Bombay HC: If investigating officer fails to produce record of hospitals where injured were first taken, the court must draw adverse inference against prosecution

 Evidence is given by Satish (PW 1) and Ashrubai (PW 2) that deceased was first shifted to Washi Government Hospital. From there, he was shifted to Osmanabad Civil Hospital and then to Civil Hospital, Solapur. Though in the night time itself deceased was reached to Civil Hospital Solapur, the fact remains that the deceased was first taken to two Government Hospitals and there some record must have been created about the injuries sustained by the deceased and about the history given. In view of the nature of injury, the case must have been treated as medico legal case. No such record was collected by the investigating agency. There is only transfer certificate issued by Osmanabad Hospital to shift the deceased to Civil Hospital, Solapur. In the history of Solapur Hospital, there is a mention that it was M.L.C. In view of these circumstances and in view of the circumstance that much delay was caused in giving the F.I.R. by Satish (PW 1), it was necessary for investigating agency to collect the record from aforesaid two hospitals. Absence of such record shows that investigating agency was not fair. There is clear probability that the history, which is not suitable to prosecution case was given and such inference can be drawn due to such lacuna. {Para 15}

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Appeal No. 267 of 2018

Decided On: 03.10.2018

Umesh Bharat Gaikwad Vs. The State of Maharashtra

Hon'ble Judges/Coram:

T.V. Nalawade and Vibha Kankanwadi, JJ.

Author: T.V. Nalawade, J.

Citation: 2019 ALL M R (Cri) 2302, MANU/MH/2823/2018.

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Bombay HC: Prosecution not examining persons residing in vicinity of spot of offence, adverse inference is to be drawn against prosecution

 On evaluation of the prosecution evidence, it is clear that except the evidence of injured PW-3 Vivek, there is no other evidence brought on record by the prosecution to corroborate his version. {Para 14}

17. Admittedly, there were shops around the shop of PW-3 Vivek where the alleged incident had taken place. There was a road in front of his shop and there were two shops beyond the road. However, the prosecution has not examined a single independent witness in support of its case. Adverse inference in terms of Section 114 (g) of the Indian Evidence Act, 1872 therefore needs to be drawn against the prosecution.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Appeal No. 213 of 2012

Decided On: 22.06.2021

Ravi Vs. The State of Maharashtra

Hon'ble Judges/Coram:

N.B. Suryawanshi, J.

Citation: MANU/MH/1522/2021,2021 (3) B Cr C 774

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Whether the court should draw adverse inference against prosecution if it fails to examine all eye witnesses?

One of the grounds of challenge is the failure to examine other eye-witnesses. However, in the facts of the case, a total of five eye-witnesses were examined. It is not axiomatic that in every case where the eye-witnesses are withheld from the court, an adverse inference must be drawn against the prosecution. The totality of the circumstances must be considered for concluding whether an adverse inference could be drawn. 

10.  It is true that the eye-witnesses examined before the court were close relatives of the deceased. That itself is no ground to discard their testimony. However, their evidence may require closer scrutiny. After having made closer scrutiny, we find their versions are of a very sterling quality. Moreover, all the persons named by PW-1 who were present were not independent witnesses. In a given case, when independent witnesses are available who are not connected with the rival parties and the prosecution omits to examine them by confining its case to examining related witnesses, an adverse inference can undoubtedly be drawn against the prosecution. When the evidence of the eye-witnesses is of sterling quality, an adverse inference need not be drawn. Quality is more important than quantity.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1515 of 2011

Decided On: 13.12.2023

Maheshwari Yadav and Ors. Vs. The State of Bihar

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Pankaj Mithal, JJ.

Author: Abhay Shreeniwas Oka, J.

Citation:  MANU/SC/1327/2023.

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Whether the court should draw adverse inference against wife if she refuses to undergo DNA test in cross examination?

Thus, as on today, in this petition also though vehemently arguments are advanced saying that the petitioner husband is ready go for DNA test, still no separate application is filed for DNA test. Mere submission that question was asked in cross-examination to wife that whether she is ready to go for DNA test, where she has answered that she is not ready itself would not be sufficient to draw adverse inference against the wife. Now, the only question remains whether at this stage DNA test can be ordered merely for asking. His entire argument is that the respondent No. 2 is not his biological daughter cannot be now accepted, firstly, there is no separate application filed by him neither in the Trial Court, nor before the Revisional Court; secondly, no case is made out by the petitioner-husband to direct DNA test. Both the Courts below have rightly observed that no case is made out by the husband to show that for the period of 280 days before the delivery of child, there was no access to him with his wife respondent No. 1. {Para 18}

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Writ Petition No. 271 of 2017

Decided On: 07.01.2023

Namdeo Vs. Seema and Ors.

