Km. Damyanti Manoocha vs Additional District Judge Court ...
2015 Latest Caselaw 448 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
RESERVED
 
Court No. - 25
 
Case :- RENT CONTROL No. - 59 of 2011
 
Petitioner :- Km. Damyanti Manoocha
 
Respondent :- Additional District Judge Court No.9 Faizabad and ors.
 
Counsel for Petitioner :- Mohd. Aslam Khan, M.A. Khan
 
Counsel for Respondent :- Manish Kumar,I.D.Shukla,S K Mehrotra
 
                                              *****
 
Hon'ble Aditya Nath Mittal,J.

Heard learned counsel for the petitioner, learned counsel appearing for the opposite party no.14 and perused the record.

This writ petition has been filed with the prayer to issue a writ of certiorari for quashing the judgment and order dated 31.01.2011, passed by the opposite party no.1.

The brief facts of the case are that the petitioner (landlady) had filed the suit for ejectment, arrears of rent and damages against the opposite party no.14 and others on the ground that the said shop was taken on rent by Gauri Shanker in the name & Style of firm Gauri Shanker Shyam Behari. The opposite party no.14 being daughter's son was not entitled to inherit the tenancy rights but since he was alleging to be a partner of the firm Gauri Shanker Roop Narain, therefore, he has been arrayed as a party. It was alleged that the shop in dispute was not in the tenancy of any firm rather it was in a tenancy of Gauri Shanker in his individual capacity. The landlady was not residing at Faizabad as she was Lecturer in Jaipur. When she came to Faizabad, she came to know that the shop in dispute was partitioned, which has changed its nature and diminished its utility. The firm Shyam Behari Shiv Das and the firm M/s Gauri Shanker Roop Narain are sub-tenants, therefore, no notice was required to be served upon them. As per the rent deed dated 13.03.1946, the tenant was not given the right to sub-let the shop. The tenancy was terminated by notice dated 31.01.1981.

The suit was contested by the opposite party no.14 and admitted the petitioner to be the landlady and the rate of rent. It was alleged that Gauri Shanker and Shyam Behari were real brothers and Gauri Shanker was the Karta of joint Hindu family, and Shyam Behari was the member. On the death of Gauri Shanker, his three daughters and Roop Narain in whose favour Smt. Rampati executed a will on 09.01.2009 became tenants. Gauri Shanker was carrying business in the firm name and style Shyam Behari Shiv Das and they are carrying on their respective business since April, 1972. The suit was also contested by the defendant nos.1, 6, 7 and 9, who also admitted the petitioner to be landlady but they denied the fact of sub-letting. All the defendants have taken the plea that the shop was taken on rent by the firm Gauri Shanker Shyam Behari and Shiv Das was the partner. It was also alleged that the rent was paid by the firm.

After appreciating the evidence on record, the Judge, Small Cause Courts came to the conclusion that the original tenant had sub-let the said shop and there was no illegality in the notice and thereby the application was allowed by the judgment and order dated 01.10.2008.

The said judgment was challenged in Civil Revision No.144 of 2008 whereby the learned Revisional Court had found that the shop was given on rent to both Gauri Shanker and Shyam Behari, therefore, there was no sub-letting. Learned Revisional Court also came to the conclusion that Shiv Das was also partner in the said firm, but the original tenancy remained in the name of Gauri Shanker Shyam Behari. Learned Revisional Court also came to the conclusion that there was no violation of terms and conditions of the rent agreement and there was no sub-letting. Accordingly, the learned Revisional Court allowed the revision and set aside the judgment and order dated 01.10.2008 by the judgment and order dated 31.01.2011.

At the very outset, learned counsel for the petitioner has requested to treat this writ petition under Article 227 in place of Article 226 of the Constitution of India.

Learned counsel for the petitioner has submitted that the learned Revisional Court exceeded in his powers as provided under Section 25 of the Small Cause Courts Act and the Revisional Court cannot reappraise the evidence. It has also been submitted that Section 3 (e) and 7 (f) of the Old Act also do not permit for inducting the partner and under new act also and in view of the provisions of Sections 11 and 16, the sub-letting is prohibited. It has also been submitted that the rent deed was executed only by Gauri Shanker and not by Shyam Behari. Therefore Shyam Behari was not the tenant, but learned Revisional Court has misread the evidence on record and the findings are perverse.

