Syed Mehdi Husain Khan @ Akhtar ... vs Additional District & Session ...
2015 Latest Caselaw 5205 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 18
 

 
Case :- RENT CONTROL No. - 135 of 2014
 

 
Petitioner :- Syed Mehdi Husain Khan @ Akhtar Jafri
 
Respondent :- Additional District & Session Judge Court No.3 Lko.And Anr.
 
Counsel for Petitioner :- Mohd.Aslam Khan
 
Counsel for Respondent :- U.N.Misra,B.K. Saxena,Shiv P.Shukla
 

 
Hon'ble Anil Kumar,J.

Heard Sri Mohd. Arif Khan, learned senior counsel assisted by Mohd. Siraj Khna, learned counsel for petitioner, Sri B.K. Saxena, learned counsel for respondent No. 2 and perused the record.

Facts in brief of the present case are that the House No. 58 situated at New Nakhas Market, Tulsidar Marg, Lucknow comprising of 6 rooms, open land, store and bath room on the ground floor and 3 rooms on the first floor which was let out to one Sri Ram Kumar Shukla on a monthly rent of Rs. 800/-, enhanced to Rs. 1500/- . Landlor Syed Mehdi Husain Khan @ Akhtar Jafri sent notice on respondent No. 2 terminating his tenancy on the ground that he was at default in payment of rent, not paid rent for the months April, May and June, 2009 made material alterations/constructions in the premises in his tenancy which had diminished the value and utility of the premises let out to him. Thereafter filed a suit for arrears of rent and ejectment against Sri Ram Kumar Shukla, registered as SCC Suit No. 78 of 2009 in the Court of Judge, Small Causes Courts Act, Lucknow in which Ram Kumar Shukla-tenant filed a written statement inter alia taking a defence that the premises in question has been let out to the Manager of Happy World Inter College (hereinafter referred to as the school) and accommodation in question is in the occupation and possession of the school.

Judge, Small Causes Courts Act, Lucknow, vide order dated 08.05.213, decreed the suit and passed an order for eviction of the respondent No. 2 from the premises in question, on the ground that the premises in question has been let out to Sri Ram Kumar Shukla and he has failed to prove by way of any cogent evidecne that the same has been let out to the institution known as Happy World Inter College.

Order dated 08.05.2013, passed by Judge, Small Causes Courts Act, Lucknow was challenged by respondent No. 2 by filing SCC Revision No. 67 of 2013 (Ram Kumar Shukla Vs. Syed Mehdi Husain Khan) under Section 25 of Provincial Small Causes Courts Act, 1887.

By order dated 18.10.2014, Additional District and Sessions Judge, Court No. 3, Lucknow allowed the same and set aside the order dated 08.05.2013 passed by Judge, Small Causes Courts Act, Lucknow and remanded the matter to decide afresh.

Aggrieved by the order dated 18.10.2014, passed by Additional District and Sessions Judge, Court No. 3, Lucknow, present writ petition has been filed by the petitioner.

Sri Mohd. Arif Khan, learned Senior Advocate while assailing the impugned judgment dated 18.10.2014 submits that same has been passed on reapprisal of entire evidence on record, by substituting its own findings.So the same is contrary to the provisions of Section 25 of the provisons of Small Causes Court Act,.

He further submits that while passing the impugned judgment, respondent No. 1 has illegally held that the burden does not lie upon the respondent No. 2 to establish the fact that from which date the school was established/running when the rent is being paid on behalf of the school, as such the premises was not let out to the respondent No. 2, so the judgment dated 18.10.2014 passed by respondent No. 2 vitiates in law, liable to be set aside.

It is further submitted by learned counsel for petitioner that as per settled provisions of law, the revisional court in exercise of powers under Section 25 of Provincial Small Causes Courts Act, 1887 is not empowered to reaprise the evidence on record to substitute its own finding. However, respondent No. 1 in utter violation of the said provisions allowed the revision, remanded the case to the trial court, so keeping the said facts as well as that there is long drawn litigation between the parties, the matter should not be remanded to the trial court/ Judge, Small Causes Courts Act, Lucknow. In support of his argument, he has placed reliance on the judgment given by this Court in the case of Gokaran Singh Vs. 1st Additional District and Sessions Judge, Hardoi and others, 2000 (18) LCD 731 and in the case of Banaras Education Society J.H.S. And another Vs. Dandi Swami Rameshwarashram, 2014 (32) LCD 986, as such the impugned judgment passed by respondent No. 1/Additional District and Sessions Judge, Court No. 3, Lucknow is liable to be set aside.

