WPMS/570/2022
2022 Latest Caselaw 2027 UK

                Office Notes, reports,
                orders or proceedings
SL. No   Date     or directions and                  COURT'S OR JUDGES'S ORDERS
                Registrar's order with
                     Signatures
                                         WPMS No. 570 of 2022
                                         Hon'ble Manoj Kumar Tiwari, J.

Mr. Narendra Bali, Advocate, for the petitioner.

Mr. Nikhil Singhal, Advocate, for the respondent.

This writ petition, under Article 227 of Constitution, has been filed challenging the order dated 10.01.2022 passed by learned Judge SCC/2nd Additional District Judge, Haridwar, in SCC Revision No. 28 of 2019.

Petitioner is tenant in respect of a shop situated in Village Sultanpur Majri, Post Office Bahadrabad, District Haridwar. Respondent, who is landlord of the said shop, filed a suit for rent and ejectment against petitioner and it was registered as SCC Suit No. 20 of 2018. Learned Judge, SCC/Civil Judge (Sr. Div.), Haridwar decreed the said suit on 14.10.2019. Petitioner challenged the judgment and order dated 14.10.2019 by filing revision under Section 25 of Provincial Small Cause Courts Act, 1887. The said revision is still pending.

Before Revisional Court, petitioner moved an application under Order 26 Rule 9 read with Section 151 CPC with a prayer to appoint Survey Commission/ Survey Amin to measure the distance of the shop from the municipal limits. Said application filed by petitioner was rejected by learned Revisional Court vide impugned order dated 10.01.2022 by holding that revisionist (petitioner herein) has produced certificate given by Public Works Department on record in support of his contention that the shop, in question, is within 3 Kms. from the municipal limits of Nagar Palika, Shivalik Nagar, therefore, the said aspect shall be considered while deciding the revision. Learned Revisional Court further held that the grounds enumerated in Order 41 Rule 27 CPC for admitting additional evidence are also not made out, therefore the application cannot be allowed.

Heard learned Counsel for the parties and perused the record.

Learned counsel for the petitioner submits that learned Revisional Court erred in rejecting petitioner's application by a cryptic order. He further submits that despite material evidence on record to substantiate petitioner's case that the shop was situated within 3 Kms. from the municipal limits, learned trial Court had recorded a perverse finding, therefore, to elucidate the facts, it was necessary to ascertain the distance of the shop from municipal limits.

Per contra, Mr. Nikhil Singhal, learned Counsel appearing for respondent, contended that a specific issue was framed by trial Court as to whether the shop, in question, is exempted from provisions of U.P. Act No. 13 of 1972 and the said issue was decided against petitioner, as he had not made any specific pleading in his written statement regarding distance of the shop from the municipal limits. He further submits that petitioner cannot be permitted to fill up the lacuna at the stage of revision.

I find substance in the contention of learned Counsel for respondent that petitioner is trying to fill up the lacuna, as was pointed out by learned Trial Court. It is not the case where Trial Court refused to admit evidence adduced by petitioner nor can petitioner contend that the evidence, now sought to be adduced by him, was not within his knowledge or that he could not produce the same before the Trial Court despite due diligence.

Petitioner has challenged the order passed by Revisional Court by filing petition under Article 227 of the Constitution, which gives this Court supervisory jurisdiction. In exercise of this jurisdiction, this Court does not act as an appellate Court, to reappreciate or reweigh the evidence or facts upon which the determination under challenge is based.

This Court in exercise of its power under Article 227 of the Constitution of India can examine inherent lack of jurisdiction, but such exercise of power cannot be so stretched to examine the error of fact or error of law. It is neither desirable nor possible for this Court, while dealing with matters under Article 227 of Constitution of India, to deal with any alleged factual error or mistake of law.

Thus, this Court does not find any reason to interfere with the impugned order.

Learned Counsel for the petitioner then submitted that learned Revisional Court be directed to first decide the issue of applicability of U.P. Act No. 13 of 1972 to the shop in question.

No further direction on this aspect would be needed, as learned Revisional Court has observed in the impugned order that this aspect will be decided at the stage of final hearing.

In such view of the matter, writ petition fails and is dismissed.

Interim order dated 25.03.2022 is vacated.

(Manoj Kumar Tiwari, J.) 07.07.2022 Pr