Court No. - 52
Case :- MATTERS UNDER ARTICLE 227 No. - 8750 of 2019
Petitioner :- Maulana Ekhlaq
Respondent :- Altafur Rehman And 6 Others
Counsel for Petitioner :- Iqbal Ahmad
Counsel for Respondent :- Mohammad Waseem
Hon'ble Neeraj Tiwari,J.
Heard learned counsel for the petitioner and Sri Mohammad Waseem, learned counsel for the respondent no. 1.
This writ petition has been filed by tenant against the judgment of Revisional Court dated 7.8.2019.
Learned counsel for the petitioner submitted that earlier the respondent no. 1 has filed SCC Suit No. 8 of 2007, which was dismissed by the Judge Small Cause Court vide judgment and order dated 15.9.2018. Against the said order, respondent no. 1 preferred SCC Revision No. 21 of 2018, which was allowed vide judgment and order dated 7.8.2019 and the matter was remanded back to the Judge Small Causes Court to decide the suit in light of conclusion given by Revisional Court. Basic ground taken in SCC Suit No. 8 of 2007 was that Act No. 13 of 1972 is not applicable which was not accepted by the Judge Small Causes Court in its judgment and order dated 15.9.2018. He further submitted that the Revisional Court has accepted 11 additional evidence and after giving finding upon it, has held that U.P. Act No. 13 of 1972 is applicable and accordingly the matter was remanded back which is bad in law. He next submitted that once the Revisional Court remanded the matter, he can not impose its finding and conclusion and only matter can be remanded back to consider the additional evidence, return findings upon that and decide in SCC Suit No. 8 of 2007 in light of that.
He placed reliance upon three judgments of this Court in the cases of Mohd. Naseem Barbar Vs. Vth Additional District Judge, Lucknow and another, 2001 (1) Allahabad Rent Cases, Piyare Vs. Ist ADJ, Rampur and others 2000 (1) Allahabad Rent Cases and Mahant Narain Dass Vs. State of Uttar Pradesh and others, 1985 (11) A.L.R. 743.
Per contra, Sri Mohammad Waseem, learned counsel for the respondent no. 1 submitted that the Revisional Court has full right to record finding and remand the matter back to decide the same in light of the finding and conclusion given by it. In support of his contention, he placed reliance upon two judgments of this Court passed in Rent Control No. 135 of 2014 (Mehdi Husain Khan @ Akhtar Jafri Vs. Additional District and Session Judge Court No. 3 Lko and another and S.C.C. Revision No. 68 of 2019 (Ashok Kumar Gumbar and another Vs. Waqf Khudaband Tala Mausuma.
I have considered the rival submissions made by learned counsel for the parties and perused the record as well as judgments relied upon by learned counsel for the parties. There is no factual dispute that the SCC Suit No. 8 of 2007 was filed under Section 15 of the Small Causes Court Act and the main ground was taken that Act No. 13 of 1972 shall not be applicable which was ultimately dismissed against which Revision No. 21 of 2018 was filed. The Revisional Court has accepted 11 additional evidence and returned its finding upon that and held that Act No. 13 of 1972 shall be applicable and thereafter remanded the matter to decide the matter fresh. There is no doubt that once the Revisional Court has recorded its finding and concluded that the Act No. 13 of 1972 shall be applicable, nothing remains to be decided by the Judge Small Causes Court. In fact suit was allowed at the revisional stage.
This Court in the matter of Mahant Narain Dass (supra) has remanded the matter back to decide afresh even if it could be said that there was power to admit the additional evidence on record, the proper cause open to the revisional Court was to send the case back before the trial Court instead of deciding the same itself. Similar view was again taken by this Court in the case of Piyare (supra). Paragraphs 6 and 9 of the said judgment are quoted below:-
"6. By means of remand order, Revisional Court has virtually decided the case and remand order is nothing but an eye-wash as far as adjudication of right of the respective parties in suit are concerned. I find that the contention of the petitioner is justified.