Hon'ble Judges/Coram:

Kishore C. Sant, J.

Citation:  MANU/MH/0049/2023.

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Can the court draw an adverse inference against the plaintiff in a suit for specific performance if he fails to produce his bank passbook?

6.2. In the case of Indira Kaur (supra) this Court after considering the observations made by this Court in the case of Ramrati Kuer (supra) has set aside the findings recorded by three courts below whereby an adverse inference had been drawn against the Plaintiff therein for not producing the passbook and thereby holding that the Plaintiff was not ready and willing to perform his part of the agreement. It is observed and held that unless the Plaintiff was called upon to produce the passbook either by the Defendant or, the Court orders him to do so, no adverse inference can be drawn.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 8962-8963 of 2022 

Decided On: 05.01.2023

Basavaraj Vs.  Padmavathi and Ors.

Hon'ble Judges/Coram:

M.R. Shah and B.V. Nagarathna, JJ.

Author: M.R. Shah, J.

Citation: MANU/SC/0016/2023,AIR 2023 SC 282 : (2023) 4 SCC 239

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Should the court rely on the defence taken by the defendant if he fails to give his evidence before the court and gets cross-examined?

Having not entered into the witness box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of principles contained in illustration (g) of Section 114 of the Evidence Act.

16. As early as in 1927, the Privy Council in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. MANU/PR/0049/1927, took note of a practice prevalent in those days of not examining the parties as a witness in the case and leaving it to the other party to call that party so that the other party may be treated as the witness of the first party. Their Lordships of the Privy Council observed as under:

Notice has frequently been taken by this Board of this style of procedure. It sometimes takes the form of a manoeuvre under which counsel does not call his own client, who is an essential witness, but endeavours to force the other party to call him, and so suffer the discomfiture of having him treated as his, the other party's, own witness.

This is thought to be clever, but it is a bad and degrading practice. Lord Atkinson dealt with the subject in Lal Kunwar v. Chiranji Lal (1), calling it "a vicious practice, unworthy of a high-toned or reputable system of advocacy."

17. The true object to be achieved by a Court of justice can only be furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicions attaching to it. The story can then be subjected in all its particulars to cross-examination.

19. This decision was also relied upon by the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh MANU/MH/0063/1930 : (1930)32BOMLR924 , which observed as under:

It is the bounden duty of a party personally knowing the facts and circumstances, to give evidence on his own behalf and to submit to cross-examination and his non-appearance as a witness would be the strongest possible circumstance which will go to discredit the truth of his case.

21. The Madhya Pradesh High Court also relied upon the following observation of the Calcutta High Court in Pranballav Saha and Anr. v. Smt. Tulsibala Dassi and Anr. MANU/WB/0183/1958 : AIR1958Cal713 :

The very fact that the defendant neither came to the box herself nor called any witness to contradict evidence given on oath against her shows that these facts cannot be denied. What was prima facie against her became conclusive proof by her failure to deny.

The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. MANU/UP/0007/1971 : AIR1971All29 , held that :

the explanation of any admission or conduct on the part of a party must, if the party is alive and capable of giving evidence, come from him and the court would not imagine an explanation which a party himself has not chosen to give.

 IN THE SUPREME COURT OF INDIA

C.A. No. 1417 of 1982

Decided On: 16.03.1999

Iswar Bhai C. Patel  Vs.  Harihar Behera and Ors.

Hon'ble Judges/Coram:

Saiyed Saghir Ahmad and M.B. Shah, JJ.

Author: Saiyed Saghir Ahmad, J.

Citation: MANU/SC/0173/1999

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Under Which circumstances can the court draw an adverse inference against a party if he fails to produce the passbook in the suit for the specific performance of contract?

