# Aziz Uddin Revisionist v. Rajesh Verma

- **Citation:** (2022) 4 ILRA 918
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-24
- **Case number:** Civil Revision No. 202 of 2013
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aziz-uddin-revisionist-v-rajesh-verma-48367
- **Pages:** 12

## Headnote

A. Civil Law - Tenancy - Eviction, recovery
of arrears of rent and mesne profits - The
Uttar Pradesh Urban Buildings (Regulation
of Letting, Rent and Eviction) Act, 1972
(U.P. Act No. 13 of 1972) - Section 30(1) -
Provincial Small Cause Courts Act, 1887 -
Section 25.

Indian Evidence Act, 1872 - Section 17 -
Admission made by a party in an earlier
suit,
not
inter
parties,
is
certainly
admissible against it in a subsequent suit
involving a different party u/s 17 of the
Indian Evidence Act, 1872, but the
admission is not conclusive. It is open to
the party, who has made the admission in
the
plaint
of
an
earlier
suit,
to
demonstrate that it was not true. (Para
18)

The plaintiff/revisionist made an admission in
the plaint giving rise to Suit No. 85 of 2004 filed
by him against the Agra Development Authority,
challenging their order of demolition to the
effect that the demised shop was an old
construction, but it cannot be regarded as
conclusive proof of the fact or an estoppel by
pleading against the plaintiff. The Trial Court
has looked into some other evidence also, like
the map attached to the plaintiff's sale deed and
some photographs placed on record, which have
not been believed to hold that the demised shop
is a new construction. (Para 21)

The overall inference that has been drawn to
hold that the demised shop is not a new
construction is primarily based on the plaintiff's
admission made in the plaint of the earlier suit,
which the Trial Court has relied upon. The Trial
Court missed considering the evidence that in
fact, the demolition order passed by the Agra
Development Authority that is on record as
Paper No. 37, relates to the demised shop and
proceeds on the premise that the demised shop
is a new construction. There is nothing on
record to show that the demolition order was
set aside or revoked, holding the demised shop
to be an older construction. Rather, the
demolition proceedings later appear to have
been compounded between the plaintiff and the
Development Authority, which would prima facie
indicate that the demised shop, being a new
construction, was a factual position established
by the Development Authority. This part of the
evidence has not at all been considered by the
Trial Judge while deciding the crucial question
about the age of the demised shop that would
determine whether the Act is applicable to it. If
the Trial Judge had taken into consideration the
demolition order passed in the year 2003, he
might have reached a different conclusion. (Para
22, 23)

The finding of the Trial Court, therefore,
on the issue that the demised shop is an
old construction, an integral part of
Premises No. 1/208, to which the Act is
applicable,
is
vitiated
for
nonconsideration of material evidence. Also,
the finding is manifestly illegal, because it
proceeds on a wrong notion of the law
that an admission made in the plaint of an
earlier suit inter se the plaintiff and the
Development Authority is virtually to be
regarded as conclusive proof of the fact or
4 All. Aziz Uddin Vs. Rajesh Verma
919
an estoppel by pleading against the plaintiff,
as if it were. (Para 23)

The Trial Court is required to re-examine the
issue about the construction of the building
being a new one, dating to the year 2003, the
decree passed by the Trial Judge would have
to be set aside, with a remand to the Trial
Court to determine the question afresh,
whether the Act is applicable to the demised
shop. If the finding is that the demised shop
is indeed a construction raised in the year
2003, it goes without saying that the Act
would not govern the tenancy. In that event,
the rate of rent or default would all become
irrelevant. (Para 27)

It was observed by the Hon'ble High Court
that defendant/opposite party was tenant of
the of the plaintiff's/revisionist's in the
demised shop and no default was committed
by the defendant/opposite party in the
payment of agreed rent that was paid
regularly and through the

## Text

_Characters 0–39,756 of 42,566. This is a partial read: ask again with offset=39756 for what follows._

918 INDIAN LAW REPORTS ALLAHABAD SERIES
also interest thereon with effect from July
2002 to January 2008.

35. The revision stands disposed of.
----------
(2022)04ILR A918
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.03.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Civil Revision No. 202 of 2013

Aziz Uddin ...Revisionist
Versus
Rajesh Verma ...Respondent

Counsel for the Revisionist:
Sri Om Prakash-I, Sri Archit Mandhyan, Sri
Ayush Khanna, Sri Prateek Dawar, Sri Satish
Mandhyan

Counsel for the Respondents:
Sri Arvind Srivastava, Sri Anil Kumar Pandey

A. Civil Law - Tenancy - Eviction, recovery
of arrears of rent and mesne profits - The
Uttar Pradesh Urban Buildings (Regulation
of Letting, Rent and Eviction) Act, 1972
(U.P. Act No. 13 of 1972) - Section 30(1) -
Provincial Small Cause Courts Act, 1887 -
Section 25.

