1. This writ petition has been filed against the judgment and order dated 3.3.2004 passed by the 7th Additional District Judge, Shahjahanpur in SCC Revision No. 79 of 2000 whereby the judgment and order dated 24.11.2000 passed by the Small Cause Court, Shahjahanpur has been set aside.
1. Brief facts of the case are as follows;
2. A JSCC Suit No. 2 of 1990 was filed by the petitioner against Rakesh Kumar (who died during the pendency of the suit and is now represented by the respondents) for arrears of rent and ejectment from the shop situated in Bazar Biriaganj, Opposite Town Hall Post Tilhar, District Shahjahanpur.
3. According to the plaint case, Ganga Sewak father of Rakesh was the tenant of the shop, he became Sadhu and surrendered his tenancy. Thereafter his son Rakesh Kumar took the shop on rent at the rate of Rs. 310/- per month and paid rent for the period from 1.1.1986 to 30.6.1986 against the rent receipts issued by the landlord. The counterfoils of the rent receipts were signed by him (Rakesh Kumar).
4. When Rakesh Kumar did not pay the rent from 1.7.1987, the petitioner gave notice terminating the tenancy and demanding the rent from 1.7.1986 to 31.10.1989 but Rakesh Kumar failed to comply with the notice. As a result, the suit was filed for arrears of rent and ejectement. Rakesh Kumar contested the suit by filing his written statement, inter alia, pleaded that his father Ganga Sewak was the tenant of the disputed shop at the rate of Rs. 310/- per month, and he never surrendered his tenancy.
5. It was further pleaded by Rakesh Kumar that although his father became Sadhu and started staying in Mathura but sometimes he used to visit his house and in his absence he was running the shop and was paying rent at the rate of Rs. 10/- per month to the petitioner. During the pendency of the suit, Rakesh Kumar died and he was substituted by present respondents who also filed their written statement. The petitioner appeared himself in the witness box and also produced two witnesses namely Nilesh Kumar and Onkar to support the case of the plaintiff.
6. The trial court after perusing the pleadings, oral and documentary evidence on record held that Ganga Sewak had surrendered his tenancy and thereafter Rakesh Kumar was inducted as tenant on rent at the rate of Rs. 310/- but he failed to pay rent in spite of notice of demand and failed to vacate the premises.
7. The suit was decreed by judgment and order dated 24.11.2000. Being aggrieved and dissatisfied with the judgment and order dated 24.11.2000, the respondents filed a SCC Revision No. 79 of 2000 against the judgment and decree dated 24.11.2011 which was allowed by order dated 3.3.2004 passed by the Additional District Judge Saharanpur. Hence, the present writ petition.
8. Learned counsel for the petitioner has submitted that the impugned order passed by the trial court is based on complete misreading of the case and misconception of the legal position relevant to the matter, and has not considered the material available on record in right perspective.
9. It was further submitted that the findings recorded by the trial court that Ganga Sagar became Sadhu and thereafter Rakesh Kumar was inducted as a tenant on rent at the rate of Rs. 310/- was based on proper appraisal of the oral and documentary evidence available on record. It was further submitted that Rakesh Kumar in his application filed under Section 30 of the UP Act No. 13 of 1972 (in short "Act") had claimed himself to be the tenant of the premises at rate of rent was Rs. 10/- per month. The claim of the petitioner that rate of rent was Rs. 10/- was rejected and was held by the court below that the rate of rent was Rs. 310/-. Since the said order was never challenged, it attained finality.
10. Learned counsel for the petitioner further submitted that the powers of the revisional court is limited and it is not open to the revisional court to reappraise the finding of fact or record its own finding different from the one arrived at by the trial court . It was further submitted that at the most, the revisional court can rectify the error of law in case it considers that the order passed by the trial court is not in accordance with law and remit the matter for reconsideration.
11. Per contra, learned counsel for the respondents supported the impugned order passed by the revisional court and stated that the order has been passed in accordance with law and the court below was fully justified in reversing the finding recorded by the trial court since it was not in accordance with law. It was further submitted that there was nothing on record to establish that at any point of time the tenancy was surrendered by Ganga Sewak and the rate of rent was ever enhanced to Rs. 310/- per month.
