Hanif v. Suraj Prasad Maheshwari — 1989 DIGILAW 850 (ALL)

ORDER A.N. Dikshita, J. - The applicant feeling aggrieved against the judgment and order dated 16th December, 1986 decreeing the suit No. 16 of 1985 (Suraj Prasad v. Mohammad Hanif) has preferred this revision under S. 25 of the Provincial Small Cause Court's Act. 2. The opposite party is the owner of shop No. 17 situate at Hurgatganj, Sikandra Mau District Aligarh. The applicant, it is alleged, was a tenant of the said shop on monthly rent of Rs. 200/- and his tenancy commenced from the first date of calendar month and ended on the last day of the same month. The applicant fell in arrears of rent with effect from 1-2-1982 to 1-12-1982, for which a notice of demand was given to him. 3. The opposite party filed a suit for eviction of the applicant, recovery of arrears of rent with effect from 1-2-1982 to 30-4-1485 (Rs. 7800/-) but the rent which had become barred was not claimed and, as such, only an amount of Rs. 7225/- inclusive of the cost of notice was filed. The applicant contested the suit alleging that the opposite party had given wrong and invalid notice. It was further contended by the applicant that the rate of rent of the accommodation in suit is only Rs. 35/-. But the opposite party is illegally claiming rent at the rate of Rs. 200/-. In fact the opposite party wanted to enhance the rent, which offer was spurned by the applicant. On the refusal of the opposite party to accept the rent money order was sent by the applicant but was refused. Whereafter the applicant deposited rent under S. 20(i) of the L.P. Act No. XIII of 1972. It has also been alleged by the applicant that as the opposite party had refused to accept the rent, he had deposited the same. The allegation of the opposite party that the rent was enhanced from Rs. 35/- to Rs. 150/- and then to Rs. 200/- was categorically denied by the applicant. However it is admitted between them. It has been contended by the applicant that the rent with effect from 1st May, 1985 to 31st July, 1985 has been deposited in the court. The applicant in view of his liability to pay house tax and other taxes has deposited the same with the Nagarpalika, Aligarh. 4. However it is admitted between them. It has been contended by the applicant that the rent with effect from 1st May, 1985 to 31st July, 1985 has been deposited in the court. The applicant in view of his liability to pay house tax and other taxes has deposited the same with the Nagarpalika, Aligarh. 4. On the pleading of the parties following issues were framed : [Matter in Vernacular omitted - Ed.] 5. The parties in support of their respective contentions adduced oral evidence and produced documents. In support of his case the opposite party has examined one Sri P.S. Mullick. Hand Writing Expert from Delhi besides producing himself as P.W. 2. 6. Besides producing documentary evidence the applicant examined himself as D.W.2, besides one Sri B.N. srivastava hand writing expert from Delhi as D.W. 1. Megh Singh postman was produced by the applicant as D. W. 3 while one Mohammad Isaq was produced as P.W. 4. 7. The trial court on the basis of oral as well as documentary evidence decided issue No. 1 regarding rate of rent in the affirmative and against the applicant holding that the rate of rent of the shop in question is Rs. 200/- instead of Rs. 35/-. 8. It has been found by the trial court that the applicant had deposited rent at the rate of Rs. 35/- but in view of the fact that the rate of rent is Rs. 200/- the applicant is not entitled to any benefit out of such deposits and the issue No. 2 was thus disposed of against the applicant. 9. As regards the payment of rent by the applicant to the opposite party after service of notice it has been found that nine months rent had become due against the applicant but was not paid as required by the notice. 10. On issue No. 4 the trial court found that at the time when notice was sent more than four months rent had become due and as such the applicant was liable to ejection within the meaning of S. 202 at of the said At. 11. The applicant had contested the illegality and invalidity of the said notice. However, in view of the findings by the trial court about the rate of rent it was found that the opposite parts was entitled to refuse the money order which was sent by the applicant. 11. The applicant had contested the illegality and invalidity of the said notice. However, in view of the findings by the trial court about the rate of rent it was found that the opposite parts was entitled to refuse the money order which was sent by the applicant. Thus issue No. 5 was also decided against the applicant. 12. In view of the findings recorded on all the issues which were against the applicant the suit was decreed vide judgment and order dated 16th December. 1986 for eviction and for recovery of Rs. 7125/- as arrears of rent besides pendente lite and future damages at the rate of Rs. 200 - per month. 13. Aggrieved against the said judgment and order decreeing the suit of the opposite party for the eviction of the applicant besides decree for the recovery of the arrears of amount and awarding pendent lite and future damages, this revision under S. 25 of the Provincial Small Cause Court's Act has been filed. 14. Heard learned counsel for the parties. 