Indian Evidence Act, 1872 - Section 17 -
Admission made by a party in an earlier
suit,
not
inter
parties,
is
certainly
admissible against it in a subsequent suit
involving a different party u/s 17 of the
Indian Evidence Act, 1872, but the
admission is not conclusive. It is open to
the party, who has made the admission in
the
plaint
of
an
earlier
suit,
to
demonstrate that it was not true. (Para
18)

The plaintiff/revisionist made an admission in
the plaint giving rise to Suit No. 85 of 2004 filed
by him against the Agra Development Authority,
challenging their order of demolition to the
effect that the demised shop was an old
construction, but it cannot be regarded as
conclusive proof of the fact or an estoppel by
pleading against the plaintiff. The Trial Court
has looked into some other evidence also, like
the map attached to the plaintiff's sale deed and
some photographs placed on record, which have
not been believed to hold that the demised shop
is a new construction. (Para 21)

The overall inference that has been drawn to
hold that the demised shop is not a new
construction is primarily based on the plaintiff's
admission made in the plaint of the earlier suit,
which the Trial Court has relied upon. The Trial
Court missed considering the evidence that in
fact, the demolition order passed by the Agra
Development Authority that is on record as
Paper No. 37, relates to the demised shop and
proceeds on the premise that the demised shop
is a new construction. There is nothing on
record to show that the demolition order was
set aside or revoked, holding the demised shop
to be an older construction. Rather, the
demolition proceedings later appear to have
been compounded between the plaintiff and the
Development Authority, which would prima facie
indicate that the demised shop, being a new
construction, was a factual position established
by the Development Authority. This part of the
evidence has not at all been considered by the
Trial Judge while deciding the crucial question
about the age of the demised shop that would
determine whether the Act is applicable to it. If
the Trial Judge had taken into consideration the
demolition order passed in the year 2003, he
might have reached a different conclusion. (Para
22, 23)

The finding of the Trial Court, therefore,
on the issue that the demised shop is an
old construction, an integral part of
Premises No. 1/208, to which the Act is
applicable,
is
vitiated
for
nonconsideration of material evidence. Also,
the finding is manifestly illegal, because it
proceeds on a wrong notion of the law
that an admission made in the plaint of an
earlier suit inter se the plaintiff and the
Development Authority is virtually to be
regarded as conclusive proof of the fact or
4 All. Aziz Uddin Vs. Rajesh Verma
919
an estoppel by pleading against the plaintiff,
as if it were. (Para 23)

The Trial Court is required to re-examine the
issue about the construction of the building
being a new one, dating to the year 2003, the
decree passed by the Trial Judge would have
to be set aside, with a remand to the Trial
Court to determine the question afresh,
whether the Act is applicable to the demised
shop. If the finding is that the demised shop
is indeed a construction raised in the year
2003, it goes without saying that the Act
would not govern the tenancy. In that event,
the rate of rent or default would all become
irrelevant. (Para 27)

It was observed by the Hon'ble High Court
that defendant/opposite party was tenant of
the of the plaintiff's/revisionist's in the
demised shop and no default was committed
by the defendant/opposite party in the
payment of agreed rent that was paid
regularly and through the pendency of the
suit also. Therefore, the decision of the Trial
Court was affirmed on these points of
determination. For the plaintiff's right to evict
defendant, it was observed that the Trial
Court will see whether a valid notice to quit in
accordance with S.106 of the Transfer of
Property Act, 1882 has been served upon the
defendant. (Para 10, 25, 26, 28)

Revision allowed in part. (E-4)

Precedent followed:

1. Basant Singh Vs Janki Singh & ors., AIR 1967
SC 341 (Para 18)

2. Govindpal Singh Vs Deputy Director of
Consolidation, Meerut & ors., 1988 SCC OnLine
All 471 (Para 19)

3. Janki Ram & anr. Vs Amir Chand Ram & ors.,
1983 SCC OnLine Pat 241 (Para 20)

Present revision challenges the order
dated 18.01.2013, passed by Additional
District Judge, Agra.

(Delivered by Hon'ble J.J. Munir, J.)

1. This revision is directed against the
judgment and decree of Mr. Arun Chandra
Srivasava, Additional District Judge, Court
No.6, Agra dismissing S.C.C. Suit No.21 of
2005 for eviction, recovery of arrears of
rent and mesne profits.

