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2018 DIGILAW 996 (ALL)

Rakesh Kumar v. Additional Distt. Judge

2018-04-23

MAHENDRA DAYAL

body2018
JUDGMENT : Mahendra Dayal, J. This is tenants writ petition challenging the order dated 20.05.2011 passed by the Additional District Judge/Judge Small Causes Court, Faizabad in SCC Revision No. 58 of 2010 whereby the revision filed by the opposite parties landlord was allowed and while setting aside the judgment and decree of the trial court, the suit was decreed with cost and the petitioner was directed to handover vacant possession of the disputed premises to the landlord within a period of two months. 2. I have heard Sri Rajendra Pratap Singh learned counsel for the petitioners and Sri Shesh Verma learned counsel for the respondents no. 2 to 6 and also perused the record. 3. The dispute relates to a part of the building bearing Municipal No. 6/8/64 (Old No. 547) situate in Mohalla Subhash Nagar, Faizabad which belonged to one Keshav Raj Singh. After the death of Keshav Raj Singh, his son Gaya Prasad became the owner and the landlord. The original tenant in the disputed premises was Vishun Lal Kanaujia who was a Washerman and his parents had migrated to India during 1947 riots and they settled at Faizabad. Vishun Lal Kanaujia was married in Mohalla Mahajani Tola Faizabad but after sometime he took the premises in dispute on rent from Sri Keshav Raj Singh for doing work of washerman. The rent was being received by Keshav Raj Singh and thereafter by Gaya Prasad. Later on, Gaya Prasad transferred the property to the respondent no. 2 and his brother Mahendra Singh by means of a registered sale deed dated 29.10.1975. They were aware of the fact that Vishun Lal was running a laundary in the premises under tenancy Vishun Lal died in the year 1988 and thereafter the petitioners and the respondents no.3 to 6 became joint tenants. The respondent no. 2, on 26.12.1990, served a notice upon the petitioners determining their tenancy on the ground that they had changed the user of the buildings from residential to commercial. However, even after issuing notice, the respondent no. 2 continued to receive the rent. Thereafter the respondent no. 2 filed a suit for ejectment against the petitioners and the respondents no. 3 to 6 in the year 1992 on the basis of notice dated 26.12.1980. The suit was contested by filing written statement and denying the change of user. However, even after issuing notice, the respondent no. 2 continued to receive the rent. Thereafter the respondent no. 2 filed a suit for ejectment against the petitioners and the respondents no. 3 to 6 in the year 1992 on the basis of notice dated 26.12.1980. The suit was contested by filing written statement and denying the change of user. The learned trial court came to the conclusion on the basis of evidence that the notice issued by the respondent no. 2 determining tenancy stood waived because he continued to accept the rent even after termination of tenancy. It was also concluded that the building was let out for business purposes and there was no change of user. With these findings the suit was dismissed. 4. The respondent no. 2 challenged the aforesaid judgment and order by filing revision before the District Judge. This revision was decided by re-appreciation of evidence and by reversing the findings of fact recorded by the trial court. In support of his arguments, the learned counsel for the petitioners has relied upon a judgment of this Court reported in 2002 (20) LCD 1132. In this case, it has been held by this Court that the court while exercising power of revision under Section 25 of the Provincial Small Cause Court Act has no jurisdiction to re-assess the evidence and record its own finding. If it cannot proceed without finding on a particular issue, it should send the matter back after laying down proper guidelines. It cannot enter into evidence and assess the same. The same view has been expressed in another decision reported in 2005 (23) LCD 1049. 5. It has been contended by the learned counsel for the petitioners that the revisional court while exercising jurisdiction under Section 25 of the Provincial Small Causes Court Act, is not empowered to re-appreciate the evidence and substitute its own findings of fact. The revision can be heard and decided only on law points. If the revisional court comes to the conclusion that the findings are perverse or the same are based on no evidence, the revisional court may after setting aside the judgment, remand the matter to the trial court but in any case the revisional court cannot record its own findings of fact by re-appreciation of evidence. In the present case, the revisional court has exceeded its jurisdiction by re-appreciation of evidence. 