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Allahabad High Court · body

2009 DIGILAW 615 (ALL)

BHAGWAN SWARUP v. HAMIDA KHATOON DEAD

2009-02-25

BHARATI SAPRU

body2009
BHARATI SAPRU, J. List has been revised. Heard Sri M. M. Jain holding brief of Sri M. K. Gupta, learned Counsel for petitioner. The name of Sri Diwakar Sharma is shown as Counsel for the re spondent but he has not cared to appear in this matter. 2. This is a tenants writ petition. The premises in dispute is a shop which is in the tenancy of the petitioner situated at village and Post Gangiri, Tehsil Atrauli, district Aligarh. The respondent No. 1 filed a S. C. C. Suit No. 264/1986 against the petitioner tenant for ejectment and for recovery of arrears of rent. 3. The tenancy of the petitioner was alleged to have been terminated by means of a notice dated 19. 12. 1985. The original landlord was one Hamida Khatoon and subsequently the respondent No. 2 Satyavati sought impleadment stating that she has purchased the property in dispute. 4. The petitioner tenant contested the said suit and specifically took a plea in his written statement that the notice dated 19. 12. 1985 which was al leged to be the notice terminating the tenancy was never served upon the peti tioner. During the pendency of the said suit one Habib Ahmad Khan also moved an application for impleadment seeking 3/4 of the rent claiming that he was also a co-landlord and that the rent claimed was to the extent of his share. He claimed that he also sent a notice to get his rent in the year 1990 in so far as notice dated 19. 12. 1985 is concerned, the petitioner stated that it was never re ceived by the petitioner and the acknowledgment bearing his signature was nothing but a forgery. The Trial Court after considering the evidence on record came to a conclusion that the notice dated 19. 12. 1985 was never served on the petitioner. The Trial Court also recorded that the plaintiff landlord had failed to prove the notice dated 19. 12. 1985 and thus, the suit for the relief of ejectment was dismissed by the Additional Judge, Small Causes Court Aligarh, by its decision dated 22. 9. 1997. 5. Against the said judgment the plaintiff landlord moved revision No. 67/1997 in favour of plaintiff landlord and held that the petitioner tenant was liable to be evicted from the premises. 6. 12. 1985 and thus, the suit for the relief of ejectment was dismissed by the Additional Judge, Small Causes Court Aligarh, by its decision dated 22. 9. 1997. 5. Against the said judgment the plaintiff landlord moved revision No. 67/1997 in favour of plaintiff landlord and held that the petitioner tenant was liable to be evicted from the premises. 6. Learned Counsel for the petitioner has vehemently argued that the or der passed by the Trial Court dated 8. 11. 1989 has been passed after considering the oral as well as other testimony of the plaintiff and the defendant and the Court had rightly come to the conclusion that the notice dated 19. 12. 1985 was never served on the petitioner tenant or received by the petitioner tenant. 7. Learned Counsel for the petitioner has vehemently argued that it was not within the jurisdiction of Revisional Court to reverse the finding of fact recorded by the Trial Court and the Revisional Court exceeded its jurisdiction in reversing the finding of the Trial Court. Learned Counsel has argued that the jurisdiction of the Court under section 25 of the Act (Small Causes Courts Act) is a limited jurisdiction and it is not open to the Revisional Court under the provisions of section 25 to reverse the finding of fact and have come to its own conclusion. He has argued that at the most if there was any error of law in the order passed by the Trial Court, the Revisional Court could have remanded the matter the Trial Court for a proper appraisal of facts and law. He has argued that the Revisional Court has committed a manifest error of law in re-appreciating the evidence on record and in recording the findings which are contrary to that of the Trial Court and on this ground alone the judgment of the Revisional Court is liable to be quashed. He has further argued that the Trial Court has recorded a clear finding of fact that the plaintiff landlord had failed to prove that the notice dated 19. 12. 1985 was ever served on the petitioner tenant and despite this the Revisional Court indulged in the re-appreciation of evidence and recorded a finding to the contrary. 8. He has further argued that the Trial Court has recorded a clear finding of fact that the plaintiff landlord had failed to prove that the notice dated 19. 12. 1985 was ever served on the petitioner tenant and despite this the Revisional Court indulged in the re-appreciation of evidence and recorded a finding to the contrary. 8. He has further argued that the presumption drawn under section 114 of the Evidence Act is not conclusive but is a rebutable presumption and, therefore, it was within the power of the Trial Court to believe the statement of the peti tioner and it rightly did so and in fact the Revisional Court committed mani fest error of law in coming to contrary conclusion. 9. Learned Counsel further argued that although the Revisional Court has reversed the finding recorded by the Trial Court with regard to the notice but has not given any cogent reason for doing so and has also further argued that in any case the conclusion drawn by the. Revisional Court are against the evidence on record and are based on a misreading and mis appreciation of documentary and oral evidence on record. 10. Apart from this learned Counsel for the petitioner has drawn the at tention of this Court to a notice dated 3/4/12. 1997 which is a notice sent by the respondent No. 2 terminating the petitioners tenancy. This is Annexure-8, reference is made to this notice in para 21 of the writ petition which read as hereunder: "21. That in view of the aforesaid notice dated 3/4/12. 1997 the alleged notice dated 19. 12. 1985 stands waived and the suit for ejectment can not be decreed. The notice aforesaid clearly shown an intention to treat the lease as subsisting. " 11. The reply to the contents of paragraph 21 are given in para 18 of the counter-affidavit and there is no specific denial of the averments made in para 21 of the writ petition. 12. In effect the petitioner has argued that that sending of the second no tice in the year 1997 by the subsequent landlord signifies that the first notice dated 19. 12. 1985 stood waived and was not acted upon. This is a subsequent cir cumstance nevertheless an important circumstance which has not been denied by the respondent in the counter-affidavit. 13. In effect the petitioner has argued that that sending of the second no tice in the year 1997 by the subsequent landlord signifies that the first notice dated 19. 12. 1985 stood waived and was not acted upon. This is a subsequent cir cumstance nevertheless an important circumstance which has not been denied by the respondent in the counter-affidavit. 13. I have heard learned Counsel for the petitioner at length and I have also perused the pleading on record including the counter-affidavit of the re spondent who has stated earlier has not cared to appear for the hearing of this matter. 14. Having heard learned Counsel for the petitioner I have come to the conclusion that the submissions made by learned Counsel for petitioner have got substance and merit. It is settled law that the powers of a Revisional Court are limited. In a series of decisions of this Court it has been held that it is not open to the Revisional Court to go into the re-appraisal of the evidence that was made before the Trial Court or to reverse the finding of fact arrived at by the Trail Court. It is the business of the Revisional Court to rectify the errors of law and in case the Revisional Court has come to the conclusion that the order of the Trial Court was not in accordance with law then it should have remanded the matter for reconsideration. 15. Therefore, in the facts and circumstances of this case it is abundantly clear that the Revisional Court has exceeded its jurisdiction and on this ground the impugned order dated 20. 7. 1999 is labile to be set aside. 16. The second circumstance which has substance is that subsequent land lord has sent a second notice for the eviction of the petitioner tenant and this lends support of this Court to believe that the first notice was waived off spe cially in view of the fact that the factum of sending the second notice has not been denied by the respondent in the counter-affidavit before this Court. 17. In view of the facts and circumstances stated above and discussions made above, the impugned order dated 20. 7. 1999 is set aside. 18. The writ petition is allowed. Petition Allowed. .