2. According to the revisionist, the
plaintiff in S.C.C. Suit No.21 of 2005, he is
the owner in possession of property bearing
Premises No.1/2008, Professors' Colony,
Civil Lines, Agra. The defendant, who is
the respondent to this revision, according to
the plaintiff-revisionist (for short, 'the
plaintiff'), proposed to the plaintiff that if
the latter were to construct a shop on the
corner of his lawn, which was part of his
premises No.1/208, Professors Colony,
Civil Lines, Agra, the defendant would take
the shop on rent in the sum of Rs.10,000/-
per mensem. The plaintiff got a shop
constructed on the south-western corner of
his lawn between the months of July to
August, 2003 and let it out to the
defendant-respondent
(for
short,
'the
defendant'). The defendant entered the
tenanted shop, accepting it on a rent of
Rs.10,000/-
per
month.
The
tenancy
commenced on 28.08.2003. The defendant
paid to the plaintiff rent for the period
28.08.2003 to 27.09.2003 and 28.09.2003
to 27.10.2003 at the rate of Rs.10,000/- per
month. The plaintiff issued receipts to the
defendant for the rent paid by the latter.
Next, the defendant paid the plaintiff the
accumulated rent for the period 28.10.2003
to 27.12.2003, that is to say, for a period of
two months in the sum of Rs.20,000/-.
Thereafter, the defendant did not pay any
rent to the plaintiff. The plaintiff got a
notice dated 24.05.2005 served upon the
defendant, which was dispatched by
registered post on 17.06.2005. Despite
service of the notice, the defendant did not
pay the rent due.
920 INDIAN LAW REPORTS ALLAHABAD SERIES

3. The notice aforesaid determined the
defendant's tenancy, asking him to quit on
the expiry of thirty days from the receipt of
notice, but he did not vacate. According to
the plaintiff, the shop is a new construction
that was raised in the months of July and
August, 2003 and the contracted rent is
Rs.10,000/- per month. As such, the
provisions of The Uttar Pradesh Urban
Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972 (U.P. Act No.13 of
1972) (for short ''the Act') do not govern
the
tenancy.
The
defendant
is
a
troublesome character and whenever the
plaintiff would demand the due rent, the
former would get annoyed and lay false
complaints to the Police. It was in the said
background
that
the
plaintiff
was
compelled to terminate the defendant's
tenancy, as already indicated, vide notice
dated 24.05.2005. It is asserted that the
notice that was sent by registered post on
17.06.2005 was delivered to the defendant
personally on 18.06.2005.

4. In answer to the suit, the defendant
filed his written statement, saying that he is
a tenant in the shop that bears the humble
dimensions of 7' x 8'. The said shop is part
of
Municipal
Premises
No.1/108,
Professors' Colony, Civil Lines, Hariparvat
Ward, Agra. The defendant, however,
asserted that he is a tenant in the demised
shop at a monthly rent of Rs.1000/-. The
demised shop was a garage in the past. He
does not hold the shop on a rent of
Rs.10,000/- per month. It has been denied
by him that he ever approached the plaintiff
to get a shop constructed in a part of his
lawn, which he later on took on a rent of
Rs.10,000/- per month. The defendant also
denied the fact that the demised shop stands
on the south-western corner of the
plaintiff's lawn or that it was constructed in
the months of July and August 2003. The
defendant denied the plaintiff's case that the
tenancy commenced on 28.08.2003 at a
contracted rent of Rs.10,000/-. To the
contrary, the plaintiff let out the demised
shop to the defendant on 1st May, 2002 on
a rent of Rs.1,000/- per month and charged
from the defendant, by way security, a sum
of Rs.1,45,000/-. The security was paid by
the defendant on the plaintiff's assurance
that whenever the defendant would vacate
the shop, his security money would be
refunded. It has been denied that any rent
receipt was ever issued by the plaintiff to
the defendant. The defendant remitted rent
to the plaintiff for the months of May and
June, 2005 in the sum of Rs.2000/- through
money orders, which the plaintiff refused
on 29.06.2005. He then refused to accept
the said rent by hand.

5. Thereupon, the defendant applied
to deposit the due rent in Court under
Section 30(1) of the Act. The defendant's
application made for the purpose to the
Civil Judge (Jr. Div.), Agra was registered
as Misc. Case No.81 of 2005. In the said
case, the defendant has been regularly
depositing the rent well within the
plaintiff's knowledge. The plaintiff has
appeared in the case under Section 30(1) of
the Act also. The fact that the defendant has
paid rent from 28.08.2003 to 27.09.2003
and then from 28.09.2003 to 27.10.2003 in
the sum of Rs.10,000/- per month has been
denied. The fact that the defendant had not
paid any rent to the plaintiff after
28.12.2003
has
also
been
denied.
According to the defendant, the notice
dated 24.05.2005 was received by him on
17.06.2005 and it is not true that thereafter,
he has not remitted any rent to the plaintiff.
The notice dated 24.05.2005 was responded
to on behalf of the defendant by his
Counsel Mr. Mahesh Chandra Galav by
addressing a reply to the plaintiff's Counsel,
4 All. Aziz Uddin Vs. Rajesh Verma
921
Mr. H.B. Bansal. The reply was sent to the
plaintiff's Counsel by registered post.