15. Learned counsel for the applicant has submitted that the trial court has failed to consider the reasons for enhancement of rent from Rs. 35/- per month to Rs. 150 - per month and thereafter to Rs. 200/- per month. This is beyond the acceptance of an ordinary and reasonable prudent person. Learned counsel for the applicant has further submitted that the counterfoils filed on behalf of plaintiff in the case shows bearing of revenue stamp thus indicative of the fact that they are forged or has been fabricated for the purposes of the case. In any case it has been submitted that a bare perusal of the counterfoils show that they are not genuine. It has been then urged that column in counterfoils are blank but were filled in later thus casting shadow of doubt on the genuineness of the said documents. It has been further submitted that in the proceedings under S. 30 of the said Act where the applicant had deposited rent at the rate of Rs. 35/- were not challenged by the opposite party. It was not open for him to have claimed any higher amount. The trial court, it has been urged, has failed to consider ti,e assessment register of the Municipal Board, showing the rent of the shop in question at Rs. 35/- were not challenged by the opposite party. It was not open for him to have claimed any higher amount. The trial court, it has been urged, has failed to consider ti,e assessment register of the Municipal Board, showing the rent of the shop in question at Rs. 35/- and this fact fortifies the case of the applicant. It has also been submitted that even if the signatures of the applicant are admitted in exhibit 2, this fact alone was not sufficient to discard the remaining evidence of the applicant. 16. Learned counsel for the applicant has further urged that the trial court illegally discarded the evidence of the handwriting expert of the applicant. It has been lastly urged that in case rent of accommodation is found to be Rs. 35/- then no default has been committed and as such, the decree cannot be passed against the applicant. 17. Learned counsel for the opposite party has submitted that the judgment of the trial court is in accordance with the law and does not require interference by this Court and h s thus submitted that it is a settled view that the findings of fact recorded by the trial court being finding of fact do not require interference. The trial court had found that the rate of rent is Rs. 200/- and this being a finding of fact does not require interference by this court. 18. Having given my anxious consideration to the controversy in question the crux of the matter on which the entire case rest is regarding whether the case requires interference or not. To appreciate the rival contentions it is necessary that the catina of decisions cited at bar in support of their submission are discussed in detail. 19. To buttress his submission that this Court should interfere in the instant case, learned counsel for the applicant has placed reliance on catena of decisions. 20. In the case of Harideo Misra v. V. Addl. Dist. Judge, Gorakhpur (1988) 2 All Rent Cas 60: ( AIR 1988 All 295 ), it was held that if the trial court recorded finding of rate of rent without considering the rent note, the revisional court has jurisdiction to interfere and after considering the rent note arrive at its own finding and such appraisal cannot be said to be reassessment of the evidence. 21. 21. In the case of Lakshmi Kishore v. Har Prasad, 1981 All Rent Cas 545, it has been held that where the revisional court comes to a conclusion that the trial court had based its finding on inadmissible evidence then the revisional course would be justified in deciding the question of fact itself because the evidence is all one and no assessment is needed. 22. Learned counsel for the applicant has then placed reliance in the case of Jagdish Prasad v. Angoori Devi. (1984) 1 All Rent Cas 679 : (1984 All U 37) and in view of the said recital that where the trial court did not take into consideration the valuable evidence it is always open to the revisional court to consider the evidence and arrive at a question of fact. 23. In the case of Karimullah v. III Addl. Dist. Judge Allahabad, (1988) 1 All Rent Cas 521 : (1988 All U 723), it has been held that where the trial court ignored to consider the material documents then it will be open to revisional court to consider evidence and record its own finding. 24. In the case of Ganeshilal v. III Addl. Dist. Judge, (1985) 2 All Rent Cas 302, Hon. A. Banerji, J (as he then was) held as under : "The Revisional court exercising its powers under S. 25 of the Act would have no jurisdiction in that case to interfere with the above finding of fact. However, if the revisional court came to the conclusion that the decision of the Trial Court was not in accordance with law, then in that event it would have jurisdiction to interfere with the finding set aside the decision and send back the case to the Trial Court for a fresh decision in accordance with law." 25. Learned counsel for the applicant has then placed reliance after making his submission on the cases cited above that the revisional court can ignore the finding of the trial court. Learned counsel for the applicant has submitted that in appropriate cases High Court in revision can reappraise the evidence, if the findings are found to be not in accordance with law. In the case of