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2016 DIGILAW 4100 (ALL)

Shri Krishan Singh v. Promod Kumar Goyal

2016-12-19

ANJANI KUMAR MISHRA

body2016
JUDGMENT Anjani Kumar Mishra, J. Heard Shri Anwar Hussain, learned counsel for the petitioner and Sri Ajay Kumar Sharma, counsel for the respondent. 2. This matter was heard on 24.10.2016 and the following order was passed - " The contention of the learned counsel for the petitioner is that the finding of the fact returned by the trial court has been reversed in a revision under Section 25 of the Small Causes Court Act. Learned counsel for the caveator was being granted time for filing counter affidavit but has refused to file any counter affidavit. Accordingly I have heard learned counsel for the parties. Judgment reserved" 3. In view of the above, the matter is being decided finally. 4. This writ petition arises out of SCC Suit No.95 of 2003 filed by the respondent for arrears of rent, eviction and damages. This suit was filed regarding a shop situated at House No.L-1218, Shashtri Nagar, Meerut. This petition seeks quashing of the order dated 26.09.2016, passed by the revisional Court. 5. The suit was filed on the allegations that the provisions of the Rent Control Act were not applicable to the accommodation in question. The tenant was in arrears of rent and his tenancy was terminated. Despite notice, neither the rent was tendered nor the accommodation was vacated upon the expiry of the term of the notice and hence, the suit. 6. The tenant-petitioner alleged in his written statement that the rent till February, 2003 had been paid. Thereafter the tenant refused to accept the rent, which was sent by money order, which was also refused. Thereafter, the rent was deposited, under Section 30(1) of the U.P. Act N.13 of 1972. 7. It was also alleged that the shop in question is an old one to which the provision of U.P. Act No.13 of 1972 were attracted. The entire amount demanded have been deposited on 16.01.2004 prior to the date of hearing, namely, 21.01.2004 after adjusting the amount deposited, under Section 30(1) of the Rent Control Act and therefore, he was entitled to the benefit of Section 20(4) of the Act. 8. The Trial Court upon appreciation of evidence came to the conclusion that it was not proved that the shop in question had been constructed in 1988 as was the case of the plaintiff-landlord. 8. The Trial Court upon appreciation of evidence came to the conclusion that it was not proved that the shop in question had been constructed in 1988 as was the case of the plaintiff-landlord. It came to the conclusion that the construction was of 1983 as the shop in question was not major part of the house No.L-1218, Shashtri Nagar, Meerut and the house itself had been assessed to tax for the first time in 1983. 9. The issue of default in payment of rent was also decided in favour of the tenant holding that there was no default and that the entire amount claimed in the suit have been deposited prior to the first date of hearing. After adjusting the amount, deposited under Section 30(1) of the Rent Control Act, the total deposit made, was in excess of the amount demanded, therefore, the petitioner was entitled to the benefit of Section 20(4) of the U.P. Act No.13 of 1972. The suit was accordingly, dismissed by the trial Court vide order dated 11.07.2012. 10. The consequential revision filed by the plaintiff-landlord has been allowed vide order dated 26.09.2016, which is impugned in this writ petition. 11. The contention of learned counsel for the petitioner is that the revisional Court has interfered with the finding of fact recorded by the Trial Court upon appreciation of the evidence on record,both, on the question of the date of completion of construction as also on the question of default. Both these findings arrived at after due consideration of the evidence available on record. Essentially, there being findings of fact, could not have been interfered while exercising jurisdiction, under Section 25 of the Provincial Small Causes Court Act. It is therefore, contended that the impugned revisional order is vitiated and deserves to be set aside. 12. Learned counsel for the respondent has submitted that although it is true that a finding of fact cannot be reversed by the Court exercising powers, under Section 25 of the Provincial Small Causes Court Act. However, this is not an absolute bar in law. Even a finding of fact can be interfered with, in case, it has been arrived at, taking into consideration, irrelevant factors, or is perverse, having ignored relevant facts in evidence. In support of his contention, reliance has been placed on the judgment, in the case of Smt. Mundri Lal Vs. However, this is not an absolute bar in law. Even a finding of fact can be interfered with, in case, it has been arrived at, taking into consideration, irrelevant factors, or is perverse, having ignored relevant facts in evidence. In support of his contention, reliance has been placed on the judgment, in the case of Smt. Mundri Lal Vs. Smt. Sushila Rani and another, 2007 (69) ALR 477, especially paragraphs 21 thereof. 