Rajasthan High Court - Jodhpur
Magan Bhai vs Lrs.Of Lachhi Ram on 7 May, 2013
Author: Arun Bhansali
Bench: Arun Bhansali
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:ORDER:
S.B. CIVIL MISC. APPLICATION NO.46/2010 IN S.B. CIVIL FIRST APPEAL NO.10/1989 Magan Bhai Vs. LR's of Lachhi Ram & Anr.
Date of Order 7th May, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. H.S. Sandhu, for the applicant.
Mr. Suresh Shrimali, for respondent Nos.1/1 to 1/8. Mr. Rajesh Parihar, for respondent No.2.
REPORTABLE ----
This application has been filed by the respondent-plaintiff Magan Bhai in S.B. Civil Regular First Appeal No.10/1989 under Section 151 read with Order XXIII, Rule 3A CPC for recalling the judgment/order dated 07.12.2005 passed by this Court, whereby, the appeal filed by appellant therein was allowed and suit for specific performance of contract filed by the respondent was dismissed on the basis of compromise.
The facts in brief leading to filing of the present application are that Magan Bhai (hereinafter referred to as 'the plaintiff' irrespective of his position as respondent in the first appeal and applicant in the present application) filed a suit for specific performance of oral contract dated 23.03.1977, which was later on reduced in writing on 19.04.1977 in the Court of Additional District Judge, Bali executed between the plaintiff and Lachhi Ram (hereinafter referred to as 'the defendant' irrespective of 2 his position as appellant in the regular first appeal and the respondent in the present application). The suit filed by the plaintiff was decreed by the trial court by its judgment and decree dated 03.01.1989.
The defendant filed regular first appeal before this Court. The appeal was admitted on 07.03.1989 after hearing counsel for the plaintiff, who was in caveat.
The appeal remained pending before this Court for considerable period and from the record it appears that on 28.11.2005 an application was filed in the regular appeal signed by plaintiff and defendant, counsel for defendant, so also, by counsel for plaintiff Mr. Mahendra Parihar, who had filed Vakalatnama on the same day i.e. 28.11.2005 on behalf of the plaintiff. The application was filed to the effect that parties have entered into compromise and the compromise was being presented today and the same be ordered to be verified so that order may be passed on the compromise. The application was presented by the counsel for defendant. The application was accompanied by another application under Order XXIII, Rule 3 CPC signed by the plaintiff and defendant, who were identified by counsel for defendant and the newly appointed counsel for plaintiff.
The application was also accompanied by one compromise deed dated 26.11.2005 indicating the terms of compromise and was signed by plaintiff and defendant and marks of their thumb impressions were also there on the said document. The plaintiff was identified by one Inder Raj Bhandari, Advocate and there 3 were two witnesses, who had signed the said compromise.
The Dy. Registrar (Judicial) made the following endorsement on the application:
"Presented by Mr. Magan Bhai - Gopal Bhai Plaintiff- Respondent and Mr. Lachha Ram S/o Manroopji-defendant- Appellant Sh. R.R. Nagori, Counsel for defendant-Appellant present.
Terms of the compromise explained to the plaintiff & respondent both. Plaintiff respondent is identified by Mr. Mahendra Parihar, Advocate. Enrollment No.R/757/99, Azad Basti, Opp.-Court-Bali-Distt-Pali. Defendant-appellant is identified by Sh. R.R. Nagori - Advocate - hence verified.
Sd/-
28.11.2005"
After filing of the said application on 28.11.2005 an application came to be filed by one Ms. Pavinder Kaur under Order I, Rule 10 CPC seeking impleadment as party respondent to the appeal on 05.12.2005. It was, inter alia, indicated that during pendency of the appeal the plaintiff had entered into an agreement to sale regarding the suit land with her and, therefore, if the decree is passed in terms of the compromise entered into between the parties, the same would adversely affect her rights.
This Court vide its judgment and decree dated 07.12.2005 after hearing counsel for plaintiff, defendant and applicant Ms. Pavinder Kaur, allowed the appeal and the suit filed by the plaintiff for specific performance was dismissed. In terms of the compromise, it was ordered that the plaintiff would give required rights to the defendant for getting the suit property vacated from the legal representatives of plaintiff's power of attorney holder Raj Bahadur Singh. It was also observed that if legal representative of power of attorney holder Raj Bahadur Singh - applicant Pavinder Kaur has any independent right, then the 4 same would not be affected by the compromise and, after following the due procedure, the defendant would take possession through Court and accordingly the appeal was disposed of in terms of the compromise.
The present application under Section 151 read with Order XXIII, Rule 3A CPC as noticed supra was filed on 03.05.2010 by the plaintiff and it was, inter alia, alleged that the application/compromise which was presented before this Court on 28.11.2005 by counsel for the parties was forged and the same was signed by some fictitious Magan Bhai, who was identified by the newly appointed counsel and attested by the Dy. Registrar (Judicial). Averments were made about the plaintiff being unaware about the proceedings relating to compromise and decree passed by the High Court and on coming to know of the fraud an FIR was lodged on 03.01.2009 and it is stated in the application that the investigations were going on. It was averred in the application that the plaintiff was suffering from paralysis and could not move and was unable to pursue his case before the competent court as well as before the police and, therefore, now based on legal advise, the present application was being filed.