In support of his submission, learned counsel for the petitioner has relied upon the case Vijay Kumar Gupta vs. Smt. Savitri Devi and another reported in 2000 (2) ARC 344, in which Hon'ble Single Judge of this Court has held that if occupation of the petitioner is in violation of provisions of Sections 11 and 13 of the Act, he is liable to be evicted.

Learned counsel for the petitioner has also relied upon the case Om Prakash and others vs. IInd Additional District Judge, Saharanpur and others reported in 2000 (2) ARC 739, in which Hon'ble Single Judge of this Court has held that in the revisional jurisdiction under Section 25 of the Small Cause Courts Act, the Revisional Court is bound by findings of fact reached by the trial court and it has no power to examine de novo findings of fact. It has further been held that Revisional Court has no jurisdiction to reassess or reappraise the evidence in order to determine the issues of fact. It has further been held that if the Revisional Court defers, it should remand the case for redecision.

Reliance has also been placed in the case of Jagjit Singh vs. District Judge, Dehradun and others reported in 1990 (1) ARC 517, in which the Hon'ble Single Judge of this Court has held that even the consent of landlord in accepting the rent cannot defeat the provisions of Sections, 11, 13, 15 and 31 of the Act No.13 of 1972.

Reliance has also been placed in the case of Bhagwan Swarup (Dead) through LRs. vs. Smt. Hamida Khatoon (Dead) and others reported in [2010 (1) ARC 473], in which, in interpreting the provisions of Section 25 of the Small Cause Courts Act, the Hon'ble Single Judge of this Court has held that powers of Revisional Court under Section 25 of Small Cause Courts Act is limited and it is not open to the Revisional Court to reverse the findings of fact and to come to its own conclusion.

Learned counsel for the petitioner has also relied upon the case Mohd. Ishaq vs. State of U.P. & others reported in AIR 1966 (Alld) 280, in which the Full Bench of this Court has held that when a tenant-in-chief vacates the accommodation by sub-letting it to another person, then the District Magistrate is required to pass an order under Section 7 to the owner to let it to another person. This law is regarding U.P. (Temporary) Control of Rent & Eviction Act, 1947. The similar view has also been taken in the case of Sardar Harbans Singh Sethi vs. Rent Control and Eviction Officer, Nainital and others reported in [1966 AWR 274].

Reliance has also been placed upon the case Kunj Behari Lal Gupta vs. Shri Shivji Maharaj, Birajman Mandir and another reported in AIR 1973 (Alld.) 217, in which Hon'ble the Single Judge of this Court has held that the term 'tenant' in Section 2 (g) does not include persons enjoying benefit of contract of lease as assignees.

On the other hand, learned counsel for the opposite party no.14 (tenant) has submitted that the Revisional Court has ample jurisdiction in case it finds that the evidence on record has not been considered. It has also been considered that the firm is in existence since long and all the receipts of rent have been issued in the joint name. It has also been submitted that there is no sub-tenancy and the learned Judge, Small Causes Court had not appreciated the evidence on record in right perspective. Therefore, learned Revisional Court had interfered with the findings. It has also been submitted that the Revisional Court can consider the evidence, which has not been considered by the trial court, and thereby no illegality or error of law has been committed by the Revisional Court.

In support of his submission, learned counsel for the opposite party no.14 has relied upon the case Parvinder Singh vs. Renu Gautam and others reported in (2004) 4 Supreme Court Cases 794, in which the Hon'ble Supreme Court has held as under:-

"The rent control legislations which extend many a protection to the tenant, also provide for grounds of eviction. One such ground, most common in all the legislations, is subletting or parting with possession of the tenancy premises by the tenant. Rent control laws usually protect the tenant so long as he may himself use the premises but not his transferee inducted into possession of the premises, in breach of the contract or the law, which act is often done with the object of illegitimate profiteering or rack renting. To defeat the provisions of law, a device is at times adopted by unscrupulous tenants and sub-tenants of bringing into existence a deed of partnership which gives the relationship of tenant and sub-tenant an outward appearance of partnership while in effect what has come into existence is a sub-tenancy or parting with possession camouflaged under the cloak of partnership. Merely because a tenant has entered into a partnership he cannot necessarily be held to have sublet the premises or parted with possession thereof in favour of his partners. If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of sub-tenancy or for providing a cloak or cover to conceal the transaction not permitted by law, the Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub-tenant".

