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SYED SHAHID HUSSAIN AND ANOTHER versus MUSHAHID ALI

High Court of Judicature at Allahabad

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Syed Shahid Hussain And Another v. Mushahid Ali - WRIT - A No. 16464 of 2004 [2006] RD-AH 8659 (28 April 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

Civil Misc.Writ Petition No.16464 of 2004

Syed Shahid Husain and another

Versus

Mushahid Ali

________

Hon'ble Anjani Kumar, J.

This is a writ petition under Article 226 of the Constitution of India by the petitioner-plaintiff who is aggrieved by an order dated 24.1.2004 passed by the revisional court whereby the revisional court allowed the revision filed by the respondent-tenant by setting aside the decree passed by the   court of small causes dated 18th October 2000 and dismissed the suit filed by the petitioner.

The petitioner filed a suit against the defendant before the Small Cause Court for recovery of arrears of rent and ejectment of the defendant-respondent on the ground that the tenant has defaulted in payment of rent. Therefore, the tenancy was terminated by serving the notice under Section 106 of Transfer of Property Act on the petitioner-tenant asking to vacat the premises and pay the arrears.  The defendant neither made payment nor vacated the premises. Thus the plaintiff filed the suit aforesaid. The defendant-respondent denied the allegations made in the plaint and set up the case that there is no relationship of landlord and tenant between the plaintiff and defendant. Thus suit is not maintainable. On the hearing of the parties the trial court formulated following questions to be decided:-

1.Whether the defendant is tenant of the accommodation in dispute ?

2.Whether the defendant has defaulted in payment of rent ? If so, what is its effect ?

3.Whether defendant is in arrears of rent and the plaintiff is entitled for arrears and damages. If so, what amount ?

4.Whether the defendant is liable for ejectment ?

5.Whether the plaintiff is entitled for any relief ? If so, to what relief ?

On the question of relationship between landlord and tenant the trial court found that there is relationship of landlord and tenant between plaintiff and defendant. It further found that the defendant defaulted in payment of rent. Thus the suit was decreed for arrears of rent, damages and ejectment. Aggrieved thereby the defendant-respondent preferred a revision under Section  25 of the Provincial Small Cause Courts Act. The revisional court by

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the order impugned has found that there is no relationship of landlord and tenant between plaintiff and defendant. Thus the plaintiff is not entitled to file the suit. The  revisional court, therefore, set aside the order passed by the trial court and dismissed the suit filed by the plaintiff-landlord. Thus this writ petition.

Before this Court learned counsel for the petitioner has submitted that while dismissing the suit the revisional court has acted beyond its jurisdiction in view of law laid down by Division Bench of this Court in the case of Laxmi Kishore and another v. Har Prasad Sukla, 1979 A.W.C. 746. Learned counsel for the petitioner has relied upon paragraphs 18 and 19 of the said decision. Learned counsel for the respondent also relied upon paragraph 19 and 20 of the said decision. Paragraphs 18, 19 and 20 are quoted below:-

"18. The court deciding a revision under section 25 of the Provincial Small Cause Courts Act has to satisfy itself that the trial courts' decree or order is according to law. Of course, the Revisional Court should keep in mind the Supreme Court's dictum in Naicker' case (supra) that a wrong decision on fact is also a decision according to law.

19. If it finds that there is no evidence to sustain a finding on a particular issue of fact, it can ignore that finding. Same will be the case where the finding is based only on inadmissible evidence. In such cases, the court will be justified in deciding the question of fact itself, because the evidence is all one way. No assessment is needed. The court can also decide the revision if only a question of law or some preliminary point of law, viz. Validity of notice, is sufficient for its decision.

20. 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; but it has no jurisdiction to reassess or reappraise the evidence in order to determine an issue of fact for itself. If it cannot dispose of the case adequately without a finding on a particular issue of act, it should send the case back after laying down proper guidelines. It cannot enter into the evidence, assess it and determine an issue of fact."

Learned counsel for the respondent has further relied upon a single judge decision of this Court reported in 1988 (1) ARC 521, Karim Ulla v. IIIrd Addl. District Judge,  Allahabad  and  others  wherein  the  aforesaid  Division

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Bench decision has been considered by the Single Judge and the learned Single Judge in paragraph 12 has ruled as under:-

"No re-assessment of the evidence was required and, as such from the principles laid down by this Hon'ble Court in the case of Lakshmi Kishore and another v. Har Prasad Shukla (supra) a well as in view of the decision of the Hon'ble Supreme Court in the case of Jagdish Prasad v. Smt. Angoori Devi (supra), the Revisional Court was justified in reversing the finding of the Judge Small Cause Court in regard to the relationship of landlord and tenant. Since no re-assessment of the evidence was required, it would not be necessary to remand the case. In the circumstances, the submission made by the learned counsel for the petitioner, in my opinion, is without substance."

In view of the Single Judge decision in which the Single Judge has taken note of Division Bench, the learned Judge relied on the Supreme Court decision I do not find that the submission made by the learned counsel for the petition can be accepted. Thus the argument advanced by learned counsel for the petitioner is liable to be rejected and is hereby rejected.

On the question of finding of facts regarding petitioner being in arrears of rent etc. the same has not been assailed and to me it appears rightly in view of the fact that this Court exercising jurisdiction under Article 226 of the Constitution will not sit in appeal over the findings arrived at by the revisional court unless the same is either perverse or suffers from error apparent on the face of record. Nothing of the sort has been demonstrated on the question of defendant being in arrears of rent and service of notice under Section 106.

Thus in view of discussion made above this writ petition has no force and is accordingly dismissed.

Dt: 28.04.2006

mhu.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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