Grounds were raised in support of the application denying the plaintiff's presence before this Court on 28.11.2005 and that he did not receive any compensation from defendant as indicated in the compromise, ignorance was pleaded regarding Advocate Mahendra Kumar Parihar and consequently, allegations of fraud were made and it was prayed that judgment and decree 5 dated 07.12.2005 passed by the Court be recalled and action be taken against the beneficiaries of the fraud committed.
An application under Order I, Rule 10 CPC was filed in the present application seeking to implead Mr. Mahendra Parihar, Advocate as respondent No.2, which application was allowed by this Court on 09.07.2010. It appears that a special power of attorney dated 28.04.2010 was also executed by the plaintiff in favour of Ms. Pavinder Kaur.
A reply to the application was filed by the defendant and the averments made in the application were denied. It was, inter alia, submitted that plaintiff had purchased a stamp paper of Rs.100/- on 26.11.2005 for executing the compromise from the Stamp Vendor at Bali and on execution of the compromise deed the plaintiff was identified by Mr. Inder Raj Bhandari, Advocate and the same was attested by Notary. Thumb impressions were also affixed on the said compromise deed alongwith photographs of the parties. It was claimed that the compromise was genuine and duly signed by parties & their respective counsel and the allegations about presence of fictitious person were specifically denied. It was also pointed out that on 28.11.2005 itself, plaintiff executed power of attorney in favour of the defendant, which was duly attested by Notary. The averments relating to the plaintiff being unaware of the proceedings before the High Court were specifically denied and, regarding the FIR, it was submitted that police has already given a final report. It was also pointed out that the judgment and decree passed by this Court based on compromise on 6 07.12.2005 was challenged before Hon'ble Supreme Court by Ms. Pavinder Kaur by filing Special Leave Petition as she was not impleaded as party, which SLP was dismissed as withdrawn by the Hon'ble Supreme Court on 01.12.2006 observing that "if so advised, the petitioner may file a suit." It was also pointed out that after dismissal of SLP a civil suit for cancellation of the decree passed by the High Court was filed by Ms. Pavinder Kaur. However, in the suit no averments were made seeking to question the presence of the plaintiff at the time when the compromise was entered into between the parties before the High Court. Ultimately, it was prayed that the application be dismissed.
The subsequently added respondent Mahendra Parihar, Advocate also filed reply to the application. The allegations made in the application were denied. It was claimed that he was duly appointed counsel by the plaintiff, who had signed Vakalatnama in this regard, which was presented before this Court. The facts about FR given by the police regarding the FIR lodged were mentioned. It was also pointed out that the defendant had filed a suit for possession regarding the same land against the plaintiff before the S.D.O., Bali, which was dismissed for non-prosecution in the year 1999 and was restored in the year 2006. The plaintiff engaged Harshad Devra, Advocate, who filed Vakalatnama on his behalf and the matter was fixed for 04.08.2006. Advocate Harshad Devra sent a registered notice to the plaintiff stating that if plaintiff did not appear on the next date, then he will plead no instructions. 7 However, when plaintiff did not appear, the suit was decreed ex parte vide judgment and decree dated 31.10.2007. It was emphasized that the fact that he had filed Vakalatnama in the year 2006 ultimately goes to show that plaintiff was not speaking the truth. Allegations were made that the application has been filed at the behest of Ms. Pavinder Kaur. Ultimately, it was prayed that the application be dismissed.
A rejoinder to the reply filed by respondent No.2 herein was filed by the plaintiff and allegations about the compromise deed dated 26.11.2005 being fraudulent and the same containing forged signatures of the plaintiff were also made. Allegations were made against the Advocate for his appearance before this Court in face of the previous appearance by another Advocate. It was also indicated that the plaintiff was suffering from paralysis since the year 2004 and that he remained confined to bed upto December, 2008. Regarding filing of FR by Police, it was stated that fair and proper investigation was not done. Allegations were also made against counsel Inder Raj Bhandari, who was Advocate of the plaintiff in the trial court to say that he was in possession of photographs of the plaintiff which were misused. Ultimately, prayer made in the application was reiterated.
During pendency of this application, this Court vide order dated 16.07.2012 recorded agreement of both the parties for verification of signatures and thumb impressions of plaintiff Magan Bhai, whose specimen signatures were obtained by the Dy. Registrar (Judicial) of this Court under the orders of the 8 Court and for transmission of relevant record to the trial court i.e. Additional District Judge, Bali for holding an enquiry. It was directed thus:
"The signatures so obtained by the Dy. Registrar (Judl.) in pursuance of order dtd.1.3.2012 which are said to be lying in a sealed cover along with original compromise-deed dtd.26.11.2005, record of the trial Court containing pleadings of the parties, namely, civil suit, application. Compromise etc. and the record of the First Appeal No.10/1989 - Lachhi Ram V/s Magan Bhai may be transmitted to the learned trial Court of Additional Dist. Judge, Bali who will also obtain Hand-Writing Expert's opinion of these signatures and after examining the said applicant Magan Bhai with opportunity of cross-examination to the opposite side, namely, LRs. of Lachhi Ram through their counsels and after recording the statements of other concerned parties or expert by the learned trial Court with opportunity of cross-examination to other side, a report about the veracity of signatures/thumb impression of applicant Magan Bhai S/O Gopal Bhai, by caste Patel on the compromise dtd.26.11.2005 on the basis of which a coordinate bench of this Court disposed of CFA No.10/1989
- Lachhi Ram V/s Magan Bhai, may be sent back to this Court. The relevant record may be sent within one week from today and aforesaid exercise may be completed by the said trial Court within a period of six weeks from today."
