SMT. KIRAN GOYAL versus SMT GYATRI DEVI AND OTHERS

High Court of Judicature at Allahabad

Indian Supreme Court Cases / Judgements / Legislation

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Smt. Kiran Goyal v. Smt Gyatri Devi And Others - WRIT - A No. 49513 of 2004 [2006] RD-AH 16088 (14 September 2006)

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.7

Civil Misc. Writ Petition No.49513 of 2004

Smt. Kiran Goyal

   Vs.

Smt. Gayatri Devi and others

Hon. Sanjay Misra, J.

Inspite of notice having been  issued repeatedly, none has put in appearance on behalf of the respondents.

Sri Yogesh Agarwal, learned counsel for the petitioner has contended that the suit filed by the petitioner for ejectment and arrears of rent  on the ground of sub-letting and material alteration   was decreed by the trial court on 29.11.1997. The respondents filed revision No.77 of 1997 u/s 25 of U.P. Provincial Small Causes Court Act. It is the contention of learned counsel for the petitioner that the jurisdiction exercised by the revisional court u/s 25 of the aforesaid Act is very limited and it has no jurisdiction to reassess the evidence and record its own finding by  substituting  the finding of the trial court. For the said purpose, learned counsel for the petitioner  has placed reliance upon the decision in the cases reported in:-

1. Mohd. Ismail Vs. II Add.District Judge and others, 2006(4) ADJ 544

2. Rajendra Nath Tripathi and another  Vs. Jagdish Dutt Gupta and another 1999 (2) A.W.C.1366

3. Laxmi Kishore and another Vs. Har Prasad Shukla, 1981

ARC 545

In the case of Laxmi Kishore (Supra)a division Bench of this court while answering a reference on the jurisdiction to be exercised under section 25 of the Provincial Small Cause Courts Act had held in paragraph 19 as quoted below:-

"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

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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."

After perusing the impugned judgment and  order of the revisional court it appears that the revisional court has acted beyond its jurisdiction. It has reassessed the evidence on the issue of subletting and found that the findings of the trial court were erroneous. In such circumstances the revisional court could have remanded the case to the trial court for redecision in accordance with the evidence. On the issue of material alteration the revisional court has reappraised the evidence and substituted its own findings, clearly it could not have done so in its jurisdiction u/s 25 of the Act.

The judgment and order dated 26.10.2004 passed in Revision No.77 of 1997 is set aside. The matter  is remanded back to the trial  court  to decide the same afresh. Learned counsel for the petitioner has stated that these proceedings are very old in as much as the original suit was filed in the year 1978 and therefore the trial court may be directed to decide the matter expeditiously. In view of the aforesaid it is expected that the trial court  after giving an opportunity to the respondents shall decide the case expeditiously preferably within a period of six months from the date of a certified copy of this order is produced before him.

The writ petition is allowed. No order is passed as to costs.

14.9.06

Gc.

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