Man Mohan Dixit vs Addl. District Judge/Special Judge (E.C. Act) and Others

R.H. Zaidi, J.—Heard learned Counsel for the Petitioner and Mr. R. C. Srivastava, Senior Advocate, appearing for the contesting Respondent No. 3.

Present petition arises out of a suit for ejectment and. recovery of rent. The suit was filed by Respondent No. 3 on the ground of default. The Petitioner, who was Defendant in the said suit, contested the suit and pleaded that he was not the defaulter and further he was entitled to the benefit of Sub-section (4) of Section 20 of the U.P. Act No. XIII of 1972. He has further pleaded that entire rent was deposited by the Petitioner in the case u/s 30 of the Act. The trial court after hearing the parties and perusing the record, recorded the findings on relevant issues in favour of the Petitioner. It was held that he was not defaulter as the rent was already deposited by him u/s 30. In view of the said findings it was observed that it was not necessary to decide as to whether the Petitioner was entitled to the benefit of Sub-section (4) of Section 20 of the Act. Having recorded the said findings, the suit filed by Respondent No. 3 was dismissed.

Aggrieved by the judgment and decree passed by the trial court, revision was filed by Respondent No. 3 before the District Judge u/s 25 of Provincial Small Cause Courts Act. The revisional court reversed the findings recorded by the trial court and allowed the revision and decreed the suit of the Plaintiff as prayed. The Petitioner has challenged the validity of the order passed by the revisional court by means of this Petition under Article 226 of the Constitution of India.

Learned Counsel for the Petitioner has vehemently submitted that the trial court after perusing the record of the case, as well as the record of the case u/s 30, which was summoned on an application filed by the Petitioner, recorded a clear and categorical finding to the effect that the Petitioner has deposited entire arrears of rent after the same was refused by the landlord. The deposit made by the Petitioner was held to be valid in consequence of which it was held that Petitioner was not defaulter. The finding recorded by the trial court on the question of default being finding of fact, it was not open to the revisional court in exercise of power u/s 25 of the Act to interfere with the finding of fact. It was further submitted that in the event the revisional court found that the findings recorded by the trial court and decree passed by it were not in accordance with law, it could set aside the findings recorded by the trial court and send back the matter for decision afresh but in any view of the matter, it was not open to it to substitute its own findings for the findings recorded by the trial court and allow the revision.

On the other hand, learned Counsel for the Respondent No. 3 submitted that there was nothing on the record to substantiate as to whether the amount in question was deposited by the Petitioner u/s 30 of the Act. Therefore, the revisional court was justified in holding that the said deposit was not made and the Petitioner has committed default in payment of rent. He has further submitted that the revisional court rightly set aside the findings recorded by the trial court and allowed the revision and decreed the suit.

I have considered the rival submissions made by the learned Counsel for the parties.

From the statement of fact made in the judgment of trial court, it is apparent that the record of case (Case No. 25 of 1989 u/s 30) was summoned on the application made by the Petitioner, in exercise of power u/s 13, Rule 10, CPC Record was perused from which it was found that the amount in question was deposited by the Petitioner in the said case. It was further held that the said amount was deposited after the Respondent No. 3 refused to receive the same. It was also held that the Petitioner was legally Justified in depositing the same and the deposit made by him was valid. It is correct that the Petitioner should have also placed some documentary evidence on the record of this case to substantiate his claim that the amount in question was deposited by him u/s 30 in the aforesaid case ; but it was also open to the court to send for the record of case No. 25 of 1989 from the court of Munsif and to peruse the same. In any case, even assuming without admitting that some irregularity was committed by the trial court or the Petitioner was not correctly advised by his counsel, it was necessary for the ends of Justice that revisional court ought to have, after setting aside findings recorded by the trial court, sent back the case to the trial court for decision afresh. In my opinion there was no occasion for the revisional court to re-appraise the evidence and to substitute its own findings for the findings recorded by the trial court. Learned Counsel in support of his submission referred to and relied upon the decision in Rafat Ali Khan v. District Judge, Banda 1995 (2) ARC 436. wherein, after perusing several rulings of this Court, it was held as under:

In the aforesaid cases, it has consistently been held by this Court that the Revisional Court in exercise of power u/s 25 of the Act has got no Jurisdiction to reappraise the evidence and to reverse the findings recorded by the trial court on question on fact and substitute his own findings. It has further been held that in the event the Revisional Court is not satisfied with the findings recorded by the trial court on question of fact he could at the best remand the case to the trial court. In any view of the matter Revisional Court has got no Jurisdiction to reappraise the evidence and to reverse the findings of fact.

In view of the aforesaid discussion, no useful purpose will be served if the matter Is set back to the revisional court for a decision afresh inasmuch as the revisional court will have to send back the matter to the trial court. It will also cause delay in disposal of the dispute giving rise to the present petition.

I, therefore, quash the order passed by the Respondent No. 1 dated 20.5.1996 as well as the order passed by the trial court dated 10.2.1995 and send back the case to the trial court for decision afresh in the light of observations made above. It will be open to the Petitioner to file documentary admissible evidence in the case to substantiate his claim regarding deposit of the amount in question u/s 30 of the Act. Respondent Nos. 2 and 3 shall also have opportunity to file the evidence in rebuttal.

No order as to costs.