JUDGMENT : 1. Heard Sri Ashish Kumar Srivastava, learned counsel for the revisionist and Sri Prakhar Tandon, learned counsel for the opposite parties. 2. Present revision filed under Section 25 of Provincial Small Cause Courts Act, 1887 (hereinafter called as 'the Act of 1887') challenges the judgment and decree dated 14.05.2015 passed by Judge, Small Cause Court/ Additional District Judge, Court No. 24, Kanpur Nagar in S.C.C. No. 77 of 2008 by which the court had decreed the suit for eviction and arrears of rent and damages filed by plaintiffs-opposite parties. 3. Facts in nutshell, are that plaintiffs-opposite parties are the joint owner and co-landlord of House No. 24/79 Birhana Road, Kanpur Nagar. Originally, the property belonged to Smt. Bittola Devi, widow of Late Shyam Sunder Gupta and mother of plaintiffs-opposite parties. On 11.12.2006, Bittola Devi unfortunately died and they became the legal heirs. According to plaintiffs, the house consisted of one shop and on the backside, three rooms are constructed which are connected with each other along with toilet and an open courtyard. The monthly rent of the property in dispute was Rs.750/-per month along with water tax. The provisions of Rent Control Act was applicable. From 01.01.2000, the tenant-revisionist did not tender any rent to plaintiffs-landlord. According to plaintiffs, there was outstanding rent from 01.12.2006 and from 01.01.2000 to 30.11.2006, the tenant was liable to pay Rs.750/-per month along with water tax, thus, the total outstanding was Rs.11,205/- It was also stated that the tenant had sublet the property violating the provisions of Act No. 13 of 1972. It was also stated that the tenant had purchased one house for residential purpose in the year 1978 and the sale deed was executed on 24.11.1978, thus, no benefit of Section 20(4) of the Act No. 13 of 1972 can be given to the tenant. As the rent was not tendered, registered notice was sent on 22.02.2008 demanding the rent. As rent was not tendered nor the premises was vacated, S.C.C. Case No. 77 of 2008 was filed. The tenant-revisionist contested the suit and filed his written statement and submitted that the plaintiffs had locked the doors of the passage leading to the courtyard and rooms. He has also denied the amenity of water by putting the lock, closing the access to water tap. The tenant-revisionist contested the suit and filed his written statement and submitted that the plaintiffs had locked the doors of the passage leading to the courtyard and rooms. He has also denied the amenity of water by putting the lock, closing the access to water tap. It was also stated that the tenant was a doctor and was running clinic at two places. It was also averred that the rent was tendered through money order on 01.02.2008 but the same was returned back with remark 'refused', it covered the period from 01.11.2006 to 31.10.2007. It was also averred that a sum of Rs.40,006/- was tendered on 25.07.2008. The said amount was deposited with intention that in case default in payment of dues arrears of rent is arrived at, the tenant would be relieved from liability of eviction within ambit of Section 20(4) of the Act No. 13 of 1972. Further, in Para 8 it was denied that the property was not sublet to any person in the name of A.K. Nigam and in fact the brief name of tenant-revisionist, Dr. Arun Kumar Nigam was A.K. Nigam. It was also averred that after the plaintiffs-landlord refused to accept the amount of rent, the tenant had deposited the same under Section 30 in Misc. Case No. 107/70 of 2008. 4. Lastly, notice has been contested on the ground that it did not provide the period and the tenancy did not stand determined as per Section 106 of Transfer of Property Act. In the additional written statement filed by tenant, it was stated that an application for allotment was moved by tenant for non-residential purpose on 05.06.1978 which was not opposed by landlord and in fact had given her consent for allotment and by order dated 12.12.1980 bearing no. 37, the property was allotted to tenant. Similarly, by allotment order dated 30.03.1979 being order no. 39, one kothari was allotted to the tenant which was vacated by one Ram Nath. 5. It was further averred that House No. 19/150, Patkapur was purchased by tenant jointly with his brother in the year 1978 and was thereafter sold in the year 2001, while the non-residential and residential portion was allotted in the year 1979-80, as such, benefit of Section 20(4) of the Act No. 13 of 1972 cannot be denied. 6. 5. It was further averred that House No. 19/150, Patkapur was purchased by tenant jointly with his brother in the year 1978 and was thereafter sold in the year 2001, while the non-residential and residential portion was allotted in the year 1979-80, as such, benefit of Section 20(4) of the Act No. 13 of 1972 cannot be denied. 