Madhya Pradesh High Court
Baba Prabhudas Guru Mahant Raghuvardas ... vs Munnalal Tripathi on 18 September, 2019
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 CR-34-2017
THE HIGH COURT OF MADHYA PRADESH
CR-34-2017
(Baba Prabhudas Vs. Munnalal Tripathi)
Gwalior, Dated : 18-09-2019
Shri O.P. Shrivastava, counsel for the applicant.
Shri A.K. Nirankari with Shri Gaurav Mishra, counsel for
the respondent.
1. At the outset, counsel for the respondent submits that the respondent has taken away his file and they have no instructions.
2. Once the respondent was served and thereafter he engaged his counsel and, thereafter, if he decided to withdraw his file from his counsel and also does not engage any lawyer or does not argue the matter personally, then this Court is of the considered opinion that no SPC is required to be issued to the respondent in view of the statement made by the counsel for the respondent. Accordingly, the respondent is proceeded ex parte.
3. The present civil revision under Section 115 of the CPC has been filed against the order dated 18.05.2012 passed by Civil Judge, Class-II, Dabra District Gwalior in Case No. 486A/96-07 (Execution). Earlier the petitioner had filed the petition under Article 226 of the Constitution of India, which was registered as W.P. No. 4425/2012, however, by order dated 08.03.2017, the petitioner was permitted to convert the petition into civil revision and, accordingly, this civil revision has been registered.
4. The necessary facts for the disposal of the present revision in short are that the applicant had filed a civil suit against the 2 CR-34-2017 respondent for eviction which was registered as Civil Suit No. 486A/1996. The said civil suit was dismissed by judgment and decree dated 10.05.2006 passed by Civil Judge, Class-I, Gwalior. Being aggrieved by the judgment and decree passed by the Trial Court, the applicant filed an appeal, which was allowed by judgment and decree dated 04.04.2007 and the judgment and decree passed by the Trial Court was set aside and the suit filed by the petitioner was allowed and the decree of eviction was passed against the respondent.
5. Being aggrieved by the judgment and decree passed by the Appellate Court, the respondent filed a Second Appeal No. 344/2007. It appears that the matter was placed before the Lok Adalat on an application filed under Order 23 Rule 3 of CPC, in which it was mentioned that the appellant has received the entire arrears of rent and vacant possession of the shop has also been handed over to him. Accordingly, the respondent was permitted to withdraw the appeal by order dated 02.08.2008 passed in Lok Adalat. The order passed by the Lok Adalat on 02.08.2008 reads as under:-
"Lok-Adalat (Hon. Shri Justice B.M. Gupta & Shri K.N. Gupta, Sr. Adv.) 02.08.08 Shri H.K. Shukla, Advocate for the appellant. None for the respondent.
It is submitted by Shri Shukla that the parties settled their dispute out of the court and the settlement on 25.04.08 is on record in the shape of I.A. No. 6241/07 ........... ............possession of the premises along with the entire rent has been delivered to the respondent-landlord by the appellant- tenant.
3 CR-34-2017 In view of this, there remains no dispute. Hence, counsel for the appellant wants to withdraw this appeal. Accordingly, this appeal is disposed of with the aforesaid.
