolation. But the words 'at this stage' in the
later petition raised confusion in the mind of the petitioner.
Now it
has been clearly stated before this Court that the plea of interpolation would
never be raised at later stage also and the petition to that effect shall be
considered as withdrawn." In view of the above position, this revision
petition has become infructuous." Against the order dated 15.02.1999
passed in Civil Revision No. 18 of 1999, respondent No.1 filed Civil Review No.
88 of 1999 on the ground that the undertaking recorded in order dated
15.02.1999 were never taken. Civil Review No.88 of 1999 was dismissed by the
High Court on 19.07.2001 observing as under:
"Heard
learned counsel for the petitioner.
This
review petition has been filed against the order dated 15.2.1999 passed by this
Court in Civil Revision No. 18/99. In presence of both the parties admission
has been made from the side of the petitioner and the order was passed. Now,
the petitioner wants to deviate from the admission made before this Court which
cannot be a ground for review.
Accordingly,
this Civil review application has got no force and the same is rejected."
Against the order dated 19.07.2001 passed in Civil Review No. 88 of 1999,
respondent No.1 filed Special Leave Petition (Civil) No. 16513 of 2001 before
this Court and took the ground of the agreement dated 02.09.1978 being a forged
document.
Apart
from other contentions, she also contended that action should be taken under
Section 340 Cr.P.C. against the appellant, though the pleading of Section 340 Cr.P.C.
was never raised either in the trial Court or before the High Court and the
same was raised for the first time in the special leave petition.
The appellants
herein who were the respondents in the said special leave petition filed their
counter affidavit before this Court stating in detail that the agreement dated
02.09.1978 is an admitted document in the trial Court and that the initial
order dated 15.02.1999 passed in Civil Revision No. 18 of 1999 was never
challenged and it attained finality and no appeal lies against the review
order. This Court, after hearing both the parties, dismissed the special leave
petition on 13.09.2002. It is thus evident that the question of interpolation
stood settled by the aforementioned decisions and it was concluded that
respondent No.1 could not raise the said issue at any stage.
When
the plaintiff's evidence started in Title Suit No. 15 of 1996, counsel for
respondent No.1 started putting question to the plaintiff witness with regard
to the forgery and interpolation of agreement dated 02.09.1978. An objection
was raised by the plaintiff-appellant vide objection petition dated 24.01.2003
that as per her own undertaking before the High Court in Title Suit No. 382 of
1993, respondent No.1 could not raise the question of interpolation with regard
to the renewal clause in agreement dated 02.09.1978. It was contended that
respondent No.1 has waived the issue of interpolation. Hence, she is barred
from raising the same under the principle of estoppel. When witness Nausad was
being examined, then the Court vide order dated 04.02.2003 decided that this
issue with regard to giving liberty to respondent No.1 on questioning the witness
with regard to the interpolation of renewal clause in agreement dated
02.09.1978 will be considered at the time of final adjudication of the case and
it will not amount to create the right of respondent No.1 to raise such issue
subsequently and thereby the objection filed by the appellant was rejected vide
order dated 04.02.2003. In view of the observation given in order dated
04.02.2003, the objection was again raised when appellant No.1 was being
cross-examined and again respondent No.1 asked the question relating to the
interpolation in renewal clause in the agreement dated 02.09.1978, then again
the objection was filed that respondent No.1 cannot raise the issue of
interpolation in the agreement dated 02.09.1978 in view of her undertaking
given in Civil Revision No. 18 of 1999 before the High Court and which was
affirmed by this Court. A rejoinder was filed by respondent No.1 herein on
10.06.2003 on the ground that the objection was rejected by the trial Court on
04.02.2003 and suits are not analogous moreover since the beginning respondent
No.1 is saying that the alleged deed is forged and fabricated. The sub-Judge
allowed respondent No.1 to raise the question relating to interpolation in the
agreement dated 02.09.1978 from the witnesses. The appellants filed Civil
Revision No. 1178 of 2003 against the order of sub-Judge X, Patna dated 17.06.2003 in Title Suit No.