 6.1 From the impugned judgment and order passed by the High Court, it appears that the reasoning given by the High Court is that the plaintiff has not proved that he had the cash and/or amount and/or sufficient funds/means to pay the balance sale consideration, as no passbook and/or bank accounts was produced. In the case of Ramrati Kuer (supra) which has been specifically considered by this Court in the case of Indira Kaur (supra), it was observed and held as under: -

“Fourthly, it is urged that the respondents did not produce any accounts even though their case was that accounts were maintained and that Basekhi Singh used to give maintenance allowance to the widows who were messing separately. It is urged that adverse inference should be drawn from the fact accounts were not produced by the respondents and that if they had been produced that would have shown payment not of maintenance allowance but of half share of the income to the widows by virtue of their right to the property. Itis 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. But it is urged that even so the accounts would have been the best evidence to show that maintenance was being given to the widows and the best evidence was withheld by the plaintiffs and only oral evidence was produced to the effect that the widows were being given maintenance by Basekhi Singh. Even if it be that accounts would be the best evidence of payment of maintenance and they had been withheld, all that one can say is that the oral evidence that maintenance was being given to widows may not be acceptable; but no adverse inference can be drawn (in the absence of any prayer by the appellant that accounts be produced) that if they had been produced they would have shown that income was divided half and half in accordance with the title claimed by the appellant.”

6.2 In the case of Indira Kaur (supra) this Court after considering the observations made by this Court in the case of Ramrati Kuer (supra) has set aside the findings recorded by three courts below whereby an adverse inference had been drawn against the plaintiff therein for not producing the passbook and thereby holding that the plaintiff was not ready and willing to perform his part of the agreement. It is observed and held that unless the plaintiff was called upon to produce the passbook either by the defendant or, the Court orders him to do so, no adverse inference can be drawn.

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 8962-8963 OF 2022 

 Basavaraj VsPadmavathi & Anr.

Coram:  M.R. SHAH; J., B.V. NAGARATHNA; J. 

Author: M.R. Shah, J.

Dated: JANUARY 05, 2023

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Whether court can draw adverse inference if a literate person puts thumb impression instead of signature?

 On the issue of testator’s thumb impression on the cancellation

deed, it is telling that all the four deeds executed by Rajendra Singh in his lifetime, contained his thumb impression and not his

signature. Therefore, adverse presumption on genuineness of the

cancellation deed cannot be drawn merely because the testator

chose to append his thumb impression. That apart, the Ext. B

Report of the handwriting expert (OW3) clearly indicates that the thumb impression on all the documents placed before the Expert’s opinion are of the same person i.e. of Rajendra Singh. Since the said Ext. B was marked in Court, without objection from the applicant, the genuineness of the same cannot be allowed to be questioned before the appellate Court. A contrary inference according to our opinion, was erroneously drawn by the High court by referring to the health condition of the testator, when the revocation deed was registered. {Para 17}

18. The key characteristic of thumb impression is that every person has a unique thumb impression. Forgery of thumb impressions is nearly impossible. Therefore, adverse conclusion should not be drawn for affixing thumb impression instead of signing documents of property transaction. Therefore, genuineness of the Cancellation deed cannot be doubted only due to the fact that same was not signed and Rajendra as a literate person, affixed his thumb impression. This is more so in this case since the testator’s thumb impression was proved to be genuine by the expert.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5823 OF 2011

Lachhmi Narain Singh (D) Through LRs Vs  Sarjug Singh (Dead) Through LRs. 

Author: Hrishikesh Roy, J.

Dated: AUGUST 17, 2021

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Should the court draw an adverse inference if a person affixes a thumb impression instead of signing on documents of property transactions?

 On the issue of testator’s thumb impression on the cancellation

deed, it is telling that all the four deeds executed by Rajendra Singh

in his lifetime, contained his thumb impression and not his

signature. Therefore, adverse presumption on genuineness of the

cancellation deed cannot be drawn merely because the testator

chose to append his thumb impression. That apart, the Ext. B

Report of the handwriting expert (OW3) clearly indicates that the

thumb impression on all the documents placed before the Expert’s

opinion are of the same person i.e. of Rajendra Singh. Since the

said Ext. B was marked in Court, without objection from the

applicant, the genuineness of the same cannot be allowed to be

questioned before the appellate Court. A contrary inference

according to our opinion, was erroneously drawn by the High court

by referring to the health condition of the testator, when the

revocation deed was registered.

18. The key characteristic of thumb impression is that every person

has a unique thumb impression. Forgery of thumb impressions is

nearly impossible. Therefore, adverse conclusion should not be

drawn for affixing thumb impression instead of signing documents

of property transaction. Therefore, genuineness of the Cancellation

deed cannot be doubted only due to the fact that same was not

signed and Rajendra as a literate person, affixed his thumb

impression. This is more so in this case since the testator’s thumb

impression was proved to be genuine by the expert.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5823 OF 2011

Lachhmi Narain Singh (D) Through LRs & Ors. Vs  Sarjug Singh (Dead) 

Author: Hrishikesh Roy, J.

