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1990 DIGILAW 91 (ALL)

Khalil Ullah Khan v. Iv Additional District Judge

1990-01-25

M.P.SINGH

body1990
JUDGMENT M. P Singh, J. 1. The petitioner is a tenant of the shop situated in Mohalla Purdilpur, Gorakhpur. 2. The landlord filed suit no. 475 of 1971 for ejectment and arrears of rent on the ground that the rent has not been paid by the defendant- petitioner since February, 1970 till the date of the filing of the suit. This case has got chequered history which need not be narrated in detail. After the remand order was passed by this court on 13-3-1980, the case went back to the learned Judge Small Causes for fresh decision. 3. The trial court decreed the suit on 31-8-1987 holding that the defendant was in arrears of rent from February, 1970 to January, 1971. 4. Against this order, the defendant filed a revision under section 25 of the Provincial Small Cause Courts Act before the learned District Judge, Gorakhpur. The revisional court upheld the finding recorded by the trial court on the question of default in payment of rent and dismissed the revision vide its order dated 22-12-1989. The court held that in view of the Division Bench decision of this court reported in 1979 AWC 746 Laxmi Kishore v. Har Prasad Shukla it has no jurisdiction to enter into the findings of fact recorded by the trial court. 5. Against this order dated 22-12-1989 the present writ petition has been filed. 6. Heard Sri Tarun Verma, learned counsel for the petitioner. The main contention of the learned counsel for the petitioner was that the courts below have misread the evidence on record and have wrongly held that the petitioner (defendant) was in arrears of rent. According to him the courts below while recording the finding have wrongly compared the rent receipts produced by the petitioner with a different counterfoil (paper no. 41/c). The rent receipts should have been compared with the counterfoil paper no. 39/c and not with the counterfoil paper no. 41/c. He further submitted that the defendant had moved an application on 30-3-1973 that the signatures of the landlord on the rent receipts be examined by a Handwriting expert in order to come to a correct conclusion. According to him the learned trial court has ignored this application. 39/c and not with the counterfoil paper no. 41/c. He further submitted that the defendant had moved an application on 30-3-1973 that the signatures of the landlord on the rent receipts be examined by a Handwriting expert in order to come to a correct conclusion. According to him the learned trial court has ignored this application. Even if the contention of the learned counsel for the petitioner is accepted to be true that the petitioner had filed an application for the opinion of the Hand-writing expert, this application is not so material as would affect the merit of the case. The finding is based on other evidence well discussed in the impugned orders. The finding on the question of default is a finding of fact which cannot be interfered under Article 226 of the Constitution. 7. The learned counsel for the petitioner made a reference of the case reported in 1988 AWC 1092 Hardev Misra v. IV Addl. District Judge, Gorakhpur. In that case it has been held that where the trial court has ignored to consider the material evidence, then in that event it is open to the revisional court to reconsider the evidence and record its own finding. So far as this case is concerned, it cannot be said that the courts below have committed any mistake in ignoring or misreading of the material evidence. In my opinion this case has got no application to the facts of the present case. In the instant case the burden lay on the petitioner to prove that he had paid the entire amount of rent and he was not a defaulter. 8. The learned counsel for the petitioner made a reference of the case reported in 1990 AWC 3 , Smt. B. V. David v. District Judge Allahabad. According to him in this case it has been decided that in case if there is any error apparent on the face of the record then the High Court can interfere under the writ jurisdiction. What is 'error apparent on the face of the record' has been considered in the case reported in AIR 1960 SC 137 Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirupale as under - "An error which has to be established by long drawn process of reasonings on points where there may conceivably be two opinions, can hardly be said to be an error on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to rule governing the powers of the superior court to such a writ." After perusing the record of the instant case I am satisfied that there is no error apparent on the face of the record and as such the impugned order needs no interference. 9. I do not find any merit in this writ petition. The writ petition is accordingly dismissed. Petition dismissed.