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1978 DIGILAW 59 (ALL)

Faqir Chand v. Suresh Chand

1978-01-13

R.R.RASTOGI

body1978
JUDGMENT R.R. Rastogi, J. - This revision application has been filed under section 115 of the Code of Civil Procedure by the defendant applicant. It arises out of a suit which had been fled by the plaintiff - opposite party for ejectment of the defendant-applicant from a shop, bearing No. 471 situated in Mohalla Kalyan Singh, Kasba Mawana, District Meerut, and for arrears of rent. The rent was Rs. 10/- per month and the tenancy was from month to month. It was alleged that the defendant-applicant had built his own shops and had started carrying on his business in those shops and had illegally sub-let the disputed shop to one Surendra Kumar son of Sri Raghubir Saran. When the plaintiff opposite party came to know of the illegal sub-letting, he served a notice under section 106 of the Transfer of Property Act on 20th February 1973 on Sri Surendra Kumar. That notice was served on 21.2.1973. By that notice the plaintiff terminated the tenancy of the defendant-applicant and required him to vacate the shop within thirty days after service of the notice and to pay the arrears of rent amounting to Rs. 80/-. The notice was not complied with and hence the suit was filed. 2. The defendant-applicant contested the suit and denied sub-letting of the disputed shop to Surendara Kumar. Evidence was led by both the parties and the learned trial court held that the defendant-applicant had not sub-let the disputed shop to Surendra Kumar. Hence the relief for ejectment was denied. The suit was decreed for arrears of rent only. Since the defendant applicant had deposited that amount in the court, the plaintiff opposite party was permitted to withdraw it. 3. Being aggrieved the plaintiff-opposite party filed a revision application before the District Judge, 'Meerut. That revision application was decided by the 2nd Additional District Judge, Meerut on 2.9.1974. The learned Additional District and Sessions Judge referred to section 12(1) of U.P. Act No. XIII of 1972 which lays down that the landlord or tenant of a building shall be deemed to have ceased to occupy the building or part thereof if he has allowed it to be occupied by any person who is not a member of his family. Section 25 of the U.P. Act No. XIII of 1972 also prohibits sub-letting. Section 25 of the U.P. Act No. XIII of 1972 also prohibits sub-letting. Thus it was to be established that the defendant-applicant had ceased to occupy the shop and that it was in the possession of Surendra Kumar and that he had sub-let it to Surendra Kumar. The learned Additional District Judge relied on two circumstances viz. firstly that the notice which had been issued by the plaintiff opposite party to Sri Surendra Kumar had been served on him at the address of the disputed shop and secondly that in the municipal records for the years 1.4.1969 to 31.3.1974 it was the name of Surendra Kumar which was recorded against the disputed shop, and held that the defendant-applicant had let-out the disputed shop to Surendra Kumar. He also took notice of the fact that the defendant-applicant had constructed his own shops and that Surendra Kumar was not his relation. On this evidence the learned Additional District Judge held that the learned trial court had erred in holding that the shop in dispute had not been sub-let by the defendant-applicant to Surendra Kumar. In the result the plaintiff opposite party was held entitled to ejectment of the defendant-applicant. It is against this order that the present revision application has been filed. 4. The first submission made before me on behalf of the defendant- applicant was that the learned Additional District Judge while disposing of the revision application made before him under section 25 of the Provincial Small Causes Court Act was not justified in re-appraising the evidence and reliance was placed on certain decisions. On the other hand on behalf of the plaintiff-opposite party it was submitted that while dealing with revision application tinder section 25 of provincial Small Causes Courts Act a Court has wider powers than those conferred under section 115 of the Code of Civil Procedure inasmuch as the object of section 25 is to enable a court to see that there has been no miscarriage of justice and that the decision was given according to law. According to the learned counsel in the instant case the learned trial court had absolutely ignored the material documentary evidence on record and in revision the Addl. District Judge way entirely justified in looking to that evidence and in deciding the revision on its basis. Hence it was submitted that no illegality was committed by the learned Addl. According to the learned counsel in the instant case the learned trial court had absolutely ignored the material documentary evidence on record and in revision the Addl. District Judge way entirely justified in looking to that evidence and in deciding the revision on its basis. Hence it was submitted that no illegality was committed by the learned