Dated: AUGUST 17, 2021

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Whether court should draw adverse inference if party fails to depose before court?

 The original defendant no.1 did not appear in person to depose, and be crossexamined in the suit. His younger brother deposed on the basis of a power of attorney, acknowledging that the latter hadseparated from his elder brother. No explanation was furnished

why the original defendant did not appear in person to depose.

We find no reason not to draw an adverse inference against

defendant no.1 in the circumstances. In Iswar Bhai C. Patel vs.

Harihar Behera, (1999) 3 SCC 457 this Court observed as

follows:

“17…..Having not entered into the witnessbox

and

having not presented himself for crossexamination,

an adverse presumption has to be drawn against him

on the basis of the principles contained in Illustration

(g) of Section 114 of the Evidence Act, 1872.”

NONREPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1725 OF 2010

IQBAL BASITH AND OTHERS Vs N. SUBBALAKSHMI 

Author: NAVIN SINHA, J.

Dated: DECEMBER 14, 2020.

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Whether the court should draw an adverse inference if the husband fails to disclose his earnings as per the direction given by the Supreme Court in the case of Rajnesh vs Neha?

 Now coming to the quantum of maintenance, though the

petitioner has produced her Income Tax returns, the respondent has not

reciprocated the gesture. It is to meet such situations that the Supreme Court

in the case of Rajnesh (supra) has also laid down several guidelines requiring

both the parties to make several disclosures in the form of affidavits inter alia

touching the income aspect as well. Conspicuously, in that matter, the

Supreme Court had directed the husband to produce Income Tax returns

before passing the order for granting interim maintenance. In my view,

instead of resorting to such a course now, which is likely to further delay the

proceeding, it would be appropriate to draw an adverse inference, which is

also held to be permissible in this order of the Supreme Court in the case of Rajnesh (supra). Consequently, without indulging into further discussion,

failure of the respondent to come with a disclosure as to his own income and

taking into consideration all the aforementioned facts and circumstances and

bearing in mind the guidelines laid down by the Supreme Court in the case of

Rajnesh (supra) and resorting to an inevitable guesswork, it would be just

and proper to award interim maintenance to the petitioner at the rate of

Rs.10,000/- per month from the date of her application i.e. 03.10.2017.

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.4014 OF 2019

Arpana Vijay Manore Vs Dr. Vijay Tukaram Manore,

CORAM : MANGESH S. PATIL, J.

JUDGMENT PRONOUNCED ON : 09.12.2020

Citation: 2020 SCC OnLineBom 3925,

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Whether adverse inference is to be drawn against prosecution if it fails to obtain certain evidence?

No adverse inference can be drawn against the prosecution from the fact that the opinion of the handwriting expert has not been obtained. In fact, an adverse inference against the prosecution can be drawn only if it withhold certain evidence and not merely on accounts of its failure to obtain certain evidence. 

9. Further, an adverse inference against the prosecution can be drawn only if it withholds certain evidence and not merely on account of its failure to obtain certain evidence. When no such evidence has been obtained, it cannot be said what that evidence would have been and therefore no question of presuming that that evidence would have been against the prosecution, under S. 114, illustration (g) of the Evidence Act, can arise.

IN THE HIGH COURT OF ALLAHABAD

Second Appeal No. 64 of 2001

Decided On: 02.07.2018

 Shanti Mishra  Vs. Samuel

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Whether defendant is bound to prove plea of limitation if he has raised it ?

Next submission on the issue of limitation raised by Mr. Patwardhan is that in view of the positive assertion by defendant No. 3 in affidavit filed before this Court that claims made by the plaintiff are barred by law of limitation, defendant No. 3 was bound to lead oral evidence to prove such positive assertion made in the affidavit and not having led any oral evidence, this Court shall draw adverse inference against the third defendant. In my view, the initial onus to prove that suit was filed within time was on the plaintiff and thus, plaintiff was required to lead his evidence first on the issue of limitation. Since plaintiff has failed to discharge that initial onus cast on him to prove that suit filed by the plaintiff was within time, onus of proof is not shifted to defendant No. 3.