6. Apart from the pleading, the parties led their document as well as oral evidence before the trial court. The trial court framed following issues:- ^^¼1½ D;k oknhx.k ,oa çfroknh ds e/; Hkou ds edku ekfyd ,oa fdjk;snkj ds lEcU/k LFkkfir gSa\ ¼2½ D;k ç'uxr çHkkx] tks oknhx.k }kjk çfroknh dks fn;k x;k gS] og O;kolkf;d gS vFkok vkoklh;\ ¼3½ D;k ç'uxr çHkkx dks çfroknh }kjk f'kdeh fdjk;s ij mM+k;k x;k gS\ ¼4½ D;k çfroknh }kjk fdjk;s dh vnk;xh esa O;fDrØe fd;k x;k gS\ ¼5½ D;k oknhx.k }kjk çfroknh dks çsf"kr uksfVl oS/k gS rFkk mlls çfroknh dh fdjk;snkjh lekIr gksrh gS \ ¼6½ D;k oknhx.k /kkjk&20¼4½ må çå vf/kfu;e laå 13 lu 1972 dk ykHk ikus dk vf/kdkjh gS\ ¼7½ D;k oknh fdlh vuqrks"k dks çkIr djus dk vf/kdkjh gS\** 7. Issue no. 1 was in regard to relation of landlord and tenant which the trial court found plaintiffs to be landlord and revisionist to be the tenant. Issue no. 2 was in regard to the fact that whether the disputed accommodation which was let out was residential or non-residential building. The trial court, however, while dealing with issue found that the property which was in possession of the tenant was in fact a shop and the back portion which was inter-related was a residential portion. The court also found that the allotment letter did not specify the fact whether the property was being used for residential or non-residential purpose. The trial court relying upon the cross-examination of DW-1/tenant, on his failure to disclose whether electric connection was for commercial or residential purpose held that the tenant being a doctor had deliberately concealed the said fact and recorded finding that the property was let out for residential purpose and not for commercial purpose. 8. While dealing with third issue as regard to subletting, the court found that plaintiffs failed to prove the said fact and issue was decided against plaintiffs. 9. Issue no. 4 was in regard to the default in payment of rent. 8. While dealing with third issue as regard to subletting, the court found that plaintiffs failed to prove the said fact and issue was decided against plaintiffs. 9. Issue no. 4 was in regard to the default in payment of rent. The trial court found that notice sent by landlord for payment of arrears of rent was sent on 22.02.2008 while the tenant had tendered the arrears of rent through money order on 01.02.2008 and on refusal had deposited the same under Section 30. Thus, the court found that rent which was deposited under Section 30 was prior to sending notice for arrears of rent which was received by tenant on 25.02.2008 and there being default in the payment of arrears of rent as deposited under Section 30 cannot be taken into consideration. 10. While deciding issue no. 5 which was in regard to service of notice, the court found that the notice was duly served. 11. Issue no. 6 was in regard to the fact that whether the benefit of Section 20(4) of the Act No. 13 of 1972 can be given to tenant as he has deposited the entire arrears of rent along with tax on the first date of hearing. The trial court found that the disputed accommodation is a residential property and he was having House No. 19/150, Patkapur, which was purchased by him in the year 1978 by its earlier owners, Satya Prakash and Gyan Prakash, thus, benefit of Section 20(4) cannot be given in view of proviso to said section. The trial court on the basis of finding decreed the suit for arrears of rent and eviction against the tenant-revisionist on 14.05.2015. Hence, the present revision. 12. Sri Ashish Kumar Srivastava, learned counsel appearing for revisionist submitted that trial court had wrongly decreed the suit holding that tenanted accommodation was residential rather than commercial. According to him, allotment letter given by rent control officer was not considered as the receipt given clearly mentions it to be a non-residential accommodation and the allotment order also speaks in volume about the accommodation since inception of tenancy. According to him, the finding of the court below is totally against the document which was on record. According to him, allotment letter given by rent control officer was not considered as the receipt given clearly mentions it to be a non-residential accommodation and the allotment order also speaks in volume about the accommodation since inception of tenancy. According to him, the finding of the court below is totally against the document which was on record. He next contended that solely on the basis of the statement of tenant in cross-examination, the trial court held the property to be residential while the allotment order speaks that it was a non-residential property. 13. Sri Srivastava next invited the attention of the Court to the notice dated 22.02.2008 sent by landlord through his counsel wherein in para 2, it has been mentioned that the accommodation consists of one shop and rooms constructed behind the shop and also aangan as well as toilet which was rented out to the tenant at the rate of Rs.750/-per month and water tax. 14. On the question of the finding recorded as to the bar contained in proviso of Section 20(4) of the Act No. 13, he submitted that the property in dispute was allotted through two allotment orders, one consisted of residential part and the other non-residential. The court below could not have denied the benefit under Section 20(4) as it was a commercial property. Sri Srivastava has relied upon the decision of this Court in case of Subhaash Chandra Purwar vs. District Judge, Mahoba and another, 2012 (3) ARC 354 , Jamuna Prasad Gupta vs. Additional District Judge, Court No. 14, Kanpur Nagar and 2 others, 2016 (2) ARC 444 and Abdul Jalil vs. Haji Abdul Jalil, AIR 1974 All. 402 . 