9. In the interest of justice, I direct that Judge Small Causes Court, Rampur, shall decide J.S.C.C. Suit No. 13 of 1970 (Riyazuddin and another v. Piarey) afresh. The finding contained in the impugned judgment and order dated 19.8.1980 passed by 1st Additional District Judge, Rampur in S.C.C. Revision No. 10 of 1980 (Riyazuddin and another v. Piarey) shall not be treated as binding on the Judge Small Causes Court, who shall adjudicate and record its findings on the basis of record before it without its discretion being fettered in any manner"
Again in the case of Mohd. Naseem Barbar (supra) the Court has held that once the additional evidence is accepted during proceeding under Section 25 of the Provincial Small Causes Court Act, the matter has to be remanded back. Paragraphs 4, 5, 6 and 7 of the said judgment are quoted below:-
"4. It is undisputed that finding of the Revisional Court is based on the additional evidence accepted by it during the proceedings under Section 25 of the Provincial Small Causes Court Act. The lawful course for the Court should have been to remit the case to the trial Court for consideration of the additional evidence and for recording a fresh finding thereafter. Even if the Revisional Court considered the additional evidence and the evidence already on record and came to the conclusion that the finding of the trial Court was not in accordance with the evidence and different finding should have been recorded. The legal course open to the Revisional Court was to set aside the finding and the order of the trial Court and to remit the matter to the trial Court for reconsideration and fresh decision.
5. It is only in exceptional cases that this Court may refuse to interfere with the order of the Revisional Court which has been passed in deviation of the above legal position. If there is no failure of justice and the order in deviation of the legal course is justifiable without occassioning any injustice to any of the parties, the Court may refuse to interfere with such order in the writ petition.
6. In the present case the additional evidence accepted by the Revisional Court was very material and the contrary finding of the Revisional Court is solely based on that evidence. The other party had no opportunity to meet the criticism to the finding of the trial Court. A failure of justice had occassioned in this case and it is necessary to interefere in this writ petition.
7. In view of the above discussion, the impugned order dated 23.02.1998 is set aside and the matter is remitted to the trial Court for reconsideration of the matter and for a fresh decision, within 2 months from the date of receipt of a certified copy of this order."
I have also considered the judgment relied upon by learned counsel for the respondents. He has placed reliance upon the judgment in the case of Ashok Kumar Gumbar (supra) which deals with the power of Revisional Court, but in that case, there is no issue of additional evidence, therefore, the same would not be applicable in the case of the petitioner.
Another judgment Syed Mehdi Husain Khan @ Akhtar Jafri (supra) is also not supporting the case of the petitioner. Relevant paragraph 9 of the said judgment is quoted below:-
"The powers of the revisional court under Section 25 of the Provincial of Courts Act are only supervisory and the revisional court cannot act like an appellate court as far as the matter of appreciation of evidence is concerned. The Court dealing with revision under Section 25 of the Act has a limited jurisdiction. It has no power to look into the evidence of the case and to decide whether or not the finding of fact arrived at by the Court below is justified by the evidence on record though it is open to the revisional court to interfere with the decision of the trial court in case the same is not found to be according to law, yet it is not open to it to substitute its own finding for the one recorded by the trial court on a question of fact. If certain piece of evidence and material has not been taken into consideration by the trial court, which in the opinion of the revisional court was necessary for reaching to a just decision, the appropriate course in such a situation is to send the case back to the trial court for a fresh decision in the light of the guidelines which may be indicated by the revisional court in its judgment."
In fact this judgment is supporting the case of the revisionist where the Court has repeated the earlier proposition of law and stated that in case certain piece of evidence or material has not been taken into consideration by the Judge Small Causes Court. It is required on the part of Revisional Court to send back the case to the trial court for afresh decision.
In the present case, this fact is undisputed that additional evidences were accepted by the Revisional Court and conclusion was drawn that Act No. 13 of 1972 is not applicable which was the main issue in SCC Suit. This conclusion is fully based after analysis of additional evidence and thereafter matter was remanded back to Judge Small Causes Court to decide afresh in light of observation made by Revisional Court, which is contrary to law laid down by this Court on different occasion. In fact once the Revisional Court comes to the conclusion based upon additional evidence and matter is remanded back to the Judge Small Cause Court to decide the same afresh in light of that, nothing remains to Judge Small Causes Court to decide the matter afresh and it would be nothing but a formality of decision, therefore, such order is bad in law.
Accordingly, the writ petition is partly allowed. The judgment and order dated 7.8.2019 passed by the Revisional Court is modified to the extent that while deciding the Suit No. 8 of 2007 afresh, Judge Small Cause Court shall not be influenced with the observation and conclusion given by Revisional Court and return its own finding on 11 additional evidences.
Order Date :- 27.11.2019 Rmk.