6. In the present case, the revisional court has exceeded its jurisdiction by re-appreciation of evidence. 6. The learned counsel for the petitioners has relied upon a latest decision on the subject rendered by the Hon'ble Supreme Court in the case of Trilok Singh Chauhan v. Ram Lal and others. This judgment has been delivered in Civil Appeal No. 20833 of 2017 decided on 11.12.2017. In this case, the Hon'ble Supreme Court has held that pure finding of facts based on appreciation of evidence, cannot be interfered with by the revisional court. 7. Sri Shesh Verma learned counsel for the respondents has submitted that although it is a general rule that revisional court should not interfere with the findings of fact recorded by the trial court but the revisional court is entitled to point out any illegal error and rectify the defect. This can be done to prevent miscarriage of justice. In support of his arguments, he has relied upon a judgment reported in 2002 (2) ARC 602. In this case, a Co-ordinate Bench of this Court has observed that although the revisional jurisdiction under Section 25 of the Small Cause Court Act is not as wide as appellate jurisdiction but the revisional authority is entitled to point out legal error and rectify the defect. If the finding is based on no evidence and is perverse, the same can be interfered with in exercise of revisional jurisdiction. 8. Reliance has also been placed upon a Supreme Court decision reported in 2002 SCC 449, Shyam Lal v. Rasool Ahmed. In this case, the Hon'ble Supreme Court has held that the power of revisional court under Section 25 of the Small Cause Court Act is similar to the power under Section 115 CPC. The revisional court may arrive at a different view based on material on record. If the trial court has overlooked any relevant material available on record, the revisional court can very well consider and rely upon the same. 9. Another case relied upon by the respondent no. 2 reported in 2005 (2) ARC 811 , Shiv Shanker Awasthi v. A.D.J./Special Judge, Fatehpur and two others. In this also it has been held that if the findings of trial court are based on inadmissible evidence or evidence has been ignored under wrong assumption, the revisional court can reassess the evidence. 10. 2 reported in 2005 (2) ARC 811 , Shiv Shanker Awasthi v. A.D.J./Special Judge, Fatehpur and two others. In this also it has been held that if the findings of trial court are based on inadmissible evidence or evidence has been ignored under wrong assumption, the revisional court can reassess the evidence. 10. In the present case, the learned trial court on the basis of pleadings framed five issue and issue no. 3 was framed to the effect as to whether the tenancy was created for use of the premises for residential purposes or commercial purposes. The learned trial court after detailed discussions of the material available on record, concluded that the premises in question was being used for commercial purposes since the time it was let out. 11. A perusal of the judgment of the revisional court reveals that the learned revisional court has reassessed the evidence and has recorded contrary findings without observing that the findings recorded by the trial court were based on no evidence or were not admissible. In the cases relied upon by the respondent no. 2, the revisional court has been found to be empowered for reassessment of the evidence only in case the revisional court comes to a conclusion that the evidence upon which the trial court placed reliance was inadmissible or there was no evidence at all. The revisional court has recorded a contrary finding only after re-appreciation of evidence. There is no observation of the revisional court that the trial court relied upon inadmissible evidence or findings are perverse. 12. Having heard the learned counsel for the parties and having gone through the judgment, I am of the view that the revisional court, without assigning any reason as to how the finding recorded by the trial court was wrong, re-appreciated the same and recorded a contrary finding. I, therefore, hold that the revisional court has exceeded its jurisdiction in re-appreciating the evidence and reversing the finding of the trial court by re-appreciation of evidence. 13. In view of the above, the writ petition succeeds and it is allowed. The impugned judgment and order dated 20.05.2011 passed in SCC Revision No. 58 of 2010 by Additional District Judge, Court No. 6, Faizabad is set aside and the judgment and decree of the trial court is upheld. 14. In the circumstances of the case, the parties shall bear their own cost.