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    CIVIL REVISION No - Sabiya Begum Vs - DR - M PDF

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    Rajeev Sharma

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    © All Rights Reserved
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    saraieo19 JUDGMENTIOROER IN - CIVIL REVISION No. 45 of 2009 at Allahabad Dated-4.2.2016 CASE TITLE - Smt. Sabiya Begum Vs. Or eLegalix - Allahabad High Court Judgment Information System (JudgmentOrder in Text Format) This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Deputy Registrar(Copying). HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No, - 34 Case :- CIVIL REVISION No, - 45 of 2009 Rovisionist :- Smt. Sabiya Begum Opposite Party :- Dr. M. Hayat Ansari Counsel for Revisionist - PK. Dubey, Dharam Pal Singh, Hari Bans Singh, S. Niranjan, Sharfuddin Ahmad, Yadevendra Dwivedi Counsel for Opposite Party :- S.M. Haider Zaidi Hon'ble Sudhir Agarwal, J. 1. Heard learned counsel for parties and perused the record 2. This Revision under Section 25 of Provincial Small Cause Courts Act, 1887 (hereinafter referred to as the "Act, 1887") has arisen from judgment and order dated 04.11.2008 passed by Sri PX. Jain, Special Judge (E.C. Act), Kanpur Nagar dismissing Small Causes Suit No. 44 of 2005 instituted by revisionist !andlord for eviction and recovery of arrears of rent in respect to disputed premises which is a shop. The shop was let out to defendant-respondent allegedly on a monthly rent of Rs. 4000/- per month, but itis submitted that despite repeated demand, rent has not been paid since February’ 2003. Itis further submitted that property in dispute was let out to defendant-respondent for a period of eleven months only which expired on 04.02.2003 and since period of lease has not been extended, therefore, the tenant is abe to be evicted 3. Court below formulated five issues as under: M- Dsk oknxazLr IEMRr ij mOiz0 vikfuse lak 13 lu~ 1972 ds izkfo/kku ykxw gksrs gSal tSik fd izfroknh us iFtkdtFKr fk 98 2. Dik oknxzLr nqdku edku lafk 88@384] gqek;awckx] dkulg) ux) KVZ AA dk Hkkx gS] {Sik fd okfnuh us viHkalFrfa:k gS YVFkok ;g ngdku edku laf:k 88@384] gqok:awckx] dkuigj ux) esa fLFkr gS] tSk fd ifoknh dark gS vkS} D;k edku uE¢j ds bl Ur} dk oknxzLr nadku dh Fkuk[r ij dksbZ izHkko gS vFKok ugha\ 3- Djk iafroknin dh fajk;snikjh frukad 5-2-2002 Is i2kjEHk gqbZ. vkSj bl cker ikdk)ksa ds ef; dksbZ fyf{kr vuqcU/k fu"ikfne ‘ggvk vkSj oknxzLr nadku dk fojk:k 4000@& is ifrekg F; gavk vFkok fookinr nqdku esa izfroknh o°kZ 1999 ls 500@& i's izirekg dh nj ls fdjk;snk) vkckn pyk vkrk GSA 4- Dik ifroknin us fdjck vnikixh esa dksbZ pd dh vkSj D;k midh fejk;snkjh uksfVI frukafdr 17-3-2005 }kjk lekir ah tk pach SA 5- okfnuh fal vugrks"k dks ikus dh vifkdkf.kh gS" "1, Whether the provisions of the UP Act 13 of 1972, as averred by the defendant, is applicable to the property in litigation? 2, Whether the shop in Itigation is a part of house no 88/384, Humayun Baag, Kanpur Nagar, Part Il as averred by the lady plaintif, or the shop is situated in house no 88/384, Humayun Baag, Kanpur Nagar as averred by the defendant and whether this difference in the house numbered above put any effect on the identification ofthe disputed shop or not? 3. Whether tenancy of the defendant commenced since §.2.2002 and any written contract in this regard was executed between the parties fixing the rent ofthe shop in litigation as Rs 4000I- per month or whether the defendant has been a tenant being in possession over the disputed shop since 1293 @ 500/- per month. 4. Whether the defendant has defaulted in payment of the rent and whether his tenancy has been terminated vide notice dated 17.3.20057 ‘8. What reli the plaintif is entitled to get?" English Translation by Court) 4. While answering Issue 1, Court below has said that premises in question is not governed by provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as “Act, 1972") since the shop in ‘question was constructed on and after 1991. Issue 2 has been answered observing that premises in question is identifable. Coming to substantial Issue 3, Court below has found that alleged agreement was not proved though it was disputed by defendant and therefore onus lay upon plaintiff to prove the said document which has not been discharged Further, plaintiff also falled to prove any default in payment of rent, and, in fact, Court below found that monthly rent was ‘only Rs, 500/- per month and not Rs. 4000/- per month and document allegedly executed on 05.02.2002 was a forged document. Issue 3 was answered accordingly. Issue 4 then has also been answered in favour of defendant holding that, there was no default and in these facts and circumstances, suit has been dismissed. 