15 of 1996 whereby the sub-Judge allowed respondent No.1 to raise the question
relating to interpolation in the agreement dated 02.09.1978 from the witnesses.
Civil Revision No. 1178 of 2003 was dismissed by the High Court on 23.09.2003
with a direction to the Court below to conduct the trial on a day-to-day basis
and dispose of both the suits within six months and report it to the High Court.
Aggrieved by the said order, the appellants preferred the present appeal by way
of special leave petition.
We
heard Mr. Raju Ramachandran, learned senior counsel, appearing for the
appellants and Mr. L.R. Singh, learned counsel, appearing for contesting
respondent No.1.
Learned
senior counsel appearing for the appellants invited our attention to the
earlier set of orders passed by the sub-Judge as affirmed by the High Court in
Civil Revision No. 18 of 1999, the order dated 19.07.2001 in Civil Review No.
88 of 1999 of the High Court and the order dated 13.09.2002 of this Court in
Special Leave Petition (civil) No. 16513 of 2001. He submitted that as the
matter between the same parties with regard to the interpolation in the
agreement dated 02.09.1978 has already been settled by which respondent No.1
will not raise the issue of interpolation/forgery with regard to the agreement
in question and particularly, in view of the undertaking of respondent No.1
before the High Court, respondent No.1 will never raise the issue of
interpolation with regard to the said agreement, respondent No.1 is estopped
from raising the issue again. Title Suit No. 382 of 1993 was filed by
respondent No.1 for eviction whereas Title Suit No. 15 of 1996 was filed by the
appellant for specific performance of the contract. Moreover, in both the
suits, the parties are the same and the agreement dated 02.09.1978 is the main
issue. He would further contend that respondent No.1 having admitted execution
of the agreement and having signed the bilateral agreement and having admitted
that while signing the bilateral agreement, she read the agreement and
thereafter signed cannot now be allowed to re-agitate the said issue which has
been concluded by the orders of the High Court and also of this Court.
According
to the learned senior counsel, the facts stated above clearly show that the
renewal clause in the agreement dated 02.09.1978 was not inserted or
interpolated as asserted by respondent No.1.
Mr.
L.R. Singh, learned counsel, appearing for contesting respondent No.1,
reiterated the contentions raised before the Courts below and submitted that
the appellant has virtually inserted the alleged renewal clause and that the
said renewal clause is not at all a renewal clause giving a right to the appellant
to exercise the right to renew the lease at his option. He would further submit
that nothing is set out in the document regarding the terms and conditions on
which the renewal will be given effect to or the manner in which the alleged
right of renewal shall be exercised. He would further submit that the sub-Judge
has rightly rejected the objection made by the appellant which was later
affirmed by the High Court and, therefore, the order passed by the High Court
rejecting the prayer of appellant No.1 cannot at all be faulted. He, therefore,
prayed for dismissal of the appeal.
On the
facts and circumstances of the case, the following questions of law arise for
consideration by this Court:
"1.
Whether the issue of interpolation in the agreement dated 2.9.1978 which stands
settled between the same parties by the orders of the High Court and affirmed
by this Court in regard to the same subject matter can be allowed to be raised
in another proceedings between the very same parties in the same Court.
2. Whether
the sub-Judge failed to appreciate that respondent No.1 is precluded from
raising the issue of interpolation in agreement dated 2.9.1978 in the course of
examination and he is precluded on the principle of issue estoppels and res judicata.
3.
Whether respondent No.1 who gave her undertaking in Civil Revision No. 18 of
1999 that she would not raise the question of interpolation in the said
agreement and on the basis of which the order dated 15.2.1999 was passed by the
High Court and affirmed in Civil Review and also subsequently in the Special
Leave Petition filed by her before this Court can be allowed to raise the very
same issue again in another suit filed by her.
4.
Whether respondent No.1 is precluded from alleging interpolation in renewal
clause of agreement dated 2.9.1978 when the said fact was otherwise admitted by
her that she will never raise the issue of interpolation." We have
carefully perused the entire pleadings and the various documents annexed along
with this appeal including the agreement.
