Indra Mukhi Verma v. Ist Additional District and Sessions Judge
1985-05-22
A.N.DIKSHITA
body1985
DigiLaw.ai
ORDER A.N. Dikshita, J. - By means of this petition under Article 226 of the Constitution the petitioner has prayed for quashing the order dated 5-9-1980 (Annexure- 10 to the writ petition) passed by Addl. District and Sessions Judge, Farrukhabad, respondent in the instant writ petition. 2. Briefly stated the facts are that the petitioner is the land lady and owner of house No. 5/9 Rai Deep Chand. Farrukhabad city comprising of ground-floor and first floor which was let out to Sri Kailash Chandra Parashar (hereinafter referred to as respondent 3) on a monthly rent of Rs. 75/- some time in the year 1964. It was alleged that since August 1973 no rent was being paid by respondent 3 to the petitioner in spite of repeated requests and demands. It was also alleged that respondent 3 had illegally let out the said premises to one Sri Ram Sewak Verma, respondent No. 4 and thus respondent 3 is illegally earning a profit out of that subletting. 3. The petitioner thereupon sent a notice dated 17-11-1976 through her lawyer Sri Prasidh Narain Mowar calling upon respondent No. 3 to pay rent in arrears with effect from 1-8-1973. It was further mentioned in the notice that the petitioner does not want to continue the tenancy of respondent 3 which would stand terminated on the expiry of 30 days of the receipt of such notice. Respondent 3 was also called upon to vacate the said premises on the expiry of the said period. This notice was sent under registered A. D. post cover and was received by respondent 3. It emerges from the record that the said notice was replied by the tenant but the contents of such reply are not available on record for perusal. The respondent 3 did not comply with the requirements of this notice and neither vacated the premises nor possession thereof was delivered to the petitioner. Even the rent as claimed from 1-8-1973 was not paid. 4. On the failure of respondent 3 to comply with the requirements of the notice the petitioner filed a suit titled as Shrimati Indramukhi Verma v. Kailash Chandra & others and numbered as suit No. 93 of 1977 in the court of Judge, Small Cause. Farrukhabad on 23-8-1977. The suit was contested by the respondent 3.
4. On the failure of respondent 3 to comply with the requirements of the notice the petitioner filed a suit titled as Shrimati Indramukhi Verma v. Kailash Chandra & others and numbered as suit No. 93 of 1977 in the court of Judge, Small Cause. Farrukhabad on 23-8-1977. The suit was contested by the respondent 3. The alleged sub-tenant Sri Ram Sewak Verma was also impleaded as defendant 2 in the suit but in spite of the service of summons Sri Ram Sewak Verma defendant No. 2 (respondent 4) did not contest the suit. 5. After recording the necessary evidence of the parties respondent 2 decreed the petitioner's suit by judgment and order dated 9-5-1979, a copy whereof has been attached as Annexure 8 to the writ petition. On an appraisal of evidence respondent 2 held that the notice sent by the petitioner was served on the respondent 3. It was also held that the respondent 3 had illegally sublet the first-floor of the accommodation in suit to Sri Ram Sewak Verma (respondent 4) and was thus liable to ejectment along with the sub-tenant. On the question of default in payment of rent respondent 2 after considering the evidence came to a firm conclusion that the respondent 3 was in arrears of rent since 1973 and thus respondent 3 is a defaulter and is liable to be ejected on this ground as well. The defence of respondent 3 was also struck off for not complying with the requirements as contemplated by O. XV R. 5 of the Civil P.C. 6. Feeling aggrieved by the said judgment and order dated 9-5-1979 passed by respondent No. 2 a revision was preferred to the court of District Judge, Farrukhabad, which was transferred to the court of the Addl. District Judge, Farrukhabad, for disposal according to law. This revision was allowed by Addl. District Judge. Farrukhabad. vide his judgment and order dated 5-9-1980 (Annexure-10 to the writ petition). 7. The instant writ petition under Article 226 of the Constitution has been filed for quashing the aforesaid judgment and order dated 5-9-1980 passed by respondent No. 1. 8. The main contention of the petitioner is that the respondent No. 1 erred in law in appraising the evidence and has thus exceeded his jurisdiction by ignoring the provisions as contained in S.25 of the Provincial Small Cause Courts Act.
