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Allahabad High Court · body

2016 DIGILAW 3069 (ALL)

Satya Prakash Goel v. Kavita Jain

2016-09-07

PANKAJ MITHAL

body2016
JUDGMENT Pankaj Mithal, J. – The judgement and order dated 18.05.2016 and the consequential decree thereof passed by the District Judge in exercise of powers of Small Causes Court is for revision at the behest of the defendant. 2. The plaintiff-respondent purchased the shop in question no. 1038/6 situate in Mohallah Police Chauki, Meerut Gate Hapur, vide sale deed dated 10.06.2013 from its previous owner Anand Kumar. The defendant-revisionist was in occupation of the said shop from the time of the previous owner. The plaintiff-respondent after purchasing it, instituted a small causes court suit claiming arrears of rent for the period 10.06.2013 to 30.11.2014 alleging that the rent of the shop w.e.f. 10.10.2013 as per the mutual agreement was fixed at Rs. 3,500/- per month and the defendant-revisionist had defaulted in its payment. 3. The court below on the basis of agreement of settlement dated 10.10.2013 returned a finding that the rent agreed was Rs. 3,500/- per month and since the defendant-revisionist had not deposited the rent on the said rate, he had defaulted in its payment and is liable for eviction. Thus, the said suit has been decreed. 4. I have heard Sri Anoop Trivedi learned counsel for the defendant-revisionist and Sri K.K. Arora learned counsel appearing for the plaintiff-respondent. 5. Sri Anoop Trivedi argued that the court below has erred in holding the rent of the shop in dispute to be Rs. 3,500/- per month w.e.f. 10.06.2013 on the basis of the agreement dated 10.10.2013 and the defendant-revisionist to be a defaulter in payment of its rent at the above rate. The agreement dated 10.10.2013 is a fake document which do not bears the signatures of the defendant-revisionist. The finding regarding the aforesaid agreement and the rate of the rent recorded by the court below on its basis is perverse as the material evidence on record in that regard has not been considered. 6. Sri K.K. Arora, on the other hand, contends that the defendant-revisionist may be paying rent Rs. 850/- per month to the previous owner but after the shop was purchased by the plaintiff-respondent, vide agreement dated 10.10.2013, the defendant-revisionist had agreed to enhance the rent to Rs. 3,500/- per month w.e.f. 10.06.2013 and to vacate it within a period of one year. 7. 850/- per month to the previous owner but after the shop was purchased by the plaintiff-respondent, vide agreement dated 10.10.2013, the defendant-revisionist had agreed to enhance the rent to Rs. 3,500/- per month w.e.f. 10.06.2013 and to vacate it within a period of one year. 7. In view of the respective contention aforesaid, counsel for the parties agreed that the main question arising in this revision is with regard to the rate of the rent and the validity of the agreement dated 10.10.2013. 8. The trial court framed as many as 8 issues in the suit, wherein issue no. 3 and 8 were with regard to the agreement dated 10.10.2013, rate of rent and default in payment of rent w.e.f. 10.06.2013 if any. 9. The above two issues were decided together by the court below. The court held that the plaintiff-respondent as P.W.1, Rajesh Kumar P.W. 2, Ishwarchand P.W. 3 and P.W. 4 Nitin Agrawal as also the Court Witness Lokesh Kumar proved the above agreement (Paper No. 10 Ga). The signatures of the defendant-revisionist on it were held to be proved by the report of the Handwriting and Fingerprint Expert Ajay Mohan Paliwal and also on the personal examination by the Presiding Officer of the signatures of the defendant-revisionist on the said agreement with his admitted signatures. The report of the Handwriting and Fingerprint Expert of the defendant-revisionist was discarded. 10. The handwriting & fingerprint expert of the defendant-revisionist had the decree of B.A. L.L.B., but no specialised knowledge of handwriting and fingerprint from any training institute or university. Therefore his report which stated the agreement does not bear the signatures of the defendant revisionist was discarded. 11. The report of Ajay Mohan Paliwal, Handwriting and Fingerprint Expert was accepted as he had received some technical education in the field from American Institute of Applied Sciences, Delhi, in the Laboratory of Senior Expert Sri S.S. Kapoor. However, no evidence and material is on record to establish that the institution from where he had taken education is a recognised institution or is run by the Government or any authorised agency. The qualification of the Senior Expert Sri S.S. Kapoor in whose laboratory he has worked has also not been mentioned and it is also not on record if he possesses any technical qualification in that regard. 12. The qualification of the Senior Expert Sri S.S. Kapoor in whose laboratory he has worked has also not been mentioned and it is also not on record if he possesses any technical qualification in that regard. 12. In such circumstances, the report of the aforesaid handwriting and Fingerprint Expert also could not have been relied upon and at least this aspect of the matter ought to have been considered. 13. The court on examination of the signatures of the defendant-revisionist as appearing on the agreement with his admitted signatures has simply stated that prima facie the two signatures are same. The aforesaid opinion expressed by the court is only prima facie opinion and not final and conclusive. No reasons have been assigned for formulating of the aforesaid prima facie opinion or to arrive at a conclusion that the two signatures matches and are of the same person. 