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Kailash NaraIn Srivastava (Deceased by L.R.) and ors. Vs. Ivth Additional District Judge, Jhansi and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 10355 of 1979
Judge
Reported inAIR1986All207
ActsProvincial Small Cause Courts Act, 1887 - Sections 25
AppellantKailash NaraIn Srivastava (Deceased by L.R.) and ors.
Respondentivth Additional District Judge, Jhansi and anr.
Appellant AdvocateK.N. Saxena and Radhey Shyam, Advs.
Respondent AdvocateN.B. Nigam and ;H.S. Nigam, Advs.
DispositionPetition allowed
Excerpt:
.....order coupons (paper no. 12 as well as evidence considered by the trial court, has set aside the finding of the trial court and recorded his own finding that the petitioner was tenant of house no. supreme court has very clearly held in this very case that the revisional jurisdiction under section 25 of the provincial small cause courts act is not as wide as appellate jurisdiction under section 96 of the c. approvingthe aforesaid observation in laxmi kishore'scase (1979 all cj 473) (supra) has clearly heldthat where decision of an issue on fact requiresreassessment of evidence, the proper courseto be adopted by the revisional court is tosend back the case to the trial court. however,in the circumstances of that case, the learnedjudge was satisfied that finding given byrevisional court..........kishore's case (1979 all cj 473) is fully applicable to the facts of the present case. the learned trial judge, after considering evidence of govind saran nigam p.w. 1 and the petitioner as well as reply of notice by petitioner, money order coupons (paper no. 37 ga), electoral roll (paper no. 40 ga), copy of the original notice filed by the plaintiff (paper no. 7 ga), assessment documents (paper no. 21 ga) and notice dt. 26-10-1961 (paper no. 15 ga) has held that the petitioner was tenant of house no. 149/4. in revision, the revisional court reappreciated the evidence and after taking into consideration ex. 7, ex. 9, ex. 12 as well as evidence considered by the trial court, has set aside the finding of the trial court and recorded his own finding that the petitioner was tenant of house.....
Judgment:
ORDER

R.K. Shukla, J.

1. Sri Kailash Narain Srivastava, tenant, has filed this writ petition against the revisional order dt 12-12-1979 passed by the IVth Additional District Judge, Jhansi under Section 25 of the Provincial Small Cause Courts Act (hereinafter referred to as Act) whereby he has allowed the revision and set aside the finding of fact recorded by Judge, Small Cause Court in Suit No. 542 of 1978.

2. The landlord Tarun Kumar filed a suit against the petitioner-tenant with the allegation that the defendant was his tenant of the house No. 149/7 Khandari Gate, Jhansi @ 90/- per month. His tenancy commences on 22nd of every month and terminates on 21st of next month. The first municipal assessment was made in the year 1974-75 and UP. Act No. 13 of 1972 is not applicable to it. It was also alleged that the defendant had committed breach of contract that only 3 to 4 children, husband and wife will reside in the disputed house but now there were 12 occupants. The defendant had damaged the property and thereupon the plaintiff gave him a notice under Section 106 of the T.P. Act terminating his tenancy.

3. The defence of the tenant-petitioner was that the defendant was not tenant of the premises No. 149/7 but he was tenant of the other premises No. 149/4 of the same landlord. Premises No. 149/4 was a construction of the year 1963 or 1964 and the defendant had been residing therein since then. He has also contended that no damage has been caused by him to the building nor they had ever agreed that only a limited number of person will reside therein. A portion was damaged by the plaintiff-opposite party when he took out the doors of bath room for making a stage for the marriage of his (plaintiffs) own sister. The defendant never created any troubles in the building. There was no default in payment of rent.

4. On the pleadings of the parties, following 5. issues were framed :--

1. Whether U.P. Act No. 13 of 1972 is applicable in this case?

2. Whether defendant committed default in paying the rent?

3. Whether defendant has broken the door, window and floor of the house and hasdamaged substantial building in disputes.

4. Whether family of defendant is quarrelsome and quarrels with other tenants.

5. To what relief the plaintiff is entitled.

5. After considering the evidence in detail the Judge Small Cause Court decided all the aforesaid issues against the plaintiff-opposite party No. 2, The trial Court held that the premises in which the defendant was residing was premises No. 149/4 and not 149/7 as alleged by the plaintiff-Opposite party No. 2. It also believed receipts produced by the defendant and assessment wherein defendant was mentioned to be a tenant of premises No. 149/4. It was also held that the defendant was not a defaulter in payment of rent. Consequently, the aforesaid suit for ejectment was dismissed with cost in favour of the defendant-petitioner.