Member Member"
6. The application filed under Order 23 Rule 3 of CPC reads as under:-
^^U;k;ky; eku~uh; mPp U;k;ky; tcyiqj [k.MihB Xokfy;j izdj.k dzekad 344@2007 f}rh; vihy eqUukyky f=ikBh & vihyk.V cuke ckck pjunkl &fjLiks.MsUV izkFkZuk i= vUrxZr vkns'k 23 fu;e 3 lgifBr /kkjk 151 lhihlh 1- ;g fd izfroknh ckck pjunkl dh vksj ls vihyk.V eqUukyky ds fo:) Hkou fu"dklu dk nkok fopkj.k U;k;ky; esa izLrqr fd;k Fkk] ftl ij fopkj djus ds i'pkr fopkj.k U;k;ky; }kjk mDr nkok fMdzh ij fu"dklu dh vkKfIr ikfjr dh xbZ gSA 2- ;g fd] mifLFkr fu"dklu dh vkKfIr ekuuh; vihy U;k;ky; }kjk Hkh ;Fkkor j[kh gSA ftlds fo:) ;g f}rh; viyh ekuuh; U;k;ky; ds le{k yfEcr gSA 3- ;g fd] orZeku vihy ds yafcr jgrs gq, mHk;i{kksa ds e/; vkil esa jkthukek gks x;k gS vkSj jkthukes ds vk/kkj ij vihyk.V dh jsLiks.MsUV ds i{k esa ikfjr fu"dklu dh vkKfIr Lohdkj gSA mDr fu"dklu dh vkKfIr dk ikyu djrs gq, vihyk.V }kjk fdjk;snkjh okys Hkkx dk leLr vo'ks"k fdjk;k ,oa izdj.k O;; vkt fnukad rd dk fjLiks.MsUV oknh dks vnk dj fn;k gS rFkk viuh fdjk;snkjh okyh lEifRr ij ls viuk vkf/kiR; gVkdj mldk fLFkr vkf/kiR; fjLiks.MsUV dks lkSi fn;k gS ftles fjLiks.MsUV us viuk rkyk yxk fn;k gS pkch U;k;ky; ds le{k jsLiks.MsUV us vihyk.V ls izkIr djuk Lohdkj fd;k gS vihyk.V dk vc fdjk;snkjh okyh Hkkx esa dksbZ vkf/kiR; ugh jgk gS rFkk leLr vo'ks"k fdjk;k vkfn Hkh vihyk.V }kjk jsLiks.MsUV dks ns fn;k gSA bl izdkj fopkj.k U;k;ky; dh vkKfIr dk ikyu vihyk.V }kjk bl jkthukek ds izdk'k esa dj fn;k gSaA 4- ;g fd] mHk; i{k ds e/; gq, jkthukes ds izdk'k esa jsLiks.MsUV }kjk vihyk.V ds fo:) izLrqr dh xbZ btjk dk;Zokgh Hkh fujLr le>h tkosxhA vr% izkFkZuki= izLrqr dj fouez fuosnu gS fd mHk;i{k ds e/; vc dksbZ fookn cdk;k fdjk;k vkSj dCtk izkfIr dk vo'ks"k u gksus ds dkj.k vihyk.V dh vihy mijksDr jkthukes ds izdk'k esa fujkd`r fd;s tkus dh vkKk iznku djus dh d`ik djsA fnukad % 25&04&08 izkFkhZ] eqUukyky f=ikBh] vihyk.V vihyk.V ls leLr vo'ks"k fdjk;k vkSj fdjk;snkjh okys Hkkx dk fjDr vkf/kiR; vihyk.V ls izkIr dj fy;k 4 CR-34-2017 gS vc dksbZ ysunsu vo'ks"k ugha gSA jkthukek Lohdkj gSA ckck izHkqnkl & fjLiks.MsUV^^
7. It appears that on 04.12.2008, the Executing Court issued a warrant of recovery against the respondent and, accordingly, the respondent challenged the said order by filing W.P. No. 5747/2008 which was finally disposed of by the Division Bench of this Court by order dated 10.08.2009 and the Executing Court was directed to hold an enquiry that whether the compromise was entered into between the parties or not and it was further observed that after recording the evidence if the Executing Court comes to a conclusion that there was no compromise then the Court will proceed. The order dated 10.08.2009 passed in W.P. No. 5747/2008 reads as under:-
"10/8/2009 Petitioner by Shri H.K.Shukla, Advocate. Respondent by Shri O.P. Shrivastava, Advocate. Heard on the question of admission.
This writ petition is filed by the judgment debtor assailing the order dated 4/12/2008 passed by First Civil Judge Class II, Dabra District Gwalior in Execution Case No. 486/96 x 07 whereby the executing court has issued warrant of recovery against the petitioner.
Brief facts of the case are that respondent Baba Prabhu Das Guru Mahant Raghuvar Das Bairagi had filed a civil suit against the present petitioner for ejectment and mesne profits. The trial Court dismissed the suit. The first appellate Court decreed the suit against which the present petitioner preferred second appeal No. 344/07 before this Court. On 2/8/2008, the petitioner made a statement that the matter is compromised on 25/4/2008 between the parties and possession of the premises is handed over to the landlord plaintiff along with entire rent due. Hence, the second appeal was dismissed by this Court as withdrawn.
