# Sri Surendra Nath Garg Revisionist (Defendant in Suit) v. Sri Balbir Sharan Garg (Plaintiff in the suit)

- **Citation:** (2020) 6 ILRA 614
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-08
- **Case number:** S.C.C. Revision No. 124 of 2018
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-surendra-nath-garg-revisionist-defendant-in-suit-v-sri-balbir-sharan-garg-45867
- **Pages:** 12

## Headnote

A. Civil Law - Code of Civil Procedure,
1908-Section 115 - The Provincial Small
Cause Courts Act,1887- Section 25eviction and arrears of rent-notice terminating
the tenancy was served on the ground of a
3 All. Sri Surendra Nath Garg Vs. Sri Balbir Sharan Garg
615
material alteration in the shop-receipts for
paying rent was controverted-trial court found
the signature and thumb impression are
forged and fabricated-trial court found that
the expert report of the applicant is not
credible-thus, the judgment of the trial court is
not perverse.(Para 3 to 37)

The revision is dismissed. (E-6)

List of Cases Cited:-

## Text

614 INDIAN LAW REPORTS ALLAHABAD SERIES
recites any fact wherefrom it can be
inferred that the landlord wants suit
property for his personal use and
occupation, and for release of suit
property, he may file release application
under Section 21 (1) (a) of U.P. Act
No.13 of 1972. Thus, in view of the law
laid down by this Court in the case of
Lakshmi Shankar Mishra (supra) &
Abdul Jabbar (supra), this Court finds
that the notice in the present case does not
meet the requirement of a valid notice.

18. Now, the Court proceed to
consider the judgements relied upon by
the learned counsel for the respondents.
This Court in the case of Pradeep
Kumar @ Pradeep (supra) has held that
tenant may waive protection provided to
him under the first proviso to Section 21
(1) of the U.P. Act 1972 and if the
tenant has waived such protection, the
release application is maintainable. The
proposition of law as has been laid
down by this Court in the aforesaid case
is not applicable in the present case as it
is not the case of respondent-landlord
that tenant has waived the protection
available to him under the proviso to
Section 21 (1)(a) of U.P. Act No.13 of
1972.

19. In the case of Anoop Kumar
(supra) this Court found that defendants have
not raised any objection that the release
application is barred by the proviso to Section
21 (1)(a) of U.P. Act No.13 of 1972, and
accordingly, it held that release application is
maintainable as the defendants have waived
the protection available to them under the
proviso to Section 21 (1)(a) of U.P. Act No.13
of 1972.

20. Thus, in view of the foregoing
discussion, this Court finds that both the
courts below have acted illegally in
holding that the notice of termination of
tenancy is a valid notice and release
application is not barred by the proviso
to Section 21 (1)(a) of U.P. Act No.13
of 1972.

21. Since, this Court has held that
release application is barred by the
proviso to Section 21 (1)(a) of U.P. Act
No.13 of 1972, therefore, in the facts of
the present case, the other contention
advanced by learned counsel for the
parties are not dealt with.

22. For the reasons given above,
both the orders impugned are set aside.
The writ petition is allowed with no
order as to costs.
----------
(2020)06ILR A614
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.06.2020

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

S.C.C. Revision No. 124 of 2018

Sri Surendra Nath Garg
 ...Revisionist (Defendant in Suit)
Versus
Sri Balbir Sharan Garg
 ...Respondent (Plaintiff in the suit)

Counsel for the Revisionist:
Sri Pramod jain, Sri Ashutosh Srivastava

Counsel for the Respondent:
Sri Madhav Jain, Sri Swapnil Kumar

A. Civil Law - Code of Civil Procedure,
1908-Section 115 - The Provincial Small
Cause Courts Act,1887- Section 25eviction and arrears of rent-notice terminating
the tenancy was served on the ground of a
3 All. Sri Surendra Nath Garg Vs. Sri Balbir Sharan Garg
615
material alteration in the shop-receipts for
paying rent was controverted-trial court found
the signature and thumb impression are
forged and fabricated-trial court found that
the expert report of the applicant is not
credible-thus, the judgment of the trial court is
not perverse.(Para 3 to 37)

The revision is dismissed. (E-6)

List of Cases Cited:-

1. U.O.I & ors. Vs Devendra Kumar
Chaudhary (2018) 9 ADJ 570

2. U.O.I Vs Ibrahim Uddin & anr. (2012) 8 SCC
148

3. Trilok Singh Chauhan Vs Ram Lal (dead)
thru Legal Represntatives & ors. (2018) 2 SCC
566

4. U.O.I Vs Murari Lal 1980 (1) SCC 704

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri Pramod Jain, learned
Senior Counsel assisted by Sri Ashutosh
Srivastava, learned counsel for
the
revisionist and Sri Swapnil Kumar,
learned counsel for the respondent.

