S.U. Khan, J. - (1.) THIS is tenant's writ petition. Landlord respondent filed suit for eviction against tenant petitioner being SCC suit No. 485 of 1977 on various grounds mentioned under section 20(2) of U.P. Act No. 13 of 1972. JSCC, Aligarh through judgment and decree dated 29.9.1978, decreed the suit for eviction only on the ground of inconsistent user as provided for under section 20(2)(d) of the Act. Against the said judgment and decree, a revision was filed by the tenant in the form of SCC revision No. 170 of 1978. Revision was allowed by Vth Additional District Judge, Aligarh on 12.9.1979 and suit for ejectment was dismissed. Against the said judgment and order a writ petition was filed in this Court being writ petition No. 39 of 1980. The writ petition was allowed on 6.8.1982, order of the Revisional Court dated 12.9.1979 was quashed and the matter was remanded to the Revisional Court for decision afresh. Revision had also been filed by the landlady being revision No. 194 of 1978 which was dismissed by the Revisional Court and the said judgment was affirmed through the judgment of the earlier writ petition dated 6.8.1982. (Landlord had filed revision against findings of Trial Court recorded in favour of tenant regarding rate of rent and benefit of section 20(4) of the Act.) After remand from the High Court Revisional Court through judgment and order dated 2.8.1983 dismissed the revision. This writ petition is directed against the aforesaid judgment of the Revisional Court as well as Trial Court dated 29.9.1978. Copy of the plaint has not been annexed along with writ petition or the counter affidavit. However, from the judgment of the Trial Court under issue No. 5 it is clear that according to plaint allegations, accommodation in dispute was let out to the defendant for residential purposes and defendant started using it for running a tea stall. Accommodation in dispute consists of two shops or rooms. Tenant pleaded that he had taken both the shops for running a tea stall and was using one of the shops for residential purposes however dominant purpose was commercial hence he was not liable to ejectment on the ground of inconsistent user. The Trial Court has held that: - - Defendant has not pointed out the fact which could prove that he had residential accommodation somewhere else. He could file certain documents in this context. He contends that he is an old tenant. Thus he could file extract of electoral rolls and ration card relating to some other accommodation.
(2.) AFTER close of evidence tenant sought permission to file his ration card and the application was allowed on payment of cost. According to the ration card, in December, 1974 defendant was living in Mohalla Soot -mill. Commissioner's report is also on record. These facts are mentioned in the earlier judgment of the Revisional Court dated 12.9.1979 which was reversed by this Court through judgment dated 6.8.1982 passed on the earlier writ petition. After remand from this Court the revision was dismissed on 2.8.1983 by IIIrd Additional District Judge, Aligarh by holding that: The Trial Court discussed the oral as well as documentary evidence and came to the conclusion that the shops were given only for the purposes of residence and not for the purposes of business.
(3.) THESE observations of the Revisional Court are clearly against the record. The Trial Court did not discuss any documentary evidence particularly the ration card. In fact Trial Court was oblivious of the fact that ration card was on record as application for bringing it on record had been allowed. The Trial Court specifically mentioned in its judgment that ration card which was an important document had not been filed by the tenant -petitioner. The Revisional Court further held that: - - Finding of fact recorded by the Trial Court that the premises was given on rent for residential purposes only, cannot be interfered in revision under section 25 of the P.S.C.C. Act as per observations of the High Court in the above noted petition. If findings of facts are arrived at by ignoring material piece of evidence (ration card and Commissioner's report in the instant case), then the said findings are erroneous in law and can be interfered with by the Revisional Court. The question whether Revisional Court in such circumstances shall finally decide the revision or remand the matter will have to be decided in the light of the judgment reported in 1979 A.R.C. 746 (referred to in the remand order passed by this Court also). Ration card and Commissioner's report have not been discussed in either of the two impugned judgments of the Trial Court and Revisional Court. Suit cannot be decreed on the admission of the defendant that he took the shops for commercial purpose and was using one of the shops for incidental purpose of residence for the reason that there is no such pleading in the plaint. This fact was not pleaded in the plaint as alternative plea even by amendment after filing of written statement. Suit can be decreed only on the pleas pleaded in the plaint and not on admission of defendant, which is not admission of any plea pleaded in the plaint. Accordingly, there is no option except to remand the matter to the Revisional Court again.;