JUDGMENT 1. - This litigation between the landlord and the tenant has had a chequered career a period of about 15 years. The controversy involved is with regard to enjoyment of amenity by the tenant. 2. The facts are these : Respondent No. 3 Ugam Chand is tenant in the ground floor of the house of the petitioner known as 'Chaturbhuj Bhawan'. The house opens on the main road on the eastern side. There is an open 'chowk' in the south-west side of the house having opening on the southern side. The petitioner locked this gate somewhere in 1983. Respondent No. 3 Ugam Chand therefore made an application before the City Magistrate under Section 12 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (for short the Act of 1950) for restoration of the amenity. In this application he averred that he was enjoying the amenity of using the southern gate for the last about 15 years for fetching water from the public tap, for bringing cycle etc. but the petitioner has locked the gate whereby his amenities have been cut. The application was opposed by the petitioner-landlord on the grounds that the use of the passage did not come in the definition of amenity : the passage or the gate was not let out to the tenant, and this passage was only for the use of the petitioner-landlord for taking his vehicles in the garage. 3. The application was decided by the learned City Magistrate vide order dated 13.8.1984. The landlord petitioner was directed not to put obstruction in the use of passage. The petitioner landlord challenged this order by way of appeal before the District Magistrate who vide order dated 14.1.1986 remanded the case for deciding afresh. 4. On 12.6.1987 the learned City Magistrate ordered the parties to produce evidence. This order was again challenged by the petitioner-landlord before the District Magistrate by way of appeal. 5. The appeal was partly allowed on 29.8.1988 directing the City Magistrate to decide the matter in the light of the observations made in the order. 6. The learned City Magistrate thereafter directed the parties to produce evidence on two points. The petitioner landlord refused to produce evidence on one of the points but led evidence on the other point. The tenant respondent also led evidence. 6. The learned City Magistrate thereafter directed the parties to produce evidence on two points. The petitioner landlord refused to produce evidence on one of the points but led evidence on the other point. The tenant respondent also led evidence. The learned City Magistrate after hearing the parties held that the tenant had a right to enjoy the amenity of the passage and therefore the petitioner landlord was directed to open the lock of the gate. This order was challenged by the petitioner landlord before the District Magistrate who vide order dated 30.8.1994 dismissed his appeal. 7. The petitioner's case is that the City Magistrate has misread the petitioner's notice dated 31.8.1983 sent to the tenant and on the alleged admission of the petitioner which he never made, the City Magistrate has concluded that the tenant had been enjoying the amenity from the very beginning. It has been averred that the tenant is residing in the ground floor of the house facing east on the main road, and he had no scooter and even did not have the driving licence and therefore he had no occasion to use the southern side gate. It has been further averred that there was no occasion to fetch water from outside from the public tap as already two connections are there in the house. It has been stated that the 'chowk' situate on the southern side of the house has been in the exclusive use of the petitioner landlord and no tenant had ever used it as a passage. It has been further stated that the City Magistrate has discarded the affidavits filed by the petitioner landlord without sufficient grounds and he has passed non- speaking order without discussing the petitioner's evidence. 8. In the return filed by the respondent No. 3 it has been averred that from the very beginning the right of passage from the disputed 'chowk' and gate was given to the respondent No. 3. It has been stated that the 'chowk' was being used by this respondent to dry clothes, fetch water from the public tap and keep the cycle and scooter. It has been stated that milkseller and newspaper hawker supplied milk and newspaper through this passage. It has been stated that the 'chowk' was being used by this respondent to dry clothes, fetch water from the public tap and keep the cycle and scooter. It has been stated that milkseller and newspaper hawker supplied milk and newspaper through this passage. It has been stated that the learned City Magistrate has rightly decided the matter against the petitioner landlord as he did not lead evidence on the issue and the two witnesses gave affidavits in support of both the parties. It has been denied that the learned City Magistrate has not correctly read the petitioner's notice dated 31.8.1983 to the respondents. 9. In the reply filed by respondent Nos. 1 and 2 i.e. the District Magistrate and the Additional Dist. Magistrate (City Magistrate), Jodhpur it has been averred that the controversy has been correctly decided. 10. The contentions of Mr. Purohit were these: (i) The disputed passage does not come in the definition of amenity as the respondent had a direct passage to the main road on the eastern side, (ii) The learned City Magistrate has erred in discarding two affidavits filed by the petitioner landlord, (iii) The learned City Magistrate has not decided the matter on the points stated in the appellate order, (iv) There was no admission of the petitioner in his order, (v) If the order of the Magistrate is complied with, there will be risk to the safety of the house and the other tenants. 