2.

The
revision-applicant
(hereinafter referred to as 'applicant') is
the defendant and has assailed the
judgement and decree dated 27.8.2018
passed by 4th Additional District Judge,
Agra in S.C.C. Suit No. 32 of 2013 (CNR
No. UPAG01-005993-2013) whereby the
Trial Court has decreed the suit.

3. The brief facts of the case are that
the
respondent-plaintiff
(hereinafter
referred to as 'respondent') has instituted
S.C.C. Suit No. 32 of 2013 against the
applicant praying for a decree of eviction,
arrears of rent, mesne profit and taxes.
The plaint case was that the respondent is
the owner and landlord of shop No.
1/31/C (hereinafter referred to as 'shop')
situated on the ground floor in Amar
Market,
Johari
Bazar,
Agra.
The
respondent let out the shop to the
applicant at a rent of Rs.5,000/- plus taxes
@31% i.e. Rs.6,550/- per month. The
applicant without the consent of the
respondent joined two shops i.e. shop No.
1/31/C under his tenancy and shop No.
1/31/C-1 under the tenancy of one Raj
Kumar Garg, nephew of the applicant, by
removing
the
Pucca
partition
wall
standing
between
the
two
shops.
Consequently, the respondent sent a
notice on 29.5.2012 terminating the
tenancy which was duly served upon the
applicant. The applicant after receiving
the aforesaid notice approached the
respondent and admitted his fault in
making material alteration in the shop and
requested the respondent not to take any
legal action against him and in lieu
thereof, he offered rent of Rs. 5,000/- plus
taxes per month of the shop to the
respondent with effect from 1.4.2011 and
assured him to restore the shop in original
shape. The respondent accepted the
aforesaid offer of the applicant on
15.6.2012. The
applicant,
thereafter,
made payment of rent of Rs. 19,650/- of
three months with effect from 1.4.2011 to
30.6.2011 @ Rs. 6,650/- per month (rent
Rs. 5,000/- and taxes @ Rs. 1550/-). The
respondent issued the receipt of payment
of rent which was duly acknowledged by
the applicant.

4. Further, the case of the
respondent was that on 22.6.2012, he
received a reply of notice dated 29.5.2012
sent by the respondent. On receiving the
aforesaid reply, he immediately called the
applicant on 22.6.2012 and informed him
about the reply to the notice sent by the
616 INDIAN LAW REPORTS ALLAHABAD SERIES
applicant. The applicant informed the
respondent that the said reply was sent by
his counsel due to lack of communication
as he could not intimate his counsel about
the compromise between them. The
applicant requested the respondent to
ignore the reply. On the same day i.e. on
22.6.2012, he made payment of Rs.
19,650/- of rent for three months for the
period from1.7.2011 to 30.9.2011. The
respondent issued a proper receipt of the
payment of rent duly acknowledged by
the applicant.

5. It is further stated that the
respondent has instituted S.C.C. Suit No.
59 of 2012 against Raj Kumar for
eviction, recovery of arrears of rent and
taxes. The applicant upon hearing about
the filing of the aforesaid suit approached
the respondent on 23.10.2012 and made
payment of Rs. 19,650/- towards rent and
taxes for three months for the period of
1.10.2011 to 31.12.2011; the proper
receipt was issued by the respondent in
respect of the aforesaid payment which
was duly acknowledged by the applicant.
The applicant has not paid rent and taxes
since 1.1.2012 despite repeated demands.
Accordingly, the respondent sent a notice
dated
11/12.01.2013
terminating
the
tenancy and demanding the arrears of
rent, taxes etc. on the correct address of
the respondent which was duly served
upon the applicant on 14.1.2013. As the
applicant failed to comply with the notice
dated 11.1.2013, the respondent instituted
the aforesaid suit for eviction and
recovery of rent, taxes etc.

6. The suit was contested by the
applicant
by
filing
written
statement
contending inter-alia that the rent of the shop
was not Rs. 5,000/- per month plus taxes. The
last rent of the shop was paid @Rs. 12,00/-
per month plus taxes and due receipt of
payment of rent was issued by the respondent.
The applicant also denied that he had carried
out
material
alteration
which
caused
substantial damage to the shop. It was also
averred that the applicant never approached
the respondent on 29.5.2012 or any other date
and offered rent of Rs. 5,000/-. The alleged
receipt issued by the respondent is forged and
fabricated. The applicant denied his signature
and thumb impression on the receipts. The
fact of compromise between the parties
settling the rent at Rs. 5,000/- plus 31% taxes
have been denied by the applicant. It was
further averred that the rent of the shop was
Rs. 105/- per month on 16.7.1983. Thereafter
the rent was enhanced to Rs. 140/- on
1.4.1987. According to the defendant,
periodical enhancement of the rent was done.
The rent was enhanced to Rs. 1200/- per
month plus taxes with effect from 01.04.2009
and Rs.1440 plus taxes from 01.04.2012.

