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2014 DIGILAW 1542 (ALL)

Gopal Kumar Singhal v. Sumat Prasad Jain

2014-05-12

SUDHIR AGARWAL

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JUDGMENT Sudhir Agarwal, J. 1. Heard Sri K.K. Arora, learned counsel for the petitioner. None appeared on behalf of respondent though the case has been called in revised. In the circumstances, I proceed to hear the matter on merits. 2. The writ petition is directed against the judgment and order dated 07.08.2006 passed by Additional District Judge, Court No. 2, Meerut setting aside Trial Court's judgment dated 22.03.2004 passed in SCC Suit No. 30 of 2001. 3. The eviction suit was instituted by respondent-landlord, Sumat Prasad Jain impleading petitioner, Gopal Kumar Singhal as defendant alleging that there is default in payment of rent and, therefore, defendant is liable for eviction. The suit was contested by defendant stating that he is not the tenant in shop in dispute and, therefore, there is no relationship of landlord and tenant between parties hence suit is not maintainable. 4. The Trial Court formulated five issues and issue No. 1 reads as under: "1. Whether there is any relationship of landlord and tenant between the parties" 5. The aforesaid issue was decided by Trial Court, after assessing evidence, in favour of defendant-tenant holding that shop in dispute was in fact under the tenancy of defendant's wife, Smt. Rashmi Singhal, who was not made party in the suit and defendant, Gopal Kumar Singhal being not a tenant, the suit was not maintainable. Since issue No. 1 itself was decided in favour of defendant, which went to the root of the matter, the suit was dismissed without going into other issues. 6. However, this finding on issue No. 1 has been reversed by Revisional Court by re-examining and re-assessing the evidence as if it is sitting in appeal and despite the fact that there was no evidence to show that defendant himself was tenant in accommodation in question yet on conjectures and surmises it has held that Smt. Rashmi Singhal, being wife of defendant, for all practical reasons, the defendant is the tenant. In my view, approach of Revisional Court under Section 25 of Provincial Small Cause Courts Act, 1887 (hereinafter referred to as the "Act, 1887") is clearly erroneous inasmuch as under the revisional jurisdiction it could not have sit in appeal to re-assess the evidence and decide pure question of fact by re-examining the evidence. 7. In my view, approach of Revisional Court under Section 25 of Provincial Small Cause Courts Act, 1887 (hereinafter referred to as the "Act, 1887") is clearly erroneous inasmuch as under the revisional jurisdiction it could not have sit in appeal to re-assess the evidence and decide pure question of fact by re-examining the evidence. 7. The scope of interference of a Revisional Court under Section 25 Act, 1887 is whether the decree or order made by Small Cause Court was according to law or not. Undoubtedly it is a supervisory power and not appellate power. The Revisional Court can call for record to see whether decree is according to law and, if not, it can pass such order with respect thereto as it may thinks fit. 8. The next question is, the ambit of the words "according to law" occurring in Section 25 of Act, 1887. 9. The Apex Court considered the same in Hari Shanker Vs. Rao Girdhari Lal Choudhary, AIR 1963 SC 696 and held that it refers to the decision as a whole and not to be equated to error of law of or of fact simpliciter. It contemplates that entire decision, i.e., the overall decision must be according to law. There should be no miscarriage of justice due to a mistake of law. 10. Some of the instances where the Court can interfere under Section 25 are, (1) where the Court has no jurisdiction in the matter; (2) where a party had not been given a proper opportunity of being heard, or that the burden of proof had been misplaced on wrong shoulders; (3) where the Court had based its decision on evidence which should not have been admitted; (4) where there has not been a proper trial according to law; and (5) if on certain facts two views are possible, then a Court exercising jurisdiction under Section 25 was not interfered. 11. The observations of Beaument, C.J. in Bell and Co. Ltd. Vs. Waman Ramraj, AIR 1938 Bombay 223 were referred and approved by Apex Court in Hari Shanker (supra). It further said: "the court ought not to interfere merely because it thinks that possibly the judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at." 12. In Malini Ayyappa Naicker Vs. Waman Ramraj, AIR 1938 Bombay 223 were referred and approved by Apex Court in Hari Shanker (supra). It further said: "the court ought not to interfere merely because it thinks that possibly the judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at." 12. In Malini Ayyappa Naicker Vs. Seth Manghraj Udhavdas Firm, AIR 1969 SC 1344 it was held that a wrong decision on facts by a competent court is also a decision according to law. The Court has no power to de novo examine the findings of facts reached by Trial Court. 