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VIRENDRA KUMAR JAISWAL versus ADDL.D.J./SPECIAL JUDGE (ANTI

High Court of Judicature at Allahabad

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Virendra Kumar Jaiswal v. Addl.D.J./Special Judge (Anti-Corruption)& Another - WRIT - A No. 28989 of 2000 [2006] RD-AH 12246 (25 July 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.25

Civil Misc. Writ Petition No.28989  of 2000

Virendra Kumar Jaiswal

Vs.

Additional District Judge and another

Hon. Sanjay Misra, J.

Heard Sri Pankaj Naqvi learned counsel for the petitioner and Sri P.K.Mishra appearing on behalf of respondent no.2.

The petitioner being tenant of a shop has come up in this writ petition by challenging the revisional order whereby the revision filed by the landlord has been allowed and the order of the trial court has been set aside.

It is contended by learned counsel for the petitioner that  the revisional court has reappreciated the evidence and upset the findings of the trial court which could not have been  done in revisional jurisdiction. The second point urged by the learned counsel for the petitioner is that finding given by the trial court with respect to the date of completion of construction of shop in question  was based upon documentary evidence  where it held that the landlord had played fraud  upon local body while obtaining assessment of the said shop on a date which was much after the actual date of completion of construction.

Learned counsel for the respondent no.2 has contended that the order passed by the revisional court  does not suffer from any illegality  in as much as it had recorded its finding on the basis of evidence available on record which according to the revisional court was wrongly appreciated by the trial court by distorting the fact of the said document.

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Having heard the learned counsel for the parties it is found that the concerned document which was available on record being paper no.52-Ga is the objection filed by the landlord  before the local body. In the aforesaid document which has been filed as annexure-6 to the writ petition it is seen that the landlord has disclosed that the building in question is very old and since the year 1955 there was no construction or alternation in the building except construction of six shops which was completed in the year 1986. It is admitted that the assessment of the aforesaid shops was made by the local body in the year 1988. It was on the basis of the aforesaid document that the revisional court has held that the date of assessment would be the date for considering the question of applicability of Act no.13 of 1972 with respect to the tenancy of  respondent no.2. The trial court while considering the aforesaid document has recorded a finding that the landlord had let out the aforesaid shop to the tenant in the year 1979 and to such effect it is the pleading of the landlord in the plaint of the suit that the shop in question was let out in the year 1979. Consequently, the trial court has come to the conclusion that the landlord had played fraud with the local authority and obtained assessment order in order to avail the  benefit of amendment in the Act and therefore,  keep his building out side the purview of Act no.13 of 1972. Irrespective of aforesaid document or finding recorded by the trial court the revisional court recorded that there is nothing on record to infer that the landlord had played fraud with the local body while obtaining the assessment in question.  

Learned counsel for the petitioner has placed reliance upon a decision of this court in the case of Hirday Narain Singh and anther Vs. Maloo Lal Srivastava reported in

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1986(1) ARC page 75 and has contended that date of construction would be the date when the construction is completed for the purpose of deciding the question with respect to applicability of Act no.13 of 1972. On this basis learned counsel for the petitioner contended that since the shop was let out to the tenant in the year 1979 therefore, that would be the date of completion of construction of the shop and therefore, the provision of Act no.13 of 1972 would become applicable to the tenant on the date the  suit was instituted by the landlord.

Learned counsel for the respondent no.2 has referred to the provision of section 2(h)(2) Explanation-1 and has contended that the construction of a building would be deemed to have been completed on the date on which the completion is reported to the local authority or the date on which it is recorded by the local authority or on the date the first assessment comes into effect. In the instant case the date of assessment is of the year 1988 and the notice for the purpose of assessment was given to the landlord on 26.2.1986. The finding recorded by the revisional court  is  that the document paper no.52-Ga( Annexure-6 to the writ petition) clearly indicates that the additional constructions of shops  were made and completed by the landlord in the year 1986 whereafter the assessment proceedings were started.

