Research › Search › Judgment

Allahabad High Court · body

2000 DIGILAW 1197 (ALL)

SACHHIDA NAND v. DISTRICT JUDGE BALLIA

2000-09-08

R.H.ZAIDI

body2000
R. H. ZAIDI, J. Heard learned Coun sel for the parties and also perused the record. 2. By means of this petition filed under Article 226 of the Constitution of India, petitioners pray for issuance of a writ order or direction in the nature of certiorari quashing the judgment and order dated 1-11-1989 passed by the District Judge in exercise of power under Section 18 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U. P. Act No. XIII of 1972), for short the Act allowing the revision filed by the contesting Respondent No. 2 and dismiss ing the application filed by the petitioner under Section 16 (1) (b) of the Act. 3. It appears that on an application filed under Section 16 (l) (b) of the Act proceedings were initiated. The Rent Con trol Inspector was asked to make local inspection and submit his report, which was submitted. On receipt of the report the notices were issued to the parties con cerned. The petitioners contended that the shop in dispute was in the tenancy of Udit Bhagat, the grand-father of the petitioners. On his death the tenancy rights devolved upon his sons, Ramnath Sonar and Shyam Nath Sonar. On the death of Ramnath, Bishuni Devi became the tenant of the building in question along with Shyam Nath. After the death of Smt. Bishuni Devi, the petitioners continued in occupation therefore, there was no vacancy and the application filed under Section 16 (l) (b) of the Act was liable to be dismissed. 4. On the other hand respondent (sic) landlord took the plea that Ramnath was the tenant of the shop in dispute. On his death, (sic) Smt. Bishuni Devi and Bishuni Devi died issuless. Consequently the shop in dispute fell vacant. The parties in sup port of their cases produced evidence oral and documentary. The Rent Control and Eviction Officer after going through the evidence on the record, recorded findings on the relevant questions involved in the case in favour of the petitioners. It was held that other members of the family continued in occupation of the shop in dispute, consequently the shop in dispute was not vacant. He has also referred to and relied upon other documents, such as, rent note executed in the year 1948. It was held that other members of the family continued in occupation of the shop in dispute, consequently the shop in dispute was not vacant. He has also referred to and relied upon other documents, such as, rent note executed in the year 1948. Having recorded the said findings, the application filed by the Respondent No. 2 was dis missed by the judgment and order dated 16-5-1986. Challenging the validity of the said order passed by the Rent Control and Eviction Officer, the Respondent No. 2 filed a revision under Section 18 of the Act before the revisional authority. Before the revisional authority, it was contended that the original tenant of the shop in dispute was Ramnath. On his death, the tenancy rights devolved upon Smt. Bishuni Devi who has also died leaving behind no heirs or legal representatives nor any member of the family within the meaning of the term used under the Act survived her. The revisional authority accepted the case as set up by the Respondent No. 2 and cursorily set aside the findings recorded by the Rent Control and Eviction Officer and allowed the revision by means of the impugned order dated 1-11-1989. Hence the present petition. 5. Learned Counsel for the petitioners vehemently urged that the Respondent No. 1 was exercising powers under Section 18 of the Act which were limited. The revisional authority could in terfere with the judgment of the Rent Con trol and Eviction Officer if there was any question of jurisdiction was involved. He had no jurisdiction to interfere with the findings of fact nor he had the jurisdiction to re- appraise the evidence. It was also urged that the findings recorded by the revisional authority are not based on any evidence on the record, they are apparent ly erroneous and illegal. The impugned judgment is, therefore, liable to be set aside. On the other hand, learned Counsel appearing for the Respondent No. 2 sup ported the validity of the impugned order. It was urged that the revisional authority was right in holding that Smt. Bishuni Devi was the tenant in her own right who had died issuless, therefore, the shop in dispute was legally vacant and the revision was thus rightly allowed. It was urged that the revisional authority was right in holding that Smt. Bishuni Devi was the tenant in her own right who had died issuless, therefore, the shop in dispute was legally vacant and the revision was thus rightly allowed. The learned Counsel appear ing for the Respondent No. 2 also referred to and relied upon certain documents which according to him were filed before the Rent Control and Eviction Officer. 