5. Counsel for revisionist at this stage contended that respondent has purchased another premises and the premises in question is lying under lock, therefore respondent should be evicted therefrom and the shop be handed over to revisionist. 6. The submission, in my view, is thoroughly misconcelved. Suit was not instituted on the ground that respondent has purchased any premises and should be evicted for thal reason alone. No such ground is available under Transfer of Property Act, 1882 (hereinafter referred to as “Act, 1882"). Admittedly this ground is available to a tenanted promises. if it is governed by Act, 1972, but in the case in hand Court below has clearly returned Issue No. 1 holding that Act, 1972 is not attracted to premises in question and, therefore, the ground of eviction available in Act, 1972 cannot be applied to «legalix allahabachighcour in/legaliiWebShowJudgmentdo 13 saraieo19 JUDGMENTIOROER IN - CIVIL REVISION No. 45 of 2009 at Allahabad Dated-4.2.2016 CASE TITLE - Smt. Sabiya Begum Vs. Or premises in question. The eviction of defendant-respondent was sought on the ground of expiry of period of lease as also default and both have been answered by Court below against plaintiff-revisionist, Before this Court also, on these findings of fact recorded by Court below no argument has been advanced to show that judgment of Court below and findings recorded are not in accordance with law or not based on evidence or otherwise perverse etc, No interference, therefore, is, called for. 7. Even otherwise, this aspect cannot be examined at all since there is no material at all to substantiate the same and the scope of revision under Section 25 of Act, 1887 is only whether the decree or order made by Small Cause Court was according to law or not. Undoubtedly itis a supervisory power and not appellate power, The Revisional Court can call for record to see whether decree is according to law ang, if not, it can pass such order with respect thereto as it may thinks fit 8, The next question is, the ambit of the words "according to law" occurring in Section 25 of Act, 1887. 9. The Apex Court considered the same in Hari Shanker Vs, Rao Girdhari Lal Choudhary, AIR 1963 SC 696 and held that it refers to the decision as a whole and not to be equated to error of law of or of fact simpliciter. It contemplates that entire decision, ie., the overall decision must be according to law. There should be no miscarriage of justice due to a mistake of law. 10, Some of the instances where the Court can interfere under Section 25 are, (1) where the Court has no jurisdiction in the matter; (2) where a party had not been given a proper opportunity of being heard, or that the burden of proof had been misplaced on wrong shoulders; (3) where the Court had based its decision on evidence which should not have been admitted; (4) where there has not been a proper trial according to law; and (5) if on certain facts two views are possible, then a Court exercising jurisdiction under Section 25 was not interfered, 11. The observations of Beaument, C.J. in Bell and Co. Ltd. Vs. Waman Ramraj, AIR 1938 Bombay 223 were referred and approved by Apex Court in Hari Shanker Vs. Rao Girdhari Lal Choudhary, AIR 1963 SC 696, Itfuriher said: “the court ought not to interfere merely because it thinks that possibly the judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at 12. In Malini Ayyappa Naicker Vs. Seth Manghraj Udhavdas Firm, AIR 1969 SC 1244 it was held that a wrong decision on facts by a competent court is also a decision according to law, The Court has no power to de novo examine the findings of facts reached by