Case: Amarendra Komalam  Vs. Usha Sinha

5. 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.1.6. 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.1s 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 companysas 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 followingThat 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 aswhen 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 02.09.1978.10. 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.1Decree 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 followingsaid 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.13. 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 assignature 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.1s 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.

Reasoning:
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.