15. Opposing the revision, Sri Prakhar Tandon, learned counsel appearing for landlord submitted that the court below had recorded a categorical finding as to the fact that the property in dispute was let out for residential purpose and, thus, no benefit under Section 20(4) could be given to the tenant as he was already having another house in the city which was purchased by the tenant in the year 1978 and, thus, the benefit under Section 20(4) was barred by proviso to aforesaid section. He then contended that the allotment order was silent as to the fact that whether the property was for residential or for commercial purpose. He then contended that the allotment order was silent as to the fact that whether the property was for residential or for commercial purpose. According to him, the tenant in his cross-examination was unable to prove the fact that the electricity connection which was taken by him was for residential or commercial purpose. He next contended that only in small portion, clinic was being run but rest of the portion was being used for residential purpose. Apart from this, no other argument was raised by counsel for the landlord. 16. Having heard learned counsel for the parties and from perusal of record, I find that it is not in dispute that the accommodation in question was let out to the tenant-revisionist in the year 1979-80 through two allotment orders dated 30.03.1979 and 12.12.1980. Both these allotment orders do not specify the purpose for which the accommodation was allotted to the tenant on his application. Except for the acknowledgment issued on 05.06.1978 for the receipt of the application for allotment, the residential part was struck out and non-residential part was ticked. 17. The limited issue for consideration by this Court in this revision is whether the trial court had considered and dealt with the case after considering the material evidence filed by both the parties before arriving at a finding as to the accommodation let out for residential or commercial purpose. Issue no. 2 was framed by trial court in regard to said fact. The trial court failed to arrive at a finding on the basis of the allotment order and solely on the statement of the tenant-revisionist in his cross-examination had held that the accommodation was residential. 18. Similarly, while deciding the issue no. 6 which was in regard to the fact that whether benefit of Section 20(4) of Act No. 13 of 1972 can be extended to the tenant, the trial court found that as the accommodation in question was residential and the tenant was already having a residential accommodation which was purchased by him in the year 1978, the proviso to Section 20(4) was attracted and benefit of Section 20(4) of the Act could not be extended to him. 19. 19. The tenant in his additional written statement had categorically pleaded that the House No. 19/150, Patkapur which was purchased by him in 1978 was in fact sold by him to one A.K. Nigam in 2001 but the trial court has not recorded any finding to that effect and solely on the basis of the fact that tenant was having an alternative accommodation purchased by him in 1978 that benefit of Section 20(4) was not extended. 20. This Court finds that though the scope of Section 25 of the Act of 1887 is limited and the Court while exercising such jurisdiction cannot re-appreciate or reassess the finding recorded by trial court, but where the finding of the trial court is perverse or the material evidences which were admissible in evidence were not considered or the finding has been recorded against evidence on record, the revisional Court has the jurisdiction to interfere in such matter, the law in this regard has been already settled by the Hon'ble Supreme Court in case of Mundri Lal vs. Shushhila Rani, 2007 (8) SCC 609 and co-ordinate Bench of this Court in case of Danish Thanvi and 4 others Vs. Murshat Ali @ Musharrat Ali and 2 others passed in Matters under Article 227 No.2561 of 2021, decided on 09.08.2021. 21. This Court finds that while deciding issue no. 2 and 6, the trial court was swayed away by pleading and evidence filed by plaintiffs without considering the pleading and evidence filed by defendant-tenant in regard to fact that the accommodation in dispute was partly residential and partly commercial and also that the house purchased by tenant in the year 1978 was sold by him in the year 2001 before the tenancy stood terminated in the year 2008 and as such whether the benefit under Section 20(4) of the Act of 1972 can be passed on to the tenant or not. 22. However, so far as finding recorded by trial court in relation to issue no. 1, 3, 4 and 5 is concerned, they need no interference by this Court. 23. Considering the facts and circumstances of the case, this Court, therefore, remands back the matter to the trial court on the limited issue of recording fresh finding on issue nos. 22. However, so far as finding recorded by trial court in relation to issue no. 1, 3, 4 and 5 is concerned, they need no interference by this Court. 23. Considering the facts and circumstances of the case, this Court, therefore, remands back the matter to the trial court on the limited issue of recording fresh finding on issue nos. 2 and 6 as to whether the accommodation in dispute is a residential or a commercial accommodation, and whether the benefit of Section 20(4) of the Act No. 13 of 1972 can be extended to the tenant in the light of fact that the property alleged to have been purchased by him in the year 1978 was sold by him in the year 2001 before tenancy stood terminated. 24. The Judge, Small Cause Court shall return its finding within a period of four months after giving due opportunity of hearing to both the parties. 25. Consequently, the revision stands party allowed.