Reliance has also been placed upon the case Amar Nath Agarwalla vs. Dhillon Transport Agency reported in (2007) 4 Supreme Court Cases 306, in which Hon'ble the Supreme Court has held as under:-

"The question is whether carrying on business by one of the partners of the firm which was originally the tenant amounts to sub-letting of the premises by the original tenant.

In Murli Dhar v. Chuni Lal and Ors., (1969) RCR 563 this Court had repelled the contention that the old firm and the new firm being two different legal entities, the occupation of the shop by the new firm was occupation by the legal entity other than the original tenant and such occupation proved sub-letting. Repelling the contention this Court held:-

"This contention is entirely without substance. A firm, unless expressly provided for the purpose of any statute which is not the case here, is not a legal entity. The firm name is only a compendious way of describing the partners of the firm. Therefore, occupation by a firm is only occupation by its partners. Here the firms have a common partner. Hence the occupation has been by one of the original tenants."

In Mohammedkasam Haji Gulambhai v. Bakerali Fatehali (Dead) by LRs., Reported in [1998] 7 SCC 608 this Court observed:

"There is absolute prohibition on the tenant from sub-letting, assigning or transferring in any other manner his interest in the tenanted premises. There appears to be no way around this subject of course if there is any contract to the contrary between the landlord and the tenant. In a partnership where the tenant is a partner, he retains legal possession of the premises as a partnership is a compendium of the names of all the partners. In a partnership, the tenant does not divest himself of his right in the premises. On the question of sub-letting etc. the law is now very explicit. There is prohibition in absolute terms on the tenant from sub- letting, assignment or disposition of his interest in the tenanted premises."

The same principle was reiterated by this Court in Mahendra Saree Emporium (II) v. G.V. Srinivasa Murthy, reported in [2005] 1 SCC 481 wherein this Court held:

"The mere fact that another person is allowed to use the premises while the lesses retains the legal possession is not enough to create a sub lease. Thus, the thrust is, as laid down by this Court, on finding out who is in legal possession of the premises. So long as the legal possession remains with the tenant the mere factum of the tenant having entered into partnership for the purpose of carrying on the business in the tenancy premises would not amount to sub-letting. In Parvinder Singh vs. Renu Gautam (2004) 4 SCC 794, a three-Judge Bench of this Court devised the test in these terms: (SCC P. 799, Para 8) "If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of sub-tenancy or for providing a cloak or cover to conceal a transaction not permitted by law, the Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub-tenant."

Applying these principle to the instant case, it is patent that one of the partners of the firm which was the original tenant has continued in legal possession of the premises as a partner of another firm constituted after dissolution of the original firm. Thus the legal possession is retained by a partner who was one of the original tenants. In these circumstances, we find no fault with the finding of the High Court there was no sub-letting of the premises and hence the suit for eviction deserved to be dismissed."

Learned counsel for the opposite party no.14 has also relied upon the case Nirmal Kanta (Dead) through Lrs vs. Ashok Kumar and another reported in (2008) 7 Supreme Court Cases 722, in which the Hon'ble Supreme Court in para-16 has held as under:-

"16. What constitutes sub-letting has repeatedly fallen for the consideration of this Court in various cases and it is now well-established that a sub-tenancy or a sub-letting comes into existence when the tenant inducts a third party/stranger to the landlord into the tenanted accommodation and parts with possession thereof wholly or in part in favour of such third party and puts him in exclusive possession thereof. The lessor and/or a landlord seeking eviction of a lessee or tenant alleging creation of a sub-tenancy has to prove such allegation by producing proper evidence to that effect. Once it is proved that the lessee and/or tenant has parted with exclusive possession of the demised premises for a monetary consideration, the creation of a sub-tenancy and/or the allegation of sub-letting stands established."

Reliance has also been placed upon the judgment of Hon'ble Supreme Court delivered in the case Civil Appeal No.2147 of 1980; Jagdish Prasad vs. Smt. Angoori Devi decided on March 15, 1984 reported in 1984 (2) LCD 189, in which Hon'ble the Supreme Court has held as under:-

"The legal position having been totally misconceived by the trial court and there being an assumption of the position which the landlord was required to prove by evidence, the revisional authority entitled to Point out the legal error and rectify the defect. This is all that had been done by the Additional District Judge.