From perusal of the said order sheet, it appears that no one was present on behalf of the respondent on that date and the appellant withdrew his appeal by making a statement that the matter is settled. Since the respondent was not present on 2/8/2008, it cannot be said that the said order is binding on 5 CR-34-2017 him.
Counsel for the petitioner, however, points out that there was a written compromise between the parties on 25/4/2008, copy of which is Annexure P/4 which shows that the parties have entered into a compromise and the tenant has handed over possession of the premises to the landlord along with entire rent due. Respondent, however, denied his signature on the said compromise application.
In such circumstances, we direct the executing court to hold an enquiry whether compromise was entered into between the parties. After recording evidence, if the executing court comes to a conclusion that there was no compromise, then the court will proceed to recover rent from the present petitioner and if the executing court comes to a conclusion that the compromise was entered into, then dispose of the matter in the light of the compromise.
Petition stands disposed of with the aforesaid."
8. In W.P. No. 5747/2008, it appears that the applicant had filed an affidavit on 01.04.2009 disputing the contents of the compromise application which was filed in S.A.No. 344/2007 and it was mentioned that neither the decreetal amount was ever paid nor the possession of the disputed property has been handed over. The affidavit filed by the applicant in W.P. No. 5747/2008 reads as under:-
^^U;k;ky;% ekuuh; mPp U;k;ky; tcyiqj ¼[k.MihB½ Xokfy;j e-iz-
izdj.k dza- % 5747@08 fjfiVh'ku
eqUukyky f=ikBh &&&& ihVh'kuj
cuke
ckck izHkqnkl && uksu fiVh'kuj
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uke & ckck izHkqnkl
xq: & Lo- Jh fxjojnkl egkjkt
vk;q & 67 o"kZ
O;olk; & lsokiwtk
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ftyk Xokfy;j ¼e-iz½
eSa 'kiFkiwoZd lR; dFku djrk gwWa fd%&
1- ;gfd] esjs fo:) fiVh'kuj eqUuk yky f=ikBh esa ,d f)rh; vihy
ekuuh; mPp U;k;ky; [k.MihB Xokfy;j ds le{k is'k dh Fkh ftlesa jkthukek gsrq ckrphr gqbZ vkSj eqUukyky us dgk Fkk fd eSa 6 CR-34-2017 ekuuh; U;k;ky; Jheku~ ds le{k iwjk fMdzh/ku ,oa edku dh pkch iznku d:xkA 2- ;gfd] tc ekuuh; U;k;ky; Jheku~ ds le{k ekeyk jkthukek gsrq izLrqr fd;k x;k rc eqUukyky vihykUV ls ekuuh; U;k;ky; }kjk dgk x;k fd jsLikMsUV o`) O;fDr gS dksbZ Hkh mlls :i;k Nhudj ys tk ldrk gS blfy, vki jsLikMsUV ds uke ij fdlh jk"Vz~h;d`r cSad esa cpr [kkrk [kqyokdj fMdzh /ku tek djkos vkSj tek'kqnk cpr [kkrk iklcqd ,oa edku dh pkch ekuuh; U;k;ky; ds le> eq> jsLikMsUV dks iznku djkos vkSj rHkh jkthukek rLnhd fd;k tkosxk vkSj bl gsrq ,d ekg dk le; vkxkeh yksd vnkyr dk fn;k x;k Fkk fdUrq vihykUV eqUuk yky f=ikBh }kjk u cpr [kkrk esjs uke ij [kqyok;k x;k vkSj uk gh dksbZ fMdzh/ku tek fd;k x;k vkSj yxHkx N% ekg ckn ekuuh; U;k;ky; ds le> ,d izkFkZuk i= yafcr f)rh; vihy esa bl vk'; dk izLrqr