7. Based on pleadings between the
parties, the following five issues were
framed by the Trial Court:-

"1. Whether the monthly rent
for the shop in question was Rs. 5000/-
and taxes?

2. Whether the defendant has
committed any default in making payment
of rent to the plaintiff since 01.01.2012.

3. Whether the notice sent by
the
plaintiff
to
the
defendant
for
termination of tenancy is duly served on
the
defendant
and
the
tenancy
is
terminated by the notice.

4. Whether this court has
jurisdiction to hear this suit.

5. Whether the plaintiff is
entitled to get any relief ."

8. The respondent in support of his
case filed three original rent receipt dated
3 All. Sri Surendra Nath Garg Vs. Sri Balbir Sharan Garg
617
15.6.2012 (paper No. 21C/1), rent receipt
dated 22.6.2012 (paper No. 21C/2) and rent
receipt dated 23.10.2012 (paper No. 21C/3)
which according to the respondent are
original counterfoils of the receipts dated
15.6.2012,
22.6.2012,
23.10.2012(for
convenience paper no.21C/1 to 21C/3
referred as 'rent receipts' as referred by the
trial court), report of Rajkumar Shrotriya,
handwriting expert and produced himself as
PW1 and Handwriting expert Rajkumar
Shrotriya. Besides above, several other
documentary evidence has been filed by the
respondent, reference of which is not
relevant.

9. The applicant in support of his
case filed various rent receipts in the
original, report of handwriting expert
Satish
Chandra
Varshney,
produced
himself as D.W. -1, Mukesh Kumar
Khandewal D.W.-2 and expert Satish
Chandra Varshney.

10. The trial court decided issue
Nos. 1 and 4 jointly. The Trial Court
considered the documentary and oral
evidence of both the parties threadbare
and held that the expert report of the
applicant is not credible and the rent of
the shop is Rs. 5,000/- per month,
therefore, the U.P. Act No. 13 of 1972
does not apply to the shop.

11. The issue No. 2 was also
decided in favour of the respondent as the
Trial Court based on evidence and
material on record found that the
applicant is in arrears of rent since
1.1.2012, therefore, he has defaulted in
payment of rent. The Trial Court found
that the notice terminating the tenancy
was duly served upon the applicant and
the applicant did not abide by the notice.
Consequently, it decided the issue No. 3
also
in
favour
of
the
respondent.
Accordingly, the Trial Court decided
issue no.5 in favour of the respondent and
decreed the suit.

12. Learned Senior Counsel for the
applicant has assailed the finding on the issue
No. 1.

13. Challenging the finding on the
aforesaid issue, learned Senior Counsel
contended that the rent of the shop was Rs.
1200/- plus taxes which was enhanced to Rs.
1440/- per month from 1.4.2012 is evident
from the notice dated 29.5.2012 of the
respondent. He further submits that the Trial
Court has not given any reason for rejecting
the expert report and testimony of the Expert
Sri Satish Chandra Varshney produced by the
applicant which proved the three rent receipts
paper No. 21C/1 to paper No. 21C/3 are
forged and fabricated.

14. His further submission is that
the trial court has reiterated the expert
report of the respondent which is evident
from paragraph no. 28 of the judgement
and has not given any independent reason
to record the finding that the three rent
receipts, paper No. 21C/1 to paper No.
21C/3
bear
signature
and
thumb
impression of the applicant. It is further
contended that the respondent has filed
original rent receipts paper No. 21C/1 to
paper No. 21C/3 instead of receipt book
containing the counterfoils of the alleged
rent receipts, this act of the respondent
shows that the aforesaid rent receipts are
obviously forged, consequently, the trial
court in the absence of receipt book
should have drawn adverse inference
under Section 114 of the Indian Evidence
against the respondent. It is also urged
that the alleged compromise between the
parties have not been proved.
618 INDIAN LAW REPORTS ALLAHABAD SERIES

15. In the light of the above submission,
Counsel for the applicant argues that the trial
court erroneously relied upon the rent receipt
paper No. 21C/1 to paper No. 21C/3 and
expert report of Raj Kumar Shrotriya to hold
the rent of the shop is Rs.5000/-per month
plus taxes@31%. The counsel for the
applicant has relied upon paragraph 86 to 89
of the judgment in the case of Union of India
and
others
Vs.
Devendra
Kumar
Chaudhary 2018(9)ADJ 570 as to what is
the evidentiary value of the expert opinion in
a case.