In the case of Syed Yakoob v. K.S. Radhakrishna & Ors.,(1964) SCR64, a Constitution Bench of this Court indicated the scope of interference in a certiorari proceeding by saying that a writ of certiorari is issued for correcting the errors of jurisdiction committed by the courts or tribunals in cases where they exceed their jurisdiction or fail to exercise it or exercise it illegally or improperly. i.e. where an order is passed without hearing the party sought to be affected by it or where the procedure adopted is opposed to principles of natural justice. A caution was indicated by saying that the jurisdiction to issue a writ of certiorari is a supervisory one and in exercising it, the court is not entitled to act as a court of appeal. That necessarily means that the findings of fact arrived at by the inferior court or tribunal are binding. An error of law apparent on the face of the record could be corrected by a writ of certiorari, but not an error of fact, however, grave it may appear to be."

Learned counsel for the opposite party no.14 has also placed reliance upon the judgment of this Court delivered in Writ Petition No.14768 of 1990; Abdul Hamid vs. IXth ADJ, Bulandshahr and other, decided on May 11, 2007 reported in [2008 (1) ARC 70], in which Hon'ble Single Judge of this Court in paras-9, 11 and 14 has held as under:-

"9. In Hari Shanker and other v. Girdharilal, AIR 1963 SC 698, the Supreme Court held that a decision given according to law would not be set aside except on certain errors of law. A division bench of this Court in Laxmi Kishore and another v Har Prasad Shukla, AIR 1979 AWC 746 held that the Court exercising revision power under Section 25 does not possess jurisdiction to determine issues of fact itself by entering into the evidence and assessing it. The revisional Court had no jurisdiction to reassess or reappraise the evidence the evidence or determine an issue of fact but, the revisional Court would be justified to interfere in a finding of fact where it finds that the trial court had based its finding on no evidence or that the findings was perverse or that it had ignored a vital piece of material evidence."

The Division Bench held-

"As already seen, a Court acting under Section 25 of the provincial Small Cause Courts Act has no such power. The power to determine question of fact has been expressly taken away."

And further held-

"The Court deciding a revision under Section 25 of the Provincipal Small Cause Courts Act has to satisfy itself that the trial Courts' decree or order is according to law. Of course, the Revisional Court should keep in mind the Supreme Court's dictum in Naicker' case that a wrong decision on fact is also a decision according to law."

And further held-

"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 that findings is based only on inadmissible evidence. In such cases, 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 only a question of law or some preliminary point of law, viz, validity of notice, is sufficient or its decision.

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 an issue of fact for itself. If it cannot dispose of the case adequately without a finding on a articular 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."

"11. In the light of the aforesaid judgments, the revisional Court can ignore a finding on a particular issue of fact, if it finds that there was no evidence to sustain such a finding on that particular issue. The revisional Court could also ignore a finding where it was based on inadmissible evidence. The revisional Court, if it finds that a particular finding of fact was vitiated by an error of law, it had power to pass such order as the justice of the case may require".

"14. In the light of the aforesaid, this Court holds that the revisional Court rightly ignored the findings given by the trial court and correctly assessed the evidence in coming to the conclusion that the petitioner had constructed additional rooms. The revisional Court was within its power and was competent to assess the evidence which was in consonance of the powers provided under Section 25 of the Provincial Small Cause Courts Act. It was not necessary for the revisional Court to remit the matter back to the trial Court for reconsideration".

In view of the above, the following points need to be adjudicated.

(i) What are the power of Revisional Court under Section 25 of Small Causes Courts Act and whether it can re-appreciate the evidence on record or not ?

(ii) Whether the shop in question was sub-letted or not ?

In the present case, learned trial court after appreciating the evidence of both the parties has come to the conclusion that the basis of tenancy was of the agreement dated 13.03.1946. It has also been come to the conclusion that in breach of conditions of agreement dated 13.03.1946, there was sub-letting of the shop in question, therefore, the tenant was liable to be evicted.