6. It has been denied for a fact that the
demised shop was constructed in the month
of July and August, 2003 or that the rate of
rent was Rs.10,000/- per month. The
plaintiff's case that the provisions of the
Act were not applicable to the demised
shop was denied, and protection of his
tenancy under the Act was also claimed by
the defendant. Notice to quit has been
assailed as invalid. It was pleaded that the
defendant was not in arrears of four months
of rent so as to make the default actionable
under Section 20(2)(a) of the Act. The
demised shop is an old construction much
ante-dating the month of April, 1985 and,
therefore, the Act is applicable to it. It has
been denied for a fact that a sum of
Rs.1,96,667/- towards arrears of rent is due
to the plaintiff or there are any dues from
the date of termination of the tenancy until
institution of the suit on account of mesne
profits. The claim in the suit is one that is
designed to bear pressure upon the
defendant in order to enhance the rent to
Rs.4,000/- per month, or else vacate the
demised shop.

7. There is a long list of documentary
evidence, the summary of which is set out
in the Trial Court's judgment led on behalf
of the plaintiff. It includes a carbon copy of
the notice, the demolition order from the
Agra Development Authority, photographs
of the demised shop, bank account
statements,
income
tax
returns,
the
plaintiff's sale deed in original dated
28.10.1978 relating to premises No.1/208,
Civil Lines, Agra, etc. The entire summary
of evidence need not be recapitulated for
the sake of brevity. Documents as are
relevant would be referred to during course
of the judgment. The plaintiff, by way of
oral testimony testified on his own behalf
as PW-1 and examined as PW-2, Adil Aziz.
Both these witnesses, in lieu of their
examination-in-chief in the dock, filed
affidavits. Both the witnesses were crossexamined on the basis of their testimony in
the affidavits. A further witness-PW-3,
Deepak Kashyap, a handwriting expert,
was examined, who filed his affidavit in
lieu of his examination-in-chief in the dock,
but before his cross-examination could be
concluded, he passed away. Another
witness, who testified on behalf of the
plaintiff, is one Ram Autar Saxena. He
filed
his
affidavit
in
lieu
of
his
examination-in-chief in the witness-box,
but did not turn up to face crossexamination.

8. The defendant also filed a host of
documents, that include tenders of rent
deposited in Court, house tax assessment for
the years 1975-81, money order receipts,
besides photographs and negatives. He filed a
copy of the plaint giving rise to Suit No.85 of
2004, together with the plaintiff's affidavit
filed in support of the said plaint. The entire
summary of the documents need not be
recapitulated, as that finds eloquent mention
in the Trial Court's judgment. The relevant
documentary evidence would, however, be
referred to during course of this judgment. In
support, the defendant examined himself as
DW-1 and in lieu of his examination-in-chief
in the witness-box, filed an affidavit. He
further
examined
DW-2
Raj
Kumar
Shrotriye, a handwriting expert, who, in lieu
of his testimony in the witness-box,
submitted an affidavit. Both the witnesses
were cross-examined with reference to their
affidavits.

9. The Trial Court framed the
following
points
for
determination
(translated into English from Hindi):
922 INDIAN LAW REPORTS ALLAHABAD SERIES

(1) Whether there is a relationship of
landlord and tenant between the plaintiff
and the defendant and the provisions of
U.P. Act No.13 of 1972 are applicable to
the property in question?

(2) Whether the defendant is a tenant
in the shop in question at the rate of
Rs.10,000/- per month?

(3)
Whether
the
defendant
has
committed default in the payment of rent?

(4) Relief.

10. It must be remarked that the Trial
Court proceeded on the basis of points of
determination, because the case before it
was a small cause suit and not a regular
suit. On the point of determination No.1,
which is a composite point involving two
issues, it was held that there was no dispute
that the defendant was a tenant of the
plaintiff's in the demised shop. On the
second part of the first point, it was held
that the shop in dispute was an old
construction, to which the provisions of the
Act were applicable. On the second point
of determination, it was held that the rate of
rent was Rs.1,000/- per month and not
Rs.10,000/-.
On
the
third
point
of
determination, it was held that no default
was committed by the defendant in the
payment of agreed rent that was paid
regularly and through the pendency of the
suit also. In view of the conclusions that the
Trial Court reached on the points framed by
it, the suit was ordered to be dismissed.

11. Aggrieved, this revision has been
preferred by the plaintiff under Section 25
of the Provincial Small Cause Courts Act,
1887.

12. Heard Mr. Ayush Khanna, learned
Counsel for the plaintiff, Mr. Anil Kumar
Pandey, learned Counsel appearing for the
defendant and perused the lower court
records.

13. The most crucial question to be
determined in the present suit is the fact,
whether the provisions of the Act are
applicable to the demised shop and govern
the tenancy. Mr. Ayush Khanna, learned
Counsel for the plaintiff has vehemently
submitted that the Act does not apply. He
submits that the demised shop is a new
construction raised by the plaintiff on a
corner of his residential premises virtually
at the defendant's behest. The shop was
raised during the months of July and
August, 2003, a fact which the learned
Counsel for the plaintiff seeks to support by
referring to the map attached to the sale
deed dated 28.10.1978 through which the
premises bearing No. 1/208, Civil Lines,
Agra were purchased by the plaintiff. He
has taken the Court through the map
bearing paper No. 34ग/10, which he says
does not show any structure that may be
explained as an old existing construction,
now let out as a shop to the defendant.