16. It is lastly argued that since the
trial court has committed patent illegality
in decreeing the suit, therefore, the
impugned order warrants interference by
this court in exercise its revision power
under Section 25 of The Provincial Small
Cause Courts Act, 1887. In support of the
aforesaid submission, he has placed
reliance upon the following judgements:-

"(i) Ram Murti Devi Vs. Pushpa
Devi & others, 2017 (15) S.C.C. 230

(ii) Rai Chand Jain Vs. Miss
Chandrakanta Khosla, 1991 (1) S.C.C.
422.

(iii) Ram Das Vs. Ishwar Chand
& others, 1988 (3) S.C.C. 131.

(iv) Vinod Kumar Arora Vs.
Surjeet Kaur, 1987 (3) S.C.C. 711".

17.

Refuting
the
aforesaid
submission, learned counsel for the
respondent submitted that The trial court
while rejecting the expert report of the
applicant has given elaborate reasons
which are supported by the record. It
thereafter proceeded to examine the
genuineness of the signature and thumb
impression of the applicant on paper No.
21C/1, paper No. 21C/2 and paper No.
21C/3 and recorded a finding that the
same
bears
signature
and
thumb
impression of the applicant. Thus, he
submits that the finding of the Trial Court
being the finding of fact does not call for
interference by this Court in the exercise
of its revision jurisdiction.

18. He further submits that the
applicant cannot impel the respondent to
file evidence. If the applicant wanted the
receipt book containing counterfoils of rent
receipt paper no.21C/1 to paper no. 21C/3to
be placed on record, he should have filed an
application before the Court below in this
regard. If the Trial Court on submission of
such an application was satisfied that the
production of receipt book is necessary to
do justice, it would have passed necessary
orders directing the respondent to produce
the relevant receipt book, and if the order of
the court was not complied with by the
respondent, then only the adverse inference
could be drawn against the respondent. In
support of his contention, he has placed
reliance upon Apex Court's judgement in
the case of Union of India Vs. Ibrahim
Uddin and another, 2012 (8) SCC 148.
He has also placed reliance upon the
judgement of Trilok Singh Chauhan Vs.
Ram
Lal
(dead)
through
legal
representatives and others, 2018 (2) SCC
566 on the point that if the finding is not
perverse and based on the appreciation of
evidence on record, the court should refrain
from interfering with such findings in the
exercise of its revision jurisdiction being the
finding of fact.

19.

I
have
considered
rival
submissions of the parties and perused the
record.

20. It is not in dispute that the
applicant is the tenant of the shop and
3 All. Sri Surendra Nath Garg Vs. Sri Balbir Sharan Garg
619
there is a relationship of landlord and
tenant between the respondent and
applicant. The respondent alleges that
once he sent a notice dated 29.5.2012
terminating the tenancy on the ground
of a material alteration in the shop, the
applicant approached him with a request
not to take any legal action and offered
rent of the shop at Rs. 5,000/- per
month plus 31% tax, i.e. Rs. 6550/- per
month. The respondent produced three
original rent receipt dated 15.6.2012
(paper No. 21C/1), rent receipt dated
22.6.2012 (paper No. 21C/2) and rent
receipt dated 23.10.2012 (paper No.
21C/3) to prove the rent of the shop
agreed between the parties, which,
according
to
him,
was
duly
acknowledged by the applicant by
putting
his
signature
and
thumb
impression on the said receipts.

21. The applicant had denied any
compromise
between
him
and
the
respondent in which rent of the shop was
enhanced to Rs. 5,000/- plus 31% taxes
per month. He also denied the signature
and thumb impression on the said receipt.
He alleges that three receipts i.e. three
original rent receipt dated 15.6.2012
(paper No. 21C/1), rent receipt dated
22.6.2012 (paper No. 21C/2) and rent
receipt dated 23.10.2012 (paper No.
21C/3) are forged and fabricated receipts.

22. The controversy in the present
case centres around the aforesaid three
receipts since if the signature and thumb
impression on the aforesaid three receipts
are proved to be of the applicant, it is
proved that the respondent has agreed to
pay rent of the shop @ Rs.5,000/- plus
31% tax. The respondent filed a report of
the handwriting expert and produced
Expert Rajkumar Shrotriya to prove that
the receipts bear signature and thumb
impression of the applicant. The applicant
also filed a report of the handwriting
expert
and produced
Expert
Satish
Chandra Varshney to prove that the
signature and thumb impression on
aforesaid three receipts are not of the
applicant and are forged.

23.

The
Trial
Court
while
adverting to the issue No. 1 has
considered various rent receipts filed by
the applicant which demonstrated that
the rent of the shop was Rs. 1200/- plus
taxes. The trial court found that the rent
receipt produced on record establishes
payment of rent of the shop till
31.3.2011 as no rent receipt for the
period after 31.3.2011 showing payment
of rent was filed by the applicant.
Consequently, it held that the applicant
has paid the rent till 31.3.201.