6. 1 have considered the submissions made by learned Counsel for the petitioner and also perused the record. 7. It is well settled in law that the revisional authority in exercise of power under Section 18 of the Act, has got no jurisdiction to re-appraise the evidence. In case the findings are found to be perverse, erroneous or illegal, it has got the jurisdic tion to set aside those findings but could not substitute its own findings for the findings recorded by the Rent Control and Eviction Officer. The revisional authority has in para graph 5of the judgment held as under:- "it has been urged before this Court that the Rent Control and Eviction Officer has erred in holding that the property was not liable to release by virtue of occupation by the OPs. It must be mentioned that admittedly Smt. Bishuni Devi was the tenant and she had no issue as it is born out by the record. After the death of Smt. Bishuni Devi the OPs became owners of her assets on account of the Will executed in their favour. The misunderstanding lies on this place because it must be made clear that by virtue of Will the tenancy will not devolve upon the heirs. The receipt etc. which had been referred by the Rent Control and Eviction Officer do not show that there is any ground to believe that out (sic) the tenancy. In these circumstances the Ops even if they had been living in that premises they would not be entitled to any right as the tenancy was not with them nor they are direct descendants of Smt. Bishuni Devi the original tenant. The revision therefore, must be allowed and the order of the Rent Control and Eviction Officer dated 6-5-1986 must be set aside. The application of Gauri Shanker Pandey that he is landlord must be allowed. " 8. The revision therefore, must be allowed and the order of the Rent Control and Eviction Officer dated 6-5-1986 must be set aside. The application of Gauri Shanker Pandey that he is landlord must be allowed. " 8. In paragraph 1 to 4 the facts were noticed and the entire case was discussed and concluded in one paragraph. A reading of the aforesaid paragraph clearly shows that the revisional authority did not refer to any oral and documentary evidence. He has reversed the findings recorded by the Rent Control and Eviction Officer, substituted in its own findings. The said findings are find ings recorded by the revisional authority which are not based on any evidence on record. The judgment and order passed by the appellate authority is thus, wholly il legal and without jurisdiction. 9. A reference in this regard may be made to the decision in Rafat Ali Khan v. District Judge, Banda and others, 1995 (2) ARC 436; 1995 (2) JCLR 683 (All), in which it was held by this Court as under :- "it has consistently been held by this Court that the revisional Court in exercise of power under Section 25 of the Act has got no jurisdic tion to re-appraise the evidence and to reverse the findings recorded by the trial Court on ques tion of fact and substitute his own findings. It has further been held that in the event the revisional Court is not satisfied with the findings recorded by the trial Court on question of fact he could at the best remand the case to the trial. Court. In any view of the matter revisional Court has got no jurisdiction to re-appraise the evidence and to reverse the findings of fact. " 10. It may be noted that in Rafat AH Khans case it was held that under Section 25 of the Provincial Small Cause Courts Act the powers under said Section are wider than the power conferred on the revisional authority under Section 18 of the Act. Sec tion 18 is analogous to Section 115 of the Code of Civil Procedure. Under Section 115 CPC, interference can be made by the revisional Court only if the order suffers from jurisdiction or error or the Court below acts illegally or with material irregularity in exercise of this powers and not otherwise. Sec tion 18 is analogous to Section 115 of the Code of Civil Procedure. Under Section 115 CPC, interference can be made by the revisional Court only if the order suffers from jurisdiction or error or the Court below acts illegally or with material irregularity in exercise of this powers and not otherwise. Thus, the impugned order passed by the Court below is wholly illegal and without jurisdiction. In view of these facts, the sub mission made by learned Counsel for the petitioners has got force. The writ peti tion, therefore, deserves to be allowed. 11. The writ petition succeeds and is hereby allowed. The judgment and order dated 1-11-1989 is hereby quashed. The case is remanded to the revisional authority for a decision afresh in the light of the above observations. It is, however, observed that the revision shall be decided afresh by the revisional authority, expeditiously. Petition allowed. .