Bashiruddin v. IInd Additional District Judge, Meerut
1992-08-26
S.P.SRIVASTAVA
body1992
DigiLaw.ai
JUDGMENT S. P. Srivastava, J. 1. This Writ Petition arises out of a suit filed by the landlord respondent praying for a decree of ejectment of the defendants- petitioners from the premises in dispute under their tenancy and for recovery of an amount of Rs. 3535/- from them by way arrears of rent from 10-5-74 to 18-2-77 at the rate of Rs. 100/- per month besides recovery of the amount by way of mesne profit at the rate of Rs. 100/- per month. The suit had been filed on the ground that the defendants were defaulters within the meaning of section 20 of the U. P. Act No 13 of 1972 and inspite of the composite notice terminating the tenancy and demanding the arrears of rent having been served nothing was paid by the defendants, hence the suit. THIS suit was contested by the defendants on the assertions that they had not committed any default in the payment of rent and the plaintiffs were not entitled to any decree as claimed. 2. It may be noticed that prior to the riling of the suit giving rise to the present writ petition, the landlord-respondent had filed a small cause suit being S. C. Suit no. 229 of 1970 wherein they had claimed a decree for the ejectment of the predecessor-in-interest of the defendants apart from the recovery of arrears of rent etc. This suit was decided on 28-5-73 and under the judgment and decree of that date the relief of ejectment of the defendants from the premises in dispute was refused but the plaintiff was found entitled to be amount of rent for which the suit was decreed specifying that the amount of rent for the period 31-5-73 had been deposited in court which could be withdrawn by the plaintiff and further indicating that the rent for the period beginning from 1-6-73 will be payable. In support of the claim that they were not defaulters the petitioners defendants relied upon a receipt alleged to have been issued by Prakash Chandra, one of the landlords acknowledging payment of Rs. 4000/-. This receipt which was filed on record by the defendant petitioners is dated 7-1-77. The defendants-petitioners claimed that they had paid an amount of Rs. 2000/- on 13-6-76 and remaining amount in the month of July, 1976.
4000/-. This receipt which was filed on record by the defendant petitioners is dated 7-1-77. The defendants-petitioners claimed that they had paid an amount of Rs. 2000/- on 13-6-76 and remaining amount in the month of July, 1976. The receipt in question according to the defendants acknowledged the amount paid by them to Prakash Chandra in the months of June and July 1976. 3. The petitioners-tenants also sought to rely upon a tape recorded conversation between Nizamuddin, Iqramuddin and Prakash Chandra which was said to have been recorded on 14-6-76. According to the petitioners- tenants this tape recorded conversation contained an unequivocal admission of Prakash Chandra regarding his having accepted the amount of Rs 4000/- as claimed by the defendants. 4. Besides this tape recorded conversation which allegedlly contained the admission of Prakash Chandra indicated above the petitioners tenants also produced expert evidence for proving that the receipt relied upon by them contained the signatures of Prakash Chandra. Apart from the above the petitioners tenants also led oral evidence to prove the payment rent and further to prove the tape recorded conversation as well as receipt to which a reference has already been made above The plaintiff-landlords, however, denied issuing any receipt and Prakash Chandra specifically asserted that he had never issued the receipt relied upon by the petitioners-tenants and denied his having signed the said receipt. He also asserted that the tape recorded conversation relied upon by the petitioners-tenants did not contain his voice. Plaintiff-landlord also examined a hand-writing expert and brought on record the expert opinion seeking to establish that the alleged signatures of Prakash Chandra which were claimed to be there on the receipt in question were not his signatures. 5. The trial court after carefully considering the evidence and material on record disbelieved the oral evidence tenderd by the petitioners-tenants. It accepted the plaintiffs' to the effect that Prakash Chandra had never signed the receipt in question and in fact no payment of Rs. 4000/- was ever made to the landlord as claimed by the defendants-tenants. The trial court while considering the expert evidence brought on record by the parties in the suit observed that since both the reports were contradictory it was not safe to place reliance upon the opinion of the either of the experts.
4000/- was ever made to the landlord as claimed by the defendants-tenants. The trial court while considering the expert evidence brought on record by the parties in the suit observed that since both the reports were contradictory it was not safe to place reliance upon the opinion of the either of the experts. However, after considering the various materials on record and the circumstances of the case the trial court recorded a finding that the expert evidence led by the defendants-tenants did not appears to be correct. The trial court recorded a clear cut finding that the case of the defendant-tenant that they had went to the house of plaintiff Prakash Chandra and taped his voice and all the conversation which is alleged to have taken place between them and Prakash Chandra appeared to be false and bogus. 6. On the above findings the trial court decreed the suit as prayed for. The aforesaid decree passed by the trial court was challenged by the petitioners-tenants by means of a revision under Section 25 of the Provincial Small Causes Courts Act which was dismissed by the respondent no. 1 upholding the findings recorded by the trial court vide the judgment and decree dated 28-4-84. The revisional court examined the two reports submitted by the hand-writing experts and came to the conclusion that from a bare perusal of the photographs prepared of the sample and disputed signatures it clearly appeared that the disputed signature was a forgery. Feeling aggrieved by the aforesaid concurrent Judgment and decree passed by the trial court and revisional court the petitioners-tenants have approached this court for redress seeking the quashing thereof. 7. I have heard Sri Ambrish Sharma, learned counsel for the petitioners and Shri Ashok Khare, learned counsel representing the landlords- respondents at some length and have also perused the record. 8. Learned counsel for the petitioner has urged that the trial court as well as the revisional court have acted with manifest Illegality in discard- log the tape recorded conversation relied upon by the defendants and have further acted with material Irregularity in not considering the expert evidence on merits.