In pursuance to order dated 16.07.2012, the Additional District Judge, Bali held enquiry and submitted his report dated 30.11.2012 to this Court.
During the enquiry on behalf of the plaintiff statements of AW-1 Magan Bhai (plaintiff) were recorded and on behalf of defendant NAW-1 Inder Raj Bhandari, Advocate, NAW-2 Bheema Ram, NAW-3 Harshad Devra, Advocate, NAW-4 Amrit Lal Parihar, Advocate, NAW-5 Mahendra Parihar, Advocate were recorded and expert evidence of Rajesh Sharma and Ajay Sharma was recorded as CW-1 and CW-2 respectively. Several documents were exhibited by the parties. The disputed signatures contained on the compromise deed dated 26.11.2005 were sent to the State Forensic Science Laboratory, Jodhpur alongwith specimen signatures dated 02.03.2012 obtained 9 before this Court and admitted signatures contained in documents relating to the suit, which was filed by the plaintiff. The State Forensic Science Laboratory, Jodhpur vide its report dated 17.08.2012 opined on signatures thus:
"The blue enclosed disputed signatures stamped and marked as Q1 to Q5 and the blue enclosed standard signatures stamped and marked as S1 to S12, A1 to A7 have been written by one and the same person."
However, the report pertaining to the comparison of thumb impressions, which were required to be compared on the disputed agreement dated 26.11.2005 with the thumb impressions obtained on 02.03.2012 before this Court, the opinion indicated thus:
"Disputed thumb prints marked Q,Q1,Q2 alleged to be of Magan Bhai have been examined for comparison. Disputed thumb prints marked Q,Q1,Q2 alleged to be of Magan Bhai are unfit for comparison being smudged & lacking in sufficient number of clear ridge details."
The Additional District Judge, Bali after analyzing the statements of the witnesses and after going through the documentary evidence, came to the conclusion that Exhibit-A/5 compromise deed dated 26.11.2005 bears signatures and thumb impressions of plaintiff Magan Bhai and transmitted back the record to this Court. The conclusion reads thus:
"28. उपर क व चन स यह ननष र नन लत ह क पदर ए-5 समझ त पलख ददन " 26.11.2005 पर प र$ मगनभ ई ह( य र सर न अ"गष+ ननर न- ए " हसत कर ह ए " तदन स + र ज च " पत ल( ननसत रण क य ज त ह। ज "च ररप र श-म न 6 उप ननब"ध (नय नय ) र जसर न उचच नय य लय, ज धप+र व धध त रप स पवरत = ज ।"
On receipt of report, the parties were permitted to obtain certified copies of the findings so as to proceed further in the matter. The plaintiff-applicant has filed objections in the form of synopsis alongwith documents, which has been replied to by the 10 defendant again by way of synopsis.
I have heard learned counsel for the plaintiff-applicant and counsel for the respondents and have perused the record of first appeal and the enquiry conducted by the Additional District Judge, Bali in pursuance to the order dated 16.07.2012.
It was submitted by learned counsel for the applicant that in the present case, the fraud committed is writ large on the record, inasmuch as, the counsel, who was appearing for the plaintiff in the first appeal was apparently not even informed of the compromise and the counsel from Bali appeared for the plaintiff in the matter, who otherwise, is not practicing before this Court and the compromise was produced in a clandestine manner before the Dy. Registrar (Judicial) and based on identification of the counsel from Bali, the Dy. Registrar (Judicial) made the endorsement about presenting of the compromise by the plaintiff. It was submitted that the compromise on face of it was fraudulent, inasmuch as, it did not indicate any consideration for entering into such compromise. The suit had been decreed in plaintiff's favour and there was apparently no reason for him to enter into compromise without any consideration for such an invaluable piece of land.
Questioning the findings & report submitted by the Additional District Judge, Bali it was contended that the defendant failed to produce any rebuttal evidence, inasmuch as, none of the legal representatives of defendant Lachhi Ram entered the witness box; though the State Forensic Science Laboratory, Jodhpur gave a categorical opinion that the thumb 11 impressions could not be compared, still the Court has recorded a finding that the compromise contains thumb impressions of the plaintiff; no enquiry was conducted regarding the signatures on the application dated 28.11.2005 filed under Order XXIII, Rule 3 CPC and the Vakalatnama produced by the counsel on the same day; the Court has relied on the opinion of the hand writing expert, which has not at all been substantiated; the attesting witnesses to the compromise deed dated 26.11.2005 have not been examined. The examination of Advocates Inder Raj Bhandari and Harshad Devra, who had appeared for the plaintiff as defendant witness was also questioned and it was submitted that their testimony cannot be relied on against the plaintiff. Ultimately, it was prayed that application be allowed.
Reliance was placed on the judgment of Hon'ble Supreme Court in Kokkanda B. Poondacha & Ors. v. K.D. Ganapathi & Anr. : (2011) 12 SCC 600 in support of the contention relating to examination of Advocates appearing for opposite side. Further reliance was placed on judgments of Iswar Bhai C. Patel alias Bachu Bhai Patel v. Harihar Behera & Anr. : (1999) 3 SCC 457, Man Kaur (Dead) by LRs. v. Hartar Singh Sangha : (2010) 10 SCC 512 and Shambhu Dutt Shastri v. State of Rajasthan & Ors. : 1986 (2) WLN 713 in support of the contention relating to non-examination of the party.