13. He has further submitted that the question as to whether or not the provisions of the U.P. Act No.13 of 1972 are attracted is a mixed question of fact and law. Therefore, the revisional Court was competent to appraise the evidence and record its findings thereon. It stood admitted by the tenant that five shops were constructed in 1988, as this assertion has not been specifically denied. This factual situation was glossed over by the trial Court on the reasoning that the documentary evidence filed in this regard appeared doubtful. These five shops amounted to a major portion of the house and rendered the existing structure, its minor part. The Trial Court committed a manifest error of law in holding the first date of assessment to be in 1983, ignoring the fact that the shops including the shop in dispute were constructed later, in 1988. 14. Once it was established that the constructions were new and the provisions of U.P. Act No.13 of 1972 were not attracted thereto and especially, since a valid notice have been served upon the tenant, the receipt whereof was accepted by him, his tenancy stood terminated upon the expiry of the period of notice and therefore, the question of default is rendered, wholly irrelevant. 15. He has referred to the finding returned by the revisional Court that the documentary evidence showing that the shops had been raised in the 1988 had wrongly been discarded by the trial Court as the error therein was ostensibly, a clerical error. He therefore, contends that the writ petition is devoid of merits and is liable to be dismissed. 16. I have considered the submissions made by the parties and have perused the record. 17. The issue regarding applicability of U.P. Act No.13 of 1972 is being considered first. 18. The trial Court has considered the matter in detail, referring to the various documents available on record. 16. I have considered the submissions made by the parties and have perused the record. 17. The issue regarding applicability of U.P. Act No.13 of 1972 is being considered first. 18. The trial Court has considered the matter in detail, referring to the various documents available on record. It has given cogent reasons for discarding the documents relied upon by the plaintiff to show that the building was assessed to tax for the first time in 1988. The trial Court found that this document was for the period from 01.04.1987 to 31.03.1981. It therefore, found it to be ambiguous, preposterous and unreliable and hence discarded it. The revisional Court has clearly re-appraised that the entire evidence and has over turned the finding of the trial Court on the ground that the same appears to be a clerical error. 19. It is clear from the above noted facts that the entry in the document in the question and its consequences are basically questions of appreciation of evidence. Moreover, the question of the completion of construction or the date of final assessment of a building, are essentially, questions of fact. 20. Such a finding of fact has been reversed and replaced by its own finding by the revisional Court exercising jurisdiction, under Section 25 of the Provincial Small Causes Court Act. Such an approach, in my considered opinion, is not warranted and the revisional Court did not have jurisdiction to adopt this approach. Identical is the position on the question of default as also on the question of the tenant being entitled to the benefit of Section 20 (4) of the Rent Control Act. 21. It is settled law that a revisional Court has no jurisdiction, under Section 25 of the Provincial Small Causes Court Act to re-appraise the evidence to reverse findings of fact and to substitute its own findings of such factual issues (in the case of Mewa Lal Vs. Additional District Judge, 2005, ALJ 1152). The impugned order therefore, cannot be sustained and is liable to be set aside. 22. In view of the foregoing discussion, the impugned revisional order dated 26.09.2016 is set aside. The writ petition is allowed and the matter is remanded back to the revisional Court for passing a fresh order strictly in accordance with law after hearing the parties. 23. There will however be no order as to costs.