8. Learned counsel for the petitioner has urged that the trial court as well as the revisional court have acted with manifest Illegality in discard- log the tape recorded conversation relied upon by the defendants and have further acted with material Irregularity in not considering the expert evidence on merits. It has been urged that In any view of the matter once the trial court had omitted to consider the expert evidence it was Incumbent upon the respondent no 1 while exercising the revisional jurisdiction to remand the case for assessment of the aforesaid evidence and it was not open to the revisional court to assess the value of the expert evidence itself- Learned counsel for the respondents has urged that in the circumstances of the case the revisional court has acted in accordance with aw as in face of the clear cut findings on the questions of facts involved in the case which had been recorded by the trial Judge after appraising the evidence on record there could be no scope for interference while exercising the revisional jurisdiction as envisaged under section 25 of the Provincial Small Causes Courts Act. This Court in its decision in the case of Ram Narain v. Kanhaiya Lal Vishwakarma, 1965 ALT 989, which was decided by a Divisional Bench has clearly held that a revisional court could not reverse the findings of fact arrived at by the Judge Small Causes Court upon the evidence before it with the observation that the revisional court is not empowered to look into the evidence of the case and to decide whether the finding of fact arrived at by the court below is justified by the evidence on record or not. Similarly in another case of Laxmi Kishore v. Har Prasad Shukla, 1979 AWC 746, decided by a Division Bench of this Court and it has been held that the revisional court has no jurisdiction to reassess or reappraise the evidence in order to determine an issue of fact for itself but if it finds that a particular finding of fact is vitiated by an error of law it has power to pass such order as the justice of the case requires.
It was clarified in that case that if revisional court cannot dispose of the case adequately without a finding on a particular issue of fact it can sent the case back after laying down proper guidelines and that it cannot enter into the evidence, assess it and determine an issue of fact. 9. In the present case as has already been indicated above the trial court had assessed the oral evidence led by the parties and rejected the evidence of the defendants holding that it did not inspire confidence and had also disbelieved their claim about the payment of Rs. 4000/ - in the months of June and July 1976. As a matter of fact taking into consideration the judgment and decree passed In S. C. suit no. 229 of 1970 decided on 28-5-73 and the own admission of the defendant Nizamuddin recorded on 2-1-79 the total amount of rent which had become payable in June, 1976 was for less than the amount which is claimed to have been paid by the defendants in the month of July 1976. Obviously, therefore, there could not arise any occasion for the payment of Rs. 4000/- in the month of July 1976 as claimed by the defendants. 10. So far as the tape recorded converstion relied upon by the petitioners-tenants and the admisibility of the evidence of the conversation recorded on Audio Tape Recorder is concerned it may be noticed that there is really no difference in principle between a tape recording and a photograph. For many years now, photographs have been admissible in evidence on proof that they are relevant to the issues involved in the case and that the prints are taken from negatives that are untouched. Such prints represent situations that have been reproduced by means of mechanical and chemical evidences However, this should not be taken as saying that such recordings are admissible whatever the circumstances be It will not be proper to deny to the law of evidence, advantages gained by new scientific techniques and devices, provided the accuracy of the recording can be proved and the voice recorded properly identified. It may further be added that evidence of tape recording should always be considered with some caution and assessed in the light of all the circumstances of each case.
It may further be added that evidence of tape recording should always be considered with some caution and assessed in the light of all the circumstances of each case. It may further be stated that as observed by the Apex Court in its decision in the case of Mahabir Prasad Verma v. Dr. Surinder Kaur, AIR 1982 SC 1043 , such conversation can only be relied upon as corroborative evidence of a conversation and in the absence of evidence of any such conversation, the tape recorded conversation is indeed proper evidence and cannot be relied upon. In the circumstances of the present case to trial court had specifically disbelieved the direct evidence led by the defendant whereby he sought to prove the fact of conversation being recorded on an audio tape and has further disbelieved the tenants' claim about the payment of the two amounts in the month of June, 1976 and July, 1976 and had further accepted the evidence of the plaintiff as reliable. No scope was therefore left for any interference in the exercise of revisional jurisdiction contemplated under section 25 of the Provincial Small Causes Courts Act and thereby disturbing the judgment and decree passed by the trial court. 11. In facts and circumstances of the present case the impugned orders cannot be said to suffer from any error much less manifest error of law which may justify any interference in the exercise of the extraordinary jurisdiction envisaged under Article 226 of the Constitution of India. The writ petition is devoid of merits and is accordingly dismissed. 12. However, there shall be no order was to costs. Petition dismissed.