fd;k x;k fd vihykUV ,oa jsLikMsUV ;kuh ejs e/; U;k;ky; ds ckgj jkthukek gks pqdk gS bl dkj.k vihykUV dks vihy okfil dj nh tkos vkSj ekuuh; U;k;ky; Jheku~ th }kjk vius vkns'k esa ;g ys[k dj vihykUV ,oa jsLikMsUV ds e/; U;k;ky; ds okgj jkth&ukek gksuk vihykUV ds vfHkHkk"kd us O;Dr fd;k gS bl dkj.k vihykUV dh vihy okfil dh tkrh gSA 3- ;gfd] vihykUV }kjk eq> jsLikMsUV dks U;k;ky; ds okgj vkt fnukad rd uk dksbZ fMdzh/ku vnk fd;k gS vkSj uk gh edku dh pkch lkSih gSaA 4- ;gfd] fiVh'kuj }kjk fu"iknu U;k;ky; ds le> ,d izkFkZuk i= izLrqr fd;k fd ekuuh; mPp U;k;ky; }kjk esjh f)rh; vihy dks jkthukek esa fuiVk;k x;k gS rFkk esjs }kjk fMdzh/kkjh ;kuh eq>s U;k;ky; ds okgj :i;k vnk fd;k gS bl dkj.k fu"iknu dk;Zokgh lekIr dj nh tkos fdUrq fiVh'kuj }kjk eq>s vkt fnukad rd uk dksbZ :i;k vnk fd;k x;k gS vkSj uk gh edku dh pkch lkSih gS vkSj ,slk ekudj fu"iknu U;k;ky; esa fiVh'kuj dk izkFkZuk i= fujLr dj fn;k vkSj mlh fujLrh ds vkns'k ls ifjosfnr gksdj fiVh'kuj }kjk ;g vlR; rF;ksa ds vk/kkj ij fiVh'ku ¼fjV½ izLrqr dh xbZ gSA vkSj bl fjVfiVh'ku esa ekuuh; U;k;y; }kjk fu"iknu dh dk;Zokgh dks fLFkfxr fd;k x;k gSA 5- ;gfd] bl vlR; rF;ksa ds vk/kkj ij izLrqr fjV ihVh'ku dh vkM esa fiVh'kuj eq>s fMdzh ds ykHkksa ls cafpr j[kuk pkgrk gS ftlls cafpr j[kus dk fiVh'kuj dks uk gh dksbZ dkuwuh vf/kdkj gS vkSj uk gh uSfrd vf/kdkj gSA fnukad%& 17-3-09 gLrk{kj -------
lR;kiu eSa 'kiFkiwoZd lR;kfir djrk gwWa fd bl 'kiFki= esa in dza- 1 yxk;r 5 esa lHkh rF; esjh futh ,oa Kku fo'okl ls lgh ,oa lR; gS blesa uk gh dksbZ rF; fNik;s x;s gSas vkSj uk gh vlR; of.kZr fd;s x;s gSaA fnukad%& 17-3-09 gLrk{kj --------
LFkku& Mcjk^^
9. In compliance of the order dated 10.08.2009 passed in W.P. No. 5747/2008, the Executing Court recorded the evidence of the parties and, thereafter, by the impugned order dated 18.05.2012 has 7 CR-34-2017 held that the contents of the compromise application, which was filed in S.A. No. 344/2007 were correct and the compromise was entered into between the parties and, accordingly, the execution proceedings were closed.
10. Challenging the order passed by the Executing Court, it is submitted by the counsel for the applicant that neither any affidavit in support of the compromise application was filed nor the applicant was present at the time of filing of the affidavit. Even the applicant was not present before the Lok Adalat. The applicant is an illiterate person and the respondent taking advantage of illiteracy and innocence of the applicant, took him to the office of his own counsel Shri H.K. Shukla. It is further submitted that the respondent had convinced the applicant that since he is an old and infirm person, therefore, anybody can snatch the cash amount and thus, the amount shall be deposited after opening a bank account in the name of the applicant. However, neither the amount was paid nor the key of the disputed shop has been given. It is further submitted that still the respondent is in possession of the property in dispute.