14. On the other hand, Mr. Anil
Kumar Pandey, learned Counsel for the
defendant has argued that the demised shop
is an integral part of the residential
premises. It was formally a garage, which
was let out to the defendant by the plaintiff
on 1st of May, 2002 on a rent of Rs.1000/-
per month. The learned Counsel for the
defendant has particularly drawn the
attention of the Court to the plaint giving
rise to Original Suit No.85 of 2004, Aziz
Uddin v. Agra Development Authority.
This plaint is on record as paper no. 85ग.
The learned Counsel has particularly
referred to paragraph No.2 of the plaint
giving rise to Suit No.85 of 2004, where it
is averred:
4 All. Aziz Uddin Vs. Rajesh Verma
923

"2. That interalia other constructions
existed over the property as mentioned
above there is shop towards Northern
Western side of the property in question
which is a very old one constructions."

15. It is submitted on the foot of this
averment in the plaint that there is a clear
admission on the plaintiff's part that the
demised shop is an old construction. The
learned Counsel points out that the suit is
one instituted after the Agra Development
Authority
had
issued
an
order
for
demolition of the demised shop. The
plaintiff instituted Suit No.85 of 2004,
seeking to assail the demolition order,
where a specific stand was taken that the
shop is an old construction, not requiring a
sanctioned
plan
from
the
Agra
Development Authority. It is urged that the
plaintiff cannot go back on his word, which
constitutes his stand in his pleadings.

16. This Court has keenly considered
the rival submissions of parties on the issue
whether the Act applies to the demised
shop. This Court finds that in writing its
opinion, the Trial Court has been decisively
swayed by the fact that in Original Suit
No.85 of 2004, the plaintiff took a specific
stand that the demised shop was an old
construction. Before the Trial Court, a
stand was taken by the plaintiff that he
never filed the suit, but somebody else did
it on his behalf in order to create evidence
against him. The suit was soon afterwards
withdrawn. The Trial Court has taken note
of the fact that the withdrawal application
was moved on 07.08.2006, after the present
suit was instituted, in order to wriggle out
of his admission. The stand that the plaint
giving rise to the suit was not signed or
filed by the plaintiff was not accepted by
the Trial Court. The finding of the Trial
Court that Suit No.85 of 2004 was not filed
by
the
plaintiff
against
the
Agra
Development Authority is an incorrect
stand by the plaintiff, may not be wrong. It
is also true that the plaintiff withdrew the
suit after he had filed the present suit for
eviction, taking a stand that the demised
shop was a new construction. It does seem
that the plaintiff has been guided by his
self-interest in taking contradictory stands
in the two suits. He also seems to have
indulged in some falsehood by saying that
he never filed the earlier suit against the
Agra Development Authority. A prelude to
the
central
question
is:
Does
such
indulgence in falsehood to secure relief
disentitle the plaintiff from establishing the
truth of the matter, whether the demised
shop is a new construction, that is free from
operation of the Act? In the opinion of this
Court, it does not.

17. The purpose of trial of a cause
before a Court of law is to find out the truth
and its bearing upon the rights of parties in
accordance with law. Parties, as they go
through the turmoil of litigation, may go
wayward in the pursuit of relief. They may
vacillate in their stand or indulge in
falsehood, but all vacillations in a parties'
stand in Court or some assertions that are
contradictory or false, may not be relevant
at all to the issue under inquiry. If they are
not relevant, these are to be generally
ignored. The central question involved is
whether the demised shop is an old
construction to which the Act applies, or is
it a new one that is under the umbrella of a
rent holiday. The Trial Court has been
decisively swayed in its opinion by the fact
that in the plaint giving rise to Suit No.85
of 2004, the plaintiff has stated that the
shop is an old construction. The Trial Court
has regarded this averment in the plaint
giving rise to the suit filed against the
Development Authority as an admission on
924 INDIAN LAW REPORTS ALLAHABAD SERIES
the plaintiff's part. The question is whether
pleadings in an earlier suit, not inter partes,
are at all admissible in a subsequent suit
between one of the parties to the earlier suit
and a third party.

18. This question did pose some
challenge to judicial opinion at one point of
time long ago, but has now come to be settled
in terms of authority to the effect that
admission made by a party in an earlier suit,
not inter partes, is certainly admissible
against it in a subsequent suit involving a
different party under Section 17 of the Indian
Evidence Act, 1872, but the admission is not
conclusive. It is open to the party, who has
made the admission in the plaint of an earlier
suit, to demonstrate that it was not true. The
most authoritative statement of the law on
this point is to be found in the holding of their
Lordships of the Supreme Court in Basant
Singh v. Janki Singh and others, AIR 1967
SC 341, where it was observed:

"5. The High Court also observed that
an admission in a pleading can be used only
for the purpose of the suit in which the
pleading was filed. The observations of
Beaumont, C.J. in Ramabai Shriniwas v.
Bombay Government [AIR 1941 Bom 144]
lend some countenance to this view. But
those observations were commented upon
and explained by the Bombay High Court in
D.S. Mohlte v. S.I. Mohile [AIR 1960 Bom
153] . An admission by a party in a plaint
signed and verified by him in a prior suit is an
admission within the meaning of Section 17
of the Indian Evidence Act, 1872, and may be
proved against him in other litigations. The
High Court also relied on the English law of
evidence. In Phipson on Evidence, 10th Edn,
Article 741, the English law is thus
summarised:

"Pleadings, although admissible in
other actions, to show the institution of the
suit and the nature of the case put forward,
are regarded merely as the suggestion of
counsel, and are not receivable against a
party as admissions, unless sworn, signed,
or otherwise adopted by the party himself."

Thus, even under the English law, a
statement in a pleading sworn, signed or
otherwise adopted by a party is admissible
against him in other actions. In Marianski
v. Cairns [1 Macq 212 (HL)] the House of
Lords decided that an admission in a
pleading signed by a party was evidence
against him in another suit not only with
regard to a different subject-matter but also
against a different opponent. Moreover, we
are not concerned with the technicalities of
the English law. Section 17 of the Indian
Evidence Act, 1872 makes no distinction
between an admission made by a party in a
pleading and other admissions. Under the
Indian law, an admission made by a party
in a plaint signed and verified by him may
be used as evidence against him in other
suits. In other suits, this admission cannot
be regarded as conclusive, and it is open to
the party to show that it is not true."

(Emphasis by Court)

19. The aforesaid position of law was
noticed by this Court in Govindpal Singh
v. Deputy Director of Consolidation,
Meerut and others, 1988 SCC OnLine
All 471, where A.P. Misra, J. (as His
Lordship then was of the High Court) held:

"23. Apart from this, the argument that
the statement is an admission and binding
between the parties is unsustainable. Before
drawing an admission all the circumstances
under which admission was made has to be
taken into consideration before reliance
could be placed by a party in subsequent
proceedings and an admission could be
made in a given case to terminate a
proceeding in order to avoid long litigation
4 All. Aziz Uddin Vs. Rajesh Verma
925
and enjoying fruits even by giving up the
existing right, but that statement could only
be confined to the suit in which it was
made. Any statement made in the previous
suit or proceeding if it is regarded by a
party as an admission he must prove the
circumstances under which it was made
and to show that such an admission was not
confined for the purpose of that suit then
only in a subsequent proceeding reliance
could be placed to bind such party not to
resile from it. Normally, every person
making
a
statement
in
the
earlier
proceeding has a right to explain away a
statement in subsequent proceedings and
merely making such statement cannot bind
nor could it apply as an estoppel to explain
away such statement. Thus, statement
under O. X, R. 2, C.P.C. cannot be said to
be such which is an admission on behalf of
the petitioner on which reliance has been
placed by the respondents to show that it
constitutes an act of consent of co-option to
admit Smt. Reoti Kunwar as a co-tenant
Learned counsel for the petitioner very
rightly relied on a passage in "Sarkar on
Evidence" Vol. I, Thirteenth edition at page
198, which is quoted hereunder:--

"Statements in pleadings are not
evidence against the party pleading in
subsequent proceedings (Boileau v. Rutlin,
1848, 2 Ex 665; Hals. 3rd Ed. Vol. 15, para
540). ''Pleadings recorded in one cause are
admissible in evidence in subsequent
proceedings to prove the institution and
subject-matter of such cause but are
generally inadmissible even as against
parties or privies as proof of the truth of the
facts stated therein. (Hals. 3rd Ed Vol. 15,
para 709).

The rule rejecting the pleadings in
prior
causes
as
admissions
is
of
considerable antiquity and was based on
the theory that the statements were not
those of the party, but were merely
''pleader's matter' and consisted largely of
''suggestions of counsel' and ''flourishes of
the draftsmen'."

24. The case Basant Singh v. Janki
Singh, AIR 1967 SC 341 repelled the
earlier views of the Court that admission by
a party in plaint signed and verified by him
may be used as evidence against him in
other suits in terms of S. 17, Indian
Evidence Act, 1872. The Supreme Court
repelling the earlier views held as follows:-
-

"Moreover, we are not concerned with
the technicalities of the English Law. S. 17
of the Indian Evidence Act, 1872 makes no
distinction between an admission made by
a party in a pleading and other admissions.
Under the Indian Law, an admission made
by a party in a plaint signed and verified by
him may be used as evidence against him
in other suits. In other suits, this admission
cannot be regarded as conclusive, and it is
open to the party to show that it is not
true."

25. Learned counsel for the petitioner
also relied on a case Kailash Chandra v.
Ratan Prakash, AIR 1974 All 138. In this
case, this Court held that the statement of a
counsel of a party can be recorded under R.
1 of O. X and not under R. 2.