Sri B.K. Saxena, learned counsel for respondent No. 2 while supporting the judgment submits that the trial court /Judge, Small Causes Courts Act, Lucknow without any basis came to the conclusion that the premises in question was let out to Ram Kumar Shukla and not to the Manager of the institution (Happy World Inter College), and the revisional court in this regard while deciding the said issue/issue No. 4, remanded the matter to the trial court /Judge, Small Causes Courts Act, Lucknow to reconsider the matter on the basis of the evidence on record that to whom the premises has been let out by the landlord/petitioner.

Sri B.K. Saxena, learned counsel for respondent No. 2 further argued that the order dated 08.05.2013 passed by respondent No. 2 is well within the parameter of Section 25 of Provincial Small Causes Courts Act, 1887 because the revisional court cannot reaprise the evidence in order to determine the issue of fact itself. So the judgment dated 18.10.2014 passed by respondent No. 1 is as per law laid down by this Court in the case of Mohd Naime Vs. Kamla Devi, 2011 (3) ARC 511, as such there is no illegality or infirmity in the same, writ petition is liable to be dismissed.

I have heard learned counsel for parties and gone through the record.

In order to decide the controversy involved in the present case, it is appropriate to go through the provisions as provided under Section 25 of Provincial Small Causes Courts Act, 1887, which on reproduction reads as under:-

"Section - 25. - Revision of decrees and orders of Courts of Small Causes.--The High Court, for the purpose of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the case and pass such order with respect thereto as it thinks fit. State Amendments tc "State Amendments"

John Beaumont, Kt., C.J., in the case of Bell and Co. Ltd. Vs. Waman Hemraj, 1938 (40) BOMLR 125, had considered the scope of Section 25 of Provincial Small Causes Courts Act, 1887 held as under (relevant paragraph):-

."The object of Section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law. The section does not enumerate the cases in which the Court may interfere in revision, as does Section 115 of the Civil Procedure Code, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference ; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at."

Hon'ble the Apex Court in the case of Hari Shankar Vs. Rao Girdhari Lal Chowdhury, 1963 AIR 698, has reiterated the same view.

This court in the case of Banaras Education Society J.H.S. And another Vs. Dandi Swami Rameshwarashram, 2014 (32) LCD 986, while considering the scope of revisional court under Section 25 of Provincial Small Causes Courts Act, 1887 held as under:-

"The scope of interference of a Revisional Court under Section 25 Act, 1887 is whether the decree or order made by Small Cause Court was according to law or not. Undoubtedly it is a supervisory power and not appellate power. The Revisional Court can call for record to see whether decree is according to law and, if not, it can pass such order with respect thereto as it may thinks fit.

6. The next question is, the ambit of the words "according to law" occurring in Section 25 of Act, 1887.

7. The Apex Court considered the same in Hari Shanker Vs. Rao Girdhari Lal Choudhary, AIR 1963 SC 696 and held that it refers to the decision as a whole and not to be equated to error of law of or of fact simpliciter. It contemplates that entire decision, i.e., the overall decision must be according to law. There should be no miscarriage of justice due to a mistake of law.

8. Some of the instances where the Court can interfere under Section 25 are, (1) where the Court has no jurisdiction in the matter; (2) where a party had not been given a proper opportunity of being heard, or that the burden of proof had been misplaced on wrong shoulders; (3) where the Court had based its decision on evidence which should not have been admitted; (4) where there has not been a proper trial according to law; and (5) if on certain facts two views are possible, then a Court exercising jurisdiction under Section 25 was not interfered.

9. The observations of Beaument, C.J. in Bell and Co. Ltd. Vs. Waman Ramraj, AIR 1938 Bombay 223 were referred and approved by Apex Court in Hari Shanker (supra). It further said:

"the court ought not to interfere merely because it thinks that possibly the judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at."

10. In Malini Ayyappa Naicker Vs. Seth Manghraj Udhavdas Firm, AIR 1969 SC 1344 it was held that a wrong decision on facts by a competent court is also a decision according to law. The Court has no power to de novo examine the findings of facts reached by Trial Court.

11. In Ram Narain Vs. Kanhaiya Lal Vishwakarma, 1965 ALJ 989 a Division Bench said that Revisional Court is not empowered under Section 25 to look into evidence of case and decide whether the finding of fact arrived at by court below is justified by evident on record or not.