Learned Revisional Court has drawn the conclusion that Shiv Das was a business partner but he was not sub-tenant. Learned Revisional Court has also come to the conclusion that Gauri Shanker and Shyam Behari both were joint tenants. Therefore the findings of learned court below are wrong and accordingly the revision was allowed and the judgment and decree dated 01.10.2008 was set aside.

From the pleadings and evidence of both the parties, it is not disputed that the basis of tenancy was the rent deed dated 13.03.1946. Both the courts below have interpreted this rent deed in their own way. The main consideration before the trial court was (i) whether the shop in question was in the sole tenancy of Gauri Shanker, or (ii) whether the shop in question was in joint tenancy of Gauri Shanker and Shyam Behari or (iii) whether the tenancy was in the name of partnership firm M/s Gauri Shanker Shyam Behari.

Learned trial court has come to the conclusion that it was in the sole tenancy of Gauri Shanker while learned Revisional Court has come to the conclusion that it was in the joint tenancy of Gauri Shanker and Shyam Behari. The plea was also raised before the Revisional Court that because the said shop was in the tenancy of firm Gauri Shanker Shyam Behari, therefore Shiv Das could not be inducted as partner in the firm without the consent of the landlady. This contention was not accepted by the Revisional Court.

As far as powers of Revisional Court under Section 25 of Provincial Small Causes Courts Act are concerned, Section 25 reads as under:-

"25. Revision of decrees and orders of Courts of Small Causes.-The District Judge, for the purpose of satisfying himself that a decree or order made in any case decided by a Court of Small Causes was according to law, may of his own motion, or on the application on an aggrieved party made within thirty days from the date of such decree or order, call for the case and pass such order with respect thereto as he thinks fit :

Provided that in relation to any case decided by a District Judge or Additional District Judge exercising the jurisdiction of a Judge of Small Causes, the power of revision under this section shall vest in the High Court."

Section 25 of the. Small Causes Courts Act came to be interpreted before the Apex Court and this Court in number of cases. By the Apex Court and this Court, it has consistently been held that the District Judge or the High Court, in exercise of powers under Section 25 of the Small Cause Courts Act, has got limited jurisdiction. In the revision under the aforesaid Section, the Court could see that the decree or order in any case decided by the Court of Judge Small Causes was according to law or not.

In the State of Kerala v. K.M.C. Abdula and Company, AIR 1965 SC 1585, while considering the provisions of Section 12 of Madras General Sales Tax Act, which was analogous to the provisions of Section 25 of the aforesaid Act, the Apex Court has held as under :

"There is an essential distinction between an appeal and revision. The distinction is based on difference implicit in the said two expressions. An appeal is a continuation of the proceeding; in fact the entire proceedings are before the appellate court and it has power to scrutinize the evidence subject to the statutory limitation prescribed. But in the case of a revision whatever powers the revisional authority may or may not, does not have power to review the evidence unless statute specifically conferred on it that power."

In Malini Ayappa Naicker v. Seth Manghraj Udhaudas, AIR 1969 SC 1344, it was ruled by the Supreme Court that while exercising the power under Section 75 (1) of Provincial Insolvency Act, which is analogous to the provisions of Section 25 of the Small Cause Courts Act, the High Court is by and large bound by the findings of fact reached by the District Court. It was also observed that a wrong decision on facts by a competent authority is also a decision according to law and the Revisional Court has no power to review the findings of fact reached by the trial court.

In Dr. D. Sankaranarayanan v. Punjab National Bank, 1995 Supp (4) SCC 675, it was held as under :

"We are of the view that the learned counsel for the appellant is right when he contends that the revision petition was treated by the High Court as if it were a second appeal and upon a reassessment of the evidence, the findings of facts of the first appellate court were reversed."

"Thus, in our view, the revisional power of High Court under Section 25 of the Act not being an appellate power. It is impermissible for the High Court to reassess the evidence in a revision petition filed under Section 25 of the Act."

In Rafat Ali v. Sugni Bai and others, JT 1998 (8) SC 157, the Apex Court taking into consideration the decision in Sri Raj Laxmi Dyeing Works v. Rangaswami, JT 1998 (4) SC 46, as well as in Sarla Ahuja v. United India Insurance Company Ltd., JT 1998 (7) SC 297, ruled that the High Court should not interfere with the findings of fact merely because it does not agree with the findings of the subordinate authority and that it was not open to the High Court to substitute the findings of the Lower Courts with its own findings in exercise of its limited supervisory jurisdiction.