8. The main contention of the petitioner is that the respondent No. 1 erred in law in appraising the evidence and has thus exceeded his jurisdiction by ignoring the provisions as contained in S.25 of the Provincial Small Cause Courts Act. Findings of fact recorded by respondent No. 2 have been appraised by respondent and have been upset. It has been contended by the learned counsel for the petitioner that the respondent in fact has appraised the evidence produced by the parties as a court of appeal instead of extracting any error of law as contemplated by Sec. 25 of the said Act. It has further been contended on behalf of the petitioner that besides the evidence of P.W.1, the petitioner in order to support her case had examined P.W.2 and P.W.3 Sarvsri Shivnath Sharma and Harish Chandra. The trial court (respondent 2) had discussed the evidence on behalf of the petitioner in detail. Much reliance was placed on the testimony of P.W.3 by respondent 2 while decreeing the suit but the respondent l appraised the evidence as a court of appeal which was not permissible in law. It was further contended on behalf of the petitioner that the respondent 2 in view of the non-compliance of the requirements as contemplated by O. XV R. 5 C.P.C. had rightly struck off the defence but the respondent 1 had illegally interfered with such findings. 9. On behalf of respondent 3 it has been submitted that respondent 2 had erred in law in drawing an adverse inference against respondent 3 for which he had no jurisdiction in law. Reliance has been placed by the learned counsel for the petitioner on a Division Bench decision of this Court in Ramnarain v. Kanhaiva Lal Vishwakarma, 1965 All LJ 989 where it was held that under Sec. 25 of the Provincial Small Cause Courts Act the District Judge has power in law to satisfy himself that a decree or order made in any case decided by a court of Small Causes was according to law. It was further held that the revisional court is not competent to look into the evidence of the case and to decide whether the findings of fact arrived at by the court below is justified by evidence on record or not. Only question of law can be gone into while exercising revisional powers under S. 25 of the Act.
It was further held that the revisional court is not competent to look into the evidence of the case and to decide whether the findings of fact arrived at by the court below is justified by evidence on record or not. Only question of law can be gone into while exercising revisional powers under S. 25 of the Act. It is thus clear in view of the ratio decided in the above case that respondent No. 1 had exceeded jurisdiction in appraising evidence. This view further finds support in the case of Prabha Shanker Gupta v. Second Addl. Judge, Ballia, 1980 All Rent Cas 287 wherein it was held : "If it finds that there is no evidence to sustain a finding on a particular issue of fact, it can ignore that finding. Same will be the case where the finding is based only on inadmissible evidence. In such cases, the court will be justified in deciding the question of fact itself, because the evidence is all one way. No assessment is needed. The court can also decide the revision if only a question of law, viz; validity of notice is sufficient for its decision. But, if it 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 reassess or reappraise the evidence in order to determine an issue of fact for itself. 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". 10. In the case of Lakshmi Kishore v. H.P. Shukla, 1979 All WC 746 it was held that while deciding a revision under S. 25 of the Provincial Small Cause Courts Act the court has to satisfy itself that the trial courts decree or order is according to law. In so far as the question as to whether respondent 2 had illegally sub-let the accommodation or part thereof to respondent No. 4 and had defaulted in payment of rent and was thus in arrears it was a pure question of fact and the findings recorded by respondent 2 on appraisal of evidence on this question was obviously the findings of fact.
The impugned order passed by respondent No. 1 taking a contrary view is on the face of it in the teeth of the decision of this Court in Lakshmi Kishore's case (supra). 11. Learned counsel for the respondent No. 3 has placed reliance on the case of Jagdish Prasad v. Smt. Angoori Devi, 1984 All LJ 379 : AIR 1984 SC 1447 and had submitted that in view of the above decision it was within the jurisdiction of the revisional court to interfere with the findings. I am unable to agree with such a contention which apparently is not merited. The ratio decided in that case is clearly distinguishable. The Supreme Court has clearly held that the jurisdiction in revision under S. 25 of the Provincial Small Cause Courts Act is not wide as appellate jurisdiction under S. 96 C.P.C. It has further been held that the jurisdiction to issue a writ of certiorari is a supervisory one and in exercising it the Court is not entitled to act as a court of appeal. That necessarily means that the findings of fact arrived at by the inferior court or Tribunal are binding. An apparent error of law can be corrected but not an error of fact. The case of Jagdish Prasad v. Smt. Agnoori Devi (supra) relied upon by the counsel for the respondent does not support his case. Manifestly respondent I had exceeded the jurisdiction as contemplated in S. 25 of the Provincial Small Cause Courts Act and the judgment and order dated 5-9-1980 passed by respondent 1 deserves to be quashed. 12. In the result the petition succeeds and is accordingly allowed with costs. The order dated 5-9-1980 passed by respondent No. 1 allowing the revision and dismissing the plaintiffs suit is hereby quashed. The case is remanded back to the Court of Additional District Judge. Farrukhabad, for a fresh decision according to law and in view of the observations made above.