9911796707
TMI Blog2005 (4) TMI 631X X X X Extracts X X X X X X X X Extracts X X X X ..... fore 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. 4. 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. 5. 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 questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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. 7. 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. 8. It is thus apparent from the pleadings that at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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). 13. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention 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 recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 18. 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 deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lleging 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. 23. We have carefully perused the entire pleadings and the various documents annexed along with this appeal including the agreement. 24. 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 cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be allowed to challenge the genuineness of the agreement dated 02.09.1978. 27. 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. 28. We answe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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