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2010 DIGILAW 2509 (ALL)

Shiv Shanker Tripathi v. Vth A. D. J. , Mainpuri

2010-08-17

DEVENDRA PRATAP SINGH

body2010
JUDGMENT Hon'ble Devendra Pratap Singh,J. - Heard learned counsel for the parties. This petition by the tenant is directed against a revisional order dated 15.7.2000 by which the revision of the landlord has been allowed setting aside the judgment of the trial court and decreeing the suit for arrears of rent and eviction. 2. The respondent landlord instituted a Small Causes Suit No. 2 of 1990 against the petitioner tenant inter alia with the allegation that he was a sitting tenant in the disputed premises at the time of purchase by the landlord on 26.10.1987 through a registered sale deed. Upon purchase the tenant was asked to vacate the premises or to pay Rs. 200/- as rent per month and though the tenant agreed to pay Rs. 150/- and to vacate it within six months, he did not do so forcing him to determine the tenancy vide notice dated 28.12.1989 demanding rent from 26.10.1987 till 26.12.1989 but neither he deposited the rent nor vacated the premises forcing him to file the said suit. 3. The petitioner tenant contested the suit admitting his tenancy but only at the rate of Rs. 100/- per month and denying that there was any default and in fact he stated that when the landlord refused to accept the rent he filed an application for deposit in Court under Section 30 of U.P. Act No. 13 of 1972. 4. After the parties had led their evidence, both documentary and oral, the trial court framed as many as five points for determination and after holding that the rate of rent was Rs. 100/- per month, it went on to hold that there was no default and it further went on to hold that U.P. Act No. 13 of 1972 was inapplicable. The landlord's revision has been allowed holding that the rate of rent was Rs. 150/- and it went on to hold that there was default and decreed the suit. 5. Learned counsel for the petitioner has urged that the revisional court travelled beyond its jurisdiction in re-appreciating the evidence on record which was in violation of Section 25 of the Provincial Small Causes Courts Act and at best it could have remanded the matter for decision afresh to the trial court. In support thereof, he has relied upon a decision of this court rendered in the case of Narain Das Vs. In support thereof, he has relied upon a decision of this court rendered in the case of Narain Das Vs. District Judge, Jhansi [2000 All.C.J. 569] and Jaidev Misra Vs. District Judge, Faizabad and others [1998 All.C.J. 1125]. 6. In the present case, it is a crucial issue as to what was the rate of rent and the burden to prove it lay on the landlord. The trial court, apart from the statement of the tenant, relied heavily on the pleadings of the suit for eviction filed by the previous owner before the purchase by the present landlord to hold that rate of rent was Rs. 100/- per month. The trial court was not justified in relying upon the pleadings of the suit filed by the previous landlord because the case of the present landlord was that the rate of rent was enhanced after he purchased it on 26.10.1987. Further, it went on to hold that there was no other evidence to show that it was Rs. 150/- per month. It totally ignored the statement of P.W. 2 Ved Prakash and P.W. 3 Rajesh Gupta, who was an independent witness. The Revisional Court considered the statement and found that it was worth believing and recorded the finding that the rent was Rs. 150/- per month. No doubt, a Revisional Court while exercising powers under Section 25 of Small Causes Courts Act, cannot re-appreciate the evidence, but where the trial court has overlooked worthy evidence, misread it or did not apply its mind, it would be within its jurisdiction to consider it and record a contrary finding. 7. The Apex Court in the case of Shyam Lal Vs. Rasool Ahmad [2002 (5) AWC 4250] has held that where the trial court has overlooked weighty and material evidence, the court under Section 25 of Small Causes Courts Act could examine it and interfere with the findings. 8. Our Court in Virendra Kumar Jaiswal Vs. Additional District Judge [ 2006 (6) ADJ 165 ] has held that where there is non-application of mind, the revisional court can interfere where there is material available on record. Normally, the revisional court should remand the case, as held in Narain Das's case (supra) and Jaidev Misra's case (supra), but the evidence was available on record and since it was an old suit of 1990, it was justified in considering the evidence itself. Normally, the revisional court should remand the case, as held in Narain Das's case (supra) and Jaidev Misra's case (supra), but the evidence was available on record and since it was an old suit of 1990, it was justified in considering the evidence itself. Thus, the argument cannot be accepted. 9. No other point has been urged. 10. For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected. Petition Rejeccted.