26. Reliance was also placed on
Muhammad Imam Ali Khan v. Husain
Khan, (1899) ILR 26 Cal 81. In this case
certain statement was made in 1878 which
was sought to be relied on in subsequent
proceedings. It was in this light that the
court held as follows:--

"Supposing that in 1978 he believed
them
to
be
true
and
made
them
spontaneously, why should he not assert the
true state of the case after he has learned it?
An Oudh talukh cannot be transferred like
an ordinary estate under Mohomedan or
Hindu law because the Oudh Estates Act
requires special modes of transfer. It is not
926 INDIAN LAW REPORTS ALLAHABAD SERIES
now contended that the mutation operated
as a transfer. It would be absurd to suppose
that
the
plaintiff
made
any
misrepresentation to the defendant; neither
was the situation of the defendant altered in
any way to his prejudice. No consideration
was given by the defendant, nor is there
anything in the transaction to create a trust
Possibly it might have given the defendant
a possession on which time would run; but
if so, time has not run long enough to
create a bar....."

27. It was also held:

".....a gratuitous admission may be
withdrawn unless there is some obligation
not to withdraw it; and there is not here any
title on which such an admission can
rest....."

20. The question also fell for
consideration of the Patna High Court in
Janki Ram and another v. Amir Chand
Ram and others, 1983 SCC OnLine Pat
241, where it was observed:

"15.
Then
remains
the
second
submissions of the learned counsel for the
appellants to be considered that is, whether
the statements made by the plaintiff Janki
in a duly sworn affidavit filed in a
proceeding under S. 145 of the Criminal
P.C. in the year 1963 could be used as a
piece of evidence against the plaintiffs in
the instant suit. It is well settled that an
admission on a question of fact made by a
party in course of a proceeding can be
regarded as a good piece of evidence relied
upon, which the contesting party may
contend that the claim made in the
subsequent proceeding was unjustified The
Court is entitled to consider the admission
solemnly made by a party concerning the
subject matter in dispute (words have been
underlined by me for emphasis) in course
of a proceeding in adjudicating upon the
truth or otherwise of a claim made by the
parties
in
a
subsequent
proceeding
concerning the subject matter in dispute.
The admission made by a party may be
used as evidence against him in the other
suit if it concerns the subject matter in
dispute. However, such an admission
cannot be regarded as conclusive and the
party can show that it was not (true).
Reference be made to the case of Basant
Singh v. Janki Singh (AIR 1967 SC 341)."

21. Here, no doubt the plaintiff has
made an admission in the plaint giving rise
to Suit No.85 of 2004 filed by him against
the
Agra
Development
Authority,
challenging their order of demolition to the
effect that the demised shop was an old
construction, but it cannot be regarded as
conclusive proof of the fact or an estoppel
by pleading against the plaintiff. It is open
to the plaintiff to show that the admission
was made under circumstances that proceed
from misinformation or is the product of
legal draftsmanship of pleadings that he did
not understand; or still more, it was an
incorrect stand in point of fact taken in his
pleading to save the demised shop from
demolition. What is important to be
determined is not the morality or the
probity of the plaintiff, but the fact whether
the demised shop is a new construction, as
the plaintiff alleges, or an old construction
standing over a part of the plaintiff's
residential premises. No doubt, the Trial
Court has looked into some other evidence
also, like the map attached to the plaintiff's
sale deed and some photographs placed on
record, which have not been believed to
hold that the demised shop is a new
construction.

22. The overall inference that has
been drawn to hold that the demised shop is
not a new construction is primarily based
4 All. Aziz Uddin Vs. Rajesh Verma
927
on the plaintiff's admission made in the
plaint of the earlier suit, that is to say, Suit
No.85 of 2004, which the Trial Court has
lavishly and overwhelmingly relied upon.
What the Trial Court, however, has missed
from consideration is the evidence that in
fact, there was a demolition order passed
by the Agra Development Authority, that is
on
record
as
Paper
No.37ग.
This
demolition order relates to the demised
shop and proceeds on the premise that the
demised shop is a new construction. The
demolition matter later appears to have
been compounded between the plaintiff and
the Development Authority. This part of
the evidence has not at all been considered
by the Trial Judge while deciding the
crucial question about the age of the
demised
shop
that
would
determine
whether the Act is applicable to it.

23. The Trial Judge seems to have
been so fascinated and overwhelmed by the
admission made in the plaint that he has
bestowed no consideration to the fact that
the foundation of the statutory demolition
proceeding was a new construction done by
the plaintiff in the year 2003. The
demolition order was served upon the
plaintiff, as he alleges, in the plaint giving
rise to Suit No.85 of 2004 on 04.12.2003. If
the Trial Judge had taken into consideration
the demolition order passed in the year
2003, he might have reached a different
conclusion about the fact whether the
demised shop was a new construction or
not. There is nothing on record to show that
the demolition order was set aside or
revoked, holding the demised shop to be an
older construction. Rather, the demolition
proceedings
appear
to
have
been
compounded, which would prima facie
indicate that the demised shop, being a new
construction, was a factual position that
was acquiesced into by the plaintiff and
established by the Development Authority.
The finding of the Trial Court, therefore, on
the issue that the demised shop is an old
construction, an integral part of Premises
No. 1/208, to which the Act is applicable, is
vitiated for non-consideration of material
evidence. Also, the finding is manifestly
illegal, because it proceeds on a wrong
notion of the law that an admission made in
the plaint of an earlier suit inter se the
plaintiff and the Development Authority is
virtually to be regarded as conclusive proof
of the fact or an estoppel by pleading
against the plaintiff, as if it were. The
correct legal position is that the admission
made in the said plaint, though admissible,
it is open to the plaintiff to explain it by
other evidence that it did not represent the
true state of facts.