24. The Trial Court, thereafter,
proceeded to consider the expert report
submitted by the applicant and the
respondent. On close appraisal of the expert
report and the statement of the expert of the
respondent, the trial Court found the report
of the expert of the respondent is correct
and the signature and thumb impression on
the three rent receipts was of the applicant.
The Trial Court thereupon considered the
expert report of the applicant and found that
according to the expert report paper No.
102Ga, Q-2 to Q-6 (Thumb impression of
the applicant on Paper no.21C/1 to 21C/3)
and T-1 (Standard Thumb impression of the
applicant) have the same characteristic,
even then he has stated in his report that
there are dissimilarities in Q-2 to Q-6 and
T-1.

25. At this point, it would be pertinent
to reproduce that portion of the report of the
620 INDIAN LAW REPORTS ALLAHABAD SERIES
expert Satish Chandra Varshney where he
has dealt with the thumb impression:

".....As regards the Thumbimpressions:

(a) Standard thumb-impressions
mark T1 to T4 show on a preliminary
examination that:

-In impression mark T1 only
some of the ridges are visible in lower
portion on the basis of these ridges the
pattern of the impression may be judged
that is of loop type. In this pattern the
ridges are entering and flowing out after
re-curving in the middle in the left side
and makes the delta point on the right
side. In impression mark T2 no one ridge
or ridge characteristics is distinctly
visible, so it is blurred and not
comparable.

The impression mark T3-T4 are
of Arch type. In this pattern the ridges are
flowing from one side to other side without
taking any turn in middle.

(b) Disputed thumb impression
mark Q1 to Q6 in these impression:

-In impression mark Q1 no one
ridge or ridge characteristics is distinctly
visible, so it is blurred and not
comparable.

-In impression mark Q2 to Q6
the flow of ridges is clear on the basis of
these ridges the pattern of the impressions
may be judged that is of loop type. In this
pattern the ridges are entering and
flowing out after re-curving in the middle
in the left side and makes the delta point
on the right side.

Further examination of these
impressions Q2 to Q6 show that in Q3 the
ridges are very much faint no one ridge
characteristics is distinctly visible so it is
not comparable.

(c) So I made a detailed
analysis of ridge characteristics in
disputed thumb-impressions Q2-Q4-Q5Q6 and in standard impression T1 which
is the main basis of comparison that
shows basic dis-similarities in Q2-Q4Q5-Q6 and in T1....."

26. From the aforesaid underlined
portion of paragraph 'a' and 'b' of the
expert report extracted above, it is
evident that the report of the Expert
clearly suggest that Q2-Q4-Q5-Q6 and
T1 have the same characteristic and yet
in paragraph C in the conclusion part,
the
Expert
records
that
there
is
dissimilarity in Q2-Q4-Q5-Q6 and T1.
The aforesaid conclusion which on the
face of record appears to be not correct
led the Trial Court believe that the
report of the Expert of the applicant is
not credible.

27. The Trial Court thereafter
proceeded under Section 73 of the Indian
Evidence Act to verify the genuineness of
signature and thumb impression on the
receipts and other documents on record
namely receipt No. 34C/29, 34C/31,
34C/32
submitted
by
the
applicant,
signature of the applicant on Vakalatnama
paper No. 13-C and written statement. On
examination of the admitted signature of the
applicant, the Trial Court recorded a finding
that the applicant is in the habit of making
two kinds of signature 'in one kind he
draws only one headline on all the three
words of his signature and in other kind,
he makes three different headlines one on
every word of signature'. By recording the
aforesaid finding, the Trial Court was of the
view that the expert report submitted by
Expert Satish Chandra Varshney is not
correct and is not worthy of reliance. The
Trial Court also noticed the fact that the
applicant has deposited rent @ Rs. 5,000/-
per month and taxes in the court during the
3 All. Sri Surendra Nath Garg Vs. Sri Balbir Sharan Garg
621
pendency of the case which also amounts to
an admission by the applicant with respect
to the rate of rent.

