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2018 DIGILAW 673 (ALL)

NAVED MIYAN v. HASNAIN FATMA

2018-03-20

SURYA PRAKASH KESARWANI

body2018
JUDGMENT : Hon'ble Surya Prakash Kesarwani,J. 1. Heard Sri Shishir Kumar Tiwari, learned counsel for the defendant-tenant/petitioner. 2. The scope of Revisional Power in Rent Matters is in issue in this petition. 3. This petition under Article 227 of the Constitution of India has been filed praying to set aside the judgment dated 1.8.2017 in SCC Revision No.07 of 2008 {Smt. Hasnain Fatma (deceased) through her legal heirs and others Vs. Mohammad Jan (deceased) through his legal heirs and others} passed by the additional District Judge, Court No.2, Bulandshahar. 4. Briefly stated facts of the present case are that the plaintiff-landlord filed SCC Suit No.27 of 1990 (Smt. Hasnain Fatma and others Vs. Mohammad Jan and others) which was decided ex-parte and the suit was dismissed on the ground that no evidence was led by the plaintiff-landlord to establish that any material alteration was made in the tenanted accommodation i.e. Balakhana. A finding was recorded that tenant had defaulted in payment of rent. But the benefit of Section 20 (4) of U.P. Act 13 of 1972 was given on the ground that a sum of Rs.1456/- was deposited by the tenant towards rent by tender on 17.1.1991. The plaintiff-landlord filed a SCC Revision No.07 of 2008 which has been allowed by the impugned judgment dated 1.8.2017 and the decree passed there in. The revisional court found that the finding of the trial court was totally perverse and in complete ignorance of the evidences led by the plaintiff-landlord. It was found that the plaintiff-landlord led the evidence of Mohasin Ali Barni being paper No.161 Ga, who was also cross examined by the defendant-tenant/petitioner but on clear evidence of material alteration in the disputed property and damage caused to it as stated by the aforesaid witness, the defendant-tenant/petitioner had neither cross examined him on those statement of facts nor made any suggestion for the aforesaid facts to be untrue. The judgment in the case of Mahboob Ali and others Vs. Smt. Indrawati and others, 2008 (26) LCD 871 and the judgment of Hon'ble Supreme Court reported in AIR 2002 SC 3652 was relied by the revisional court on the legal proposition with reference to the evidence of the plaintiffs witness Mohasin Ali Barni. The revisional court found the findings of the trial court to be perverse. It also found that no oral evidence was led by the defendant-tenant as per record. The revisional court found the findings of the trial court to be perverse. It also found that no oral evidence was led by the defendant-tenant as per record. Under the circumstances, the revision was allowed by the impugned judgment. 5. Against the aforesaid judgment dated 1.8.2017, the petitioner has filed the present petition. 6. Learned counsel for the petitioner submits that the revisional court has no power to re-appreciate the evidences or to substitute its own view as against the view taken by the trial court. Therefore, the impugned order is not sustainable and deserves to be set aside. He further submits that the revisional court should have remanded the matter to the trial court. 7. I have carefully considered the submissions of learned counsel for the petitioner. 8. There is no dispute that the plaintiff-landlord led the evidence of witness Mohasin Ali Barni, being paper no.161 Ga by which also he proved that the defendant-tenant substantially damaged the disputed accommodation and made material alteration in it. The aforesaid witness was also cross examined by the defendant-tenant but neither any question was put to him in cross examination with respect to the above nor any suggestion was made regarding the aforesaid statement of fact to be untrue. The revisional court relied upon two decisions on the facts of the present case to hold that the facts stated by the witness Mohasin Ali Barni in evidence shall be deemed to be admitted by the defendant-tenant. 9. Learned counsel for the petitioner has relied upon a decision of Hon'ble Single Judge in Om Prakash Vs. II Additional District Judge, Saharanpur, 2000(4) AWC 3173 , in support of his submission that the revisional court can not reappreciate the evidences. This Court confronted the learned counsel for the defendant-tenant/petitioner with the conclusions reached in the aforesaid judgment in the case of Om Prakash (supra) to the effect that the revisional court can rectify the defect and interfere with a finding of fact if it suffers from non consideration of vital and material evidence, or is based on consideration of irrelevant and extraneous material. In the case of Hindustan Petroleum Corporation Ltd. Vs. Dilbahar Singh, AIR 2014 SC 3708 (para 45), Hon'ble Supreme Court considered the scope of revisional power of High Court under Rent Control Laws and held as under: "45. In the case of Hindustan Petroleum Corporation Ltd. Vs. Dilbahar Singh, AIR 2014 SC 3708 (para 45), Hon'ble Supreme Court considered the scope of revisional power of High Court under Rent Control Laws and held as under: "45. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the First Appellate Court/First Appellate Authority because on re-appreciation of the evidence, its view is different from the Court/Authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/Authority below is according to law and does not suffer from any error of law. A finding of fact recorded by Court/Authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to re-appreciate or re-assess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity." (Emphasis supplied by me) 10. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity." (Emphasis supplied by me) 10. It is settled law that the revisional court can rectify the defect and interfere with a finding of fact only if the finding suffers from the defect of non consideration of vital and material evidence, or is based on consideration of irrelevant and extraneous material. However, the revisional court has got no jurisdiction to substitute its own finding of fact for the findings recorded by the trial court unless the evidence was all the one way and there has been no assessment of the same by the trial court. The revisional court may ignore the findings of fact recorded by the trial court and may record its own finding where the finding of the trial court is based on no evidence or there is absolutely no evidence on record to sustain a particular finding of fact or it is based on inadmissible evidence or the same is perverse in the sense that no reasonable man could have ever reached to the conclusion arrived at by the court below. A finding of fact recorded by the court/authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the court, in exercise of its revisional jurisdiction, shall be entitled to set aside the impugned order as being not legal or proper. 11. In the present set of facts, the evidences particularly paper No.161 Ga and cross examination, with regard to material alteration and substantial damage caused to the disputed accommodation was led by the plaintiff-landlord as aforementioned and he established his case but this evidence was completely ignored by the trial court while dismissing the suit. The finding of the trial court is based on no evidence. The finding of the trial court is based on no evidence. It is perverse in the sense that if the aforesaid evidence would have been considered, the trial court would have not reached the conclusion arrived at by it so as to dismiss the suit. The findings recorded was grossly erroneous and if it was allowed to stand then it would result in gross miscarriage of justice. Therefore, the revisional court has not committed any manifest error of law to set aside the findings recorded by the trial court and to allow the revision. 12. In view of the aforesaid, I do not find any error of law in the impugned judgment. Consequently, the petition fails and is hereby dismissed.