IN THE HIGH COURT OF BOMBAY

Suit No. 808 of 2011

Decided On: 18.10.2013

 Naresh Lachmandas Aswani  Vs. Haridas and Ors.

Hon'ble Judges/Coram:

R.D. Dhanuka, J.

Citation: 2016(4) ALLMR 286

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Whether suit can be decreed if defendant has not entered into witness box?

 Unfortunately, the learned Appellate Judge was disturbed by the fact that the petitioner-tenant had not entered into the witness box. He has said so repeatedly in para 13 of his judgment which I have quoted above and the approach of the learned trial Judge seems to be that if a tenant had not examined himself, though he had led other evidence, the version of the plaintiff could be accepted straightway and should not be dis-believed. It is difficult to appreciate such a general proposition of law and the approach, in my view, is totally erroneous if not perverse. Assuming that, in a given case, the tenant did not examine himself, if the evidence led by the landlord was not enough to substantiate the case sought to be made out by him, his case ought to be rejected. The trial Court rightly thought that decree cannot be passed merely because the tenant did not choose to examine himself by entering into the witness box.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1942 of 1983

Decided On: 10.11.1994

Somnath Krishnaji Gangal  Vs. Moreshwar Krishnaji Kale and Ors.

Hon'ble Judges/Coram:

A.V. Savant, J.

Citation: 1995(3) BomCR 327

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Whether court should draw an adverse inference if a party fails to produce a document?

As can be seen from the pleadings, the plaintiff in the plaint had referred to the sanction dated 4-9-1989. This order of sanction was admitted by both the defendants and was set up as a justification for erection of the wall. Once it was an admitted position on record that there existed an order of sanction dated 4-9-1989, there was no question of drawing any adverse inference against the defendant No. 1 for not producing this order. Failure to produce a document, existence of which is not in dispute can hardly be a matter for drawing adverse inference. In the matter of drawing of adverse inference, the Hon'ble Supreme Court in case of Ibrahim Uddin and another (supra), has held that the aspect of drawing an adverse inference is required to be decided by the Court after considering the pleadings of the parties and the evidence on record. It is to be considered as to whether the other side could have sought for production of such document. Presumption as to adverse inference is permissible if the other evidence is shown to the contrary. In the present case, the existence of the sanction order dated 4-9-1989 is not in dispute. The plaintiff did not give any notice to the defendants to produce this order of sanction under provisions of Order XI of the Code. The defendant No. 1 was never called upon to produce this document so as to draw adverse inference against him for its non-production. It being an admitted position on record that such sanction had been granted, the Appellate Court erred in drawing adverse inference against the defendant No. 1 for its non-production. The substantial question of law No. (i) stands answered accordingly.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

S.A. No. 238 of 2000

Decided On: 14.09.2017

 Ratanlal Vs.  Shantabai and Ors.

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

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Supreme court: Basic principles court should follow while drawing adverse inference against a party

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 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 Code of Civil Procedure. 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.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1374 of 2008

Decided On: 17.07.2012

 Union of India (UOI) Vs.  Ibrahim Uddin and Ors.

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When court should not take into consideration rent note?

The rent note produced by the Appellant/defendant No. 1 before the court below does not prove anything in favour of the Plaintiff/respondent. The same being a vague document is incapable of furnishing any information and, thus, is liable to be rejected. The said document does not make it clear as who has executed it and in whose favour the same stood executed. It does not bear any date as it cannot be ascertained when it was executed. The lease deed cannot be executed without the signature/thumb impression of the lessee. The said lease does not contain any signature/thumb impression of any lessee and also the tenure of the lease has not been mentioned therein. The rent has been mentioned as Rs. 22/- without giving any detail as to whether it was per day, fortnightly, monthly, quarterly or yearly or for ever. More so, there is no reference to the said rent note in the pleadings contained in the plaint, therefore, it is just to be ignored.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1374 of 2008

Decided On: 17.07.2012

 Union of India (UOI) Vs.  Ibrahim Uddin and Ors.

Hon'ble Judges/Coram:

B.S. Chauhan and Dipak Misra, JJ.

Citation: (2012) 8 SCC 148, 

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Whether suit for mandatory injunction is maintainable without seeking declaration?