6. Aggrieved by the aforesaid order, the plaintiff-opposite party No. 2 preferred a revision under Section 25 of the Act before the District Judge, Jhansi. This revision came up for hearing before the IV Additional District Judge, Jhansi, who however, reappreciated the evidence, discarded the receipts issued by the plaintiff to the defendant prior to 1972 ignoring all other evidence. He believed Govind Saran Nigam, P.W. 1, father of the landlord and reversed the finding of fact that petitioner-defendant was a tenant of premises No. 149/4 recorded by the trial Court and held that the petitioner was the tenant of house No. 149/7, which was new construction and to which Act No. 13 of 1972 was not applicable. It is this order of opposite party No. 1 which is sought to be quashed in this writ petition.

7. It was vehemently urged by Sri Anand Swarup Srivastava, learned counsel for the petitioner that the finding of the trial Court that the premises in which the defendant-petitioner was residing was premises No. 149/4, is a finding of fact and the Opposite Party No. 1 did not have the jurisdiction to reverse that finding on reappraisal of evidence and to record his own finding that the house in which defendant-petitioner was residing was house No. 149/7 and not house No. 149/4. In support of his contention, he relied on a decision of the Division Bench of this court in the case of Laxmi Kishore v. H. P. Shukla 1979 All a 473 : 1981 All Rent Cas 345 as well as following single Judge decisions : --

1. Harish Chand v. District Judge, Saharanpur 1984 All Rent Cas 526; 2. Jagdish Prasad v. Addl. District Judge, Ghaziabad 1984 All RJ 151; 3. Om Prakash v. Addl. District Judge, Bijnor 1984 All RJ 65 and 4. Smt Padma Negi v. Sri Giri Lal Jain 1984 All RJ 78.

8. On the other hand, Sri G. Section Nigam, learned counsel for the O. P. No. 2 urged that the question of fact involved in the present case is jurisdictional fact and the revisional Court even under Section 25 of the Act has ample jurisdiction to interfere with the finding of fact recorded by the trial Court as has been done in this case. In support of his contentions he relied on the following decisions : --

1. Ram Singh v. Vth Addl. District Judge, Meerut 1981 All Rent Cas 197; 2. Smt Ram Kali v. Vth Additional Dist. Judge, Meerut 1981 All Rent Cas 440; 3. Raghubir Singh v. I Addl. District Judge, Meerut 1981 All Rent Cas 301 : (1981 UPLT NOC 76); 4. Prem Prakash v. IInd Addl. District and Sessions Judge, Saharanpur, 1982 All Rent Cas 611 : (1982 UPLT NOC 86); 5. Durga Prasad v. IIIrd Addl. District Judge, Kanpur 1985 All Rent Cas 398; 6. Suraj Devi v. District Judge Saharanpur 1984 All Rent Cas 34 and 7. Jagdish Prasad v. Smt. Angoori Devi 1984 All Rent Cas 679 : (AIR 1984 SC 1447).

9. The crucial question which requires my consideration to this case is regarding the scope of jurisdiction of revisional Court under Section 25 of the Act in a situation such as in the instant case. A Division Bench consisting of Hon'ble Satish Chand, C J. and Hon'ble K. N. Seth, J. in the case of Laxmi Kishore v. H. P. Shukla, 1979 All CJ 473 laid down the scope of power under Section 25 of the Act as under : --

'14. 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 keep in mind the Supreme Court's dictum in Naicker's case (AIR 1969 SC 1344) (Supra) that a wrong decision on facts is also a decision according to law.

15. 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 on 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.

16. 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 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.'

