A-5
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 04.02.2011
+ RSA No.72/2005 & CM No.4789/2005 & CMNo.1448/2010
ANIL KUMAR SRIVASTAVA ...........Appellant
Through: Mr. S.N.Kumar Sr. Advocate with
Mr. S.K.Gupta, Advocate.
Versus
SHRI SATBIR SINGH MANKU ..........Respondent
Through: Mr.Laliet Kumar and Mr.Deepak
Vohra, Advocates.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. This 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
RSA No.72/2005 Page 1 of 5
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
RSA No.72/2005 Page 2 of 5
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 AIR 2007 SC 1808 Makhan Singh 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
RSA No.72/2005 Page 3 of 5
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 (1972) 4 SCC 481 Rao Saheb Vs. Rangnath Gopalrao
Kawathekar 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.
RSA No.72/2005 Page 4 of 5
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.
INDERMEET KAUR, J.
FEBRAURY 04, 2011
nandan
RSA No.72/2005 Page 5 of 5