Opposing the submissions made on behalf of the applicant, it was submitted by learned counsel for the respondents that the filing of present application is clearly an abuse of process of the Court and the same needs to be dealt with by this Court with a 12 heavy hand. It was submitted that the conduct of the plaintiff in first entering into compromise on 26.11.2005, appearing before this Court on 28.11.2005 and filing the compromise in person and thereafter after passing of the decree by this Court on 07.12.2005 remaining silent for all these years despite the fact that the suit filed by defendant seeking possession was restored in the year 2006 and was decreed in the year 2007, after passing of the decree by this Court on 07.12.2005, clearly goes to show that the plaintiff was acting mala fide and with ulterior motives. It was further submitted that the entire exercise of filing the present application is apparently at the behest of Ms. Pavinder Kaur, who during the pendency of the present litigation before this Court in first appeal had entered into an agreement to sale with the plaintiff and, despite her objection, when the decree based on compromise was passed and when she lost litigation before the Hon'ble Supreme Court and on filing a independent suit before the competent Court found herself on the losing side has launched these proceedings. The fact that she has obtained a power of attorney from the plaintiff for the present litigation clearly goes to prove the same. It was further submitted that Ms. Pavinder Kaur was well aware of the compromise entered into between the parties and, therefore, in the application and SLP she did not question the fact or veracity of execution of the compromise and only staked her claim based on the agreement to sale entered into during pendency of the first appeal.
Supporting the finding recorded by the trial court regarding 13 the signatures on the compromise dated 26.11.2005, it was submitted that the reference to the trial court by this Court was limited as to whether the signatures on compromise dated 26.11.2005 were that of the plaintiff or not and, therefore, the trial court was justified in sending only the said document as the disputed document. On alleged non-appearance of the legal representatives of defendant in the witness box, it was submitted that the principal of law relied on by the applicant has not application in the present case and there is sufficient evidence available on record to support the findings of the enquiring court.
It was submitted that the appearance of counsel as witness, who had appeared for the plaintiff in the trial court was necessitated on account of plaintiff's own conduct, inasmuch as, on the compromise dated 26.11.2005 he was identified by the counsel, who had represented him before the trial court, from which, the first appeal arose and examination of another counsel was necessary to prove the conduct of the plaintiff in telling lies regarding his unawareness of pending litigations and such examination of counsel in the facts and circumstances of the case cannot be objected. The report submitted by the Additional District Judge, Bali was supported by the counsel being thorough and based on the evidence which had come on record. It was submitted that once the signatures of the plaintiff on compromise dated 26.11.2005 have been proved by report of FSL and substantiated by other evidence available on record, no further proof is required and the application filed by the applicant 14 deserves to be dismissed.
It was submitted on behalf of counsel for respondent No.2 that in view of the findings recorded by the enquiring court as directed by this Court and the evidence led before the said Court, it is now clear that the application filed is absolutely false and mala fide and, therefore, the same deserves to be dismissed with exemplary costs. Practicing lawyers have unnecessarily been dragged into controversy and, therefore, the same requires to be viewed seriously by this Court.
I have considered the rival submissions made at the Bar. The fact that an application dated 28.11.2005 being I.A. No.296/2005 accompanied by an application under Order XXIII, Rule 3 CPC and a photo copy of compromise deed dated 26.11.2005 was presented before this Court on 28.11.2005 is not in dispute. The fact that a Vakalatnama on behalf of the plaintiff was also presented on 28.11.2005 by Advocate Mr. Mahendra Parihar is also not in dispute. On presentation of the said compromise, the same was duly verified by the Dy. Registrar (Judicial) of this Court as noticed hereinbefore. In consonance with filing of such an application alongwith a deed of compromise and after considering the locus standi of Ms. Pavinder Kaur to be impleaded as party respondent to the appeal, this Court by order dated 07.12.2005 rejected the application filed for impleadment, protected the rights of the applicant and passed the judgment and decree in terms of the compromise and directed taking of possession only through Court.
15
Now after a passage of almost four and a half years present application has been filed seeking to question the very presentation and entering into the compromise dated 26.11.2005 on various counts.
After the pleadings of the parties in the application were complete, this Court after hearing the parties and on their agreement directed the Additional District Judge, Bali to hold an enquiry and passed the order dated 16.07.2012 as noticed hereinbefore. All important direction from the above order reads thus:
"a report about the veracity of signatures/thumb impression of applicant Magan Bhai S/O Gopal Bhai, by caste Patel on the compromise dtd.26.11.2005 on the basis of which a coordinate bench of this Court disposed of CFA No.10/1989
- Lachhi Ram V/s Magan Bhai, may be sent back to this Court."
(Emphasis supplied) From a bare perusal of the order, it is apparent that a report about veracity of signatures/thumb impressions of plaintiff on the compromise dated 26.11.2005 was sought by the Court, which formed the basis for passing of the judgment and decree dated 07.12.2005. The trial court after recording the evidence of the parties, obtaining the report from State Forensic Science Laboratory and after hearing the parties has by its elaborate report come to the conclusion that the signatures on the compromise deed dated 26.11.2005 are that of plaintiff Magan Bhai.
The counsel for plaintiff-applicant has raised contentions based on the report submitted by the trial court and has lambasted the findings recorded by the trial court on several counts as noticed hereinbefore.
