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2016 DIGILAW 3862 (ALL)

Anil Kumar Jindal v. Chhawan Devi

2016-11-30

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra, J. -- Heard learned counsel for the petitioners and Sri Gaurav Sharma, counsel for the respondent nos.1/1, 1/2 and 2. 2. The writ petition arises out of a JSCC Suit No.24 of 2010 filed by the respondent for arrears of rent and eviction on the ground of sub letting. The suit was decreed on 16.04.2013 and the consequential revision has been dismissed on 24.09.2016. Hence, this writ petition. 3. Learned counsel for the petitioner has assailed the impugned order on the ground that at the revisional stage, two documents were filed by the petitioners as additional evidence. The additional evidence was taken on record but the same has not been considered while dismissing the revision. The impugned revisional order is therefore, vitiated on account of non consideration of the material evidence on record. 4. The second contention raised is that the statement of DW-2 has not been considered by the revisional Court. 5. The third submission raised is that up to date rent was deposited by the tenant under Section 30 of the U.P. Act No.13 of 1972. The tender documents evidencing such deposit have wrongly and illegally been discarded on the ground that the deposit under Section 30 had been made after the reply had been furnished by the opposite parties. It is submitted that this is factually incorrect. The deposits have been made prior in time. 6. Learned counsel for the respondent on the other hand submitted that two documents filed as an additional evidence were the pan card of Om Prakash Jindal and a newspaper cutting showing that the Uthavani ceremony on the death of Radha Krishna Jindal was held in the premises in question. 7. The additional evidence, in the form of the pan card has been considered. He however, ultimately concedes that the other document admitted as additional evidence has not been adverted to in the impugned revisional order. 8. He however, submits that this document was wholly irrelevant and therefore, it did not require consideration. He has vehemently submitted that this Court may consider this document. 9. It emerges from the record that it was the case of the landlord respondents that the accommodation in question had been let out to Om Prakash Jindal. It was however, in the occupation of his nephews. He has vehemently submitted that this Court may consider this document. 9. It emerges from the record that it was the case of the landlord respondents that the accommodation in question had been let out to Om Prakash Jindal. It was however, in the occupation of his nephews. It is on this account that the Courts below have come to the conclusion that the case of sub letting, set up by the landlord, stands proved. 10. The contention of the petitioners however, was that two brothers, Radha Krishna Jindal and Om Prakash Jindal were the tenants of the accommodation in question and therefore, the petitioners No.1 and 2 became tenants on the death of their father, Radha Krishna Jindal. 11. It is therefore, submitted that the finding returned on the question of sub letting is vitiated as the document has not been considered by the revisional Court, though taken on record as additional evidence. It shows that Radha Krishna Jindal, the father of the petitioner Nos.1 and 2 was also a tenant. Due to non consideration of this material evidence, the finding on the question of sub letting, is manifestly, perverse. 12. A careful perusal of the impugned revisional order reveals that the submission of the counsel for the petitioners that the entire additional evidence permitted to be adduced at the revisional stage has not been considered, is correct. 13. However, as regards, consideration of the other evidence on the record is concerned, the findings that have been returned on its basis, are not liable to be interfered with. 14. In the aforesaid facts and circumstances, it appears fit and proper that the impugned revisional order be set aside and the matter be remanded back for considering only the additional evidence filed on record, which has escaped consideration by the revisional Court. 15. Accordingly, I set aside the revisional order dated 24.09.2016 and remand the matter back to the revisional Court to pass a fresh order, after considering the additional evidence which has escaped consideration, while passing the impugned order. 16. It is further provided that it is only this additional evidence, which requires to be considered. As regards, the other evidence on record, the same in my considered opinion, does not require any further re-consideration. 17. 16. It is further provided that it is only this additional evidence, which requires to be considered. As regards, the other evidence on record, the same in my considered opinion, does not require any further re-consideration. 17. The revisional Court may therefore, pass a fresh order, after considering the additional evidence, which has escaped consideration, expeditiously, and positively within a period of three months from the date a certified copy of the order is filed before it. 18. Accordingly this writ petition is allowed in part. The matter is remanded back to the revisional Court for a decision in the light of the observations/ directions contained herein-above.