SUPREME COURT OF INDIA
Amarendra Komalam
Vs
Usha Sinha
Appeal (Civil) 2466 of 2005, (Arising Out of S.L.P. (Civil) No. 21945 of 2003)
(Ashok Bhan and Dr. A.R.Lakshmanan)
07/04/2005
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.