12. Heard learned counsel for the parties and perused the record.
13. A perusal of the record shows that Rakesh Kumar as well as the present Respondents have admitted in their written statement that the erstwhile tenant Ganga Sewak became Sadhu and started living in Mathura although somethimes he used to visit his house. Thus, there is no dispute that Ganga Sewak erstwhile tenant, father of Rakesh kumar became Sadhu and started living in Mathura and was also not carrying on any business from the disputed shop. It has also come on record that Rakesh Kumar himself filed an application under Section 30 of the Act and claimed himself to be tenant of the disputed shop on rent at the rate of Rs. 10/- but his contention was rejected with regard to rate of rent and was held by the concerned court that the rate of rent was Rs. 310/- and not Rs. 10/- per month, and this order was neither challenged by Rakesh Kumar nor by his legal heirs after his death, as such, it became final.
14. It is also noteworthy that at no point of time Ganga Sewak or his other son Radha Krishna ever filed application for impleadment or any affidavit or appeared before the court below to dispute the contention of the petitioner. The record further reveals that counter files of the rent receipts were duly signed by Rakesh Kumar. He never disputed the genuineness of his signatures on those counterfoils, only this much was pleaded by him that only Rs. 10/- was written on the receipts and was assured that receipts would be issued to him later on, but subsequently, the alleged receipts were interpolated and number '3' was fraudulently inserted before Rs. '10' thereby, enhancing the amount to Rs. 310/-
15. This contention of the respondents cannot be accepted for the reasons that Rs. 310/- was also written in the words on the receipts/counter files and it has also not been stated anywhere that he was made to sign on the blank receipts/counter files. It is also noteworthy that at no point of time Rakesh Kumar or his father Ganga Sewak appeared before the court below for their oral testimony or filed any affidavit to rebut the contention of the petitioner that the tenancy was surrendered by Ganga Sewak. There is clinching evidence that Rakesh Kumar had paid the rent from 1.1.1986 to 30.6.1986 under receipts and also signed the counterfoils which were brought on record by the petitioner. Besides this, the petitioner himself appeared in the witness box and also produced the two witnesses in support of his case that Rakesh had taken the shop on rent at the rate of Rs. 310/- per month.
16. It is well settled law that the revisional court under Section 25 of the Small Cause Court has no jurisdictioin to reappraise the evidence and reverse the finding of fact recorded by the Trial Court, at the most, even if there was some error in approach of trial court, the revisional court cannot reverse the finding and dismiss the suit which was decreed by the trial court.
17. The Apex Court in the case of Atma S. Berar Vs. Mukhtiar Singh, 2002 (8) Supreme 691 has held in paragraphs 13 and 14 as follows;
"13. Simply because a different Judge of Court of facts could have been persuaded to change opinion and draw a different inference from the same set of facts is not the jurisdiction of a revisional authority to upset pure finding of fact. Precedents galore were cited by the learned senior counsel for the parties dealing with jurisdiction of revisional court to interfere with findings of fact. In all fairness to the learned counsel, we may refer to a few of them."
"14. ...... In Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta (1999) 6 SCC 222 this Court made a comparative study of the provisions contained in section 115 CPC in juxtaposition with Section 25-B(8) of Delhi Act and held that the High Court cannot appreciate or reappreciate evidence dictated by its mere inclination to take a different view of the facts as if it were a court of facts.................."
18. In the case of Ramdoss Vs. K. Thangavelu, 1999 (10) SC 51, the Apex Court has held as follows;
"2. Learned Counsel appearing for the appellant has urged, that in the present case it was not open to the High Court in exercise of its revisional power to reassess the evidence and record finding contrary to the finding recorded by the courts below and, therefore, the impugned judgment deserves to be set aside. However, this was disputed by the learned Counsel for the respondent. He submitted that the High Court in exercise of its revisional jurisdiction can interfere with the incorrect finding of fact recorded by the courts below and therefore, the judgment of the High Court has to be maintained. Learned Counsel appearing for the respondent referred to a decision of this Court in the case of Asram Motors v. Bina Kumari [1995] Supp. 4 SCC 679 wherein this Court held that the High Court, in exercise of its revisional power under Section 25 of the Act, can examine the correctness of the findings of fact. There is no quarrel as regards this proposition, but the question that arises for consideration is whether, while examining the correctness of the findings of fact, is it open to the revisional court to reassess the evidence? It is not disputed before us that Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, [1960] (hereinafter referred to as 'the Act') confers the revisional jurisdiction upon the High Court which is not an appellate power. The High Court, under Section 25 of the Act, can call for and examine the record of the appellate authority in order to satisfy itself as to regularity of such proceedings or the correctness, legality or propriety of any decision or orders passed therein. In Dr. D, Sankara-narayanan v. Punjab National Bank [1995] Supp. 4 SCC 675, it was held as thus:
We are of the view that learned Counsel for the appellant is right when he contends that the revision petition was treated by the High Court as if it were a second appeal and, upon a reassessment of the evidence, the findings of facts of the first appellate court were reversed.