In the instant case, the question whether the petitioner was tenant of house No. 149/4 or 149/7 is a pure question of fact and not a jurisdictional fact. Therefore, the aforesaid decision of the Division Bench in Laxmi Kishore's case (1979 All CJ 473) is fully applicable to the facts of the present case. The learned trial Judge, after considering evidence of Govind Saran Nigam P.W. 1 and the petitioner as well as reply of notice by petitioner, money order coupons (paper No. 37 Ga), electoral roll (paper No. 40 Ga), copy of the original notice filed by the plaintiff (paper No. 7 Ga), assessment documents (paper No. 21 Ga) and notice dt. 26-10-1961 (paper No. 15 Ga) has held that the petitioner was tenant of house No. 149/4. In revision, the revisional Court reappreciated the evidence and after taking into consideration Ex. 7, Ex. 9, Ex. 12 as well as evidence considered by the trial Court, has set aside the finding of the trial Court and recorded his own finding that the petitioner was tenant of house No. 149/7. There is no doubt that the trial Court has not taken into consideration the demand notice (Ex. 7), Memo of appeal filed by the plaintiff (Ex. 9) and Ex. 12 which are material pieces of evidence to decide this fact whether the petitioner was living in house No. 149/4 or 149/7. A finding of fact arrived at by ignoring a material piece of evidence suffers from manifest error of law as held by the Full Bench of this Court in Nanha v. Deputy Director of Consolidation, 1975 All WC 1 : (AIR 1976 All 91) and relied on by Hon'ble N. D. Ojha, J. in the case of Smt. Ram Kali v. Vth Addl. District Judge Meerut, (1981 All Rent Cas 440) (supra) cited by learned counsel for the respondent. There is one more important document i.e. copy of application made by petitioner's son Satyendra Kumar before the District Supply Officer Jhansi (Ex. 5) for preparation of ration card in which Satyendra Kumar Srivastava has shown his house as 149/6 out side Khandera Gate as alleged in para 5 of the counter affidavit filed on behalf of the respondent. There is no doubt that the genuineness of the alleged application has been controverted in paragraphs 13 and 14ofthe rejoinder affidavit filed on behalf of the petitioner that it appears to be a fabricated document. But this disputed question cannot be decided in the writ jurisdiction. Certainly, it was also a material piece of evidence to decide the aforesaid fact. Therefore, for these reasons, this document (Ex. 5) which has escaped the attention of both the Courts below requires due consideration.

10. Following the ratio of the decision in the case of Smt. Ram Kali Devi (1981 All Rent Cas 440) (supra) relied by learned counsel for the respondent, I find that for the reasons given above, the finding recorded by Judge, Small Cause Court vitiated in law and it was within the competence of the Additional District Judge, Jhansi to set aside that finding. But I am further of the opinion that none of the ingredients mentioned above in para 15 of the Division Bench's decision in the case of Laxmi Kishore (1979 All CJ 473) (supra) are to be found in the present case. Consequently I have no doubt in my mind that it was not open to the Additional District Judge to have recorded his own finding on the question of fact as to whether the petitioner was a tenant of house No. 149/4 or 149/7. The only course open to the revisional Court after having come to the conclusion that the finding of fact in regard to the aforesaid question was vitiated by an error of law as held in para 16 of the report aforesaid to remand the case to the Judge, Small Cause Court for recording a fresh finding on that question. For these reasons, the order of the IV Additional District Judge, Jhansi deserves to be quashed. Since the order of the trial Court also suffers from manifest error of law, therefore, his order also deserves to be quashed.

11. All the other cases cited by the learned counsel for respondent are distinguishable on facts. Cases of Ram Singh v. Vth Addl. District Judge, Meerut (1981 All Rent Cas 197); Durga Prasad v. IIIrd Addl. District Judge Kanpur (1985 All Rent Cas 398) and Prem Prakash v. IInd Addl. District and Sessions Judge Saharanpur (1982 UPLT NOC 86) (supra) are the cases of jurisdictional facts. On the facts and circumstances of those cases, Hon. S. D. Agrawal, J. Hon, K. P. Singh, J. and Hon. A. N. Verma, J. respectively have held that facts involved in those cases were jurisdictional facts. On the other hand, in the instant case, I have already held that the question involved in this case is a pure question of fact and not jurisdictional fact. In Jagdish Prasad v. Smt. Angoori Devi's case (AIR 1984 SC 1447) (supra), on the issue of sub-tenancy legal position had been totally misconceived by the trial Court and there was assumption of the position which landlord was required to prove by evidence. Sub-letting was presumed and this act does not require the Court to presume sub-tenancy merely from the fact of presence of an outsider. In those circumstances, the Supreme Court held that revisional authority was entitled to point out legal error and to rectify the defect and it will not amount to reassessment of evidence but will amount to taking into consideration the evidence which has not been looked into by the trial Court. In that case, interference by revisional Court was justified but it is not the case here. Supreme Court has very clearly held in this very case that the revisional jurisdiction under Section 25 of the Provincial Small Cause Courts Act is not as wide as appellate jurisdiction under Section 96 of the C.P.C.

