RAM SINGH Vs. ROOP SINGH

JUDGEMENT

(1.) The present second appeal has been preferred against the judgment and decree dtd. 28/8/2023 passed by the Additional District Judge No.5, Jodhpur Metropolitan in Civil Appeal No.22/18 whereby the judgment and decree dtd. 2/5/2018 passed by the Additional Civil Judge No.9, Jodhpur Metropolitan in Civil Suit No.02/16 (NCV No.13291/2014) has been affirmed. Vide judgment and decree dtd. 2/5/2018, learned Trial Court proceeded on to decree the suit as preferred by the plaintiff for permanent and mandatory injunction.

(2.) It is relevant to note at this stage itself that, a counter claim was also filed by the defendant in the said suit qua which issue No.9 was framed. Although issue No.9 has been decided against the defendant, the operative portion of the judgment and decree dtd. 2/5/2018 does not make any mention of allowing or rejection of the counter claim. The first Appellate Court proceeded on to affirm the judgment and decree of the learned Trial Court but it too did not make any mention about the allowing or dismissal of the counter claim of the defendant.

(3.) Learned counsel for the appellant raised three grounds before this Court, firstly, the patta/lease in question on basis of which the plaintiff claimed his ownership was obtained by fraud and hence, the said document was void ab initio. It has been submitted that no decree could have been passed on basis of a fraudulent document and further that, even if no ground/counter claim for declaration of the said document to be void was raised/made, the same being void ab initio, could not have been relied upon by both the Courts below. In support of his submission, counsel relied upon the judgment passed in the case of Prem Singh & Ors. vs. Birbal & Ors., (2006) 5 SCC 353. Secondly, the learned Trial Court committed a serious illegality in not complying with the provisions of Order 13 Rule 4, CPC. The documents as exhibited do not bear the signature of the Presiding Officer which is a mandate in terms of provisions of Order 13 Rule 4, CPC. Hence, because of the said illegality, the documents as exhibited could not have been read in evidence. Thirdly, as the impugned judgment and decree does not reflect anything about the result of the counter claim as preferred by the defendant, the same is a nullity and deserves to be set aside on this count alone.