Final Order 1

Order Details: COPY OF ORDER
Pdf Text: Civ Suit 211/24
SALEEM AHMAD Vs. SUDARSHAN KUMAR JOSHI
15.03.2024
Fresh Civil Suit received by way of assignment. It be checked and
registered.
Present : Ld. Counsel for plaintiff with plaintiff.
Heard. Perused.
In this matter the plaintiff wants setting aside of a decree
dated 21.12.17 and the orders passed in the execution petition based on
the said decree. During the proceedings, it transpired that the decree
dated 21.12.17 passed in CS No 280/08 was challenged upto the
Hon’ble High Court of Delhi and the same was eventually dismissed
against the plaintiff herein in RSA No. 60/2020.
Surprisingly, this fact is not stated by the plaintiff in his
plaint and it was only on the query of this Court that this fact was
revealed by the plaintiff’s Counsel. On inquiry, it transpires that even the
judgment passed in the said RSA has not been filed by the plaintiff
before this Court.
Be that as it may, once the decree dated 21.12.17 has been
affirmed uptil the Hon’ble High Court of Delhi and prima-facie it
appears that the plea of forgery being set up today was available with
the plaintiff herein in CS No. 280/08 (where the present plaintiff was the
defendant), how can the plaintiff agitate the same issue again. In my
humble opinion, the present suit may not be maintainable.
Let plaintiff argue on the aforesaid aspect and also file copy
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of the said judgment passed by the Hon’ble High Court of Delhi referred
above.
At request of Counsel for plaintiff, matter is passed over for
30 minutes.
Aashish Gupta
SCJ-cum-RC,
East/KKD/15.03.2024
After 30 minutes.
Present: Ld. Counsel for plaintiff with plaintiff.
1. Plaintiff has filed photocopy of judgment dated 31.10.23
passed by the Hon’ble High Court of Delhi in RSA No. 60/20.
Arguments on the issue of maintainability also heard.
2. Record perused. The judgment passed in RSA No. 60/20 by
the Hon’ble High Court of Delhi also perused.
3. The said RSA was preferred by the plaintiff herein and
arose from suit bearing No. 280/08 (8902/16). The said suit was filed
by the predecessor in interest of the defendant herein i.e. Kaushalya
Devi against Saleem Ahmed/plaintiff herein inter-alia seeking his
eviction from the suit property bearing No. 90/1, Gali No. 1,
Shakkarpur, Delhi.
4. Now, in the present suit, plaintiff claims that the documents
which formed the basis of the said decree passed in suit No. 280/08
(8902/16) were forged. It is his case that the actual municipal number of
the property involved in the said suit is 88/15A and it was changed to
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90/1 by the said Kaushalya Devi. It is his case that the said suit was
based on a forged rent agreement with a wrong property number and
therefore, the decree passed in the said suit should be declared null and
void and all proceedings leading to the eviction of the plaintiff herein
should be set aside.
5. A bare perusal of the judgment dated 31.10.2023 passed by
Hon’ble High Court of Delhi in RSA No. 60/20 shows that the said
contention qua two different property numbers and the alleged forged
rent agreement was specifically taken by the plaintiff herein ( who was
the appellant in the said RSA) and was categorically negated by the
Hon’ble High Court of Delhi. The Hon’ble High Court of Delhi has
given a very detailed judgment dealing with all the contentions of the
plaintiff herein in the said RSA.
6. If the judgment dated 21.12.17 passed in CS No. 280/08
(8902/16) has already been upheld by the Hon’ble High Court of Delhi
and the plea taken in the present suit was specifically dealt with by the
Hon’ble High Court of Delhi in the second appeal No. 60/20, the same
plea cannot be allowed to be raised again in a fresh suit.
7. The issue in the present suit is directly and substantially the
same which was in issue in the earlier suit noted above, between the
same parties. The defendants herein are claiming through Kaushalya
Devi (who was the plaintiff in the earlier suit). Thus, the present suit is
barred by the principle of res judicata.
8. It was argued by the Counsel for the plaintiff that in the said
earlier suit, he did not take the plea of forgery at all. It is settled law that
all pleas available to a party should be taken by the said party in one go
and any plea which was available to the said party at the time of contest
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of the first case (but the same is not taken), the said plea cannot be
allowed to be taken again subsequently in a fresh suit.
9. But, it is evident from the reading of the judgment dated
31.10.2023 passed by the Hon’ble High Court of Delhi that the
contention of forgery qua rent agreement dated 17.07.2007 was
specifically taken by the plaintiff herein before the trial Court in the
earlier suit and also contended before the Hon’ble High Court of Delhi.
Thus, it is incorrect on the part of the plaintiff to contend that the plea of
forgery was never taken earlier by the plaintiff in the earlier suit.
10. Presuming the same to be true, only for the sake of
argument, still in light of explanation (IV) of Section 11 CPC, the said
ground of defence was admittedly available to the plaintiff in the earlier
suit and therefore, it has to be deemed that the same was directly and
substantially in issue before the Court which decided the said earlier
suit.
11. In other words, once the plaintiff has lost the earlier suit
and even execution of the decree passed thereafter, has been completed,
today, he cannot be allowed re-agitate the same on a frivolous plea of
forgery. On the principle of merger, the judgment and decree dated
21.12.17 have merged with the judgment passed by the Hon’ble High
Court of Delhi in RSA No. 60/2020 dated 31.10.2023 and now it does
not lie in his mouth to get the said order of the Hon’ble High Court of
Delhi set aside by this Court. It is neither legal nor possible.
12. It appears that once the plaintiff has failed to get any
relief from the Hon’ble High Court of Delhi, he has resorted to
suppression of facts to try to get notice on this suit. He has not
mentioned in his plaint that the aforesaid RSA was preferred by
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him before the Hon’ble High Court of Delhi or its outcome. He did
not even place on record the copy of the judgment passed in the said
RSA and it was only after this Court insisted for the same that the
plaintiff produced it. It appears that the plaintiff is now resorting to
sharp practices and trying to defraud the Court. The issue of
different property numbers etc. has been specifically dealt with by
the Hon’ble High Court of Delhi and now the plaintiff is trying to
hood wink the Court by suppression of facts. This is evident from
the fact that he has described the present suit property (qua which
decree dated 21.12.17 in CS No. 280/08 (8902/16) was passed by the
Ld. Trial Court) as 88/15A (90/1) and not as 90/1. Qua the same
property, there is a specefic finding by the Hon’ble High Court of
Delhi that the said property is actually bearing No. 90/1. The
Hon’ble High Court of Delhi in its judgment dated 31.10.23 has
noted that there was a categorical admission on the part of Saleem
Ahmed/plaintiff herein that he is a tenant in property No. 90/1.
Now, plaintiff wants to confuse the said property number with
88/15A. The said contention was also taken before the Hon’ble High
Court of Delhi. The same was repelled by the Hon’ble High Court
of Delhi.
13. The long and short of the above is that the plaintiff is
resorting to sharp practices by filing frivolous cases which are clearly
barred in law.
14. As noted above, the present suit is hit by the principle of
res judicata. Accordingly, the present suit is dismissed being barred in
law with cost of Rs. One lac to be recovered from the plaintiff. The cost
is awarded to DLSA (East), Karkardooma Courts, Delhi.
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15. Let copy of this order be sent to Ld. Secretary, DLSA
(East), KKD Courts, Delhi for necessary information.
16. Let a decree sheet be prepared.
17. File be consigned to Record Room. Dasti.
Aashish Gupta
SCJ-cum-RC,
East/KKD/15.03.2024
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