Trial Court, 13, In Ram Narain Vs, Kanhaiya Lal Vishwakarma, 1985 ALJ 989 a Division Bench said that Revisional Court is not ‘empowered under Section 25 to look into evidence of case and decide whether the finding of fact arrived at by court below is justified by evident on record or not. 14, The language of Section 25 is different than the Revisional Court powers conferred on civil court under Section 115 cP. 15. Act, 1887 constitute Small Cause Courts of exclusive on preferential and limited jurisdiction. The class of suits not cognizable by small causes is listed in the schedule appended to Act, 1887. The provisions of Civil Procedure Code inapplicable to Small Cause Court are provided in Section 7 of C.P.C. By Section 40 of Bengal, Agra and Assam Civil Courts Act, 1887 certain provisions thereof, ie., Sections 15, 32, 37, 38 and 39 have been applied to Small Cause Courts. Vide Section 7 the applicability of Sections 96, 112 and 115 C.P.C. is made inapplicable to Small Causes Court, meaning thereby its judgment is made non-appealable. The Trial in Small Cause Court is summary and its decision is final subject to revision under Section 25 only. Its in these circumstances, one has to make a distinction between power of Revisional Court under Section 25 and other appellate and revisional powers under C.P.C. or other provisions of procedural statutes. 16, The circumstances where Rovisional Court to find out whether decision of Small Cause Court is in accordance with law may look into the facts without assessment have been explained in para 19 and 20 of judgment of Division Bench in Laxmi Kishore and another Vs, Har Prasad Shukla, 1981 ARC 545 and it says: "19. iit 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 finding is based only on admissible evidence. In such case, 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. 20. But, if itfinds 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 as issue of fact for itself. Ifit 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, asses it and determine an issue of fact.’ 17, The bar is in effect with respect to reassessment of evidence and substitute its conclusion of fact but not where relevant evidence has not been considered or finding is based on inadmissible evidence or finding is without any evidence ‘etc, In Dr. D, Sankaranarayanan Vs. Punjab National Bank, 1995 Supp. (4) SCC 675 the Apex Court reiterate that reassessment of evidence is not permissible to substitute its own inference but not where the decision is not in accordance with law, If he Revisional Court does not agree with finding, that by itself cannot be a ground since it is within the realm of assessment of evidence. This is what has been observed by Apex Court in Rafat Ali Vs. Sugni Bai and others, JT 1998(8) SC 157; Sri Raj Laxmi Dyeing Works Vs. Rangaswami, JT 1998(4) SC 46; Sarla Ahuja Vs. United Insurance Company Ltd., JT 1998 (7) SC 297; and, Ramdoss Vs, K. Thangavelu, JT 1999(10) SC 51 18, Recently, the scope of Revisional Court has been considered by Constitution Bench of Apex Court in Hindustan Petroleum Corporation Ltd. Vs. Dilbahar Singh 2014 (9) SCC 78 and while expressing its agreement with the view ‘expressed in Sri Raja Lakshmi Dyeing Works and Ors. Vs. Rangaswamy Chettiar (1980) 4 SCC 259 the Court said that power of Revisional Court under Rent Statute though is wider than the revisional power under Section 115 of Code of Civil Procedure, but itis not wide enough to make the Revisional Court a second Court of First Appeal. It clarified that when the Court has to satisfy itself that the decision of Court below is according to law, in order to find out whether a finding of fact recorded by subordinate Court is according to law, it can see whether such finding of fact is based on some legal evidence or it suffers from any illegality or misreading of evidence or overlooking or ignoring the material evidence altogether or suffers from perversity or any such illegality or such finding has resulted in gross miscarriage of justice, but i does not empowers the Revisional Court to appreciate the evidence and take a different view as if siting in appellate

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