11. On the other hand Mr. Loonker, learned counsel for the respondent No. 3 supported the orders of the City Magistrate and the District Magistrate. He contended that the enjoyment of passage cannot be denied on the ground that other passage is available more so when the eastern side passage is longer one. He submitted that the City Magistrate has decided the matter as per the directions of the appellate Court and he has not committed any error in discarding two affidavits filed by the petitioner-landlord. 12. Mr. Jain supported the case of respondent No. 3. 13. I have considered the above arguments. The first question to be determined is whether the enjoyment of passage is amenity within the meaning of Section 12 of the Act of 1950. Section 12 of the Act of 1950 reads as follows:- "12. 12. Mr. Jain supported the case of respondent No. 3. 13. I have considered the above arguments. The first question to be determined is whether the enjoyment of passage is amenity within the meaning of Section 12 of the Act of 1950. Section 12 of the Act of 1950 reads as follows:- "12. Landlord not to cut off or withhold amenities enjoyed by the tenant - (1) No landlord either himself or through any person acting or purporting to act on his behalf shall, without the previous permission of the Magistrate cut off or withhold the amenities enjoyed by the tenant in respect of the premises let to him. (2) xxx" Explanation I has been appended to Section 12 of the Act of 1950, which reads as under:- "Explanation I - In this section, the expression "amenities" include supply or water of electricity, passages, staircases, light, lavatories, lifts and conservancy or sanitary services". 14. It is to be noticed that any fitting affixed to and amenities provided in a building or part for the more beneficial enjoyment thereof comes within the definition of the "premises" under clause (v) of Section 3 of the Act of 1050. 15. Amenity has not been defined in the Act of 1950. The word amenity is noun derived from the French word "amenite" which means conducive to comfort. In Legal Glossary, Govt. of India 1979 amenity has been defined as thing that conduces to physical or material comfort or convenience or to a pleasant and agreeable life. In the Webester's Third New International Dirctionary the word "amenity" has been defined as something that conduces to physical or material comfort or convenience or to a pleasant and agreeable life. 16. It is thus obvious that if the enjoyment is something which provides material comfort or convenience to a person, it will amount to amenity. The explanation I makes it clear that passage is an amenity. 17. The question is where there are more than one passages whether all of them will come under the definition of amenity. It is difficult to give exact answer of the question. It will depend upon the facts and circumstances of each case. The explanation I makes it clear that passage is an amenity. 17. The question is where there are more than one passages whether all of them will come under the definition of amenity. It is difficult to give exact answer of the question. It will depend upon the facts and circumstances of each case. If one passage does not directly reach to the place from where something is to be fetched and it is the longer route than the other one, it cannot be said that on the availability of former passage the use of second passage will not amount to amenity. 18. It is to be noticed that in the explanation in respect of some of the items plural words have been used and passage is one of them which makes it clear that even more than one passage will come under the expression amenity. 19. The next question to be determined is whether the learned City Magistrate committed error in not relying on the affidavits of two deponents filed by the petitioner landlord. The learned City Magistrate has observed that these deponents Suraj Prakash and Padamalal have given affidavits in support of both the parties. It is obvious that both these witnesses were not reliable and the learned City Magistrate has rightly discarded their testimony. In a case, where a witness at one time swears in favour of one party and, in the same proceedings swears in favour of other party, the Court does not have any other alternative but to reject his testimony outright. 20. The next contention of Mr. Purohit was with regard to non-compliance of the order of the appellate Court by the City Magistrate. This argument has been built on the premises that in the order dated 29.8.1988 the appellate Court had directed that the learned trial Court shall decide as to since when the tenant Ugam Chand was enjoying the amenity of the disputed passage and when the amenity was cut off. The learned City Magistrate has decided the matter in these terms that it was proved that before the lock was put by the landlord on the disputed gate, the passage was the part of the tenancy. 21. The learned City Magistrate has decided the matter in these terms that it was proved that before the lock was put by the landlord on the disputed gate, the passage was the part of the tenancy. 21. It is relevant to state here that in the earlier order of remand the Appellate Court had directed to decide whether enjoyment of the disputed passage was in the contract of the tenancy or not. On the basis of this remand order, the learned City Magistrate had framed an issue. That order was challenged and the District Magistrate modified the order. The modified order reads as follows:-(Hindi matter deleted Editor) 22. It is true that the City Magistrate has not decided the issue as framed by the District Magistrate in the order dated 29.8.1988, but the question is whether on this ground the writ petition can be allowed. Whatever the wordings were used in the order dated 14.1.1986 or 29.8.1988, the clear intention of the appellate Court was to get decision as to since how long the tenant was enjoying the amenity of the disputed passage and at what point of time it was cut off by the leaned. 