Anil Kumar Srivastava Vs Shri Satbir Singh Manku

Indermeet Kaur, J.@mdashThis appeal has impugned the judgment and decree dated 9.3.2005 which has endorsed the finding of the trial judge dated 8.11.2004 wherein the fate of the two suits i.e. Suit No. 573/2002 and Suit No. 423/2002 had been sealed. Suit No. 573/2002 was instituted first in time. This was a suit filed by Anil Kumar Srivastva (hereinafter referred to ''as the Appellant'') seeking declaration to the effect that the document Ex.PW-1/C which was a rent deed dated 29.11.2001 purported to have been executed between the Appellant and Satbir Singh Manku (hereinafter referred to as ''the Respondent'') be declared null and void. The contention was that the compromise recorded between the Appellant and the Respondent in an earlier suit i.e. suit No. 422/2001 on 03.12.2001 was a fraudulent transaction as the counsel purported to have been appearing on behalf of the Appellant had never been authorized to make a statement that the matter had been compromised. Attention has been drawn to the order dated 03.12.2001 passed in suit No. 422/2001. It is pointed out that in the said suit proceedings a compromise had been recorded by the Presiding Officer without taking on record any application under Order 23 Rule 3 of the Code which is a mandate; an oral compromise could not have been recorded; a fraud had been played upon the Court. The Appellant had never authorized his advocate to enter into this compromise and in fact criminal proceedings had been initiated against the said advocate on this score.

2. The second suit was suit No. 423/3003 which has been filed by the Respondent seeking possession and ejectment of the Appellant from the suit property.

3. The suit property is a shop in premises bearing No. 80, Furniture Block, W.H.S., Kirti Nagar, New Delhi which is in occupation of the Defendant since 1995 as a tenant at the rental of Rs. 1000/- per month. In terms of the compromise dated 03.12.2011 recorded in Suit No. 422/2001 the monthly rent had been enhanced to Rs. 12000/- per month. It was on the basis of this compromise that the present suit for possession had been filed.

4. Both the Courts below had decreed the suit of the Respondent i.e. Suit No. 423/2002 and dismissed the suit of the Appellant i.e. Suit No. 573/2002. These are two concurrent findings of fact against the Appellant.

5. This is a second appeal. On behalf of the Appellant, it has been urged that the compromise dated 03.12.2001 is vitiated by fraud and this is prima facie evident from the fact that criminal proceedings had been initiated against the said advocate who had allegedly entered into this compromise on behalf of the Appellant. It is pointed out that the onus to discharge issue No. 1 was wrongly placed upon the Defendant and should have been upon the plaintiff. Learned Counsel for the Appellant to substantiate this argument has placed reliance upon Makhan Singh (D) by Lrs. Vs. Kulwant Singh, to submit that when the onus has been wrongly placed in an issue, interference is called for even at the second appellate stage.

6. Issues were framed on the pleadings of the parties. Issue No. 1 which was the crucial issue; reads as follows:

Whether the rent deed dated 29.11.01 was signed by the plaintiff under misrepresentation and whether it is liable to be declared as null and void as prayed by the Defendant? OPD

7. The defence on behalf of the Appellant all along as is evident from the written was that the rent deed dated 29.11.2001 had been signed by him under misrepresentation and is liable to be declared as null and void. In this light, the onus was rightly placed upon the Appellant. There is no fault on this score. Even otherwise the record shows that the Appellant/Defendant had in fact admitted this document. In his cross-examination the Appellant Anil Kumar (examined as DW-1) had admitted that Ex.PW-1/C (rent agreement dated 29.11.2001) bears his signature at point A and he has signed this document at his shop; his signature at point A were not obtained from him forcibly. This was exhibited in the cross-examination of the Appellant effected on 29.5.2004. The contention of the learned Counsel for the Appellant that where the party who had signed a document does not know its contents the same is not binding upon him and for which reliance has been placed upon Ram Bharosey Lal Krishan Kumar Vs. State of U.P. and Others, is clearly misplaced. Apart from the clear and categorical admission of DW-1 as noted hereinabove, DW-1 had further testified that he had studied up to class 6th. Even if DW-1 did not have a degree in his pocket there is nothing whatsoever to suggest that he did not understand the contents of the document Ex.PW-1/C which he had admitted to have signed in his shop without any force. Testimony of PW-2 Dinesh Kumar, Record Clerk from Sales Tax Department recorded in Suit No. 423/2006 is also a relevant piece of evidence to decide this argument of the Appellant. PW-2 was an official witness; he has stated that document Ex.PW-1/C (the rent agreement dated 29.11.2001) was submitted before their department by the Appellant on 02.5.2002 for the change of his address. This version of PW-2 also clarified that the Appellant himself was relying upon this document; no challenge to this document is left on any score.

8. In this view of the matter, the finding in the impugned judgment (para 13) that there was no evidence oral or documentary to show that this rent agreement had entered the arena of doubt was a correct finding. The impugned judgment correctly noted that the terms of this agreement are to be read and if this agreement is read the case of the Appellant is knocked out.

9. The substantial questions of law have been formulated on page 11 of the appeal. No such substantial question of law has arisen. Appeal as also the pending applications are dismissed in limine.