Court No. - 19
Case :- S.C.C. REVISION No. - 243 of 2016 Revisionist :- Satya Prakash Goel Opposite Party :- Smt. Kavita Jain Counsel for Revisionist :- Anoop Trivedi Counsel for Opposite Party :- Kiran Kumar Arora,K.K.Arora
Hon'ble Manoj Kumar Gupta,J.
The matter taken up in revised call. Counsel for the revisionist is present. None is present for the plaintiff-opposite party.
In the instant matter, there is direction by the Supreme Court in Civil Appeal No.5331 of 2017 arising out of SLP (C) No.3547 of 2017 dated 17.4.2017 for deciding the case within six months. However, counsel for the plaintiff-respondent was regularly sending illness slips. This Court on 26.11.2018 adjourned the case on the ground of illness of the counsel for the plaintiff-respondent, but with the clarification that it shall not be adjourned on next date on the said ground. Again on 3.12.2018, the parties sought adjournment. The following order was passed on 3.12.2018:-
“Sri K.K. Arora, counsel for the respondent-landlord has again sent illness slip despite a clarification by previous order that no adjournment would be granted. Counsel for the revisionist, who is present, is also seeking adjournment.
List peremptorily on 12.12.2018, on which date, learned counsel for both the parties are requested to argue the matter, as it would not be adjourned.
Learned counsel for the revisions shall give a written intimation about the order passed today to Sri K.K. Arora, counsel for the respondent-landlord.”
On 12.12.2018 again illness slip was sent compelling the Court to pass the following order :-
“Counsel for the respondent Sri K.K. Arora has again sent illness slip. It is pointed out that he is not well and has undergone some operation.
There is an order for expeditious disposal of the instant matter by the Supreme Court. On previous date, the matter was adjourned on account of illness slip sent by Sri K.K. Arora.
List on 18.12.2018.
It is clarified that on that day case will not be adjourned on ground of illness of counsel for the respondent. The respondent may make alternative arrangement.”
Today, again counsel for the respondent has sent illness slip, which is ignored in view of the order passed on previous dates.
The Court has perused the entire record of the case and heard the submissions of learned counsel for the revisionist.
The facts in brief necessary for disposal of the instant revision are as follows:-
The plaintiff-respondent instituted a suit before the Court of Small Causes against the revisionist (hereinafter referred to as 'the defendant') for recovery of arrears of rent and eviction from a shop bearing Municipal No.1038/6 situated in Mohalla Police Chowki, Meerut Gate, Hapur. According to the plaintiff's case, the shop in the tenancy of the defendant was purchased by the plaintiff from its erstwhile owner and landlord by a registered sale deed dated 10.6.2013. It is alleged that on basis of mutual settlement between the parties dated 10.10.2013 rent of the demised premises was enhanced to Rs.3500/- per month since 10.6.2013 and that the defendant would vacate the shop within one year. A memorandum of oral agreement was also executed on the same date in presence of witnesses. Despite the above agreement, the defendant failed to pay rent to the plaintiff since 10.6.2013 as per the terms of the agreement. Consequently, his tenancy was terminated by notice dated 30.9.2014 under Section 106 of the Transfer of Property Act. The notice was served upon the defendant on 1.10.2014. The defendant gave wrong reply to the notice on 8.10.2014. It is also asserted that since rent of the demised premises was above Rs.2000/- therefore, the provisions of U.P. Act No.13 of 1972 were not applicable.
The suit was contested by the defendant by filing written statement asserting that the rent of the shop was Rs.850/- per month and that no settlement for enhancement of rent, as alleged, had ever taken place. The defendants also categorically denied the execution of any memorandum of agreement and pleaded that the same is a forged document. It is pleaded that the plaintiff did not inform the defendant about the purchase of the shop by her but he came to know of it from rumour in the market. Thereafter, he sent a notice on 20.5.2014 to the plaintiff through his advocate requesting her to accept balance rent from June 2013 and issue rent receipts. However, the plaintiff gave a wrong reply to the same and refused to accept rent on the pretext that rent as per agreement dated 10.06.2013 was payable at the rate of Rs.3500/- per month. The defendant therefore deposited rent in Misc. Case No.44 of 2014 under Section 30(1) of the Act. In the said proceedings, rent from 1.6.2013 to 31.1.2015 was in deposit. The defendant also claimed that he had deposited rent from 1.2.2015 to 30.4.2015 in the instant suit to avail benefit of Order 15 Rule 5 CPC.
