GOUSMOHKDDIN GAJABUR SAHEB Vs. APPA SAHEB

JUDGEMENT

(1.) The respondent-landlord filed a suit for possession of the suit premises against the appellants-defendants and for mesne profits. The suit was decreed by the Court of first instance. That decree has been affirmed on appeal by the Civil Judge, Chikodi, in RA.564 of 1972. Hence, this second appeal by the original defendants under S.100, CPC.

(2.) At the outset, Sri G.D.Shirgurkar, learned Counsel appearing for the respondent, submitted that IA.3 filed by him should be taken up for consideration in the first instance as already directed by this Court. In IA.3 the respondent has prayed that the appeal be dismissed and the appellants be precluded from prosecuting the appeal, in view of the solemn agreement executed by them on 3-11-73 not to prefer an appeal against the decree passed by the learned Civil Judge against the appellants. It is therefore necessary to take up IA.3, in the first instance.

(3.) The respondent has produced the original agreement said to have been executed by the appellants on 3-11-73. It is in Kannada and bears the signatures of the appellants and two attesting witnesses, M|s Desai and Shetty. It is stated therein that the decree holder, in execution of the decree for arrears of rent and costs awarded to him, obtained an order for attachment of the movables belonging to the appellants. It is in this background that the agreement was entered into and it is stated that the appellants paid a sum of Rs.900 and that they were granted one month's time by the respondent for paying the remaining decretal amount. It is further stated in the said agreement that the appellants will not prefer any appeal to the High Court and that they will deliver possession of the suit premises within one month's time granted by the respondent. The appellants have filed a counter-affidavit admitting their signatures on the agreement dt.3-11-73. They have, however, taken the stand that they signed on a blank paper in the presence of Sri V.B.Nuli and Sri Bagavan for being used for referring their dispute to arbitrators. In other words, they disowned their responsibility in regard to the contents of the agreement and took the stand that there was no agreement between the parties as stated in the alleged agreement dt.3-11-73. The respondent has filed the affidavits of the two attestors to the agreement who have testified to the correctness and execution of the agreement. The respondent has also filed the.affidavit of Sri V.B.Nuli. He has stated in the affidavit that there was no agreement to refer the dispute to the arbitrators and that no paper signed by the appellants was given for being used to write a document for referring the dispute to the arbitrators. Sri Nuli is the very person referred to in the counter-affidavit of the appellants as the person in whose presence such an understanding regarding reference to the arbitrators was arrived at and the blank paper containing the signatures of the appellants was obtained. Sri Nuli is a Member of the Legislative Assembly and a responsible person. The appellants themselves have stated that the event pleaded by them took place in the presence of Sri Null. As Sri Nuli himself does not support the case of the appellants, it is dffiicult to believe the theory put forward by them in the counter-affidavit. It is also necessary to bear in mind that the appellants have not filed any affidavit of Sri Bagavan the only other person in whose presence the event took place according to the appellants. I have therefore no hesitation in rejecting the case put forward by the appellants and hold that the agreement dt.3-11-73 was executed by them and that the contents of the said agreement were written by them voluntarily before they affixed their signatures to the said document.