Mohd. Naseem Barbar vs Vth Addl. Distt.Judge,Lucknow and Another

IkramUlBari, J.—This writ petition under Article 226 of the Constitution of India has been filed for quashing the judgment and order dated 23298, passed under Section 25 of the Provincial Small Causes Court Act.

The main contention is that the revisional Court admitted additional evidence, considered it and recorded a finding of fact different from the finding recorded by the trial Court and upset the order of the trial Court and substituted it by its own order, that this was not permissible under the law.

The argument has been addressed in support of this plea. Learned counsel for the opposite parties has submitted that under certain circumstances this course adopted by the revisional Court has been upheld and the writ petition has been dismissed.

It is undisputed that finding of the revisional Court is based on the additional evidence accepted by it during the proceedings under Section 25 of the Provincial Small Causes Court Act. The lawful course for the Court should have been to remit the case to the trial Court for consideration of the additional evidence and for recording a fresh finding thereafter. Even if the revisional Court considered the additional evidence and the evidence already on record and came to the conclusion that the finding of the trial Court was not in accordance with the evidence and different finding should have been recorded. The legal course open to the revisional Court was to set aside the finding and the order of the trial Court and to remit the matter to the trial Court for reconsideration and fresh decision.

It is only in exceptional cases that this Court may refuse to interfere with the order of the revisional Court which has been passed in deviation o f the above legal position. If there is no failure of justice and the order in deviation of the legal course is justifiable without occasioning any injustice to any of the parties, the Court may refuse to interfere with such order in the writ petition.

In the present case the additional evidence accepted by the revisional Court was very material and the contrary finding of the revisional Court is solely based on that evidence. The other party had no opportunity to meet the criticism to the finding of the trial Court. A failure of justice had occasioned in this case and it is necessary to interfere in this writ petition.

In view of the above discussion, the impugned order dated 23 298 is set aside and the matter is remitted to the trial Court for reconsideration of the matter and for a fresh decision, within 2 months from the date of receipt of a certified copy of this order. Petition allowed.