Ram Dai v. Ishwar Chander, AIR 1988 SC 1422 , it was held that the jurisdiction enables the court of revision, in appropriate case, to examine the correctness of the findings of facts also. In the case of Ram Dai v. Ishwar Chander, AIR 1988 SC 1422 , it was held that the jurisdiction enables the court of revision, in appropriate case, to examine the correctness of the findings of facts also. Hon'ble Supreme Court in the above case held as under : "On the first contention that the revisional powers do not extend to interference with and upsetting of findings of fact, it needs to he observed that subject to the well known, limitations inherent in all revisional jurisdictions, the matter essentially turns on the language of the statute investing the jurisdiction. The decisions relied upon by Shri Harbans Lal deal in the first case, with the limitations on the scope of interference with findings of fact in second appeals and in the second with the limitation on the revisional powers where the words in the statute limit it to the examination whether or not the order under revision is "according to law. The scope of the revisional power of the High Court, where the High Court is required to he satisfied that the decision is "according to law" is considered by Beaumont C.J. in Bell & Co. Ltd. v. Woman Hemraj, AIR 1938 Born 223 a case referred to it with approval by this court in Hari Shankar v. Girdhari Lal Chowdhary, AIR 1963 SC 698 . But here S. 15(5) of the Act enables the High Court to satisfy itself as to the legality and propriety, of the order under revision, which is quite obviously a much wider jurisdiction. That jurisdiction enables the court of revision, in appropriate cases to examine the correctness of the findings of facts also though the revisional court is not a second court of first appeal-(See Dattonpant Gopalavarao v. Vithalrao Marutirao AIR 1975 SC 1111 . Referring to the nature and scope of the revisional jurisdiction and the limitations inherent in the concept of a "revision" in this court in Rajalakshmi Dying Works v. Rangasway Chettiar Sri (1980) 2 Rent CJ 165 at p. 167 : (AIR 4980 SC 1253 at p. 12541 observed : 2 "Appeal" and "revision" are expressions of common usage in Indian statutes and the distinction between "appellate jurisdiction" and "revisional jurisdiction"- is well known though not well defined. Ordinarily, appellate jurisdiction involves a rehearing as it were on law as well as fact and is invoked by an aggrieved person. Ordinarily, appellate jurisdiction involves a rehearing as it were on law as well as fact and is invoked by an aggrieved person. Such jurisdiction may however, be limited in some way as for instance has been done in the case of second appeals under the Code of Civil Procedure and under some Rent Acts in some States. Ordinarily, again, revisional jurisdiction is analogous to a power of superintendence and may some times be exercised even without its being invoked by a party. The extent of revisional jurisdiction is defined by the Statute conferring such jurisdiction ....... Revisional jurisdiction as ordinarily understood with reference to our statutes is always included in appellate jurisdiction but not vice versa. These are general observations. The question of the extent of appellate or revisional jurisdiction has to be considered in each case with reference to the language employed by the statute......... The criticism of Sri Harhans Lal that it was impermissible for the High Court in its revisional jurisdiction to interfere with the findings of fact recorded by the appellate authority, however erroneous they be is not, having regard to the language in which the revisional power is couched tenable. In an appropriate case, the High Court can reappraise the evidence if the findings of the appellate court are found to be infirm in law. 26. Learned counsel for the applicant then has submitted that this Court should be fully competent to interfere while exercising jurisdiction under S. 25 of the Act where it is found that the findings recorded by the trial court on the appreciation of fact, evidence or pleadings, calls for interference by the revisional court. Such a view finds support in the case of Mahfooz Hassan v. Harish Chandra Sahai, 1987 All Rent Cas 100: ( AIR 1988 All 69 ) 27. Learned counsel for the applicant then submitted that where the trial court based its finding on misinterpretation of a document it will be a valid exercise for the revisional-court to exercise its discretion and power under Section 25 of the Act and reliance on this dictum has been placed in the case of Kamla Prasad v. District Judge Allahabad 1985) 1 All Rent Cas 473. 28. 28. It has been further submitted by the learned counsel for the applicant that where finding recorded by the trial court on misreading of fact, evidence or pleadings the, require interference as has been held in the case of Ganeshilal (1985) 2 All Rent Cas 302 (supra). 29. Learned counsel for the applicant has further submitted in regard to interpretation of document by the trial court that revisional court has jurisdiction to interfere with such finding and has placed reliance to support this contention in the case of Abdul Gaffar Qureshi v. Reghubir Singh 1979 All WC 261. In the case of Jagdish Prasad v. Smt. Angoori Devi reported in AIR 1984 SC 1447 : (1984 All LJ 379) it was held that the revisional authority is entitled to rectify legal error if a finding of fact (subletting) was unwarranted. 