11. Heard the learned counsel for the parties.
12. The record of the Executing Court has been received. The applicant in his statement before the Executing Court had specifically stated that neither the arrears of rent were given to him nor the possession of the suit shop has been given to him and the respondent is still in possession of the suit shop. When the copy of 8 CR-34-2017 the compromise application filed in S.A. No. 344/2007 was shown to the applicant then he expressed that because of his poor eye vision, he is not in a position to read the same and he has come to the Court with the help of his grand son as well as with the help of his counsel. He further denied that he had signed the compromise application Ex. D-1 after putting his photograph and he further denied that the said application was filed through his own counsel. The applicant also denied his signature on the compromise application Ex. D-1. He also denied that the contents of the compromise application that "he has obtained the vacant possession as well as arrears of rent". He further stated that the contents of the compromise application that he has received the arrears of rent and possession are wrong. He further admitted that he never filed any objection before the High Court to the effect that he has not filed compromise application. He further stated that even thereafter he never engaged his counsel before the High Court. He further admitted that he never filed any petition for recall of the order dated 02.08.2008 passed by the Lok Adalat, however, he claimed that he was not aware of the order of the Lok Adalat. He further admitted that he had engaged Shri O.P. Shrivastava as his counsel in S.A. No. 344/2007 but admitted that at the time of hearing before the Lok Adalat, his counsel was not present. He further stated that the property in dispute is a room situated in the temple and clarified that there is no shop. He further admitted that he can sign but further clarified that after the loss of 9 CR-34-2017 vision, he has stopped putting his signature. He further denied that he had filed the compromise application in S.A. No. 344/2007 and had signed application after affixing the signature on the compromise application Ex. D-1. He further denied that the disputed property is not in possession of the respondent. He further denied that he has deliberately disowned the compromise application. He further denied that an amount of Rs.40,000/- is not outstanding against the respondent.
13. The respondent examined himself as DW-1 who has stated that the compromise was arrived at between him and the applicant and the amount as well as key was handed over to the applicant. He further stated that the applicant had got the compromise application prepared from Shri H.K. Shukla who was the counsel for the respondent. After the compromise application was prepared and the applicant as well as the respondent along with Shri H.K. Shukla went to the High Court for filing the same and compromise application was filed by all the three persons. After the application was filed, they were given a date for the Lok Adalat. He had appeared before the Lok Adalat and on 02.08.2008 the compromise was accepted. The order of the Lok Adalat is Ex. D-2. In cross- examination, he admitted that Shri H.K. Shukla was his counsel and, however, he further stated that Shri H.K. Shukla had met the applicant on several occasion. However, he could not clarified the dates on which Shri H.K. Shukla had met the applicant. Later on, this witness stated on his own that on 24 th the applicant had met 10 CR-34-2017 Shri H.K. Shukla and on 25 th the applicant as well as respondent were called by Shri H.K. Shukla. He further clarified that on 24.03.2008 he and applicant were called by Shri Shukla. Again he changed his version and claimed that he and the applicant were called by Shri Shukla on 25.03.2008. He further admitted that he had not warned/suggested Shri Shukla that since he is not the counsel for the applicant, therefore, some other lawyer should be engaged for the applicant. He further claimed his ignorance about the fact that whether one lawyer can appear for both the parties or not but on his own claimed that it would be against the dignity. He further admitted that he had appeared in several other false cases before the Court. He further admitted that the education department had stopped his salary from the month of June, 1988 and he was placed under suspension. He further admitted that one criminal case for making attempt to commit suicide was also registered against him. He further stated that the compromise application was filed before the Registrar, High Court on the date on which it was prepared. He further admitted that he had visited the building of High Court Gwalior Bench and he further admitted that chamber of the Registrar situated at a different place. He further admitted that Registrar on his own did not record the statement of the applicant as well as respondent. He further stated that the amount was given on the day when the application for compromise was prepared. He further stated that an amount of Rs.20,000/- was given in the Court. He further stated that the 11 CR-34-2017 amount was given in the bar room, which is situated on the ground floor. He further admitted that neither Shri H.K. Shukla has any table to sit nor his name is displayed. He further could not disclose the names of Advocates, before whom the amount was given. However, he claimed that the amount of Rs.20,000/- was given before Shri H.K. Shukla. He further stated that on 24 th Shri H.K. Shukla had called him on phone. However, he could not disclose the name of the month. He was informed by Shri H.K. Shukla that the applicant had met him and had requested him that the matter may be got compromised and he may be given an amount of Rs.20,000/-. Accordingly, on 25th he went to the office of Shri H.K. Shukla. The