Nattho Others v. Distt. Judge, Bulandshahr Others — 1983 DIGILAW 299 (ALL)

JUDGMENT S.K. Dhaon J. 1. This is a tenant's writ petition arising out of it suit for ejectment from a shop and for affairs of rent. The landlord instituted the suit sometime in the year 1970 on the allegations that the said shop was sometime in the year 1952 The suit was founded on the rights and liabilities of a lessor and lessee as understood in the general law. The suit, therefore, involved adjudication of such rights and liabilities unheged by the restrictions imposed upon them by the then provisions of the U.P. (Temporary) Control of Rent and Eviction Act (Act No. 3 of 1947) (hereinafter referred to as Act No. 3 of 1947.) 2. The trial Court framed a number of issues. Issue No. 2 was: As to whether to the said shop the provisions of U.P. Act No. 3 of 1947 were applicable? Issue no. 3 was: As to whether the said shop was constructed in the year 1952? After appraising the evidence the trial Court recorded a finding that the said shop was not Constructed in the year 1952 and was in existence prior to the year 1951. It, therefore, held that the provisions of U.P. Act No. 3 of 1947 were applicable to the said shop. Consequently it dismissed the suit. 3. In revision preferred Under section 25 of the Small Cause Court Act by the landlords the revisional Court reappraised the evidence on record before it, documentary and oral,, and came to the conclusion that the said shop was constructed in the year 1952. As a corollary to that finding it held that the provisions of U.P. Act No. 3 of 1947 were not applicable to the said shop. It, therefore passed a decree of ejectment from the said shop against the petitioner. 4. Learned counsel for the petitioner has contended that the revisional Court exceeded its jurisdiction in arriving at a finding different from the trial court on reappraisement of the evidence. In support of his contention the counsel relied upon a number of authorities. It, therefore passed a decree of ejectment from the said shop against the petitioner. 4. Learned counsel for the petitioner has contended that the revisional Court exceeded its jurisdiction in arriving at a finding different from the trial court on reappraisement of the evidence. In support of his contention the counsel relied upon a number of authorities. This argument was countered by the counsel for the respondent and it was argued that the question as to whether the provisions of U.P. Act No. 3 of 1947 were applicable to the said shop and the Connected question as to whether the shop was constructed in the year 1952 involved the adjudication of a jurisdictional fact and therefore the revisional Court acted well within its jurisdiction in re examining the question and assessing the evidence on record before it afresh. 5. It is now well settled that even in revision under Section 115 of the Code of Civil Procedure it is open to the revisional court to upset the finding of an inferior court on jurisdictional fact. See cases: AIR 1959 SC 492 (Chaubey Jagdish Prasad v. Ganga Prasad Cahturvedi): AIR 1962 SC 646 (Roshan Lal v. Ishwar Das); 1981 Alld. Rent Control Cases page 197; and 1982 Allahabad Rent Control Cases page 611, at page 616. 6. Learned counsel for the petitioners placed strong reliance upon the decision of a Division Bench of this Court as reported in 1982 Alld. Rent Control Cases 809. In that case the controversy centred round the question as to whether vacancy of a certain accommodation could be considered to be a jurisdictional fact for purposes of Section 16 of the U.P. Act No. 13 of 1972. The Bench held that the finding on such a question could not be considered to be a finding on jurisdictional fact. However, it will be profitable to quote paragraph 18 of the said judgment which is as follows: In all these cases the preliminary question was if the Act is at all applicable so that in other provisions authorising enquiry by its tribunal may apply. Determination of such a point arises at the threshold and has nothing to do with the subjectmatter of enquiry entrusted by the provision of the Act. Determination of such a point arises at the threshold and has nothing to do with the subjectmatter of enquiry entrusted by the provision of the Act. The question whether the determination of such a preliminary or jurisdictional fact has also been finally entrusted to the authority created by the Act is another question which does not arise here and so we do not deal with or elaborate on it. 7. The direct question for adjudication before the trial court as well as the revisional court was as to whether to the said shop the provision of U.P. Act No. 3 of 1947 were applicable, in my opinion the adjudication of such a question clearly involved a decision of the jurisdictional fact. 8. I have gone through the judgment given by the revisional court carefully and I am inclined to agree with the finding arrived at by it. I am of the view that the evidence on record as discussed by the revisional court, could not lead to any other conclusion than the one arrived at by the revisional court. The revisional court was perfectly justified in holding that there was overwhelming evidence, oral and documentary, including the statement of one Shri Kanhaiyalal, predecessorininterest of the petitioners to come to the conclusion that the said shop was constructed in the year 1952. 9. In the result, I find that there is no substance in the instant writ petition. It is dismissed with costs. 10. Learned counsel for the petitioner has made a request that since the petitioners are carrying on the business in the shop in dispute some reasonable time may be granted to them by this Court for vacating the same. The request appears to be reasonable. I grant the petitioners time till 31st of May, 1983 to vacate the premises in dispute. The petitioners shall hand over possession of the said shop to the landlord peacefully within that period.