12. The language of Section 25 is different than the Revisional Court powers conferred on civil court under Section 115 C.P.C.

13. Act, 1887 constitute Small Cause Courts of exclusive on preferential and limited jurisdiction. The class of suits not cognizable by small causes is listed in the schedule appended to Act, 1887. The provisions of Civil Procedure Code inapplicable to Small Cause Court are provided in Section 7 of C.P.C. By Section 40 of Bengal, Agra and Assam Civil Courts Act, 1887 certain provisions thereof, i.e., Sections 15, 32, 37, 38 and 39 have been applied to Small Cause Courts. Vide Section 7 the applicability of Sections 96, 112 and 115 C.P.C. is made inapplicable to Small Causes Court, meaning thereby its judgment is made non-appealable. The Trial in Small Cause Court is summary and its decision is final subject to revision under Section 25 only. It is in these circumstances, one has to make a distinction between power of Revisional Court under Section 25 and other appellate and revisional powers under C.P.C. or other provisions of procedural statutes.

14. The circumstances where Revisional Court to find out whether decision of Small Cause Court is in accordance with law may look into the facts without assessment have been explained in para 19 and 20 of judgment of Division Bench in Laxmi Kishore and another Vs. Har Prasad Shukla, 1981 ARC 545 and it says:

"19. If it finds that there is no evidence to sustain a finding on a particular issue of fact, it can ignore that finding. Same will be the case where the finding is based only on admissible evidence. In such case, the court will be justified in deciding the question of fact itself, because the evidence is all one way. No assessment is needed. The court can also decide the revision if only a question of law or some preliminary point of law, viz. validity of notice, is sufficient for its decision.

20. But, if it finds that a particular finding of fact is vitiated by an error of law, it has power to pass such order, as the justice of the case requires; but it has no jurisdiction to reassess or reappraise the evidence in order to determine as issue of fact for itself. If it cannot dispose of the case adequately without a finding on a particular issue of fact, it should send the case back after laying down proper guidelines. It cannot enter into the evidence, asses it and determine an issue of fact."

15. The bar is in effect with respect to reassessment of evidence and substitute its conclusion of fact but not where relevant evidence has not been considered or finding is based on inadmissible evidence or finding is without any evidence etc. In Dr. D. Sankaranarayanan Vs. Punjab National Bank, 1995 Supp. (4) SCC 675 the Apex Court reiterate that reassessment of evidence is not permissible to substitute its own inference but not where the decision is not in accordance with law. If the Revisional Court does not agree with finding, that by itself cannot be a ground since it is within the realm of assessment of evidence. This is what has been observed by Apex Court in Rafat Ali Vs. Sugni Bai and others, JT 1998(8) SC 157; Sri Raj Laxmi Dyeing Works Vs. Rangaswami, JT 1998(4) SC 46; Sarla Ahuja Vs. United Insurance Company Ltd., JT 1998(7) SC 297; and, Ramdoss Vs. K. Thangavelu, JT 1999(10) SC 51.

16. In Roshan Islam (supra) the Court said that there has to be an evidence adduced to show that landlord intended to give up his case by doing something so as to record a finding that he has waived his claim. Therein, after issuing a notice terminating tenancy under Section 106 of Transfer of Property Act, 1882 the landlord filed an application under Section 21 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. it was argued that mere filing of application under Section 21 leads to the conclusion that landlord has waived his claim pursuant to quit notice but that was not accepted and the Court said that it would depend on the intention of landlord, which has to be shown by adequate evidence.

17. The decision in Mohd. Ahmad (supra) is more elaborate on this aspect and the Court referred to a decision of Apex Court in Associated Hotels of India Ltd. Vs. S.B. Sardar Ranjit Singh, AIR 1968 SC 933 to observe that waiver is an intentional relinquishment of a known right."

Reverting to the facts of the present case, it is not in dispute between the parties that in order to prove their case no documentary evidence has been let out them. Further, in order to prove their case, the plaintiff/petitioner- Syed Mehdi Husain Khan has produced himself as a witness during his cross examination, he has stated that " "स्कूल किरायेदारी के छह माह बाद स्कूल खोला गया था " whereas Ram Kumar Shukla in order to prove his case appeared as witness, his cross examination he stated that the tenancy is in the name of Manager-Ram Kumar Shukla, in this regard the receipts are issued by the landlord.

