JUDGMENT J. C. Gupta, J.
1. Heard parties counsel. This is landlord's petition directed against the judgment and order dated 12.5.1983 whereby the revision filed by the tenant against the judgment and decree dated 21.11.1981 passed by the Judge, Small Causes Court has been set aside and the petitioner's suit for rent and ejectment has been dismissed.
2. It is not disputed that the parties to this writ petition were landlord and tenant. The petitioner filed a suit for recovery of arrears of rent and ejectment against the defendant tenant alleging that defendant did not pay rent from 1.3.1980 at the rate of Rs. 37 per month despite a notice of demand and eviction having been served upon him on 24.7.80. The defendant took up the plea that the rate of rent was only Rs. 25 per month and not Rs. 37 per month as alleged by the plaintiff and rent was tendered to the plaintiff at the same rate after the receipt of the notice and on refusal by him the same was deposited in Court under Section 30 (1) of the U. P. Act No. 13 of 1972.
3. One of the Important issues involved before the trial court was about the rate of rent and on this Issue, both the parties adduced evidence before the trial court, oral as well as documentary. The trial court placing reliance on the evidence adduced by the plaintiff including his Witness Hardas recorded a clear finding of fact that the rate of rent initially was Rs. 25 per month which was enhanced to Rs. 37 per month as per the agreement between the parties when certain repairing was done in the tenanted accommodation by the landlord and with this finding of fact, the trial court decreed the suit as the arrears of rent were tendered and deposited only at the rate of Rs. 25 per month and not at the rate of Rs. 37 per month and thus the defendant was liable to eviction on the ground of his being a defaulter within the meaning of Section 20 (2) (a) of the Act. On a revision filed by the tenant, the revisional court has reversed that finding of fact and substituted its own finding on the above issue and it has been held by the revisional court that the rate of rent was Rs. 25 per month and not Rs. 37 per month as alleged by the plaintiff. Accordingly." the plaintiff's suit has been dismissed by the Impugned order.
4. Learned counsel for the petitioner has challenged the impugned judgment by arguing that the revisional court has exceeded its jurisdiction in reversing a finding of fact arrived at by a Judge, Small Causes Court regarding the Issue of rate of rent and if the revisional Judge found it necessary to make interference in the finding of fact recorded by the trial court, all that It could do was to send the case back to the trial court for a fresh decision after laying down appropriate guidelines but it had no power to substitute its own finding of fact for that recorded by the trial court. Learned counsel for the respondent. on the other hand, tried to support the impugned judgment by contending that while recording finding on the above issue the trial court overlooked the important aspect of the case and the evidence of the parties was not examined in right perspective.
5. The legal position with regard to the scope of powers of the Court hearing a revision under Section 25 of the Provincial Small Causes Court Act is now well-settled and it would be a sheer waste of time to burden this Judgment by citing all the decisions and referring to the principles laid down therein. The powers of the revisional court in such matters 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 the Division Bench case of Laxmi Kishore and another v. Har Prasad Shukla. 1981 ARC 545, it was held that if the revisional court 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 re-assess or reappraise the evidence in order to determine an issue of fact for itself. However, 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.
6. The principle that the revisional court has no power to substitute its own finding of fact in place of one recorded by the trial court after re-assessment of evidence is well-settled and for this proposition, a reference may be made to a few more decisions. Sri Prayag Narain Gaur v. Sri Muneshwar Das and another, 1979 ARC 341 ; Man Mohan Dixit v. Additional District Judge/Special Judge (E. C. Act), Jalaun at Orai and others. 1996 12) ARC 561 and Durga Prasad and others a. VIIth Additional District Judge, Kanpur Nagar and others. 1998 (2) AWC 1161 : Smt. Fatima Begum and others v. IVth Additional District Judge, Jhansi and others, 1997 (2) ARC 107 ; Jaidev Misra v. District Judge, Faizabad and others.
1998 (1) ARC 354 and Fakir Chand u. IInd Additional District Judge, 1984 (1) ARC 68.
7. In the present case, the fate of the landlord's suit hinges on the answer to the main issue involved therein as to at what rate the defendant was liable to pay rent, whether at the rate of Rs. 37 per month as claimed by the plaintiff or at the rate of Rs. 25 per month as pleaded by the defendant. If the rate of rent is held to be Rs. 37 per month, the plaintiffs suit was liable to be decreed as undisputedly the tenant tendered rent to the plaintiff after service of notice of demand at the rate of Rs. 25 per month only and not at the rate of Rs. 37 per month and rent was also deposited by the tenant at the same rate of Rs. 25 per month. Therefore, in case the rate of rent is found to be Rs. 37 per month as has been held by the trial court, then the defendant-respondent committed default in payment of arrears of rent within the meaning of clause for of Section 20(2) of the Act and was liable to eviction.
8. The trial court answered the said question in favour of the plaintiff recording a finding of fact that the rate of rent was Rs. 37 per month. This finding of the trial court was based purely upon appraisal of evidence. The lower revisional court acting on surmises and conjectures and after taking into consideration only the evidence adduced by the defendant has set aside the said finding even without touching at all the reasons assigned by the trial court in support of the said finding. A perusal of the judgment of the trial court shows that while recording the finding on the said issue the learned Judge placed reliance on the statement of the plaintiff as well as on the evidence of Har Das produced from the plaintiffs side. However, the revisional court has not made any discussion of the said evidence which was relied upon by the trial court and was made the basis of the finding. No notice under law is necessary where the rent is enhanced by a mutual agreement. It is also well-settled law that such an agreement need not necessarily be in writing and it could also be oral. The trial court came to the conclusion that the rent was enhanced under an oral agreement between the parties. Under law this, finding of fact could not have been substituted by the lower revisional court by its own finding after reappraisal of evidence. If the revisional court was of the view that the finding of the trial court suffered from any infirmity, legal weakness or otherwise was erroneous, it had the power to remand the case to the trial court for recording a fresh finding after laying down appropriate guidelines but it was not within the competence of the revisional Judge to assess the evidence himself and record his own finding of fact in place of the one recorded by the trial court which was based on appreciation of evidence.
9. For the reasons stated above, the order of the lower revisional court cannot be sustained as it suffers from manifest error of law. The impugned order is set aside and the revisional court is directed to restore the revision to its original number and decide the same afresh in accordance with law and in the light of the observations made above, expeditiously preferably within a period of two months from the date a certified copy of this order is produced. The writ petition is accordingly allowed. However, the parties are directed to bear their own costs.