Similar view has been taken by the Supreme Court in Ramdoss v. K. Thangavelu, JT 1999 (10) SC 51: 2000 SCFBRC 27, wherein while considering the scope of Section 25 of the T. N. Buildings (Lease and Rent Control) Act, 1960 which is analogous to the provisions of the Act, it was ruled as under :

"The High Court, under Section 25 of the Act, can call for and examine the record of the appellate authority in order to satisfy itself as to regularity of such proceedings or the correctness, legality or propriety of any decision or orders passed therein."

Beginning with Ram Narain v. K. L. S. Vishwakarma, 1965 ALJ 989 (DB) and another Division Bench's decision in Laxmi Kishore and another v. Har Prasad Shukla, 1981 ARC 545, this Court has consistently taken the view that in exercise of powers under Section 25 of the Provincial Small Cause Courts Act, the Revisional Court has got no jurisdiction to re-appraise the evidence and to substitute its own findings on the questions of fact in place of findings recorded by the trial court. A reference in this regard may be made to the decisions in Prayag Narain Gaur v. Muneshwar Das and anothe,. 1979 ARC 341; Gopal Krishna Andley u. Vth Additional District Judge, Kanpur and others, 1982 (1) ARC 45 ; Fakir Chand v. IInd Additional District Judge, Aligharh and others, 1984 (1) ARC 68; Jagdish Prasad v. Angoori Devi, 1984 (1) ARC 679; Manmohan Dixit v. Additional District Judge/Special Judge (E. C. Act), Jalaun at Orai and others, 1996 (2) ARC 561 ; Smt. Fatima Begum and others v. IVth Additional District Judge, Jhansi and others, 1997(2) ARC 107 and Durga Prasad and others v. VIIth Additional District Judge, Kanpur Nagar and others, 1998 (1) ARC 470.

In view of the above, the law is settled that the Revisional Court could ignore the finding of fact recorded by the trial court and could 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.

In 1998 (2) ARC 575, Murti Shri Laxman Ji Maharaj v. Panna Lal Sahu and another, it was ruled as under:-

"If the Revision Court was of the view that the finding of the trial court suffered from any infirmity, legal weakness or otherwise was erroneous, it had the power to remand the case to the trial court for recording a fresh finding after laying down appropriate guidelines but it was not within the competence of the Revisional Judge to assess the evidence himself and record his own finding of fact in place of the one recorded by the trial court which was based on appreciation of evidence."

The law relied upon by learned counsel for the opposite parties in Laxmi Kishore and another vs. Har Prasad Shukla, AIR 1979 AWC 746 also says that the Revisional Court would be justified to interfere in a finding of fact where it finds that the trial court had based its finding on no evidence or that the findings were perverse or that it had ignored a vital piece of material evidence. The reliance has also been placed upon the case Mool Narain Mehrotra vs. Smt. Gulab Devi and others, 1987 (2) ARC 411, in which it has been held that the Revisional Court could also ignore a finding where it was based on inadmissible evidence. The Revisional Court, if it finds that a particular finding of fact was vitiated by an error of law, it had power to pass such order as the justice of the case may require.

Considering all the aforesaid law regarding powers of the Revisional Court, and applying the principles laid down in the aforesaid law in the context of the pleadings, documentary evidence and the findings, it cannot be said that the trial court has based its finding on no evidence. It can also not be said that the findings of trial court had ignored any vital piece of material evidence. It can also not be said that the findings were based on inadmissible evidence. It cannot be disputed that in the present case learned Revisional Court has reassessed the evidence on record de novo and has drawn a different conclusion reversing the findings of fact arrived by the trial court. It is undisputedly a finding of fact that who was the tenant i.e. Gauri Shanker in a sole capacity or Gauri Shanker and Shyam Behari in the joint capacity or the firm Gauri Shanker Shyam Behari. The impact of decision of all these three aspects of tenant shall be far reaching. If Gauri Shanker is found to be sole tenant then the position shall be different and the question of sub-tenancy may arise. But if Gauri Shanker and Shyam Behari were the joint tenants then the heirs of Shyam Behari may also be treated to be the tenant after the death of Shyam Behari. But if the firm Gauri Shanker Shyam Behari is treated to be tenant then Shiv Das cannot be said to be sub-tenant because the apex court in Parvinder Singh vs. Renu Gautam and others (supra) has held as under:-