The trial court by impugned judgement decreed the suit for eviction of the defendant and has also passed a decree for recovery of arrears of rent at enhanced rate of Rs.3500/- per month since 10.10.2013. The trial court framed various points for determination and while deciding point no.1, the trial court held that in view of the plaintiff having purchased the shop by sale deed dated 10.6.2013, relationship of landlord and tenant stands established between the parties. It has also been held while deciding point no.2 that since 10.6.2013, the defendant became tenant of the plaintiff. The trial court decided points 3 and 8 regarding rate of rent and default in payment of rent together. The trial court has observed that the memorandum of agreement, Paper No.10-Ga has been duly proved by PW-1 plaintiff, PW-2 Rajesh Kumar, PW-4 Nitin Agrawal and CW-1 Lokesh Kumar, Public Notary, Ghaziabad, who was examined as a court witness. The trial court observed that parties have produced conflicting reports of Handwriting Expert in support of their claim. It has been observed that report of Sanjeev Tomar, Handwriting Expert of the defendant is not worthy of reliance as prima facie he does not seem to possess training from any recognised institution. On the contrary, Handwriting Expert Sri Ajay Mohan Paliwal, who has submitted his report in support of the case of the plaintiff has taken training at American Institute of Applied Science, New Delhi under Senior Expert Sri A.S. Kapoor. Consequently, his report carries more weight. It has also been noted that the report of Ajay Mohan Paliwal states that there are only natural variation in signature on the memorandum of agreement. The trial court, thereafter proceeded to examine the disputed signatures itself and observed that prima facie the signatures on memorandum of agreement appears to be that of the defendant. Accordingly, the memorandum was found to be duly proved. The trial court also held that in the agreement there is no recital that enhanced rent would be payable from 10.6.2013. Consequently, it found the defendant liable to pay enhanced rent from the date of agreement i.e., 10.10.2013 and not from 10.6.2013, as claimed by the plaintiff.
While deciding point no.4, the trial court observed that notice dated 30.9.2014 is valid and was duly served upon the defendant. It accordingly decreed the suit for eviction and arrears of rent and mesne profits.
The instant revision was earlier decided by a Co-ordinate Bench of this Court by judgement dated 7.9.2016. The revision was allowed and the matter was remitted back to the trial court for deciding the suit afresh keeping in mind the observations made in the judgement.
Aggrieved thereby, the plaintiff carried the matter in SLP before the Supreme Court. The Supreme Court granted leave to appeal and accordingly the SLP was converted into Civil Appeal No.5331 of 2017. The same has been allowed by judgement and order dated 17 April 2017 observing that since the entire evidence was before this Court, therefore, instead of remanding the matter to the trial court, this Court should have decided the lis on merits. Accordingly, the order of this Court was set aside and the matter has been remitted back to this Court for deciding the revision on merits.
Learned counsel for the revisionist Sri Anoop Trivedi assisted by Sri Vidhu Rai submitted that the court below erred in holding that the memorandum of agreement paper No.10-Ga stands duly proved. He further submitted that the trial court also erred in refusing to place reliance upon the report of Handwriting Expert of the defendant and also in placing reliance upon the report of Handwriting Expert of the plaintiff. According to him, there was no material before the trial court to show that Ajay Mohan Paliwal, Handwriting Expert of the plaintiff had technical education from any recognised institution. It is urged that American Institute of Applied Science, New Delhi, from where he claims to have received technical education, is not a recognised institution nor run by any Government or authorised agency. He further submitted that Lokesh Kumar (CW-1), who was examined as a court witness, admitted that he did not know the parties personally. He also admitted that column of identification has been left blank. He could not disclose reason for leaving blank the said column. According to him, two other witnesses who were alleged to be attesting witnesses were got-up witnesses and their testimony was wholly unreliable. He also submitted that the trial court erred in taking upon itself the role of Handwriting Expert while observing that prima facie the signature on memorandum of agreement appears to be that of the defendant. He further contended that in case the memorandum of agreement is excluded, there is no other evidence to establish that rent was enhanced from Rs.850/- to Rs.3500/- per month. Consequently, the provisions of U.P. Act No.13 of 1972 would apply and the defendant could not be evicted as there was no default in payment of rent at the rate of Rs.850/- per month.