money was given by his elder son. He also could not disclose that from where his son had brought the money. He further stated that he might have brought from the Bank. He further stated that he went to the office of Shri H.K. Shukla at about 09:00 O' Clock and the applicant was already sitting there. On the instructions of Shri Shukla, the applicant as well as this witness went to the photo studio for taking their photographs. He further stated that they had gone separately for the said purposes. He had returned two separate sets of keys to the applicant. He denied that no money or keys were handed over to the applicant. He further admitted that he did not obtain the receipt of payment of money. He further admitted that the fact of payment of receipt of Rs.20,000/- is also not mentioned in the compromise application. He further admitted that he had not mentioned in the objection 12 CR-34-2017 filed in the execution that an amount of Rs.20,000/- was given by his son to the applicant. He further admitted that prior to 24.06.2008 parties had lost their confidence in each other. He further admitted that for the first time, he is disclosing before the Court that an amount of Rs.20,000/- was paid. He further stated that the applicant as well as this witness along with Shri H.K. Shukla reached to the office of Registrar at 11:00 O' Clock. He further denied that the applicant as well as this witness had not gone to the office of Registrar and only Shri Shukla had gone there. He further admitted that he had not requested Shri Shukla for identification of the signature of the applicant. He further admitted that the applicant as well as his counsel were not present on the day when the order Ex. D-3 was passed. He further admitted that in fact Ex. D-3 the vakalatnama which bears the thumb impression of the applicant which was filed in W.P. No. 5747/2008. He expressed his ignorance that the order of the Lok Adalat is Ex. D-2. He further denied that he had withdrawn the appeal in the Lok Adalat. He further denied that he has wrongly stated that the compromise was accepted by the Lok Adalat. He further admitted that from the year 1986 to the year 2008, he was in possession of the tenanted premises. He further admitted that the compromise application Ex. D-1 was not got notarized. He further stated that on the day when the case was fixed before the Lok Adalat he had requested the applicant but he did not appear before the Lok Adalat.
13 CR-34-2017
14. Shri Babu Singh (DW-2) has stated about the filing of certain application in a case between himself and the applicant. It is not relevant.
15. Shri H.K. Shukla (DW-3) has stated that in S.A. No. 344/2007 compromise application Ex. D-1 was filed which was signed by the applicant as well as the respondent. He has further stated that only the respondent - Munnalal Tripathi was identified by this witness. Counsel for the applicant had taken an objection that since the compromise application Ex. D-1 is not in original, therefore, this witness cannot be permitted to depose that the applicant had signed the said application, however, by reserving the objection raised by the applicant, further evidence was recorded by the Commissioner. This witness further stated that the photograph affixed on compromise application Ex. D-1 is that of the applicant and his signature are at A-A and the signatures of Munnalal Tripathi on his photograph are at B-B. The similar objection was raised by the counsel for the applicant that since the compromise application Ex. D-1 is not in original, therefore, the statement to the above fact cannot be recorded, however, reserving the objection, further evidence was recorded. It was further stated by Shri H.K. Shukla that the order Ex. D-2 was passed by the High Court. In cross-examination, this witness has admitted that he was the counsel for the respondent Munnalal Tripathi. He further stated that the applicant had come along with the respondent and had informed that the matter has been compromised and on the basis of 14 CR-34-2017 compromise, the possession of the disputed property has been given and arrears of rent has also been paid and now there is no controversy between both of them. This witness further admitted that the arrears of rent as well as the keys of the disputed property were given in his presence. He further stated that at the time of the preparation of the compromise application Ex. D-1, the amount was paid in his presence. Since the applicant had admitted that the entire arrears of rent has been paid, therefore, he expressed that it is not possible to say that how much amount was paid by Munnalal Tripathi. He further stated that the compromise application Ex. D- 1 was prepared in the evening of 25.04.2008 and the same was filed before the Registrar on 29.04.2008 and the said application was filed by this witness and at that time, neither of the parties were with him. He further stated that the matter was placed before the Lok Adalat on 02.08.2008 and he had informed the Lok Adalat about the instructions given by the parties. A specific question was put to this witness that whether the presence of other counsel was necessary or not then it was replied that since the parties had voluantarily compromised, therefore, the identification of the opposite party by another counsel was not necessary. He further stated that he had placed only those facts which were told to him by the parties.
16. Since the applicant had denied his signature on the compromise application Ex. D-1, therefore, the respondent examined Anil Agrawal (DW-4) as the handwriting expert who 15 CR-34-2017 proved that the compromise application bears the signature of the applicant.
17. The Executing Court after considering the evidence lead by the parties have come to a conclusion that the compromise had taken place between the parties and, therefore, the execution proceedings are liable to be closed.