16
The principal ground of attack is that as the defendant- respondents have failed to lead evidence in rebuttal by themselves stepping into the witness box, the finding recorded by the trial court on the issue referred to it is vitiated and reliance was placed on judgments in the case of Iswar Bhai C. Patel and Shambhu Dutt Shastri (supra). The principle in this regard is well settled that a party is required to enter the witness box in order to refute allegations made against him or to support his pleading in his written statement.
The judgment of Hon'ble Supreme Court in Ishwar Bhai C. Patel (supra) came up for consideration before Hon'ble Supreme Court in Rattan Dev v. Pasam Devi : (2002) 7 SCC 441 and it was held thus:
"3. A perusal of the judgment of the First Appellate Court shows that the plaintiff-appellant did not appear in the witness box although his special power of attorney and other witnesses were examined by the plaintiff. The First Appellant Court influenced by the non-examination of the plaintiff drew an adverse inference against him and directed the suit to be dismissed solely on the ground of non-examination of the plaintiff. The judgment of the First Appellate Court shows that other evidence, though available on record, did not receive the attention of the First Appellate Court at all.
4. In our opinion, the First Appellate Court was bound to apply its mind to all the evidence available on record and then test the legality of the findings arrived at by the Trial Court. While doing so, the First Appellate Court could have taken the factum of the non-examination of the plaintiff also into consideration. The manner in which the appeal has been disposed of by the First Appellate Court cannot be said to be satisfactory. Non-application of mind by the Appellate Court to other material, though available, and consequent failure of the Appellate Court to discharge its judicial obligation, did raise a question of law having a substantial impact on the rights of the parties, and therefore, the second appeal deserved to be heard on merits.
5. Learned counsel for the respondent has placed reliance on Ishwar Bhai C. Patel alias Bachu Bhai Patel v. Harihar Behera and Anr. : [1999]1SCR1097 wherein this Court has emphasised that withholding of the plaintiff himself from the witness box and thereby denying the defendant an opportunity for cross-examination of himself results into an adverse inference being drawn against the plaintiff. That 17 proposition of law is undoubtable. However, as we have already said, that is a fact to be kept in view and taken into consideration by the Appellate Court while appreciating other oral and documentary evidence available on record. May be that from other evidence - oral and documentary - produced by plaintiff, or otherwise brought on record, the plaintiff has been able to discharge the onus which lay on him, and, subject to the court forming that opinion, a mere abstention of plaintiff himself from the witness box may pale into insignificance."
(Emphasis supplied) As such mere non-appearance of the Legal Representatives of Lachhi Ram alone can't be a determining factor and the evidence available on record has to be considered/appreciated before considering the effect of such non-examination.
The relevant rebuttal evidence of NAW-1 Inder Raj Bhandari - Advocate, NAW-2 Bheema Ram - the Stamp Vendor, NAW-3 Harshad Devra - Advocate, NAW-4 Amrit Lal Parihar - the Notary Public and NAW-5 Mahendra Parihar was duly recorded and they were thoroughly cross-examined by the counsel for the plaintiff and in view of available overwhelming evidence regarding execution of compromise deed and the same containing the signatures of Magan Bhai, it cannot be said that there was no rebuttal evidence so far as the LRs of defendant are concerned. Consequently, the absence of the LRs as witness is inconsequential and the contention in this regard being without any substance is rejected.
The next contention raised with vehemence was relating to the propriety and validity of the examination of NAW-1 Inder Raj Bhandari - Advocate and NAW-3 Harshad Devra - Advocate, who admittedly were counsel for the plaintiff Magan Bhai before the trial court in the civil suit and before the revenue court respectively, from which, the present first appeal arose and 18 another suit, which was filed by Lachhi Ram against Magan Bhai.
It was submitted that Hon'ble Supreme Court in the case of Kokkanda B. Poondacha (supra) has clearly recognized the nature of relationship between a lawyer and his client and has observed as under:-
"12. At this stage, we may also advert to the nature of relationship between a lawyer and his client, which is solely founded on trust and confidence. A lawyer cannot pass on the confidential information to anyone else. This is so because he is a fiduciary of his client, who reposes trust and confidence in the lawyer. Therefore, he has a duty to fulfill all his obligations towards his client with care and act in good faith. Since the client entrusts the whole obligation of handling legal proceedings to an advocate, he has to act according to the principles of uberrima fides, i.e., the utmost good faith, integrity, fairness and loyalty."
On the strength of above judgment it was submitted that the statement of NAW-1 Inder Raj Bhandari - Advocate and NAW-3 Harshad Devra - Advocate could not be taken into consideration.
The judgment of Hon'ble Supreme Court, wherein, the above quoted observations were made, was delivered when the opposite side wanted to cite and summon the counsel for the plaintiff as witness and on the same being opposed, the same was rejected by the trial court and the High Court reversed the said order in its writ jurisdiction and when the matter come up before the Hon'ble Supreme Court, the order passed by the High Court was reversed and the Hon'ble Supreme Court came to the conclusion that no reason was indicated for summoning the said witness. However, the said judgment does not lay down principle either that under any circumstance a counsel for the opposite party cannot be summoned or that if summoned, his testimony cannot be relied on. The Hon'ble Supreme Court only 19 observed that neither in the written statement nor the additional written statement filed by the defendants, they had attributed any role to the counsel and the sole purpose of citing him as witness was to create a situation, in which, the Advocate would have been forced to withdraw from the case and the Hon'ble Supreme Court further observed relating to calling of witness as under:-
"17. We may add that if the parties to the litigation are allowed to file list of witnesses without indicating the purpose for summoning the particular person(s) as witness(es), the unscrupulous litigants may create a situation where the cases may be prolonged for years together. Such litigants may include the name of the advocate representing the other side as a witness and if the Court casually accepts the list of witnesses, the other side will be deprived of the services of the advocate. Therefore, it would be a prudent exercise of discretion by the Court to insists that the party filing the list of witnesses should briefly indicate the purpose of summoning the particular person as a witness."