"The rent control legislations which extend many a protection to the tenant, also provide for grounds of eviction. One such ground, most common in all the legislations, is subletting or parting with possession of the tenancy premises by the tenant. Rent control laws usually protect the tenant so long as he may himself use the premises but not his transferee inducted into possession of the premises, in breach of the contract or the law, which act is often done with the object of illegitimate profiteering or rack renting. To defeat the provisions of law, a device is at times adopted by unscrupulous tenants and sub-tenants of bringing into existence a deed of partnership which gives the relationship of tenant and sub-tenant an outward appearance of partnership while in effect what has come into existence is a sub-tenancy or parting with possession camouflaged under the cloak of partnership. Merely because a tenant has entered into a partnership he cannot necessarily be held to have sublet the premises or parted with possession thereof in favour of his partners. If the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with possession. However, if the user and control of the tenancy premises has been parted with and deed of partnership has been drawn up as an indirect method of collecting the consideration for creation of sub-tenancy or for providing a cloak or cover to conceal the transaction not permitted by law, the Court is not estopped from tearing the veil of partnership and finding out the real nature of transaction entered into between the tenant and the alleged sub-tenant".

In Amar Nath Agarwalla vs. Dhillon Transport Agency (supra) the Hon'ble Apex Court has further held that one of the partners of the firm which was the original tenant has continued in legal possession of the premises as a partner of another firm constituted after dissolution of the original firm, the legal possession is retained by a partner who was one of the original tenants and it cannot be said to be sub-letting of the premises.

As held above, it is question of fact that whether Gauri Shanker was sole tenant or Gauri Shanker and Shyam Behari were joint tenant or M/s Gauri Shanker Shyam Behari were tenant is a question of fact. The findings of both the courts below are in conflict with each other. In the present case, learned Revisional Court has exceeded in his jurisdiction in view of the law settled regarding Section 25 of the Provincial Small Causes Courts Act by reappreciating the evidence de novo and coming to a different conclusion. If the Revisional Court was of the view that the findings of the trial court suffer from any infirmity, legal weakness or otherwise erroneous, it has power to remand the case to the trial court for recording a fresh finding after laying down appropriate guidelines. But it was not within the competence of the Revisional Court to reassess the evidence himself and record his own findings of fact in place of one recorded by the trial court which was based on appreciation of evidence.

In these circumstances, there is error of jurisdiction committed by the Revisional Court and I am of the view that the learned Revisional Court has exceeded his jurisdiction.

In view of the above legal position, the writ petition deserves to be allowed and the judgment and order dated 31.01.2011 passed by the learned Additional District Judge, Court No.9, Faizabad is liable to be set aside.

In Khursheeda v. ADJ, 2004 (2) ARC 64 and H.M. Kichlu v. ADJ 2004 (2) ARC 652, it has been held that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act or while maintaining the said relief already granted by the courts below, writ court is empowered to enhance the rent to a reasonable extent.

In the aforesaid authority of Khursheeda (supra), reliance was placed upon the Supreme Court authority of M.V. Acharya v. State of Maharashtra, AIR 1998 SC 602 : 1998 SCFBRC 75, where it was held that it was essential to provide for periodical enhancement of rent under the Rent Control Acts. The Supreme Court has further held that frozen rents are giving rise to lawlessness and landlords out of frustration are approaching muscle man to get the premises vacated and courts of law are becoming redundant in this sphere. This authority has been followed by the Supreme Court in Satyawati Sharma (dead) by L.Rs. v. Union of India and another, (2008) 5 SCC 287: 2008 (71) AlR 499 : 2008 (3) ARC 1.

Under U.P. Rent Control Act, there is no provision of enhancement of rent after October, 1972 (Except where landlord is public charitable or public religious institution (Section 9-A) or Government is tenant (Section 21 (8). In the aforesaid authority of Khursheeda the authority of Supreme Court AIR 1996 SC 2410 : 1996 SCFBRC 471, Shangrila Food Products Ltd. v. Life Insurance Corporation of India is placed in paragraph 11 of which is quoted below:-

"It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. Thus jurisdiction of the High Court, being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorily, before invoking the jurisdiction of the High court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief."