13. In Ram Narain Vs. Kanhaiya Lal Vishwakarma, 1965 ALJ 989 a Division Bench said that Revisional Court is not empowered under Section 25 to look into evidence of case and decide whether the finding of fact arrived at by court below is justified by evident on record or not. 14. The language of Section 25 is different than the Revisional Court powers conferred on civil court under Section 115 C.P.C. 15. Act, 1887 constitute Small Cause Courts of exclusive on preferential and limited jurisdiction. The class of suits not cognizable by small causes is listed in the schedule appended to Act, 1887. The provisions of Civil Procedure Code inapplicable to Small Cause Court are provided in Section 7 of C.P.C. By Section 40 of Bengal, Agra and Assam Civil Courts Act, 1887 certain provisions thereof, i.e., Sections 15, 32, 37, 38 and 39 have been applied to Small Cause Courts. Vide Section 7 the applicability of Sections 96, 112 and 115 C.P.C. is made inapplicable to Small Causes Court, meaning thereby its judgment is made non-appealable. The Trial in Small Cause Court is summary and its decision is final subject to revision under Section 25 only. It is in these circumstances, one has to make a distinction between power of Revisional Court under Section 25 and other appellate and revisional powers under C.P.C. or other provisions of procedural statutes. 16. The circumstances where Revisional Court to find out whether decision of Small Cause Court is in accordance with law may look into the facts without assessment have been explained in para 19 and 20 of judgment of Division Bench in Laxmi Kishore and another Vs. Har Prasad Shukla, 1981 ARC 545 and it says: "19. 16. The circumstances where Revisional Court to find out whether decision of Small Cause Court is in accordance with law may look into the facts without assessment have been explained in para 19 and 20 of judgment of Division Bench in Laxmi Kishore and another Vs. Har Prasad Shukla, 1981 ARC 545 and it says: "19. If it finds that there is no evidence to sustain a finding on a particular issue of fact, it can ignore that finding. Same will be the case where the finding is based only on admissible evidence. In such case, the court will be justified in deciding the question of fact itself, because the evidence is all one way. No assessment is needed. The court can also decide the revision if only a question of law or some preliminary point of law, viz. validity of notice, is sufficient for its decision. 20. But, if it finds that a particular finding of fact is vitiated by an error of law, it has power to pass such order, as the justice of the case requires; but it has no jurisdiction to reassess or reappraise the evidence in order to determine as issue of fact for itself. If it cannot dispose of the case adequately without a finding on a particular issue of fact, it should send the case back after laying down proper guidelines. It cannot enter into the evidence, asses it and determine an issue of fact." 17. The bar is in effect with respect to reassessment of evidence and substitute its conclusion of fact but not where relevant evidence has not been considered or finding is based on inadmissible evidence or finding is without any evidence etc. In Dr. D. Sankaranarayanan Vs. Punjab National Bank, 1995 Supp. (4) SCC 675 the Apex Court reiterate that reassessment of evidence is not permissible to substitute its own inference but not where the decision is not in accordance with law. If the Revisional Court does not agree with finding, that by itself cannot be a ground since it is within the realm of assessment of evidence. This is what has been observed by Apex Court in Rafat Ali Vs. Sugni Bai and others, JT 1998(8) SC 157; Sri Raj Laxmi Dyeing Works Vs. Rangaswami, JT 1998(4) SC 46; Sarla Ahuja Vs. United Insurance Company Ltd., JT 1998(7) SC 297; and, Ramdoss Vs. This is what has been observed by Apex Court in Rafat Ali Vs. Sugni Bai and others, JT 1998(8) SC 157; Sri Raj Laxmi Dyeing Works Vs. Rangaswami, JT 1998(4) SC 46; Sarla Ahuja Vs. United Insurance Company Ltd., JT 1998(7) SC 297; and, Ramdoss Vs. K. Thangavelu, JT 1999(10) SC 51. 18. In view of above the impugned order cannot sustain. The writ petition is allowed. The impugned revisional judgment and decree dated 07.08.2006 is hereby quashed and the judgment and decree of Trial Court dated 22.03.2004 is hereby restored and confirmed. No costs.