24. In view of what has been said
above, this Court is of opinion that the
finding recorded by the Trial Court on
point of determination No.(1) is not
sustainable. The Trial Judge ought to
reconsider the said finding, giving further
opportunity to the plaintiff and the
defendant to explain the admission about
the age of the building. The Trial Judge
also ought to look into the proceedings for
demolition
that
were
taken
by
the
Development Authority, relating to the
demised shop. The parties shall be
permitted to lead evidence further about
this fact in issue, as may be relevant and
advised.

25. So far as the finding on point of
determination No.(2) is concerned, this
Court is of opinion that the Trial Court has
rightly discarded the rent deed dated 20th
August, 2003 as a bogus document. A
comparison of the defendant's signatures
on the rent deed with those made
elsewhere, such as the written statement or
928 INDIAN LAW REPORTS ALLAHABAD SERIES
his testimony in Court, clearly show that
the signatures on rent deed are not the
defendant's. This conclusion is inevitable
on a bare comparison of the defendant's
admitted signatures with those on the rent
deed. The report of the expert produced by
the defendant, who too, for good reasons
assigned,
has
opined
against
the
genuineness of the defendant's signatures
on the rent deed, appears to be correct. At
the same time, the document Paper No.
66ग,
which
evidences
payment
of
premium in the sum of Rs.1,45,000/- by
the defendant to the plaintiff, has also
been rightly believed. The signatures on
the said document made across the
revenue stamp are unmistakably those of
the plaintiff. The conclusion on this point
also is based on expert opinion, which the
Trial Court has accepted. There is no
reason for this Court to disagree with this
conclusion of the Trial Court either. The
rate of rent mentioned in the document
Paper No.66ग is Rs.1000/-. The opinion of
the Trial Court, therefore, that the rate of
rent is Rs.1000/-, is based on a very
plausible view of the evidence on record,
that does not warrant interference in the
exercise of our revisional jurisdiction.

26. The findings of the Trial Court on
point of determination No. (3) about default
in the payment of rent also does not
deserve to be disturbed. The Trial Court
has carefully looked into documentary
evidence showing tender of rent by money
order and by deposit in Court under Section
30(1) of the Act relative to different periods
of time vis-à-vis the figures of rent
deposited. The record bears out with the
findings of the Trial Court and does not
lead to any inference about default in the
payment of rent. The finding of the Trial
Court, therefore, on point of determination
No. (3) is also affirmed.

27. Since this Court is of opinion that
the Trial Court is required to re-examine
the issue about the construction of the
building being a new one, dating to the year
2003, the decree passed by the Trial Judge
would have to be set aside, with a remand
to the Trial Court to determine the question
afresh, whether the Act is applicable to the
demised shop. In doing that, the Trial Court
shall bear in mind the guidance in this
judgment and will consider all relevant
evidence on the point; not just the
admission of the plaintiff in the plaint of
Suit No.85 of 2004. Any further evidence
led by parties shall also be considered. If
the finding is that the demised shop is
indeed a construction raised in the year
2003, it goes without saying that the Act
would not govern the tenancy. In that
event, the rate of rent or default would all
become irrelevant.

28. So far as the right of the plaintiff
to evict the defendant is concerned, all that
would then have to be seen by the Trial
Court is whether a valid notice to quit in
accordance with Section 106 of the
Transfer of Property Act, 1882 has been
served upon the defendant.

29. In the result, this revision
succeeds and is allowed in part. The
impugned judgment and decree dated
18.01.2013 passed by the Additional
District Judge, Court No.6, Agra in S.C.C.
Suit No.21 of 2005 is set aside. The suit
shall stand restored to the file of the learned
Trial Judge for trial and decision afresh, in
accordance with the remarks in this
judgment and on the point required to be
re-determined. The Trial Court shall
proceed to try and decide the suit, after
affording necessary opportunity to both
parties in accordance with law, within a
period of six months of the receipt of a
4 All. M/s Calcutta South Transport Co., Kolkata Vs. State of U.P. & Anr.
929
copy of this judgment. Since the matter is a
small cause suit, that is one of the year
2004, the Trial Judge shall fix one date of
effective hearing every week. Both parties
shall appear before the Trial Court on 20th
April, 2022. There shall be no order as to
costs.

30.