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MOHD. KABIR UDDIN & OTHERS versus IVTH A.D.J. ALLD. & OTHERS

High Court of Judicature at Allahabad

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Mohd. Kabir Uddin & Others v. Ivth A.D.J. Alld. & Others - WRIT - A No. 32672 of 1999 [2005] RD-AH 342 (3 February 2005)

 

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

Court No. 25

Civil Misc. Writ PetitionNo. 32672 of 1999

Mohd.Kabir Uddin and others                        ..........Petitioners

                               Versus

IVth Addl.District Judge,Allahabad

and others                                                     ..........Respondents.

     ........

Hon'ble Vikram Nath J.

This writ petition has been filed by the landlord for quashing the judgment and order dated 06.04.1999 passed by IV Addl.District Judge, Allahabad in Civil Revision No. 178 of 1994, Mohd.Bashir Uddin

(deceased) through legal representative Vs. Mahmood Ahmad and another and in Civil Revision No. 193 of 1994 Mohd.Ahmad and another Vs. Mohd.Kabir Uddin and others whereby the revision filed by the petitioner was dismissed and revision filed  by the tenant respondent was allowed and the suit of the landlord for recovery of arrears of rent and ejectment was dismissed.

Dispute relates to the shop situate at house no. 67/166 Noorullah Road, Allahabad of which the petitioners are the landlord and owners and Mahmood Ahmad and his brother were tenant from 1.7.1968 at monthly rent at Rs.25/- per month. Subsequently on 1.6.1983 another adjoining shop was also let out to the tenant and the rent for both the shops was fixed to be Rs.60/- per month. Later on with effect from 1.6.1984 it is alleged that further accommodation was provided to the tenant and the rent was agreed to Rs.260/- per month. According to the petitioner the tenant had paid the rent at Rs.260/- per month up to 31.7.1984 but thereafter stopped paying the rent. The landlord after giving notices of demand and quit filed SCC Suit No. 40 of 1985.

The tenant filed written statement denying that the rent was Rs.260/- per month or any additional accommodation was let out in the year 1983-84. According to him the rent was only Rs.60/- per month and which he was regularly paying. However, when the landlord stopped accepting the rent he started depositing the same under section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent And Eviction) Act, 1972(hereinafter referred to as the Act). It was alleged by the tenant that there was no default and the suit was liable to be dismissed.

Both the parties led evidence. The trial court vide judgment dated 25.4.1994 held that the rate of rent was at Rs.260/- per month. Further it held that there was no default as the tenant had deposited the admitted rent at the rate ofRs.60/- per month under Order 15 Rule 5 CPC. It accordingly dismissed the suit for ejectment of tenant. Aggrieved by the same two revisions were filed under section 25 of Provincial Small Causes Court Act 1887( hereinafter referred to as the 1887 Act).

Revision No.178 of 1994 was filed by the plaintiff petitioner and Revision no. 193/1994 was filed by the tenant respondent. The IV Additional District Judge, Allahabad vide judgment dated 6.4.1994 while dismissing the revision of the petitioner landlord, allowed the revision of the tenant respondent and held that the rate of rent was Rs.60/- per month and not Rs.260/- per month. Aggrieved by the same, the landlord has filed the present writ petition.

I have heard Sri M.A.Qadir, learned counsel for the petitioner and Sri D.R. Chaudhari, learned counsel for the respondent-tenant.

The contention of learned counsel for the petitioner is that the revisional Court while exercising power under section 25 of 1887 Act exceeded its jurisdiction in re-appreciating the oral as well as documentary evidence and upsetting the finding of fact recorded by the trial court and substituting its own finding. The contention is that the revisional Court had no jurisdiction to enter into the facts and/ or to re-appreciate the evidence on record, which had been considered and appreciated by the trial court. It was only required to examine as to whether the judgment of the trial court was in accordance with law or not and the procedure prescribed had been followed. In support of this contention learned counsel for the petitioner has relied upon the Division Bench judgment of this Court reported in Luxmi Kishore and  others Vs. Har Prasad Shukla 1979 Allahabad Civil Journal page 473. The Division Bench in the said judgment while dealing with the jurisdiction of revisional Court under section 25 of 1887 Act, after considering several other decisions laid down as follows:

" 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 Nateker's case(Supra) that a wrong decision on facts is along a decision according to law.

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 in -admissible 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.

But, if it finds that 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 fact, 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."

On the other hand learned counsel for the respondent has relied upon the judgment of learned single judge in case of Smt.Lajwanti Vs. V Addl. District Judge Bulandshahar and another reported in 1989(1) ARC page 495. In the said judgment there is a passing reference, which is quoted below:

" This finding has been seriously assailed by the petitioner and it is contended that the revisional Court had no jurisdiction to meddle with the findings of fact recorded by the trial Court. There is no such invariable rule and under Section 25 of the Provincial Small Cause Court Act the powers of the revisional Court are not as restricted as in the case of revision under Section 115 CPC Under Section 25 revisional Court can reappraise the finding and record its own finding if the trial Court has either ignored to take into consideration any material piece of evidence or has misread the evidence or the finding recorded by it are perverse."

I have considered both the decisions and in my view the law laid down by the Division Bench in case of Luxmi Kishor appears to be correct. The single Judge judgment in the case of Smt. Lajwanti(Supra) did not take into consideration the Division Bench judgment in the case of Luxmi Kishore(Supra) Now considering the facts of the present case and perusal of the revisional Court judgment clearly shows that it has re-appraised the same evidence oral as well as documentary which had been considered and relied upon by the trial court. This is in view of the limited powers vested in the revisional Court under section 25 of 1887 Act it is not correct. The revisional Court in case if it was of the view that the finding of fact recorded by the Trial Court was vitiated on account of error of law then it had the power to send the case back after laying down proper guidelines rather than under take upon itself the burden to re-assess the evidence in order to determine the issue of fact. The question with regard to rate of rent is undisputedly an issue of fact.

The question whether there was additional accommodation taken or not was also a issue of fact and subsequent consequential finding of default on the determination of the rate of rent was also issue of fact.

In the circumstances, the revisional Court exceeded its jurisdiction while recording finding of fact on the rate of rent, additional accommodation and default.

In the facts and circumstances, the judgment of revisional Court cannot be sustained and is accordingly set aside. The matter is remanded back to the revisional Court to reconsider the matter and relying upon the observations made above, in case it comes to the conclusion that any finding of trial court was vitiated on account of error of law it will send back the same to the trial court after framing proper guidelines.

Since the matter is pending for last 20 years, the revisional Court will make an endeavor to decide the case within four months from the date of production of certified copy of this order.

The writ petition succeeds and is allowed with the above observations.

Dt.3.2.2005

Hsc/


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