As such, nothing turns only on the basis of the judgment relied on by counsel for the applicant. In view of the fact that NAW-1 Inder Raj Bhandari, Advocate had signed the compromise deed dated 26.11.2005 as identifying Magan Bhai - plaintiff, whom he represented before the trial court in the suit, the names of NAW-1 and NAW-3 were cited in the list of witnesses and, on being summoned, they appeared before the trial court and deposed without any objections and/or reservations, therefore, the objections raised by the plaintiff in this regard are bereft of any substance and the same are, therefore, rejected.
So far as admissibility of the statements of the said witnesses NAW-1 in the context of Section 126 of the Evidence Act, 1872 is concerned, the statement relates to the preparation of the deed of compromise and the same is not on account of any professional communication. The document exists and the 20 effort is to prove that document by examining the Advocate who has brought the said document into existence and proof of execution of such document or its contents by itself is not violative of Section 126 of the Evidence Act. Therefore, the effort to prove the compromise deed cannot be said to be in violation of provisions of Sections 126 or 129 of the Evidence Act. On that count also, the objections raised by counsel for the plaintiff deserve to be rejected.
The next issue raised by the plaintiff relates to sustainability of the finding recorded by the trial court based on the report and expert witnesses of Forensic Science Laboratory.
On the strength of judgment of Hon'ble Supreme Court in Magan Bihari Lal v. State of Punjab : AIR 1977 SC 1091 it was submitted that expert opinion must always be received with great caution and none so with more caution than the opinion of a hand writing expert and it is unsafe to base a conviction solely on expert opinion without substantial corroboration.
Besides the fact that the said judgment was delivered in the context of a criminal trial where the proof required is beyond reasonable doubt, it cannot be said that present finding recorded by the trial court is merely based on the expert opinion i.e. of the hand writing expert. The entire chain of persons involved in execution of compromise deed dated 26.11.2005, which bears the photographs of parties, signatures and thumb impressions, have been examined i.e. the counsel who had prepared the compromise deed and then identified the executant plaintiff, the Stamp Vendor and the Notary Public, which are sufficient to 21 substantiate the finding recorded by the trial court with the aid of the expert opinion regarding the signatures on the said compromise deed.
The fact that on account of the thumb impressions being smudged and lacking in sufficient number of clear ridge details, the expert opinion found the same to be unfit for comparison does not and cannot militate against the finding recorded by the enquiring court regarding the thumb impressions available on the compromise deed dated 26.11.2005, which is based on the oral evidence of NAW-1, NAW-2 and NAW-4 and, therefore, the finding in this regard cannot be said to be vitiated on any count.
Further, issue was raised by the plaintiff in order to raise doubts about entering into compromise dated 26.11.2005 that the agreement does not disclose any consideration and, therefore, it cannot be said that the document is a genuine compromise deed.
The compromise deed dated 26.11.2005 clearly indicates thus:
"उपर क रणत पररससरनतय@ मA पक र@ मधय आपस मA
र ज-न म ह गय ह तर दDत-य पक र न इस र ज-न म
अनस+ र ज र शर परम पक र ज र शर दन तय क य
गय र ह समपHण र शर परम पक र र ड अद र द(
गई ह सजस प पत ह न परम पक र स - र रत ह तर
परम पक र न उक इ र रन म ददन " 23.3.1977 अनतगत
ज भ- अधध र दगसत भशH म खर(दन ब र मA र उनहA
सम पत रन स - र र शलय ह।"
The agreement clearly indicated that the agreed sum has been paid in cash to the plaintiff. It is not unknown for the parties to indicate passing of consideration but not to indicate the amount of consideration in the compromise deeds for 22 reasons best known to them and the same cannot for that reason vitiate the agreement.
Besides the above recital, NAW-1 Inder Raj Bhandari clearly stated in his cross-examination thus:
"मगनभ ई न मझ + स बत य र क एड "स द( ह+ई परH ( र शर मय
बय ज ए " खचN = र शर लचOPर म D र मझ अद रन तय क य
ह लक न सभ- सह( र शर म+झ आज य द नह(" ह। यह सह( ह क
क तन- र शर लचOPर म D र मगन भ ई र ज-न म मA द( गय- र-
उस उललख पदर ए 5 मA नह(" ह लक न र ज-न म मA र ज-न मA
अन+स र दय र शर लचOPर म D र दन तर मगन भ ई D र प पत
रन बत य र सजस उललख पदर ए 5 मA शलख ह+आ ह। दन
द न@ प दरय@ र ज-न म र न मA मर ई र ल नह(" र ।
पदर ए 5 शलखत मर य लय मपय+रर पर मर सरन D र
र ईप क य गय र । पदर ए 5 पर हसत कर गरह मर ह( य लय
मA ह+ए र।"
It clearly goes to show that the consideration was paid to the plaintiff and the plea in this regard appears to be only an attempt to take advantage of the nature of recital in the compromise deed dated 26.11.2005.