12. In the case of Raghubir Singh v. 1stAddl. District Judge, Meerut (1981 UPLT NOC76) (supra), Hon. A. N. Verma, J. approvingthe aforesaid observation in Laxmi Kishore'scase (1979 All CJ 473) (supra) has clearly heldthat where decision of an issue on fact requiresreassessment of evidence, the proper courseto be adopted by the revisional Court is tosend back the case to the trial Court. However,in the circumstances of that case, the learnedJudge was satisfied that finding given byrevisional Court was well considered finding.Therefore, exercising his discretionary power,Hon. A. N. Verma, J. did not interfere. In theinstant case, position is otherwise.

13. In the case of Suraj Devi v. District Judge, Saharanpur (1984 All Rent Cas 34) (supra), Hon. R. M. Sahai, J. has held that as the revisional authority has not reassessed the evidence, therefore, no assistance can be derived from Laxmi Kishore's case (1979 All CJ 473) (supra). But in the instant case, the revisional Court has reassessed the entire evidence and upset the pure finding of fact arrived at by the trial Court as aforesaid.

14. So far as the case of Smt. Ram Kali v. Vth Addl. District Judge, Meerut (1981 All Rent Cas 197) is concerned, it is fully applicable to the facts of the present case and I have followed the ratio of the same.

15. This view finds further support from the decisions reported in, Harish Chand v. District Judge, Saharanpur (1984-1 All Rent Cas 526) ; Jagdish Prasad v. Addl. District Judge, Ghaziabad (1984 All Rent Journal 151); and Om Prakash v. Addl. District Judge, Bijnor (1984 All Rent Journal 65). In Harish Chand v. District Judge Saharanpur (supra), Hon. B. N. Sapru, J. held that finding given by trial Court on age of building based on evidence cannot be reversed by revisional Court. If revisional Court was of the view that the finding was not correct, it should have sent the case back to the trial Court for fresh finding.

16. In the case of Jagdish Prasad v. Addl. District Judge, Ghaziabad (supra), Hon. R. B. Lal, J. has held as under : --

'If the revisional Court was of the view that the findings recorded by the trial Court were vitiated by an error of law in assessment or appraisal of the evidence, it could point out the error of law and indicate the correct legal position and then direct the trial Court to reassess and reappraise the evidence and record fresh findings. It could not enter into the evidence, assess it and determine the issues of fact by itself.'

17. In the case of Om Prakash v. 1st Addl. District Judge Bijnore (supra), Hon. B. N. Sapru, J. has again held that in a revision under Section 25 of the Small Cause Courts Act the revisional Court can correct an error of law but cannot reappraise the evidence which has been considered by the trial Court. If it found any error in the appraisal of the evidence it can send back the case to the trial Court for reconsideration.

18. Same view has been taken by other single Judges on this point and it is not necessary to discuss them in detail here.

19. In the result, the writ petition succeeds and is allowed. The order dt. 12-12-1979 passed by IV Addl. District Judge, Jhansi and dt. 11-10-1979 passed by Judge, Small Cause Court, Jhansi are quashed and Judge Small Cause Court, Jhansi is directed to decide the suit according to law in the light of the observations made above. Since the suit was instituted in the year 1979, about 6 years back, the Judge, Small Cause Court will decide the case expeditiously preferably within 3 months of the filing of the certified copy of this judgment by any of the parties in the suit. In the circumstances of the case, the parties shall bear their own costs.


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