Thus, in our view, the revisional power of High Court under Section 25 of the Act not being an appellate power, it is impermissible for the High Court to reassess the evidence in a revision petition filed under Section 25 of the Act. In this appeal what we find is that, the High Court in the revision petition filed by the tenant proceeded to decide the revision as if it was deciding an appeal. In the present case the Rent Control Authority and the appellate Court on assessment of evidence concurrently recorded a finding of fact that there " existed relationship of landlord-tenant between the parties. The Rent Control Authority and the Appellate Authority both for purposes of determining the relationship of landlord-tenant placed reliance on accounts books produced by the appellant to show that the respondent tenant had been paying rent in respect of the said premises. The Rent Control Authority also took note of the fact that the respondent tenant admitted in his evidence that the disputed premises i.e Door Nos. 24A and 25 do not belong to him and Door Nos. 24A and 25 had been constructed on the land covered by survey No. 592-593. Curiously, the High Court in its revisional jurisdiction acting as an Appellate Court re-assessed the evidence of the parties and held that since the appellant landlord having undertook to file the lease deed for showing that the respondent was a tenant of erstwhile landlord failed to file the same, the relationship of landlord and tenant therefore is not established between the parties. This view of the High Court is legally and factually not correct."
19. Per contra, learned counsel for the respondents has referred to the decision of the Apex Court in the case of Shyam Lal Vs. Rasool Ahmed (Dead) by Lrs., (2002) 9 Supreme Court Cases 499 wherein in paragraph 4 it was held as follows;
"4. Lastly, it was submitted that the district court exercising revisional jurisdiction did not have jurisdiction to interfere with the findings of fact arrived at by the trial court. This submission is also liable to be rejected. Firstly, it was a revision preferred under Section 25 of the Provincial Small Causes Courts Act, the jurisdiction whereunder is not so limited as it may be under Section 115 of the Code of Civil Procedure. Secondly, as we have already pointed out the learned district judge had assigned convincing reasons for arriving at a finding different from the one arrived at by the trial court and on the material available on record the district judge though exercising revisional jurisdiction was fully justified in interfering with findings of fact arrived at by the trial court which overlooked the weighty relevant material available on record and clinching the issue."
20. In the aforementioned case, the Apex Court has held that in case if the revisional court had assigned the convincing reasons for arriving at a different view based on relevant material available on record, it was fully justified in interfering with the findings of fact arrived at by the trial court and clinching the issue. There is no quarrel with regard to the aforesaid proposition, however, in the present case the revisional court has neither assigned any cogent, convincing and satisfactory reasons on arriving at a finding different from the one finding recorded by the trial court on the basis of material available on record nor was at all justified in interfering and reversing the findings of fact arrived at by the trial court and recorded its own finding.
22. The order passed by the revisional court is illegal and unjustified and has drawn Cryptic, abrupt, arbitrary and erroneous conclusion based on complete misreading of case and misconception of the legal position relevant to the matter, as such, the order passed by the revisional court is vitiated by law and has caused substantial miscarriage of justice.
23. The reasons assigned by the revisional court are superficial and it has applied a very casual approach and has committed manifest error of law and procedural illegality. The impugned order dated 3.3.2004 passed by the revisional court, looked from any angle, cannot stand the scrutiny of law. The order passed by the revisional court is totally illegal and against the settled principle of law. It can neither be permitted to reassess or re-appreciate the evidence on record.
24. In view of the above, the order dated 3.3.2004 passed by the revisional court is set aside. The writ petition is allowed and the order passed by the trial court is upheld.
25. After the judgment was dictated, learned counsel for the respondents urged that at least six month's time may be granted to them for vacating the premises in question.
26. As urged by the learned counsel for the respondents, six month's time is granted to them to vacate the premises in dispute provided the respondents give undertaking in the form of an affidavit before the concerned prescribed authority within one month from today specifically stating therein that they will handover the peaceful possession of the said accommodation to the petitioner without inducting any third person within a period of one year from today. It is further provided that the respondents shall pay the entire arrears of rent including the rent payable up to the date of delivery of the vacant possession of the disputed premises within one month from today.
27.. The petitioner may also withdraw the amount already deposited as rent before the court below.
28. In the event of default in of any of the aforesaid conditions, the landlord-petitioner will be at liberty to proceed to evict the respondents if necessary by coercive process with the aid of police force.
Order Date :- 26.3.2012 vinay