23. The gist of the order of the City Magistrate is that the tenant was enjoying the amenity from the time of the tenancy and it was cut off in 1983. The City Magistrate of course should have avoided referring the terms of tenancy in view of the second order of the appellate Court, but on his making a mention of terms of tenancy, the order cannot be quashed. It is the gist of the order, which matters and not the words used in the order. 24. It is significant to point out that the petitioner-landlord refused to lead evidence on the first point mentioned in the orders dated 12.6.1987 and appellate order dated 29.8.1988 that whether the tenant used to fetch water etc. through the disputed passage. When the petitioner-landlord chose not to lead evidence on this point, he has no right to assail the findings of the City Magistrate recorded on the basis of the evidence and material produced by the tenant. 25. through the disputed passage. When the petitioner-landlord chose not to lead evidence on this point, he has no right to assail the findings of the City Magistrate recorded on the basis of the evidence and material produced by the tenant. 25. In the order of the City Magistrate there is a reference of admission of the petitioner in the reply filed by him to the effect that Ugam Chand was his tenant for the last about 15 years and he had not put the lock on the southern side gate for 15 years. On these facts, learned City Magistrate has drawn an inference that the passage was in the enjoyment of the tenant from the very beginning. The reply is Annexure 3A. In Para No. 6 it has been clearly stated that the petitioner had not locked the gate since 1951 and lock was put some years before the date of reply i.e. in 1982. It cannot be accepted that the City Magistrate has misread the reply containing admission of the petitioner. 26. In the order Annexure 4, there is also a mention of one more admission of the petitioner-landlord. It is with reference to order sheet dated 13.8.1984. It has to be accepted that there is no such admission of the petitioner- landlord in that order. The relevant portion of the order dated 13.3.1984 Annexure 4 is reproduced:-(Hindi matter deleted Editor) 27. The City Magistrate observes that there is no word "Nahi" after the word " " in the order which shows that the landlord had admitted the existence of passage for coming and going. There is obvious error on the part of the City Magistrate to treat is as admission of the petitioner-landlord. It seems that by mistake the word "Nahi" was not written in the order. The sequence of the sentence shows that the landlord wanted to say that the passage was not available for coming and going. Be that as it may. This does not effect the finding of the learned City Magistrate that the tenant was enjoying the amenity of the disputed passage since the time of tenancy. 28. The matter has been decided by the learned City Magistrate on the basis of the affidavits produced before him. Be that as it may. This does not effect the finding of the learned City Magistrate that the tenant was enjoying the amenity of the disputed passage since the time of tenancy. 28. The matter has been decided by the learned City Magistrate on the basis of the affidavits produced before him. The petitioner has not filed the copies of the affidavits to show that the Magistrate has not correctly read the evidence contained in them or that he has omitted to read the importance portion thereof. 29. On the basis of the affidavits filed in the case it has been found established by the Magistrate that the obstructed passage was being used by the tenant for fetching water, milk and newspaper and for going to flour mill. This Court cannot be invoked to correct an error of fact even if it is there. It is obviously not a case where there is a mistake apparent on the face cannot be justified in interfering with finding of fact recorded by the trial Court and affirmed by the appellate Court. It is settled principle of law that under Article 226 of the Constitution of India also, this Court does not act as an appellate Court. Under Article 227 of the Constitution of India also, this Court exercises only supervisory jurisdiction. The extra-ordinary jurisdiction of this Court of the record. The mistake committed by the City Magistrate which has been pointed out above does not affect the conclusions arrived at by him. It is reiterated at the cost of repetition that the petitioner landlord refused to lead evidence on the point of enjoyment of passage by the tenant and therefore the learned City Magistrate had no alternative but to accept evidence led by the tenant. 30. It has come on record that the gate was open for about 15 years. It has not been stated by the petitioner that there was any incident endangering the safety of the house. It is of course in the interest of both the landlord and the tenant to keep the gate closed in the night. An arrangement may be made by keeping two keys of the lock of the gate. Both the petitioner-landlord and tenant may keep one key each with them and the gate may be opened by either of them when required and closed when the purpose is over. An arrangement may be made by keeping two keys of the lock of the gate. Both the petitioner-landlord and tenant may keep one key each with them and the gate may be opened by either of them when required and closed when the purpose is over. Therefore, on the contention of risk to safety the tenant cannot be denied enjoyment of the amenity which he was enjoying from the very beginning of the tenancy. 31. On a careful consideration of the entire material on record I find no cause to interfere in the impugned orders. 32. Consequently, the writ petition being devoid of merit, is dismissed.Petition dismissed. *******