Learned counsel for the respondent no.2 has placed reliance upon a decision of this court reported in  Vinay Kumar Agarwal Vs. 17th Addl. District Judge, Allahabad and others 2001(2) A.W.C. 1531 and has relied upon para 28 of the said judgment. It has been held by this court that since the entire evidence was available on record and legal questions were canvassed before the revisional court it was not  necessary for it to have remanded the case for decision afresh.  It was held

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that the revisional court had given good and valid reasons to interfere with the findings recorded by the trial court which  had deliberately distorted the facts. Learned counsel for the respondents also placed reliance  on a decision of this court in the case of  Shiv Shanker Awasthi Vs. A.D.J. and others 2006(1) AWC 810 and  referring to para 3 of the aforesaid judgment he has contended that if the findings recorded by the trial court are  based upon inadmissible  evidence or evidence has been ignored under wrong assumption  then the revisional court  would be within its jurisdiction to record its own finding by  re-assessing the evidence. He has further relied upon a decision of the Hon'ble Supreme Court  in the case of Kalpataru Vidya Samasthe and another Vs. S.B.Gupta and another (2005)7 S.C.C. 524 and has contended that while deciding the  revisional jurisdiction u/s 115 C.P.C. the revisional court can not interfere with the findings of fact recorded by the court below and re-appreciate the evidence  unless it is found that  the findings recorded by the court below were perverse or that there had been non-application of mind.

In reply  learned counsel for the petitioner has cited a decision in the case of Laxmi Kishore and another Vs. Har Prasad Shukla, 1981 ARC  545 and has contended that the revisional court itself in exercise of its power under section 25 of Provincial Small Cause Courts Act has no jurisdiction to re-assess or re-appreciate the evidence in order to determine an issue of fact. The argument of the learned  counsel for the petitioner is mainly on the ground  that the revisional  court ought not to have decided the revision by recording its own finding on the basis of evidence on record and when such

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finding of fact was necessary for the purpose of deciding the question of law then the matter should have been remanded back to the trial court for recording the finding on the issue of  date of completion of construction.

The main issue which has been convassed before this court is with respect to applicability of Act No.13 of 1972 in the instant case. The revisional court has held  that the evidence which was before the trial court  and upon which the trial court has recorded its finding is a finding which is totally against the evidence and cannot be accepted. It has recorded that no case of misleading the local authority has been made out in as much as the paper no.52Ga which is the objection filed by the landlord clearly indicates that the building is old but six shops have been newly constructed whose first assessment has been filed as paper no.50Ga. It has recorded that no such pleading was taken by the tenant in his written statement. A mere allegation of misleading is not sufficient unless the entire details are stated and brought on record. It has held that the trial court has distorted the contents of para 2 of paper no.52Ga while reading the  document. The document clearly states that  no changes have been made in the building since 1955 except the six shops whose construction has been completed in 1986. The revisional court found that there is no evidence on record to controvert the contents of paper no.52Ga and has exprerssed surprise as to how the trial court could record a contrary finding upon the contents of the said documents. It has therefore held that the date of first assessment will be the date of completion of the constructions as provided in Explanation I of section 2(2) of the Act. The revisional court on this reasoning has proceeded to record that the date of completion of construction of the six  shops was in the year  1986 when its first assessment was made.

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It is settled law that when the findings recorded by the trial court are perverse or due to non-application of mind the revisional court would be in its jurisdiction to interfere. In the present case the trial court has misinterpreted the documents and given a perverse finding. The finding of the trial court could not have been given by distorting the contents of the document and reading something which is not stated therein. There is nothing on record to indicate that any fraud was played by the landlord in getting the shops assessed after completion  of their construction. In the absence of any evidence as aforesaid the finding recorded by the trial court cannot be upheld. The issue of applicability of the Act was raised before the revisional court and the entire evidence was available before it therefore, it was not necessary for it to have remanded the case for decision afresh.  Such a perverse finding was rightly interfered with by the revisional court.  I do not find any error in the approach  adopted by the revisional court and the revisional court was right in observing that the findings of the trial court were based on distorted facts which was not borne out from the evidence on record.

The writ petition is accordingly dismissed. No order is passed as to costs.

25.7.06

Gc.


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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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