Case: Amarendra Komalam  Vs. Usha Sinha

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." 24. We have carefully perused the entire pleadings and the various documents annexed along with this appeal including the agreement.25. 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.26. 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.27. 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. 28. 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. 29. 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]24. We have carefully perused the entire pleadings and the various documents annexed along with this appeal including the agreement.25. 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.26. 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.27. 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 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.