Abdul Hamid (D) through L.Rs. vs IXth A.D.J. and Others

Tarun Agarwala, J.—Suit No. 75 of 1976 was filed for the eviction and for arrears of rent against the petitioner. The said suit was decreed. The petitioner filed a revision which was allowed and the decree of eviction and for arrears was set aside by a Judgment dated 18.4.1978. The landlord did not pursue the matter and the matter become final. It transpires that the landlord issued a notice dated 17.10.1983, u/s 106 of the Transfer of Property Act, determining the tenancy on the ground of arrears of rent, w.e.f. 21.3.1973 and, on the ground of making material alteration in the building by construction of rooms thereby diminishing its value and utility. Upon the expiry of the period of notice, the landlord instituted a suit. The trial court, dismissed the suit, on the ground that there was no default and also on the ground that there was no construction in the tenanted premises and that the construction so made was outside the tenanted premises which did not diminish the value of the building.

Aggrieved, the landlord filed a revision u/s 25 of the Provincial Small Cause Courts Act, which was allowed by the impugned judgment and the suit was decreed for eviction on the ground that the petitioner had made material alteration in the building which had diminished its value. The petitioner, being aggrieved by the aforesaid order, has filed the present writ petition.

Heard Sri M.A. Qadeer, the learned Counsel for the petitioner and Sri B.D. Mandhyan, the learned Counsel for the respondents.

The learned Counsel for the petitioner submitted that the revisional court exceeded its jurisdiction in examining the findings of fact reached by the trial court. The Court exercising revisional power u/s 25 of the Act does not possess jurisdiction to determine an issue of fact itself by entering into the evidence and assessing it, and therefore, the revisional court committed an error in interfering in the findings of fact recorded by the trial court. In support of his submission, the learned Counsel for the petitioner placed reliance upon a decision of a Division Bench of this Court in Laxmi Ktshore and Anr. v. Har Prasad Shukla 1979 AWC 746.

The learned Counsel for the petitioner further submitted that even otherwise, it was a case of no evidence or inadmissible evidence, inasmuch as, the findings arrived at by the revisional court was based on surmises and conjectures and that, in any case, the construction alleged to have been made was outside the tenanted premises which cannot be made a ground for eviction u/s 20 (2)(c) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act).

On the other hand, the learned Counsel for the respondents submitted that the trial court had ignored the Commissioner''s report and had dismissed the suit on the ground that an unfinished "Khokha" was constructed outside the tenanted premises which was insufficient for eviction u/s 20(c)(2) of the Act which was against the findings recorded by the Commissioner, who categorically stated in his report that two rooms were also constructed inside the tenanted premises, The learned Counsel further submitted that the Commissioner report was confirmed and was part of the record of the trial court which was ignored by the trial court, and therefore, the revisional court had rightly exercised its powers u/s 25 of the Act, since the finding of the trial court was not based on evidence. The learned Counsel, further submitted, that the trial court also laid much emphasis on the earlier judgment of the trial court in earlier proceedings in coming to the conclusion that the tenanted premises was more than one room which again was based on surmises and conjecture and on presumptions rather than on concrete evidence that was already existing on the record.

The revisional court, found that the finding given by the trial court was erroneous and was vitiated by an error of law and after considering the evidence, arrived at a different conclusion. Much emphasis has been laid on the power that could be exercised by the revisional court u/s 25 of the Provincial Small Cause Courts Act. For facility, Section 25 of the Act provides as under:

Revision of decrees and orders of court 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 orders with respect thereto as it thinks fit.

The aforesaid provision confers a supervisory power and not an appellate power.

In Hari Shanker and Ors. v. Cirdharilal 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 (supra), held that the Court exercising revisional power u/s 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 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 u/s 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 u/s 25 of the Provincial 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 (supra), 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 the 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 if only a question of law or some preliminary point of law, viz., validity of notice, is sufficient for 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 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.

Similar view was reiterated by a learned single Judge in Mool Narain Mehrotra Vs. Smt. Gulab Devi and Others, .

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.

In the light of the aforesaid, in the present case, the trial court while dismissing the suit had laid emphasis on the earlier judgment of the trial court in the earlier proceedings in coming to the conclusion that the tenanted portion included more than one room. Further, the trial court found that an unfinished ''Khokha'' was existing outside the tenanted premises which construction could not be utilised u/s 20(2)(c) of the Act.

In the opinion of the Court, both the findings given by the trial court are not only perverse but are also liable to be ignored. The judgment of the trial court in the earlier proceedings clearly indicates that the tenanted premises of the petitioner consisted of one room and that no reasonable person on a bare reading of the judgment could come to a conclusion and hold that the tenanted premises consisted of more than one room. The finding of the trial court that the tenanted premises consisted of more than one room is not only based on surmises and conjectures but is also perverse and is liable to be ignored. The trial court was further impressed by the fact that the alleged construction was outside the tenanted premises. The trial court has Ignored the Commissioner''s report which was accepted and was part of the record of the trial court. The Commissioner''s report categorically stated that two additional rooms had been constructed recently. These two rooms were in addition to the unfinished ''Khokha'' constructed outside the tenanted premises. The trial court conveniently ignored the finding given by the Commissioner in his report. Since material evidence was ignored, the revisional court considered the material evidence in coming to the conclusion that the petitioner had made additional construction in the tenanted premises.

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 u/s 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.

For claiming eviction u/s 20(2)(c) of the Act, the landlord is required to establish that the tenant had made the construction in the building and that the said construction had been done without the landlord''s written permission and further the construction was such that it had diminished its value or utility or disfigured it.

In the present case, I find from the evidence on record that the petitioner was given a tenancy of one room and that he constructed two rooms which was done without the landlord''s permission. The court below found that the construction had not only disfigured the tenanted premises but had also diminished its value. These findings are based on appreciation of evidence which requires no interference in a writ jurisdiction.

In view of the aforesaid, this Court is of the opinion that the impugned order passed by the revisional court does not suffer from any error of law. Consequently, the writ petition fails and is dismissed.

In the circumstances of the case, there shall be no order as to cost.