30. Lastly learned counsel for the applicant has placed reliance in a Division Bench case of Lakshmi Kishore v. Har Prasad Shukla 1979 All WC 746 where it has been held that if the revisional court finds that a particular findings of fact is vitiated and if it cannot be disposed of adequately without finding on a particular issue it can remand the case to assess the issue on proper guideline. From the above decisions cited at bar on behalf of the applicant the scope of interference has been detailed. 31. Scope of Section 25 of Provincial Small Cause Courts Act has been considered time and again. In the case of Lakshmi Kishore v. Har Prasad Shukla (1981 All Rent Cas 545) (supra) (Division Bench) of this Court held as under : "If it finds that there is no evidence to sustain finding on a particular issue of fact, it can ignore that finding. Same will be the case where the findings 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 or some preliminary point of law viz. validity of notice is sufficient for its decision. 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 or some preliminary point 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 can not 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. Therefore where the revisional court on a consideration of the evidence on record of a case finds that the findings recorded by the trial court are vitiated by an error of law, the revisional court has to determine an issue of fact. The proper course is to remand the case to the trial court." 32. As such this is settled law as regards the scope of interference under Section 25 of the said Act. However in the case of Zubida Begham v. IV Addl. Dist. Judge. (1982) 1 All Rent Cas 74 it was held that the findings given by the trial Court on question of default would not permit the revisional court to reassess the evidence and reverse such a finding. 33. From the above discussions on the scope of interference under Section 25 of the Act, as has been detailed in catena of decisions, cited above, it is thus clear that the revisional court does not become functions officio and has to dispose of the case on the basis of material on record in the light of the decisions. 34. The learned counsel for the applicant has submitted that the court below has illegally held that the rate of rent of the suit accommodation is Rs. 200/-. However, learned counsel for the opposite party has submitted that this is a finding of fact recorded by the Court below and is not liable for interference. 34. The learned counsel for the applicant has submitted that the court below has illegally held that the rate of rent of the suit accommodation is Rs. 200/-. However, learned counsel for the opposite party has submitted that this is a finding of fact recorded by the Court below and is not liable for interference. It has, thus, become imperative to find out as to whether the court below has erred in law to come to the instant conclusion that the rate of rent was Rs. 200/-. The opposite part, in order to show that earlier rate of rent was Rs. 150/- has filed the receipt book (Ext. 2). This counterfoil of Ext. 2 bears stamp with the signature of Mohd. Hanif it is strange as to how a revenue stamp has been affixed on this counterfoil otherwise revenue stamp is affixed on the foil in token of the receipt of the amount and should have been with the person who had paid the amount. Further in the column 'KIRAYA WA-JIB' there is apparently cutting and the month has been obliterated. This counterfoil shows that the rate of rent is Rs. 150/-. Another fact which does not appeal to common sense is that in the column "KIS MAH KI WAWAT" the date is shown as 30th September, 1981. If it was for which month then how the figure of Rs. 825/- was paid or arrived. The opposite party has also filed the counterfoil (Ext. 3) which shows that the rent for October. 1981 has been paid. In this counterfoil in the column "TADAD WASUL MAYA MARPHAT has been shown. This column bears three crosses. Between these three crosses words "200 Rupaya" has been shown. The figure of "Sau" is over the cases. This is the entire evidence showing that earlier the rate of rent was Rs. 150/- which was enhanced to Rs. 200/- w.e.f. 1st October, 1981. As regards the signatures on the counterfoil of the applicant it was disputed and an expert was produced. The applicant from the very beginning is reiterating that the rate of rent of the shop in question is Rs. 35/- only and which has been paid or is being deposited. 35. The learned counsel for the applicant has submitted that the opposite party has admitted that earlier rate of rent was Rs. 35/-. The applicant from the very beginning is reiterating that the rate of rent of the shop in question is Rs. 35/- only and which has been paid or is being deposited. 35. The learned counsel for the applicant has submitted that the opposite party has admitted that earlier rate of rent was Rs. 35/-. In his statement, the opposite party.has admitted that he does not possess any paper or document in this respect. It has also been submitted by the learned counsel for the applicant that the opposite party has submitted that earlier rent receipts were not issued but when the applicant insisted for issuing such receipts, the rate of rent was enhanced to Rs. 150/- and Rs. 25/- (sic) was being paid being the rent of 5112 months. Later on the rent of the shop in dispute was enhanced from Rs. 150/- to Rs. 200/- in view of certain repairs. But the circumstances being intringuing are not comprehensible why only for issuance of receipt or for repairs the rent from Rs. 35,'- would be enhanced to Rs. 150/- or to Rs. 200/- in fact highly unbelievable. 