14. The plaintiff-respondent in her statement as P.W. 1 stated that on 10.10.2013 the agreement (paper no. 10Ga) was executed and the rent of the shop as agreed was fixed at Rs. 3,500/- & the defendant-revisionist would vacate the shop within a year. It was signed by her and Satya Prakash both and also by the notary after putting his stamp. 15. P.W. 2 Rajesh Kumar in his statement stated that in respect of shop an agreement of rent was executed in his presence on 10.10.2013 in Ghaziabad Court. In the said agreement, the rent was fixed @ Rs. 3,500/- and apart from it, no other condition was laid down therein. 16. P.W. 4 Nitin Agarwal stated that the agreement was for a period of 11 months and the rent was fixed @ Rs. 3,500/-. 17. Since the agreement was a noterised document and it its execution was being denied by defendant-revisionist, the court vide order dated 06.04.2016 summoned the notary to depose about the execution of the said agreement. 18. The notary Lokesh Kumar appeared as C.W.1 and after looking at the agreement (paper no. 10 Ga) dated 10.10.2013 stated that it is same agreement which was executed before him and its entry also finds mention in the register which he had brought and had produced before the court. He admitted his signatures on the said agreement. He further stated that he had not known either of the parties or the witnesses to the agreement document earlier to its execution. He admitted his signatures on the said agreement. He further stated that he had not known either of the parties or the witnesses to the agreement document earlier to its execution. He had not identified any of the parties and he had no knowledge that before attesting an agreement parties have to be identified. He admitted that there is a column of identification in the stamp of attestation affixed by the notary and in the said column he had not mentioned the name of the person who identified the parties. The parties could have identified themselves and that the personal identification is permissible only when the parties have produced their respective identity cards. He had not written that the parties were identified by anyone or by themselves and he could not tell any reason for not doing so. 19. The statement of the above witnesses i.e. the plaintiff-respondent, the two witnesses to the document and the public notary failed to testify that one of the person signing the said document was actually the defendant-revisionist. 20. The aforesaid statements have not been considered by the court below from the angle of establishing the identification of the person signing the agreement which was very relevant and material when the signatures on it were denied by the defendant-revisionist. 21. The statements of the above witnesses are also in contradictory to some extend and against the express condition of the agreement as P.W. 2 stated that report for fixing the rate of rent no other condition was laid down. This aspect of the matter or its effect has also been left out from consideration. 22. It is pertinent to mention that the defendant-revisionist had given a notice dated 20.05.2014 to the plaintiff-respond requesting him to accept rent of the shop @ Rs. 850/- per month w.e.f. June 2013 to May 2014 failing which he would be depositing the same in court. The said notice was replied by the plaintiff-respondent on 08.07.2014. The said notice and reply are on record. The plaintiff-respondent in her statement accepted that she had given the said reply. In the said reply she stated that the shop was purchased by her on 10.06.2013 and the defendant-revisionist on 11.10.2013 had agreed to vacate the shop after a year and on her insistence to enhance rent to Rs. 5,000/- per month, he agreed to pay @ Rs. 3,500/- per month. 23. In the said reply she stated that the shop was purchased by her on 10.06.2013 and the defendant-revisionist on 11.10.2013 had agreed to vacate the shop after a year and on her insistence to enhance rent to Rs. 5,000/- per month, he agreed to pay @ Rs. 3,500/- per month. 23. The aforesaid reply is completely silent about any agreement dated 10.10.2013. The said reply was given on 08.07.2014, much after the execution of the alleged agreement. Therefore, it would have been but natural for the defendant-revisionist to refer to the said agreement specifically in his reply instead of simply stating that the rent was fixed mutually. The said reply casts a serious doubt upon the genuineness of the alleged agreement dated 10.10.2013. 24. The court below has not referred and considered the aforesaid reply of the defendant-revisionist and its impact upon the two crucial issues arising for consideration especially the validity of the aforesaid agreement in passing the impugned judgement and order. 25. In view of the aforesaid facts and circumstance of the case, the judgement and order passed by the court below stand vitiated not only for want of consideration of the material piece of evidence in the form of reply dated 08.07.2014, but also for the reason that the statements of the witnesses were not considered in full and ignoring that no witness had identified the person signing the aforesaid agreement as Satya Prakash when he had denied his signatures on it and there was no specific evidence to prove his signatures on the same inasmuch as the opinions of both the Handwriting and Fingerprint Experts were conflicting and non them had any technical qualification in the field from any recognised institution or university. 26. Accordingly, the impugned judgement and order dated 18.05.2016 is set aside and the matter is remanded to the trial court for decision afresh in accordance with law on consideration of the entire evidence on record keeping in mind the observation made herein expeditiously, if possible within a period of six months from the date of production of certified copy of this order. 27. The revision is allowed. The parties shall bear their own costs. Revision allowed.