It is one plea to raise grievance that the plaintiff did not receive any consideration under the compromise dated 26.11.2005 and a totally different plea to raise that the agreement dated 26.11.2005 was never executed by him. The very fact that a feeble plea is sought to be raised regarding lack of consideration in view of the language of the compromise deed dated 26.11.2005 is also reflective of the fact that the compromise deed was in fact executed.
Coming to the question of appearance of Mahendra Parihar, Advocate as counsel for the plaintiff in the appeal for presenting the compromise dated 26.11.2005, the compromise was entered into at Bali between the parties on 26.11.2005 and thereafter the parties appears to have travelled to Jodhpur to file the same before this Court, 27.11.2005 being a Sunday, the 23 same appears to have been filed on 28.11.2005 and as per plaintiff's own assertion in para 3 of the application the Vakalatnama in the first appeal alongwith caveat was signed by power of attorney holder of plaintiff-Mr. Raj Bahadur, who had engaged the then counsel, fresh Vakalatnama signed by plaintiff- Magan Bhai was filed by Mahendra Parihar, Advocate before this Court while presenting the application dated 28.11.2005 alognwith application under Order XXIII, Rule 3 CPC and copy of deed of compromise and he also identified plaintiff Magan Bhai before the Dy. Registrar (Judicial).
Admittedly, the power of attorney holder who, as per plaintiff had signed the initial Vakalatnama, was dead on the day fresh Vakalatnama was filed on behalf of the plaintiff and once this is categorically held that the deed of compromise dated 26.11.2005 was entered into between the parties, the issue relating to as to who presented it before the High Court goes into oblivion. Here again the reasons are best known to the plaintiff himself as to why in place of the existing counsel he thought it proper to engage a counsel from Bali for representing him for the purpose of the compromise.
The grievance raised by counsel for the appellant that the enquiring court confined its enquiry to the compromise deed dated 26.11.2005 only and did not enquire into the validity or genuineness of signatures on the application dated 28.11.2005 and its accompanying document and the Vakalatnama alleged to have been signed by the plaintiff is also without any substance. The directions issued by this Court on 16.07.2012 were very 24 clear, categorical and confined to compromise deed dated 26.11.2005. If the plaintiff had any grievance or wanted other documents also to be examined, he was required to approach this Court in this regard and the prayer made to the enquiring court in this regard could not have been dealt with and/or permitted by it and therefore was rightly rejected by it.
The other feeble pleas raised regarding the fact that the plaintiff was suffering from paralysis since 2004 and could not have gone to Bali for executing the compromise deed and thereafter travelled to Jodhpur for filing the application dated 28.11.2005 and the fact that such illness was not considered by the enquiring court in the right perspective have apparently been raised only for the purpose of creating doubt and to wriggle out of the compromise entered into between the parties and have no substance.
The plea raised regarding Section 118 of the Evidence Act, 1872 based on the alleged visual disability of the plaintiff is also wholly inconsequential, as apparently in order to avoid disputing each and every signature with which the plaintiff was confronted, he took a standard plea that he can't see. Further, no plea in consonance with Section 118 of the Evidence Act was raised during the examination of the witness.
One important aspect needs to be noticed that the plaintiff for the first time took the plea of the compromise deed dated 26.11.2005 and application before this Court dated 28.11.2005 being forged and fabricated on 03.01.2009 by way of lodging an FIR. However, apparently, the plaintiff was well aware of the 25 passing of the decree dated 07.12.2005 by this Court based on the compromise. This aspect is fortified from the facts that Lachhi Ram had filed a suit in 1982 against plaintiff Magan Bhai for possession of the land in question before a revenue court (S.D.O., Bali), which was dismissed in default on 05.08.1999. After passing of the decree by this Court on 07.12.2005, the suit was restored on 31.01.2006 and again summons were issued to Magan Bhai, wherein, on being served, he put in his appearance through counsel Harshad Devra and thereafter, when despite registered notice from the said Advocate Harshad Devra, he did not respond, then on the counsel pleading no instructions, the matter was set ex parte and after recording the evidence of the plaintiff (legal representatives of Lachhi Ram) the suit was decreed by S,D.O., Sumerpur (transferee court) on 31.10.2007. The very fact that the restoration application was filed on account of passing of the decree dated 07.12.2005 and the plaintiff herein was served with the summons in the said revenue suit, who in turn put in his appearance, clearly goes to show that he was well aware of the decree in the year 2005 itself and, therefore, to raise a plea regarding fraud etc. in the year 2009 by way of filing FIR is clearly an afterthought and only an attempt to get out of the compromise entered into between the parties.
Further, the plea of unawareness of decree dated 07.12.2005 and coming to know of the same only when the plaintiff met LRs of Raj Bahadur Singh i.e. Ms. Pavinder Kaur raised by plaintiff is apparently false as it cannot be believed that 26 Ms. Pavinder Kaur would not have confronted plaintiff Magan Bhai with the compromise and decree at any time before filing of FIR on 03.01.2009.