36. The entire crux of the case is the rate of rent. The trial court did not apply its mind in regard to the cuttings in Ext. 2. It was a very material aspect which should have been considered. The trial court further ignored to consider this material aspect on these two material documents. There is, thus, a clear non-application of mind in regard to cuttings on the counterfoils (Exts. 2 and 3). The trial court further did not consider paper No. 10 per list 12C/1 which is the receipt issued to the applicant. In this document in the columns "Kiraya "Mahawar" And Kiraya Wajib". nothing has been shown except two crosses. 37. Other issues framed by the trial court and decided against the applicant are based on the findings on issue No. 1 regarding the rate of rent. But in view of non-application of mind by the trial Court as has been shown above, such findings are not in any way material to the instant controversy. Moreover the counterfoils texts. 2 and 3) were very valuable piece of evidence but the non- consideration of the totality of the circumstances has compelled this court to interfere. In the case of, Jagdish v. Angoori Devi, 1984 All U 379) (supra). Moreover the counterfoils texts. 2 and 3) were very valuable piece of evidence but the non- consideration of the totality of the circumstances has compelled this court to interfere. In the case of, Jagdish v. Angoori Devi, 1984 All U 379) (supra). it has been held that it would be open to the revisional court to consider the evidence and arrive at a question of fact where the trial court did not take into consideration the valuable evidence. The trial court has not considered these two material documents in their right perspective and has ignored the surrounding circumstances and the veracity and genuineness of the counterfoils (Exts. 1 and 2). This view finds support in the case of Karimulla v. III Addl. District Judge, Allahahad (1988 All U 723) (supra). Further the trial Court's findings, are not based on correct appraisal. In the case of Ram Das v. Ishwar Chandra ( AIR 1988 SC 1422 ) (supra), it has been held, as shown above that the jurisdiction enables the court of revision, in appropriate cases, to examine the correctness of the findings of fact also. The view of Supreme Court has been quoted in extenso above. I am of the view that this is a most M appropriate case and on the examination of the correctness of the findings, I find then to be not according to law. In the case of Kamla Prasad District Judge, Allahabad ((1985) 1 All Rent Cas 473) (supra), it was found that where the trial court misread the fact evidence or pleadings, such findings recorded by the trial court require interference. The trial court has miserably misread the counterfoils Exts. 2 ,and 31. Another aspect of the instant controversy is that the interpolations on the counterfoils (Exts. 2 and 3). The trial court has not interpreted the document according to law. These two documents bear so thick a could of suspicion that the trial court did not apply its mind to pierce the veil of suspicion. In the case of Jagdish Prasad v. Smt. Angoori Devi (supra). it has been held that the revisional authority would be entitled to rectify the legal error if a finding of fact is unwarranted, or vitiated by error of law. I am satisfied that the conclusions based on the reading of counterfoils (Exts. 2 and 3) are unwarranted and bereft of justification. it has been held that the revisional authority would be entitled to rectify the legal error if a finding of fact is unwarranted, or vitiated by error of law. I am satisfied that the conclusions based on the reading of counterfoils (Exts. 2 and 3) are unwarranted and bereft of justification. The findings recorded by the Court below as regards the rate of rent is vitiated by error of law. The rate of rent being Rs. 200/- is dubious. It is radiantly' revealing that the rate of rent is Rs. 351/-. This aspect had been miserably misread by the trial court. Municipal assessments may not be last word but is a circumstance to be considered. However it is apparent that the rent of the suit accommodation cannot be Rs. 15/- or Rs. 200/-. This finding is perverse. The rent of the suit premises is Rs. 35/- in vice of the above discussion. 38. It would be appropriate in such circumstances where the rate of rent is deputed to get it determined according to law under the Act III of 1947, and the justice requires that it would be appropriate to sent the case back to the court below with the direction that the counterfoils (Exts. 2 and 3) which has been misread be considered in the totality of the circumstances. 39. It would not be appropriate for this court to decide.this issue and as such this is a fit case which deserves to be remanded to the court below for trial according to law. 40. In the result the revision succeeds and is hereby allowed. The case is remanded to the trial court for trial afresh according to law.