In our
opinion, the High Court has miserably failed to appreciate that the undertaking
of first respondent in Civil Revision No. 18 of 1999 that she will not raise
the issue of interpolation is binding on her in the present suit and as such
she was barred by the principles of res judicata, waiver and estoppel from
being allowed to raise the same issue again between the very same parties in
relation to the same subject matter. The Agreement dated 02.09.1978 is an
admitted document. Respondent No.1 had sought to raise the issue of its forgery
in earlier proceedings, but finally undertook not to do so. This was recorded
by the High Court and the Civil Revision filed by respondent No.1 was disposed
of accordingly. Later respondent No.1 sought to resile from her stand and filed
an application for review before the High Court, which was also dismissed. The
said order was challenged in Special Leave Petition (Civil) No. 16513 of 2001.
This Court dismissed the same after hearing the parties at the stage of final
disposal. In that view of the matter, we are of the opinion that the respondent
is precluded from raising the same issue of interpolation/forgery in the
renewal clause of the said agreement deed again.
The
undertaking and the acceptance not to raise the issue of interpolation is a
matter of record. It is well settled that once a issue of fact has been
judicially determined finally between the parties by a Court of competent
jurisdiction and the same issue comes directly in question in subsequent proceedings
between the same parties then the persons cannot be allowed to raise the same
question which already stands determined earlier by the competent Court. For
that the question of interpolation in the renewal clause of the said deed has
been finally decided and the same issue has been raised in the present suit
when in both the suits the parties are the same and the basic claim of both the
parties are same as in eviction suit, the plaintiff is claiming eviction by
termination of lease and denying the renewal clause whereas in the specific
performance suit, the appellants are claiming the renewal of the lease on the
basis of the said renewal clause. Hence in both the suits, the main issue is
substantially and materially one and the same and both the cases are being
tried simultaneously. This apart, the judgment of the High Court and of this
Court is a judgment in personam which is binding upon both the parties. It is
also seen that the order dated 15.02.1999 in Civil Revision is a consent order
which creates an estoppel by judgment as the judgment dated 15.02.1999 operates
as estoppel as records of the findings are essential to ascertain the judgment.
By passing of the impugned judgment, the High Court has virtually allowed the
suit in favour of respondent No.1. In any view of the matter, the impugned
order is bad in law and fact as well and, therefore, the same is liable to be
set aside.
In our
view, respondent No.1 wants to revive the dispute which has finally set at rest
by this Court by challenging the genuineness of the agreement dated 02.09.1978
on the plea that the said order was passed in Title suit No. 382 of 1993 which
has no binding effect in the present case. In our view, respondent No.1 cannot
be allowed to challenge the genuineness of the agreement dated 02.09.1978.
We are
told that in the Title Suit No. 382 of 1993 filed by respondent No.1 herein
against the appellant, after examining five witnesses, the respondent has
closed the evidence and now the defendant-appellant herein are examining their
witnesses. In Title Suit No. 15 of 1996, the plaintiff-appellant herein have
closed the evidence after examining 31 witnesses. The defendant-respondent
herein has commenced her witnesses. Three witnesses have already been examined
and only one witness remains to be examined. We, therefore, restrict respondent
No.1, Smt. Usha Sinha, from putting any question challenging the genuineness of
the agreement dated 2.9.1978 in the light of our findings made above. It is
stated that some witnesses have already been examined on both the sides. If any
question is put and any answer is extracted with regard to the
genuineness/interpolation or forgery of agreement dated 02.09.1978, the said
evidence cannot be looked into by the trial Court and should be eschewed from consideration
and the judgment be passed on the merits of the rival claims on other related
issues.
We
answer all the questions in favour of the appellant and hold that respondent
No.1 is precluded from raising the genuineness/interpolation or forgery of agreement
dated 02.09.1978.
For
the foregoing reasons, the appeal succeeds. Though it is eminently a fit case
for awarding exemplary cost, we refrain from doing so. No costs.
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