Regarding knowledge of decree and compromise, the applicant has made following averments in the present application:
"6. That the applicant/respondent went to villge Purada Sumerpur to met his power of attorney holder Raj Bahadur Singh on 31.12.2008 where he knew that Shri Raj Bahadur Singh expired and the applicant/respondent was also suffered from paralysis for the last 3-4 years so he did not leave his village. Upon reaching to village Purada Sumerpur the wife of deceased Raj Bahadur Singh and daughter met him and he enquired about is case than they asked to the applicant that why he is pouring salt upon their wound than he asked to tell about what happened than they told that Lachhi Ram by standing a fictitious person as Magan Bhai and entered into compromise and got reverse the judgment and decree of the trial Court and dismissed the suit filed by him than he told to them that he did not met to Lachhi Ram or not received compensation nor he signed any document so all the proceedings are forged and filed with intention to cheat the applicant/respondent. ... ....."
(Emphasis supplied) The plea that LRs of Raj Bahadur Singh told the plaintiff that Lachhi Ram by standing a fictitious person as Magan Bhai entered into compromise is ex-facie contrary to the copious pleadings of Ms. Pavinder Kaur, wherein she has alleged conspiracy between Magan Bhai and Lachhi Ram and has nowhere alleged that the compromise deed dated 26.11.2005 or the application dated 28.11.2005 before this court was not filed by Magan Bhai or was filed by somebody fictitiously in his name. This further fortifies the fact that the plaintiff was not telling the truth.
This Court also needs to take into consideration the conduct of Ms. Pavinder Kaur. The agreement to sale of the land during the pendency of this appeal was allegedly entered into 27 between the plaintiff Magan Bhai and Ms. Pavinder Kaur on 01.08.1995. She was apparently aware of the compromise entered into between plaintiff and the defendant and, therefore, as soon as the application was moved before this Court on 28.11.2005, she promptly filed application under Order I, Rule 10 CPC on 05.12.2005 though the same was signed on 04.12.2005. She though did not question the genuineness of the compromise entered into, but questioned the right of the parties to do so and carried the matter to the Hon'ble Supreme Court as well, from where, the same was withdrawn with liberty to file a suit and, in fact, such a suit was filed by her against Magan Bhai and legal representatives of Lachhi Ram on 05.12.2008. In the said suit also she made specific reference to entering into compromise by and between Magan Bhai and Lachhi Ram and did not allege any fraud etc. in this regard. Even when the decree passed by the Sub Divisional Officer, Sumerpur dated 31.10.2007 as noticed hereinbefore was put in execution, there again she filed objections under Order XX1, Rule 97 and 98 CPC on 22.05.2009, which suit and objections are pending.
Thereafter, now obtaining the power of attorney on 28.04.2010 to prosecute the present application from the said Magan Bhai against whom she is already in litigation with allegations of hatching a conspiracy by Magan Bhai and legal representatives of Lachhi Ram to deprive her from her rights, speaks volume about her conduct. Interestingly, though the power of attorney was obtained by her from Magan Bhai on 28.04.2010, the present application which was filed on 28 03.05.2010 immediately after obtaining the power of attorney, the same was signed by Magan Bhai and it is only when the application for impleading respondent No.2 was filed on 18.05.2010 that the power of attorney was produced and the Vakalatnama was also filed. Apparently, said Ms. Pavinder Kaur is seeking to do circuitously, which she could not do on account of rejection of her application under Order I, Rule 10 CPC, filing of objections under Order XXI, Rule 97 and 98 CPC and filing the suit seeking setting aside of decree dated 07.12.2005 and such conduct cannot be countenanced.
The desperation of Ms. Pavinder Kaur is also apparent from the fact that despite prosecuting the application before this court as power of attorney holder of Magan Bhai, when the issue regarding the signatures of Magan Bhai on compromise deed dated 26.11.2005 was sent for enquiry to the trial court, she filed application under Order I, Rule 10 CPC for being impleaded as party to the said enquiry as well, in her independent capacity. The averments of the application read thus:
"1. क इस ज "च य ह( गत ददन@ ह( प र$न- ज न ह+आ ह, चH"क प र$न- मगन भ ई न द डडक= ह न बद U वर आर ज- इ र रन म जररय बच न र द( र- सजसस ह भ- इस य ह( मA पभ व त ह रह( ह, र य ह( मA भ ग लन च हत- ह।
अत:प रन ह क प र$न- भ- इस य ह( मA भ ग लन
= अन+मनत पद न फरम A ।"
""
Besides the fact that the application was based on a false averment that she came to know about the enquiry proceedings a few days back only, the very fact that she filed such an application in the said proceedings, which was rightly rejected by the enquiring court, clearly indicates her purport and intentions.29
Having considered the objections raised by learned counsel for the plaintiff; the submissions made by him in this regard;
having noticed the entire sequence of events from filing of the suit to passing of the compromise decree and filing of present application; the finding of the enquiring court and the conduct of the plaintiff, this Court is of the firm opinion that the deed of compromise dated 26.11.2005 was duly executed between the parties with the aid and advise of counsel, who also represented the plaintiff before the trial court and the said compromise was duly presented before this Court and was rightly taken into consideration while passing the compromise decree dated 07.12.2005, therefore, the allegations made and the grievance raised by the plaintiff in the present application are bereft of any substance.
In view of the above discussion, the application filed by the plaintiff-applicant is without any substance and is a gross abuse of process of the Court and, therefore, the same is rejected with a cost of Rs. 15,000/- to each of the two respondents i.e. (i) legal representatives of Lachhi Ram & (ii) respondent No.2 Mahendra Parihar, Advocate.
(ARUN BHANSALI), J.
A.K.Chouhan/-