Trial court /Judge, Small Causes Courts Act, Lucknow has passed the judgment dated 08.05.2013 on the ground that the premises in question has been let out by the petitioner to Ram Kumar Shukla in the year 1986-87 at a monthly rent of Rs. 800/-, however, the revisional court, reversed finding on the ground that it is incumbent upon the landlord/petitioner to prove to whom he has let out the premises in question, and in the present case he has not discharged the said burden on one hand and on the other hand the trial court /Judge, Small Causes Courts Act, Lucknow has wrongly shifted the said burden on the tenant/respondent No. 2, so in view of the said facts the revisional court/respondent No. 1 and remanded back the matter to the trial court /Judge, Small Causes Courts Act, Lucknow to decide afresh.

The powers of the revisional court under Section 25 of the Provincial of Courts Act are only supervisory and the revisional court cannot act like an appellate court as far as the matter of appreciation of evidence is concerned. The Court dealing with revision under Section 25 of the Act has a limited jurisdiction. It has no power to look into the evidence of the case and to decide whether or not the finding of fact arrived at by the Court below is justified by the evidence on record though it is open to the revisional court to interfere with the decision of the trial court in case the same is not found to be according to law, yet it is not open to it to substitute its own finding for the one recorded by the trial court on a question of fact. If certain piece of evidence and material has not been taken into consideration by the trial court, which in the opinion of the revisional court was necessary for reaching to a just decision, the appropriate course in such a situation is to send the case back to the trial court for a fresh decision in the light of the guidelines which may be indicated by the revisional court in its judgment.

Division Bench in the case of Laxmi Kishore and another v. Har Prasad Shukla. 1981 ARC 545, held that if the revisional court finds that a particular finding of fact is vitiated by an error of law, it has power to pass such order as the justice of the case requires but it has no jurisdiction to re-assess or reappraise the evidence in order to determine an issue of fact for itself. However, if it cannot dispose of the case adequately without a finding on a particular issue of fact. It should send the case back after laying down proper guidelines. It cannot enter into the evidence, assess it and determine an issue of fact and as per well settled position of law the revisional court has no power to substitute substitute its own finding of fact in place of one recorded by the trial court after re-assessment of evidence is well-settled.

And ithe case of Mohd Naime Vs. Kamla Devi, 2011 (3) ARC 511, this Court in paragraph No. 8 held as under:-

"It is settled principle of law that if Revisional Court feels that material piece of evidence was not taken into consideration by the trial Court, it is always open to it while exercising jurisdiction under Section 25 of Provincial Small Causes Courts Act to consider the relevant material but the Revisional Court cannot permit the parties to lead fresh evidence before it as trial Court and then direct the trial court to follow the conclusions arrived at by the Revisional Court in the light of observations made by it."

In the instant matter, the revisional court/respondnet No. 1 while passing the judgment dated 18.10.2014, reversted finding, relevant portion quoted as under:-

Further the said finding are in accordance with provisions as provided under Section 101 of the Indian Evidence Act, 1872 because Hon'ble Apex court in the case of Rangammal Vs. Kuppuswami & Anr., AIR 2011 SC 2344, in paragraph No. 20 held as under:-

"20. Since the High Court has misplaced burden of proof, it clearly vitiated its own judgments as also of the courts below since it is well established dictum of the Evidence Act that misplacing burden of proof would vitiate judgment. It is also equally and undoubtedly true that the burden of proof may not be of much consequence after both the parties lay evidence, but while appreciating the question of burden of proof, misplacing of burden of proof on a particular party and recording findings in a particular way definitely vitiates the judgment as it has happened in the instant matter. This position stands reinforced by several authorities including the one delivered in the case of Koppula Koteshwara Rao vs. Koppula Hemant Rao, 2002 AIHC 4950 (AP)." ( See. Rama Kant Jain Vs. M.S. Jain, AIR 1999 Del 281)

So, I do not find any illegality or infirmity in the impugned judgment dated 18.10.2014 under challenge in the present writ petition.

For the foregoing reasons, writ petition lacks merit and is dismissed.

However, taking into peculiar facts and circumstance of the case, I hereby direct trial court /Judge, Small Causes Courts Act, Lucknow to decide the SCC Suit No. 78 of 2009 expeditiously, say, within a period of six months from the date of receiving certified copy of this order and the parties are at liberty to file their documentary/oral evidence in order to establish their case.

Order Date :- 9.12.2015/Ravi/