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2011 DIGILAW 1013 (ALL)

Mohd. Naime & others v. Kamla Devi

2011-04-20

RAKESH TIWARI

body2011
Rakesh Tiwari, J.;- Heard counsel for the petitioner and perused the record. 2. By means of this writ petition, the petitioners have prayed for quashing of the order dated 15.2.2011 in SCC Revision No. 71 of 2010 passed by the Additional District Judge, Court No. 15, Kanpur Nagar whereby he has set aside the order dated 14.7.2010 in SCC Case No. 222 of 2000 remanding the matter back to the trial Court for deciding afresh in accordance with the observations made in the body of the judgment. 3. Brief facts of the case are that the petitioners are landlords of House no. 98/182-C, Kallu Mall Ka Bagicha Lala Road, Bekanganj City, Kanpur and the respondent is tenant of a room at the rate of Rs.50/- per month in addition to water tax and sewer tax etc. on ground floor of aforesaid house no. 98/182-C. 4. Smt. Baso Begum, mother of the petitioner filed SCC suit No. 222 of 2000 for arrears of rent and ejectment against the respondent on the ground of default in payment of rent. She died during the pendency of the case. A notice was sent by the petitioner to the respondent in which it has been stated that rent from 1.3.1993 to 31.1.2000 i.e. Rs.4,156/- and Rs. 347/- tax etc. are due which have not been paid. The tenant was instructed to pay the aforesaid amount within 30 days from the date of receipt of the notice but she has not paid the aforesaid amount. 5. The respondent tenant filed her written statement denying the averments made in the suit. The petitioners also filed their rejoinder affidavit denying the averments made in the written statement. 6. The Judge Small Causes Court, Kanpur Nagar after considering the evidence of the parties on record vide judgment and order dated 14.7.2010 allowed SCC Suit No. 222 of 2000. SCC Revision No. 71 of 2010 preferred by the tenant challenging the validity and correctness of the judgment and order dated 14.7.2010 of the Judge Small Causes Court, Kanpur Nagar was allowed by the Additional District Judge, Court no.15, Kanpur Nagar vide order dated 15.2.2011 remanding the matter back to the court below for decision afresh in accordance with the observations made in the body of the judgment and directed the parties to appear before the court below on 26.2.2011. 7. 7. Aggrieved by the aforesaid judgment and order dated 15.2.2011of the Revisional Court, the present writ petition has been filed with the aforesaid prayer. 8. Learned counsel for the petitioner submits that the impugned order dated 15.2.2011 passed by the Revisional Court is wholly illegal, arbitrary and against the evidence and material on record; that the Revisional Court has failed to consider that the trial Court after considering that the respondent has deposited Rs.6,000/- at the time of first hearing but has failed to comply with the provisions of II part of Order 15 Rule 5 of C.P.C., hence the Revisional Court has no jurisdiction to interfere in the finding of fact of the trial Court; that the Revisional Court has exceeded its jurisdiction while considering paper nos. 17Ga/7, 17Ga/3, 17Ga/12 and 17Ga/13 rent receipts which were not filed by the respondent before the trial Court and it was not a part of evidence before the trial Court; that the trial Court while considering all the tenders filed by the respondent held that regarding rent from September, 2003 to August, 2004 and September, 2001 to February, 2002 no evidence has been filed and also has failed to give any evidence with regard to deposit of rent from August, 2005 to 2010, hence the court below has rightly held that the respondent has failed to comply with the provisions of II Part of Order 15 Rule 5 of C.P.C. and therefore, in view of law laid down in the case of Jagdish Kumar Khanna versus Smt. Shakuntala Devi reported in 1980 A.R.C. page 535, the tenant is not entitled to get the benefit of Section 20(4) of Uttar Pradesh Urban Buildings ( Regulation Of Letting, Rent And Eviction) Act, 1972. 9. It is lastly submitted that it is settled principle of law that if Revisional Court feels that material piece of evidence was not taken into consideration by the trial Court, it is always open to it while exercising jurisdiction under Section 25 of the Small Causes Courts Act to consider the relevant material but the Revisional Court should not have permitted the parties to lead fresh evidence before it as trial Court afforded sufficient opportunity in this regard to the respondent. 10. 10. After hearing learned counsel and on perusal of the judgment of the Revisional Court it is apparent that while remanding the matter to the trial Court for decision afresh in the light of the observations made in the body of the judgment has exceeded its jurisdiction while considering paper nos. 17Ga/7, 17Ga/3, 17Ga/12 and 17Ga/13 rent receipts which were not filed by the respondent tenant before the trial Court and it was not a part of the evidence before the trial Court and in directing to decide the matter in the light of the judgment by the Revisional Court. 11. It is settled principle of law that if Revisional Court feels that material piece of evidence was not taken into consideration by the trial Court, it is always open to it while exercising jurisdiction under Section 25 of Provincial Small Causes Courts Act to consider the relevant material but the Revisional Court cannot permit the parties to lead fresh evidence before it as trial Court and then direct the trial court to follow the conclusions arrived at by the Revisional Court in the light of observations made by it. 12. Be that as it may, this Court is not inclined to enter into the merits of the case as this writ petition has been filed against the remand order and the matter is yet to be decided by the trial court. No interference is called for in exercise of extra ordinary powers under Article 226 of the Constitution. 13. The writ petition is accordingly, disposed of with observations that the court below shall decide SCC Suit No. 222 of 2000 within a period of three months from the date of production of a certified copy of this order with independent mind and not in the light of the guidelines issued by the Revisional Court. 14. No order as to costs.