Dilawar Khan vs IV Additional District Judge and Others

Sudhir Narain, ,J.

This writ petition is directed against the judgment dated 2771984 passed by Respondent No. f whereby he allowed the revision and decreed the suit for ejectment against the petitioner

Briefly stated, the facts are that the plaintiffrespondents filed suit for recovery of arrears of rent, ejectment and damages against Haji Nazai Ahmad, Respondent No. 7 and Dilawar Khan, the petitioner. It was stated that Haji Nazar Ahmad was the tenant of the disputed accommodation and he sublet it to Dilawar Khan, the petitioner. The notice for demanding the arrears of rent was sent to the tenant but inspite of service of notice, the rent was not paid. The suit was contested by the petitioner alone. Haji Nazai Ahmad did not file written statement. According to the petitioner he is tenant of Jugal Kishore, father of the plaintiffs and was not subtenant. Earlier Haji Nazar Ahmad was tenant and the receipts were issued in his name. He and Haji Nazar Ahmad were business partners in one shop. He started the business for about 4 years. He lived in the house upto 1963 and thereafter he purchased the house at Rai Ka Tazia and shifted there.

The trial Court recorded finding that the petitioner was tenant and rro notice was given to the petitioner, he was not liable for eviction. The suit was decreed only for the recovery of arrears of rent and not for ejectment. The plaintiffrespondent filed revision against this judgment. Respondent No. 1 has allowed the revision and decreed the suit for recovery of rent and ejectment.

The question as to whether disputed accommodation was let out to Haji Nazar Ahmad and whether the petitioner was subtenant involves determination of facts. The revisional Court has appreciated the evidence and considered certain documents and came to the conclusion that in fact the rent was demanded from Haji Nazar Ahmad and that he should be treated as tenant. It is a matter of assessment of the evidence. If the revisional Court after coming to the conclusion that either the trial Court has not considered the material evidence and misread certain evidence and its approach was erroneous, it should have remanded the matter to the trial Court for recording the finding afresh as held in Division Bench decision of this Court in Laxmi Kishore and others v. Har Prasad Shukla., 1997 ACJ 473.

The writ petition is allowed and the order of Respondent No. 1 allowing the revision by order dated 2771984 is hereby quashed. The trial Court will decide the matter afresh in accordance with law keeping in view certain observations made by the revisional Court within three months. It will not normally adjourn the case and if it is to be adjourned, for not more than three days.

Parties shall bear their own costs.