28. This court in the case of Union of
India and others (supra) has held that the
expert report is only an opinion of an expert
and such opinion cannot be treated to be a
conclusive piece of evidence. It can also be
inferred from the number of judgments of
the apex court relied upon in the said
judgment that an expert witness howsoever
impartial he may wish to be, is likely to be
unconsciously prejudiced in favour of the
side which calls him. At this point, it would
also be pertinent to notice the judgment of
the Apex court in the case of Murari Lal
1980(1)SCC704 (referred in paragraph 88
of the judgment of Union of India) wherein
it has been held that the courts are
empowered under Section 73 of the
Evidence Act to compare disputed writings
with admitted or proved writings to
ascertain whether a writing is that of the
person by whom it purports to have been
written. Paragraph 12 of the judgment of
Murari Lal is reproduced hereunder:

"The argument that the Court
should not venture to compare writings
itself, as it would thereby assume to itself
the role of an expert is entirely without
force. Section 73 of the Evidence Act
expressly enables the Court to compare
disputed writings with admitted or proved
writings to ascertain whether a writing is
that of the person by whom it purports to
have been written. If it is hazardous to do
so, as sometimes said, we are afraid it is
one of the hazards to which judge and
litigant must expose themselves whenever
it becomes necessary. There may be cases
where both sides call experts and the
voices of science are heard. There may be
cases where neither side calls an expert,
being ill able to afford him. In all such
cases, it becomes the plain duty of the
Court to compare the writings and come
to its own conclusion. The duty cannot be
avoided by recourse to the statement that
the court is no expert. Where there are
expert opinions, they will aid the Court.
Where there is none, the Court will have
to seek guidance from some authoritative
textbook and the Courts own experience
and knowledge. But discharge it must, its
plain duty, with or without expert, with or
without other evidence. We may mention
that Shashi Kumar v. Subodh Kumar and
Fakhruddin v. State of Madhya Pradesh
were cases where the Court itself
compared the writings."

29. Thus, from the judgment of the
Apex Court in Murari Lal (Supra) it is
crystal clear that the Court can in the
interest of justice compare handwritings as
it is empowered to do so under Section 73
of the Indian Evidence Act.

30. In the case in hand, the relevant
extract of the report of expert Satish
Chandra Varshney reproduced above was
relied upon by the Trial Court to doubt the
correctness of the expert report. Further,
The trial court by invoking power under
Section 73 of the Indian Evidence Act
compared the signature of the applicant on
the three rent receipts paper No. 21C/1,
paper No. 21C/2, and paper No. 21C/3 with
the signature of the applicant on receipt no.
34C/29, 34C/31, 34C/32, Vakalatnama and
written statement of the applicant, and on
verification, it found that the signature on
three rent receipts matched with the
signature of the applicant on the documents
referred above filed by the applicant. Thus,
it is evident that the trial court after
evaluating the expert report and other
evidence on record has given proper and
622 INDIAN LAW REPORTS ALLAHABAD SERIES
credible reason to conclude that the report
of expert Satish Chandra Varshney is not
credible. Thus, the submission of counsel
for the applicant that no reason has been
given by the Trial Court in disbelieving the
report of expert Satish Chandra Varshney is
misconceived and not supported by the
record.

31. Now coming to the submission of
counsel for the applicant that the receipt
book containing counterfoils of receipt
paper no. 21C/1 to 21C/3 was not filed nor
the aforesaid receipts bear a serial number.
Therefore, it is a case where adverse
inference should be drawn against the
respondent
that
these
receipts
are
manipulated and forged as the respondent
had failed to produce the receipt book.

32. The Apex Court in the case of
Union of India Vs. Ibrahim Uddin and
another, 2012 (8) SCC 148 has held that
merely
withholding
of
documentary
evidence by a party is not enough to draw
an
adverse
inference
against
him.
Paragraph Nos. 16, 17 and 24 of the
judgment is extracted hereinbelow:-

"16. In Shri Srinivas Ramanuj
Das v. Surjanarayan Das & Anr., AIR
1967 SC 256, this Court held that mere
withholding of documentary evidence by
a party is not enough to draw adverse
inference against him. The other party
must ask the party in possession of such
evidence to produce the same, and in case
the party in possession does not produce
it, adverse inference may be drawn:

"It is true that the defendantrespondent also did not call upon the
plaintiff-appellant
to
produce
the
documents whose existence was admitted
by one or the other witness of the plaintiff
and that therefore, strictly speaking, no
inference adverse to the plaintiff can be
drawn from his non-producing the list of
documents. The Court may not be in a
position to conclude from such omission
that those documents would have directly
established the case for the respondent.
But it can take into consideration in
weighing the evidence or any direct
inferences from established facts that the
documents might have favoured the
respondent case."

17. In Ramrati Kuer v. Dwarika
Prasad Singh & Ors., AIR 1967 SC 1134,
this Court held:

"It is true that Dwarika Prasad
Singh said that his father used to keep
accounts. But no attempt was made on
behalf of the appellant to ask the court to
order Dwarika Prasad Singh to produce
the accounts. An adverse inference could
only have been drawn against the
plaintiffs-respondents if the appellant had
asked the court to order them to produce
accounts and they had failed to produce
them after admitting that Basekhi Singh
used to keep accounts. But no such prayer
was made to the court, and in the
circumstances no adverse inference could
be drawn from the non-production of
accounts." (See also:Ravi Yashwant Bhoir
v. District Collector, Raigad & Ors., AIR
2012 SC 1339).

