JUDGMENT Shitla Prasad Srivastava, J.
1. This writ petition, under Article 226 of the Constitution of India, has been filed by the petitioner for quashing the judgment and order dated 17.3.1997 passed by the Special Judge (E. C. Act). Agra.
2. The facts, giving rise to the present petition, in brief, are that a J.S.C. Suit No. 124 of 1993 was filed by the respondent. Murari Lal Goyal, against the petitioner for eviction of the petitioner from the shop in question on the ground that the petitioner has made material alteration in the shop in question. The petitioner contested the suit by filing written statement on the ground that the shop in question is under the tenancy on a monthly rent of Rs. 300, that liability of paying house tax is not on the petitioner ; that uptodate rent has been deposited in the Court under Section 30 (1) of Act No. X11I of 1972. that there was no new material alteration in the shop in question and as the petitioner has deposited the rent, he is entitled to the benefit of Section 20 (4) of the Act ; that the suit is not maintainable at the instance of the plaintiff alone and the value and utility of the shop in question was increased by alteration made by the petitioner, therefore, the provisions of Section 20 (1) (c) of the Act are not attracted. During the pendency of the proceeding before the trial court an advocate commissioner was appointed, who submitted his report. The report was confirmed. The, trial court held that the petitioner (s entitled to get benefit of Section 20 (4) of the Act, the constructions made by the petitioner are of temporary nature and have the benefit of increasing utility of the shop in question instead of diminishing its value or utility. With these findings the suit was dismissed. A revision was filed by the respondent No. 2 against the judgment and decree passed by the revisional court under Section 25 of the Provincial Small Causes Courts Act. The revision was allowed. The judgment and decree of the trial court was set aside and the suit for ejectment was decreed. The petitioner has challenged this judgment and decree passed by the revisional court dated 17.3.1997.
3. The grounds taken by the petitioner are that the revisional court was not the Court of first appeal, therefore, its jurisdiction under Section 25 of the Provincial Small Causes Courts Act was limited one and if the revisional court was of the opinion that the finding recorded by the trial court is to be set aside, then it could have remanded the case to the trial court and should not have substituted its own finding on the question of fact. The second ground is that under Section 20 (1) (c) of the Act, the eviction can only be ordered when changes/constructions made by a tenant result in spoiling the premises. But if it has enhanced the value of the building, then it cannot be said to be a material alteration. There is no such finding recorded by the revisional court and the report of the Commissioner has wrongly been discarded on the ground that no opportunity to file objection was given to the landlord against the aforesaid report submitted by the advocate commissioner, whereas, the opportunity was given to the landlord.
4. A counter-affidavit has been filed on behalf of the respondent. In the counter-affidavit, it is stated that commissioner's report was an Incomplete document and the two rough sketches are not the part of the commissioner report : that there were evidence on record to prove that changes made by the tenant were in nature of material alteration and the finding of fact has been recorded by the revisional court which was within its jurisdiction.
5. I have heard learned counsel for the parties and have perused the record of the writ petition. The trial court framed Issues. All the issues as framed by the trial court were to be decided on the basis of the evidence led by the parties as they were mostly questions of fact. The trial court after discussing the evidence available on record held that the petitioner was not liable for the payment of any house tax and that U. P. Act No, XI11 of 1972 was applicable, the tenant paid a sum of Rs. 5,500 on 29.7.1983 vide receipt 15C issued by the plaintiff, therefore, the tenant is entitled to the benefit of Section 20 (4) of the Act ; that the suit is maintainable on behalf of the landlord and that there is no evidence that while making alteration, the building has been deshaped or its value has been diminished and the suit was accordingly dismissed. The revisional court in para 9 of its judgment interpreted Section 20 (2) (c) of U. P. Act No. XIII of 1972 and considered the only point as to whether the construction or structural alteration would amount to diminishing its value, utility or to disfigure the building in question. He considered and reappraised the evidence and gave finding that even if the construction can be removed, it will amount material alteration and has held in para 16 of the judgment that the tenant has raised construction by illegally raising structural alteration in the building which has clearly diminished its value, utility and has also disfigured the shop in question which is covered by Section 20 (2) (c) of the Act.
6. From the judgment of the revisional court, it is apparent that he has reversed the finding of fact given by the trial court. The question is as to whether the revisional court could do it while exercising power under Section 25 of the Provincial Small Causes Courts Act.
7. Learned counsel for the petitioner has urged that Section 25 of the Provincial Small Causes Courts Act has a very limited scope of interference. He has placed reliance for this purpose on a case in S. K. Banerji v. Surendra Narain Misra. 1990 (1) ARC 114, specially para 41 of this Judgment. The relevant paragraph of this judgment is quoted below :
"Learned counsel for the opposite party has lastly submitted that the scope of interference under Section 25 of the Small Causes Court Act is limited and the finding recorded by the Court below do not permit interference. I am unable to be persuaded by this submission. The Supreme Court in the case of Om Prokash (supra) has held that the finding of a Court on the question of construction would be finding of fact but the -question whether the construction materially altered the accommodation is a mixed question of fact and law which should be determined on the application of correct principles. It is settled law that under Section 25 of the Small Causes Court Act the High Court would not interfere with the plain finding of fact arrived at by the Court below. It also cannot reassess the value of the evidence and substitute Its own conclusion on fact in place of those reached by the Court below, but if the Court has recorded a finding of fact by misreading the pleading of the parties or misreading of evidence on record or without application of mind or misinterpretation of law then a finding would stand vitiated in the eye of law and would require an interference by the Court in exercise of revisional jurisdiction under Section 25 of the Small Causes Court Act."
In this Judgment a decision in Kamla Prasad v. District Judge, Allahabad. 1985 (1) ARC 473, has also been quoted. The relevant portion of that Judgment is quoted below :
"It could not be doubted that the power exercisable under Section 25 of the said fact is not for the reappraisal of the evidence. However, revisional court exercised the power validly or not will depend on the facts of each case. If it could be shown that the power was exercised in a case where the trial court arrived at a finding on the basis of inadmissible evidence or by misinterpreting the document or is perverse or it took consideration irrelevant material on the record, then it would be valid exercise of power."
8. From the judgment of the revisional court, it is apparent that in para 9, the revisional court has tried to reassess the evidence regarding the material alteration and the ingredlence of Section 20 (2) (c) of Act No, XIIT of 1972. In this regard, he has also taken Into consideration the Judgment reported in 1990 (i) ARC 114 (supra) and has arrived at a conclusion that the tenant has raised construction by illegally raising structural alteration in the building but had not considered the other aspect of the matter decided in the very judgment regarding his power under Section 25 of the Provincial Small Causes Courts Act. Accordingly I quash the order dated 17.3.1997 and remand the case to the revisional authority to restore the revision to its original number and decide it again keeping in view the decision taken by this Court on the scope of Section 25 of the Provincial Small Causes Courts Act and decide the revision afresh.
9. The writ petition is, accordingly, allowed. The order dated 17.3.1997 passed by the revisional court is hereby quashed and the matter is sent back to the revisional court to restore the revision to its original number and decide the revision afresh as per observation of this Court. There shall be no order as to costs.