N.D.Ojha, J. - (1.) A suit was instituted by respondents 3, 4, 5 and one Sri Raj Kumar against Ghanshyam Dass predecessor-in-interest of the petitioners and respondents 9 to 12 for ejectment from a house and for recovery of arrears of rent etc. on the ground that Ghanshyam Dass, who was the tenant of the said house on behalf of the plaintiffs, was a defaulter in payment of rent, be not having cleared the arrears of rent for a period of more than three months notwithstanding a notice of demand having been served on him. Raj Kumar one of the plaintiffs died during the pendency of the litigation leaving respondents 3 to 8 as his legal representatives of whom respondents Nos. 3 to 5 were already on the record and 5 to 8 were substituted. Likewise Ghanshyam Dass also died during the pendency of the litigation leaving the petitioners and respondents 9 to 12 as his legal representatives. The suit was contested by Ghanshyam Dass inter alia on the ground that the rate of rent was Rs. 12/- p m. only and not Rs. 15/- p.m. as claimed by the plaintiffs and that on the receipt of the notice of demand the arrears of rent calculated at the rate of Rs. 12/- p.m. were remitted by money-order which the landlord refused and consequently he was not a defaulter in payment of rent.
(2.) The Judge, Small Cause Court, Ghaziabad, respondent No. 2, held that the rate of rent was Rs. 12/- p.m. as pleaded by the tenant and not Rs. 15/- p.m. as pleaded by the landlords and since on the receipt of the notice of demand the arrears of rent calculated at the rate of Rs. 12/- p.m. were remitted by money order and refused by the landlords, the tenant could not be said to be a defaulter in payment of rent. On this finding the suit for ejectment was dismissed. In regard to the arrears of rent, it was held that since the arrears of rent had been deposited in the court, the landlord could withdraw the same. Aggrieved by that order respondents 3 to 8 preferred a revision under section 25 of the Provincial Small Cause Courts Act before the District Judge, Meerut. This revision came up for hearing before the Vth Additional District Judge, Meerut, respondent No. 1, and was allowed on 17-3-79. It is this order of respondent No. 1 which is sought to be quashed in this writ petition.
(3.) It was urged that the finding in regard to the rate of rent as recorded by the Judge, Small Cause Court, was a finding of fact and respondent No. 1 did not have the jurisdiction to reverse that finding on reappraisal of evidence and to record his own finding that the rate of rent was Rs. 15/- p.m. and not Rs. 12/- p.m. For the landlords on the other hand it has been urged that on the very face of it the finding of the Judge, Small Cause Court was erroneous in law and it was open to respondent No 1 to set aside that finding even in exercise of the powers, conferred on him under section 25 of the Provincial Small Cause Court's Act.;