The main issue for consideration is the rate of rent. The anchor sheet of the case of the plaintiff is memorandum of agreement dated 10.10.2013. For proving the same, the plaintiff had examined herself and the attesting witnesses namely Rajesh Kumar PW-2 and Nitin Agrawal PW-4. They have supported the case of the plaintiff that the memorandum was signed by the defendant. On the other hand, the specific case of the defendant in his written statement, oral statement, and cross-examination, is that he had not signed the memorandum and it is a forged document. According to the defendant, PW-2 and PW-4 are got-up witnesses and while forging the agreement, the plaintiff had taken care of the fact that the attesting witnesses are persons who would depose before the court in her favour. The trial court has examined Lokesh Kumar as court witness (CW-1). He admitted that he had not identified parties to the agreement, being not known to him. He has also admitted that the column meant for noting the name of the person who identifies the parties, was left blank. The report of the Handwriting Expert of the defendant namely Sanjeev Tomar may have been rightly discarded by the trial court for the reason that there was no evidence that he had obtained training in the field. At the same time, there also appears considerable force in the submission of learned counsel for the revisionist that there is also no evidence that the Handwriting Expert of the plaintiff namely Ajay Mohan Paliwal has done his training from any recognised institute. It is noteworthy that in his report he has found variance in the signatures on the memorandum as compared to the admitted signatures. However, he explained the same as 'natural variations'.
Thus, having regard to the above factors, this Court passed the following order on 18.12.2018 :-
“The dispute centers round an alleged memorandum, Paper No.10- Ga dated 10.10.2013 set up by the plaintiff/ respondents in contending that the rent of the shop was enhanced from Rs.850/- to Rs.3500/- per month by mutual consent of the parties. The defendant-revisionist denied his signatures over the said document. According to him, it is completely a fake and forged document and does not bear his signatures. On previous occasion, this Court by a detailed judgement dated 7.9.2016 discarded the report of handwriting expert of the plaintiff-respondent as well as the defendant-revisionist, after recording a finding to the effect that none of them appear to be qualified persons. The matter was remanded to the trial court. However, the Supreme Court has allowed the appeal filed against the said judgement and has directed this Court to decide the matter itself, instead of remanding it. The other evidence on record is in the nature of oral evidence and there is oath against oath. This Court, having regard to the nature of controversy, considers it expedient in the interest of justice to call for a report from an independent expert regarding signatures on the document in question. For such purpose, the original memorandum is required by this Court. Accordingly Office is directed to call for the original record within two weeks. List on 7.1.2019.
Office shall ensure that requisition is sent to the court below immediately so that the record is received when the matter is taken up on the next date.
After receipt of the original record from the court below, by order dated 7.1.2019, this Court sent the original memorandum of agreement (Paper No.10 Ga) and the original written statement containing admitted signatures of the defendant for scientific examination/comparison to the Forensic Science Laboratory, U.P., Lucknow, which is a Government Laboratory. It has submitted a report under signature of Dy. Director, Forensic Science Research Laboratory, U.P., Lucknow. The result of the expert examination of the disputed signature on the memorandum is as follows :-
ÞmijksDr of.kZr loZ izys[kksa dh ijh{kk bl iz;ksx'kkyk esa fofHkUu oSKkfud midj.kksa@ izdk'k lzks= ds ek/;e ls dh xbZ] ifj.kke fuEu gSA ftl O;fDr us uewuk gLrk{kj fpfUgr ,&1 ls ,&7 dks fy[kk gS mlus fookfnr gLrk{kj fpfUgr D;w&1] D;w&2 dks ugha fy[kk gSAß Q1 and Q2 are the signatures on the agreement Paper No.10-Ga which were not found matching with A1 to A7, the admitted signatures on the written statement. The detailed reasons for arriving at the above conclusion, which is part of the said report, is as follows :-
“Forensic Science Laboratory U.P. Mahnagar, Lucknow. No: 15-Doc-19 Result : The person who has written sample signatures marked A-1 to A-7 has not written disputed signatures marked Q-1, Q-2.
Reason: Specimen signatures for comparison are natural samples. An interse comparison of these reveals that these are consistent among themselves. The combination of specimen signatures is sufficient for a satisfactory comparison of disputed signatures.
(2) The disputed and sample signatures differ in muscular habit, skill, relative slant, relative size, relative position, relative proportion, relative spacing, relative alignment, curves, terminals, connections, junctions, directions etc.