24. Thus, in view of the above,
the law on the issue can be summarised to
the effect that, issue of drawing adverse
inference is required to be decided by the
court taking into consideration the
pleadings of the parties and by deciding
whether
any
document/evidence,
withheld, has any relevance at all or
omission of its production would directly
establish the case of the other side. The
court cannot loose sight of the fact that
burden of proof is on the party which
makes a factual averment. The court has
3 All. Sri Surendra Nath Garg Vs. Sri Balbir Sharan Garg
623
to consider further as to whether the
other side could file interrogatories or
apply for inspection and production of the
documents etc. as is required under
Order XI CPC. Conduct and diligence of
the other party is also of paramount
importance. Presumption or adverse
inference for non-production of evidence
is always optional and a relevant factor
to be considered in the background of
facts involved in the case. Existence of
some other circumstances may justify
non-production of such documents on
some reasonable grounds. In case one
party has asked the court to direct the
other side to produce the document and
other side failed to comply with the
court's order, the court may be justified in
drawing the adverse inference. All the
pros and cons must be examined before
the adverse inference is drawn. Such
presumption is permissible, if other larger
evidence is shown to the contrary."

33. Counsel for the applicant could
not demonstrate from the record that the
applicant
had
filed
an
application
demanding production of the receipt book.
The applicant needed to file an application
praying for a direction to the respondent to
produce receipt book asserting that the
production of the receipt book was
necessary for the proper adjudication of the
dispute so that the court could have
examined whether the production of receipt
book was essential for right decision of the
case and give the necessary direction for
production of the receipt book. Therefore, it
is not a case where the trial court could
draw an adverse inference. Thus, the
submission of counsel for the applicant that
an adverse inference should have been
drawn against the respondent for not
producing the receipt book is devoid of
substance.

34. Counsel for the applicant has
lastly argued that it is astonishing that the
original of the aforesaid three rent receipts
i.e. paper no.21C/1 to 21C/3 had been
produced by the respondent whereas the
original of the three rent receipts could have
been produced only by the applicant to
whom the said receipts are alleged to have
been issued. Accordingly, he submits that
the aforesaid fact demonstrates that the
aforesaid receipts are forged and fabricated.

35. To the said submission, learned
counsel for the respondent submitted that
as the aforesaid contention has been
advanced for the first time before this
Court, therefore, the respondent has
explained in paragraph No. 14 of the
counter affidavit as to how these receipts
have been filed. Paragraph No. 14 of the
counter affidavit is extracted herein
below:-

"14. That the contents of para
14 of the 'said affidavit' as stated are
wrong and denied. It is stated that the
plaintiff/opposite party filed counter
foils of rent receipts duly signed and
thumb
marked
by
the
defendant/revisionist. The rate of rent
beside tax payable in relation to the
shop in question @ Rs. 5,000/- per
month plus Rs. 1550/- per month will be
apparent from the counter foils. The
plaintiff/opposite party stated that torn
out part of the rent receipt is placed
below the counter foil of the rent receipt
and by inserting carbon paper in
between the requisite details about
payment of rent is mentioned therein
and after removal of carbon paper,
parties appended their signatures on the
receipts i.e. counter foils in original as
well as rent receipts carbon copy signed
by them. It is stated that tenants used to
624 INDIAN LAW REPORTS ALLAHABAD SERIES
pay the rent not only appended his
signature but also his thumb impression
on front and back side of the counter
foils of the rent receipt. Thereafter
carbon copy of rent receipt is handed
over to the tenant concern. The counter
foil remain with the plaintiff/opposite
party, which were filed by him before
the court below. From bare perusal of
counter foils of rent receipts there is
perforation on the right side of it which
establishes that the same were counter
foils
of
rent
receipts
retain
by
plaintiff/opposite party. In absence of
cogent and valid reason to infer doubt
about counter foils of those rent
receipts remain in the custody of the
plaintiff/landlord. Allegations to the
contrary made in para under reply are
without any basis. The plaintiff/opposite
party has rightly filed those counter
foils of the rent receipt which contain
signatures and thumb impression of the
defendant/revisionist.
The
defendant/revisionist
with
oblique
motive and malafide reason has denied
his liability to pay rent @ Rs. 5,000/-
per month besides Rs. 1550/- P.M.
towards taxes and his signatures and
thumb impression on the counter foils of
the rent receipts besides those counter
foils are forged and fabricated. The
facts contrary to this asserted by the
defendant/revisionist
in
paragraph
under reply are wrong and denied.

That the Rent Receipts filed by
the Defendant/Revisionist in Lower Court
are issued and acknowledge in same
manner and style. The perforation are on
left hand side by bare perusal, it can be
confirmed."