In Harchand Singh Gujjar Singh v. Dalip Singh Pritam Singh, MANU/PH/0066/1965 : AIR 1965 Punjab 468 while considering whether there is a legal necessity for the plaintiff to get a declaration of his right before he can get an injunction, it was held that when there is some legal obstacle which has to be first removed before such relief can be granted, a prayer for a declaration that has the effect of removing that obstacle is necessary. This decision has been approved by the Full Bench of the Delhi High Court in Mahant Purshottam Dass and others (supra) relied upon by the learned counsel for the appellant. Similarly, in D. Ramanath Gupta (supra), it was held that in a suit for injunction based on a prescriptive easementary right, the plaintiff should seek a declaration from the Court that he has so acquired the prescriptive right of easement.

It is thus clear that it was incumbent for the plaintiff to have sought a declaration that the order of sanction dated 4-9-1989 was illegal and thus he was entitled for a mandatory injunction after setting aside the same. In absence of such declaration being sought, the suit for mandatory injunction simpliciter could not have been decreed without setting aside the order of sanction dated 4-9-1989. The trial Court rightly considered this aspect of the matter but the Appellate Court committed an error in holding otherwise. Substantial question of law No. (ii) is answered accordingly.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

S.A. No. 238 of 2000

Decided On: 14.09.2017

 Ratanlal Vs. Shantabai and Ors.

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: 2018(3) MHLJ194

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Whether adverse inference is to be drawn against a party if he withholds material document?

In the instant case, as noted above, the rent in dispute relates to the period of six months -- from January 1, 1978 to June 30, 1976. Notice of demand in respect of the rent in arrears was sent by the appellants (Exh. 29 which was received by the respondents on July 14, 1978. The period of one month contemplated in the provision within which the original tenant was entitled to pay the rent expired on August 14, 1978. The defence of the appellants is that on July 11, 1978, a money order on July 17, 1978 and, therefore, there has been substantial compliance of clause (a) of sub-section (3) of Section 12. Admittedly, the respondents did not file receipt of sending the money order which is direct evidence of the fact of sending the money order to the appellants. In his deposition in the trial court the original tenant admitted that the receipt of sending the money order issued by the postal authorities was with him; however, he did not choose to file the same. The trial court drew adverse inference against him, in our view rightly. The money order coupon containing the endorsements of the postal authorities "refused" which was returned by the postal authorities (Exh. 67) was examined by the trial court and it was found that the postal stamp was dated August 27, 1978, if that be so there was no material to show that the amount in demand was sent within one month. These findings were confirmed by the appellate court. The High Court misread Exh. 67 as containing the dated August 17, 1978 and from that inferred that the money order might have been sent on August 12/13, 1978 and upset the concurrent findings of courts below. In view of the divergence of opinion of this aspect we ourselves looked into the record and with the help of magnifying glass perused Exh. 67. The same was also placed before the learned counsel for the parties. We are unable to agree with the High Court that the postal stamp is of August 17, 1978. The adverse inference drawn by the trial court and the appellate court remains unrebutted. There was no other material to justify interference by the High Court. Therefore, the finding recorded by the High Court cannot be sustained.

IN THE SUPREME COURT OF INDIA

Appeal (civil) 4756-4757 of 1997

Decided On: 27.09.2001

Sugarbai M. Siddiq and ors. vs.  Ramesh S. Hankare (D) by Lrs.

Hon'ble Judges/Coram:

S.S.M. Quadri and S.N. Phukan, JJ.

Citation:2001(8) SCC 477

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Whether court should draw adverse inference if other side fails to produce documents?

It was next submitted by Mr. Nayar that there was no evidence in the case to come to the conclusion that the appellants had sublet the shop to M/s. Adeshwar Glass Mart, in our view, there is no substance in this contention. There is evidence to show that M/s. Adeshwar Glass Mart was carrying on business at the said premises and that firm was carried on in the said premises even for some time during which the appellants-firm had ceased to carry on the business there. Moreover although a notice was given by the respondent to the appellants and M/s. Adeshwar Glass Mart to produce their income-tax returns, assessment orders as well as account books and ledgers for the relevant period these were not produced. It was surely open to the Trial Court from these circumstances to come to the conclusion that had the account books and ledgers been produced, they would have shown that rent was received by the appellants from M/s. Adeshwar Glass Mart which would justify the finding of subletting. In these circumstances , this contention of Mr. Nayar must fail.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1347 of 1981

Decided On: 02.02.1989

Shah Phoolchand Lalchand Vs. Parvathi Bai

Hon'ble Judges/Coram:

L.M. Sharma and M.H. Kania, JJ.
Citation:  AIR1989SC865

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