(1.) THIS appeal has impugned the judgment and decree dated 9.3.2005 which has endorsed the finding of the trial judge dated 8.11.2004 wherein the fate of the two suits i.e. Suit No.573/2002 and Suit No.423/2002 had been sealed. Suit No.573/2002 was instituted first in time. THIS was a suit filed by Anil Kumar Srivastva (hereinafter referred to 'as the appellant') seeking declaration to the effect that the document Ex.PW-1/C which was a rent deed dated 29.11.2001 purported to have been executed between the appellant and Satbir Singh Manku (hereinafter referred to as 'the respondent') be declared null and void. The contention was that the compromise recorded between the appellant and the respondent in an earlier suit i.e. suit No.422/2001 on 03.12.2001 was a fraudulent transaction as the counsel purported to have been appearing on behalf of the appellant had never been authorized to make a statement that the matter had been compromised. Attention has been drawn to the order dated 03.12.2001 passed in suit No.422/2001. It is pointed out that in the said suit proceedings a compromise had been recorded by the Presiding Officer without taking on record any application under Order 23 Rule 3 of the Code which is a mandate; an oral compromise could not have been recorded; a fraud had been played upon the Court. The appellant had never authorized his advocate to enter into this compromise and in fact criminal proceedings had been initiated against the said advocate on this score.
(2.) THE second suit was suit No.423/3003 which has been filed by the respondent seeking possession and ejectment of the appellant from the suit property.
(3.) THIS is a second appeal. On behalf of the appellant, it has been urged that the compromise dated 03.12.2001 is vitiated by fraud and this is prima facie evident from the fact that criminal proceedings had been initiated against the said advocate who had allegedly entered into this compromise on behalf of the appellant. It is pointed out that the onus to discharge issue no.1 was wrongly placed upon the defendant and should have been upon the plaintiff. Learned counsel for the appellant to substantiate this argument Makhan Singh Vs. has placed reliance upon AIR 2007 SC 1808 Kulwant Singh to submit that when the onus has been wrongly placed in an issue, interference is called for even at the second appellate stage.