36. Because of the reasons detailed
in paragraph No. 14 of the counter
affidavit,
the
court
finds
that
the
respondent
has
given
a
plausible
explanation as to how the three rent
receipts which are in fact counterfoils
have been filed in original. Further, the
record shows that the applicant has not
raised aforesaid argument before the trial
court and has raised it for the first time in
revision, which cannot be permitted to be
raised in the revision. Accordingly, this
Court finds no substance in the argument
of counsel for the applicant that the filing
of the original receipt itself demonstrates
that they are forged.

37. For the reasons given above, this
Court finds that the finding recorded by
the Trial Court is a finding of fact based
upon proper appreciation of evidence and
material on record and interference with
the aforesaid finding is not warranted by
this court in the exercise of power under
Section 25 of the Provincial Small Causes
Court Act in view of the judgment of the
Apex Court in the case of Trilok Singh
Chauhan (supra).

38. Since the judgment of the trial
court is not perverse or based on a
misreading of the evidence or against the
record, therefore, the judgments of the
Apex Court in cases, namely Ram Murti
Devi
(Supra),
Rai
Chandra
Jain
(Supra), Ram Das (Supra) and Vinod
Kumar Arora (Supra) relied upon by
the applicants on the point that the court
can interfere with the judgment of the
trial court on facts where judgment is
based on a misreading of evidence are not
applicable.

39. Consequently, the revision lacks
merit and is accordingly, dismissed. Interim
order stands vacated. There is no order as to
the
cost.
6 All. Smt. Durgawati Devi Vs. Muktinath Tiwari 625

40. The office is directed to return the
record of the court below forthwith without
any delay.
----------
(2020)06ILR A625
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.05.2020

BEFORE

THE HON'BLE RAJAN ROY, J.

Application U/S 24/ Order 39 Rule 2-A CPC No.
- 126 of 2018
&
Application U/S 24/ Order 39 Rule 2-A CPC No.
- 127 of 2018

Smt. Durgawati Devi ...Applicant
Versus
Muktinath Tiwari ...Opposite Party

Counsel for the Applicant:
Vaibhav Srivastava

Counsel for the Opposite Party:
-----

A. Civil Law - Code of Civil Procedure,
1908-Section 24 - Code of Criminal
Procedure,1973-Sections
125,127challenge to- maintainability of-Section 24
CPC or Section 407 Crpc-petition filed by
wife for transfer of proceedings from the
Family Court Faizabad to Family Court,
Ambedkar Nagar-Family Court is deemed to
be a Civil Court for the purposes of suits
and proceedings governed by the CPC while
Family
Court
exercises
jurisdiction
exercisable by the Magistrate of the First
Class under CrPC, therefore Section 407

CrPC would clearly apply for transfer of
proceedings u/s 125 and 127 CrPC as Subsection 2 of Section 10 of the Act,1984 says
that the provisions of the CrPC or the rules
made
thereunder,
shall
apply
to
the
proceedings under Chapter IX CrPC before a
Family Court-thus, application u/s 24 is not
maintainable.(Para 2 to 14)
The application is dismissed. (E-6)

List of Cases Cited:-

1. Vijay Kumar Prasad Vs St. of Bih. & ors.
(2004) 5 SCC 196

2. Mohd.Nadeem Vs St. of U.P. Crl .Rev. No.
98 of 2015

(Delivered by Hon'ble Rajan Roy, J.)

1. These petitions have been filed by
the wife for transfer of proceedings under
Section 125 (3) Code of Criminal
Procedure (hereinafter referred as Cr.P.C.
1973,) and Section 127 Cr.P.C bearing
Case No. 119 of 2015, Smr. Durgawati
Devi Vs. Muktinath Tiwari and Case No.
118 of 2015, Smt. Durgawati Devi Vs.
Muktinath Tiwari respectively from the
Principle Judge Family Court, Faizabad to
the court of Principle Judge Family Court,
Ambedkar Nagar.

2. During the Course of argument a
question
arose
as
to
whether
an
application under Section 24 of the Code
of Civil Procedure, 1908 (herein after
referred as C.P.C.) would be maintainable
for transfer of proceedings under Section
125 and 127 Cr.P.C. 1973, or not? This
query had been put to the learned counsel
for the applicant by the Court vide its
order dated 07.02.2020.

3. When the matter was taken up for
hearing, thereafter, learned counsel for
the applicant relied upon a decision of the
Supreme Court reported in (2004) 5 SCC
196; Vijay Kumar Prasad Vs. State of
Bihar and others; wherein it had been
held that proceedings under Section 125
Cr.P.C
were
of
Civil
nature.
He
contended that proceedings in question
being
of
a
civil
nature,
transfer