18. The moot question for consideration is that whether the compromise had taken place between the parties or not and whether the respondent had paid arrears of rent and has handed over the possession of the suit property to the applicant or not.
19. The respondent (DW-1) has stated that in fact the applicant used to meet with Shri H.K. Shukla who was the counsel for the respondent and on the information given by Shri H.K. Shukla, the respondent went to the office of Shri H.K. Shukla. It was further stated that an amount of Rs.20,000/- was given to the applicant and the amount was arranged by his son. However, the respondent has not examined his son to show the source of the amount of Rs.20,000/-. In paragraph 6 of his cross-examination, the respondent has stated that his son might have brought the money from bank but the respondent did not file any bank statement to show that an amount of Rs.20,000/- was withdrawn from the Bank by his son. Even the respondent has not examined his son. The respondent has admitted that a lawyer, who is appearing for one party should not appear on behalf of the other party because it would be against the dignity. However, respondent in his evidence 16 CR-34-2017 has stated that he along with the applicant had gone with Shri Shukla to file the application for compromise Ex. D-1 and the said application was filed on the same day at about 11:00 AM, whereas Shri Shukla has specifically stated that in fact the applicant and respondent had come to his office for preparation of the compromise application. Shri H.K. Shukla has nowhere stated that he was contacted by the applicant on 24 th and only on the instructions of the applicant, he had informed the respondent about compromise. He has also not stated that only on his instructions, the respondent has come to his office for the purposes of compromise. Further, Shri Shukla has admitted that the compromise application Ex. D-1 was prepared in the evening of 24.05.2008 but it was filed on 29.04.2008 before the Dy. Registrar and at the time of presentation of the application, none of the parties were present and the application was filed by him on his own. Further, Shri Shukla has specifically stated that he had identified only respondent / Munnalal Tripathi, therefore, it has to be presumed that the applicant Charan Das was not identified by Shri H.K. Shukla while signing the application under Order 23 Rule 3 of CPC. From the order dated 02.08.2008 passed by the Lok Adalat Ex. D-2, it is clear that neither the respondent nor his counsel were present. Thus, the contents of the compromsie application were not verified by either the applicant or his counsel. It is really surprising that the application filed under Order 23 Rule 3 of CPC was not supported by an affidavit. Why the affidavit in 17 CR-34-2017 support of the compromise application was not sworn, has not been clarified either by the respondent or by Shri H.K. Shukla. Further, in absence of any identification by Shri H.K.Shukla, it cannot be said that the application was signed by the applicant after the same was drafted on his instructions because it is clear from the photocopy of the application filed under Order 23 Rule 3 of CPC that the signature of the applicant are overlapping the contents of the application, whereas there is sufficient vacant space on the margin area. Further, on the second page of the application, the signatures of the applicant are at the bottom of the declaration. Why Shri Shukla did not get the application prepared in the presence of the counsel for the applicant, has not been clarified. Why Shri Shukla did not take the signatures of the counsel for the applicant at proper place on the application, has also not been explained. Why affidavit was not filed in support of the compromise application has also not been explained. Why application for compromise was not filed immediately on the next day is also not explained.
20. Further, the Lok Adalat before observing about the factum of compromise did not verify the facts from the parties. The compromise application was not verified by the Registrar, by recording the statements of the witnesses. Why Shri Shukla filed the compromise application on behalf of the opposite party has not been explained. Thus, it is clear that suspicious circumstances attached to the compromise application have not been explained.
18 CR-34-2017 Therefore, it is held that the applicant had never entered into a compromise with the respondent and thus the declaration about the arrears of rent and delivery of possession cannot be accepted.
21. Accordingly, this Court is of the considered opinion that the Executing Court committed a mistake by holding that compromise application was voluntarily signed by the applicant.
22. Accordingly, the order dated 18.05.2012 passed by Civil Judge, Class-II, Dabra District Gwalior in Case No. 486A/96-07 (Execution) is set aside.
23. The Executing Court is directed to proceed further with the execution. The execution proceedings must be concluded within a period of two months from the date of receipt of copy of this order on day to day basis.
24. Resultantly, the revision succeeds and is hereby allowed.
(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2019.09.24 17:16:31 +05'30'