Some of the differences in the inconspicuous writing characteristics of the disputed and sample signatures are described below ---
In the signature ßlR;izdk'k ß relative curvature of upper part of character ßjß of the letter ßlß] junction of upper part and lower part of character ßjß of ßlß straight and leftward slant of staff of letter ßlß relative position of initial of body curve of letter ß;ß with respect of top of its staff, nature of character ßjß in ßizß production of hump of letter dß commence of initial of upper eyelet of letter ß'kß relative preparation of upper eyelet in relative lower eyelet of character ß'ß of letter ß'kß relative spacing between letter ß'kß and volel sign ßkß of nature of head line above signatures, differ.
(3) The above mentioned differences in the writing characteristics of the disputed and sample signatures are repeated. They are not due to natural variances. The combination of aforesaid differences is sufficient to arrive at a definite opinion of non-identity.”
By orders dated 29.1.2019 and 18.2.2019, time was granted to the parties to file objection, if any, to the report of Forensic Science Laboratory, U.P., Lucknow, but no objection has been filed by any of the parties.
This Court, keeping in mind the reasonings given by the Forensic Science Laboratory, has itself closely compared the disputed signatures on the agreement (Paper No.10-Ga) with the admitted signatures on the written statement and it concurs with the reasonings given by the Forensic Science Laboratory, U.P., Lucknow. This Court also finds considerable variation in various letters, particularly letters ßlß and ß'kß- In this regard, it is apposite to quote from the Supreme Court judgement in Fakhruddin vs. State of Madhya Pradesh, AIR 1967 SC 1326 where it has been held that :-
"Both under Section 45 and 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become a handwriting expert but to verify the premises of the expert in one case and to appraise the value of the opinion in the other case. The comparison depends on an analysis of the characteristics in admitted or proved writing and the finding of the same characteristics in large measure in the disputed writing. In this way the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness."
Apart from the above, there is other suspicious circumstance which casts doubt upon the genuineness of the alleged agreement. The defendant has taken a specific plea in paragraph 22 of the written statement that after coming to know that the plaintiff has purchased the demised premises, he gave a notice dated 20.5.2014 to the plaintiff requesting her to accept the rent since June 2013 at the rate of Rs.850/- per month. The plaintiff replied to the said notice on 8.7.2014. In the reply she claimed that rent of the premises was Rs.3500/- per month as mutually agreed but did not mention about any written memorandum having been executed between the parties on 10.10.2013. Had any written memorandum been in existence, normally, it would have been mentioned in the reply.
Having regard to the totality of facts and circumstances of the case and the evidence on record, this Court is of considered opinion that the memorandum dated 10.10.2013 do not bear the signatures of the defendant. Once the same is excluded, there is no other credible evidence to establish that the rent was ever enhanced from Rs.850/- to Rs.3500/- per month, as alleged by the plaintiff.
In view of the finding that rent of the premises was Rs.850/- per month i.e. less than Rs.2000/- per month, the provisions of the Act would apply to the building in the tenancy of the defendant. Consequently, the defendant was entitled to protection of the Act and could be evicted only if one or the other ground mentioned under the Act is made out.
The defendant has specifically pleaded that there is no default in payment of rent. He had approached the plaintiff with notice dated 20.5.2014 requesting her to accept rent at the agreed rate but when she declined to accept the same, he was compelled to deposit it under Section 30(1) of the Act registered as Misc. Case No.44 of 2014. The challan, by which rent to the tune of Rs.11900/- was deposited in the said proceedings, has been brought on record as Paper No.41-Ga. According to it, rent from 1.6.2013 to 31.7.2014, was deposited. Paper No.42-Ga is also a challan evidencing deposit of rent amounting to Rs.2550/- for the period 1 August 2014 to 31.10.2014. Thus on the date of notice dated 30.9.2014, there was no arrears of rent outstanding against the defendant, whereas under Section 20(2) of the Act, the eviction can only be directed in case tenant is in default of rent for a period of at least four months and fails to pay the same within one month of receipt of notice of demand. That being the position, no ground for eviction is made out.
In consequence and as a result of above discussion, the instant revision succeeds and is allowed. The judgement and decree passed by the trial court dated 18.5.2016 is set aside, but the plaintiff is held entitled to withdraw rent deposited in the suit. The revisionist shall be entitled to a cost of Rs.10,000/-.
Order Date :- 25.2.2019 skv (Manoj Kumar Gupta, J.)