Addl. District Judge in disposing of the revision application. Both the parties have relied upon the decision of the Supreme Court in Hari Shankar v. Girdhari Lal, AIR 1963 Supreme Court 698. The relevant observations are contained in paragraph No. 9. It has been observed : - "That section 25 of the Provincial Small Cause Courts Act has been considered by the High Court in numerous cases and diverse interpretations have been given. The powers that it is said to confer would made a broad spectrum commencing, at one end, with the view that only substantial errors of law can be corrected under it, and ending, at the other, with a power of interference a little better than what an appeal gives. It is useless to discuss those cases in some of which the observations were probably made under compulsion of certain unusual facts. It is sufficient to say that we consider that the most accurate exposition of the meaning of such sections is that of Beaumonth, C.J. (as he then was) in Bell & Co. Ltd. v. Waman Hemraj, AIR 1938 Bombay 223 , where the learned Chief Justice, dealing with Section 25 of the Provincial Small Cause Courts Act, observed : - "The object of Section 25 is enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law. The section does not enumerate the cases in which the court may interfere in revision, as does Section 115 of the Code of Civil Procedure , and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden or proof has been placed on the wrong shoulders. Where-ever the Court cones to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at. This observation has our full concurrence." 5. It would thus appear that the dictum approved by the Hon'ble Supreme Court is that the object of Section 25 of the Provincial Small Cause Courts Act is to see that there has been no miscarriage of justice. In other words that the decision was given according to law. If the order under revision is viewed in the background of this dictum it would appear that it does not suffer from any legal infirmity. The learned trial court had not referred the documentary evidence on record. It had totally ignored that evidence and thus its decision was not given according to law. In revision the revising court was fully justified in referring to that evidence and thus prevent the miscarriage of justice. That evidence was on the record. There has been no dispute about it. It was clear from the acknowledgement receipt that the notice of ejectment had been served on Surendra Kumar at the address of the disputed shop. Besides this, in the municipal records it was the name of Surendia Kumar which was recorded against the disputed shop. Thus the reappraisal of the evidence which had been entirely ignored by the learned trial court, was certainly within the ambit of Section 25 of the Provincial Small Cause Courts Act. 6. It does not appear to be very necessary to refer to the other cases cited on behalf of the defendant-applicant. Any how I do not think that they lay down any different proposition of law. In Ram Narain v. K.I. Vishwakarma, 1965 A.L.J. 989, what was held was that under section 25 of the Provincial Small Cause Courts Act as substituted by U.P. Amendment Act No. 17 of 1957 the District Judge has power to satisfy himself that a decree or order made in any case decided by a court of small causes was according to law. He is not empowered to look into the evidence of the case and to decide whether the finding of fact arrived at by the court below is justified by the evidence on record or not. It would thus appear that the District Judge in revision is not empowered to look into the evidence of the case and to decide whether the finding of fact arrived at by the court below is justified by the evidence on record. If the finding of fact arrived at by the court below has been given in absolute disregard of the evidence on record, then it cannot he said that the decree or order made by a court of Small Causes is according to law. In Shyam Sunder Lal v. Laxmi Narain, AIR 1961 Allahabad 347, where the trial judge had believed the particular set of evidence, it was held that since the trial judge had the advantage of seeing demeanour of the witnesses, the High Court could not regard his conclusions perverse or liable to amendment in a proceeding under section 25 of the Provincial Small Cause Courts Act. 7. The position, therefore, is that there is no re-appraisal of the evidence made by the learned Addl. District Judge. He was only referring to the evidence which was on the record and which had been entirely ignored by the learned Trial Court and that he was competent to do so under section 25 of the Provincial Small Cause Courts Act. 8. The next submission made on behalf of the defendant-applicant was that the burden of proving sub-letting was on the plaintiff opposite party which he failed to discharge. In view of the finding of fact recorded by the learned Addl. District Judge on the basis of the evidence on record this court cannot interfere in the same. 9. The revision application is accordingly dismissed with costs to the plaintiff-opposite party.