Thereafter in para-8 of the aforesaid authority of Khursheeda, it was held as under :-

"Rent Control Act confers a reasonable advantage upon the tenant of protection against arbitrary eviction. Tenant under the Rent Control Act cannot be evicted except on specific grounds like bona fide need of the landlord, arrears of rent, subletting and material alternation etc. This advantage is also coupled with the advantage of immunity from enhancement of rent. The latter advantage cannot be said to be either reasonable or equitable. The Supreme Court in the aforesaid authority of S.F.P. v. L.I.C., AIR 1996 SC 2410, has laid down that while granting relief to a party the writ court can very well ask the said party to shed the unfair advantage which it gained under the impugned order. By slightly extending the said doctrine it may safely be held that while granting the reasonable advantage to the tenant conferred upon him by the Rent Control Act the tenant may be asked to shed the unreasonable arbitrary advantage conferred upon him by the said Rent Control Act. The writ court therefore while granting or maintaining the relief against arbitrary ejectment ot the tenant can very well ask the tenant to shed the un-reasonable benefit of the Rent Control Act granted to him in the form of immunity against enhancement of rent, however inadequate the rent might be. Tenant will have to shed the undue advantage of immunity from enhancement of rent under the Rent Control Act to barter his protection from arbitrary eviction provided for by the said Act."

Thereafter in H.M. Kitchlu v. ADJ, 2004 (2) ARC 652, it has been held that the same principle of enhancement of rent to a reasonable extent may be made applicable while dismissing the writ petition of the landlord for the reason that by doing so writ court approves the protection of Rent Control Act granted to the tenant by the courts below.

Further in Mohd. Ahmad vs. Atma Ram Chauhan AIR 2011 SC 1940 (arising out of proceedings under Section 21 of U.P. Rent Control Act), it has been held as under:-

"According to our considered view majority of these cases are filed because landlords do not get reasonable rent akin to market rate."

The present tenancy is quite old since 1946, and since then the value of rupee has gone down by more than 100 times. It is the right of every landlord to get proper return of his property. The prices of land and building have also touched a new heights.

The trial court has enhanced the rate of rent from 01.02.1981 to 18.08.2000 at the rate of Rs.100/- per month and from 18.08.2000 to the date of actual possession the rent/ damages has been fixed Rs.1000/- per month. The litigation between the parties is still going on since 1981 for which about 34 years have passed and it is not sure that when this litigation will come to an end.

Certainly, the tenant must be in a gaining position from the said shop. Therefore, considering all facts and circumstances of the case and considering the Apex Court judgments and the judgments of this Court referred above, the rent/ damages is enhanced to Rs.2000/- per month with effect from 01.10.2008 for a period of five years i.e. upto 30.09.2013 and Rs.3000/- per month from 01.10.2013 for a further period of five years.

Considering the law laid down by Hon'ble the Apex Court in Lachoo Mal vs. Radhey Shyam (1971) 3 SCR 693, it is clarified that this direction of enhancement of the rate of rent/ damages is made in spite of the fact that by virtue of Section 2 (1) (g) of Act No.13 of 1972, the applicability of Section 2 (1) (g) is waived. Meaning thereby that either of the party shall not be entitled to take the benefit of Section 2 (1) (g) of Act No.13 o f 1972 and other provisions of Act No.13 of 1972 shall continue to apply.

Accordingly, the writ petition is allowed. The judgment and order dated 31.01.2011 passed by the learned Additional District Judge, Court No.9, Faizabad is set aside and the matter is remanded to the District Judge, Faizabad who shall either himself or by transferring it to any Additional District Judge, shall decide the revision afresh in view of the aforesaid legal position after affording opportunity of hearing to both the parties. Every endeavour shall be done to decide the revision expeditiously and, if possible, within six months.

The parties are directed to appear before the District Judge, Faizabad on 28.05.2015 for further hearing.

Let arrears of rent/damages be paid within three months from today as directed above, failing which, it shall be recoverable with the assistance of the Court.

Office is directed to send the certified copy of this order to the court concerned for compliance.

Date :- 8th May, 2015

Suresh/