A.B.Srivastava - (1.) BY means of this writ petition the petitioners have sought quashing of judgment and order dated 17-2-1993 of the J.S.C.C. Gorakhpur decreeing the suit for their eviction and order dated 28-10-1993 of the First Additional District Judge Gorakhpur confirming the same in revision.
(2.) THE premises in question situate in Mohalla Muftipur in the city of Gorakbpur fully described at the foot the the plaint was in the teancy of late Parmatma Prasad Srivastava who died pendentelite and his widow and two sons the present petitioners were brought on record as his legal representatives. THE rate of rent per month was Rs. 23.25. P. THE suit was filed impleading the tenant Parmatma Prasad Srivastava as defendant no. 1 and Balram Srivastava the respondent no. 4 as defendant no. 2 with the allegations that the tenant was in arrears of rent for more than four months since February 1983 which he did not pay despite demand. He has sublet the premises to the defendant no. 2 Balram Srivastava without any permission from the landlord and does not himself now live in this house and a notice of demand and termination of tenancy dated 21-7-1983 was served on the defendant no. 1 who failed to comply hence the suit. The suit was contested by the defendant nos. 1 and 2 who filed joint written statement denying the allegations of the landlord and pleading that no rent was in arrears as the same has been regularly deposited on account of the landlord's refusal, under section 30 of Act 13 of 1972, the notice served was invalid and was duly replied, no portion of the premises in question has been sublet to the defendant no. 2, rather the said defendant who is a close relation of the defendant no. 1 and is posted as a Dy. C.D.O. in Gorakhpur has been allowed to live in one room of this house, to look after the defendant no. 1 who is suffering from paralysis, as well as his wife. The suit was initially dismissed by the J.S.C.C. on 21-7-1984 on the findings that there was default, the subletting was not established, although notice was valid In revision preferred by the landlord the first Addl. District Judge while confirming the findings on the question of validity of notice and absence of default, set aside the finding of the J.S C.C. on the question of subletting and remanded the case for decision afresh after recording a finding on the said question. After considering the various questions raised by the parties and materials on record, the learned J.S.C.C. by the impugned judgment dated 17-2-1993 found that the factum of subletting was also established and he accordingly decreed the suit for ejectment, the said finding was confirmed in revision. In this writ petition affidavits have been exchanged between the parties as such it is being finally disposed of in accordance with the Rules of the Court.
(3.) CONTENTIONS on behalf of the petitioners in the Writ Petition are two fold, firstly that the petitioners were not allowed opportunity to rebut the documentary evidence admitted in the revision filed against the judgment dated 2I-7-1984 and this has vitiated the impugned orders. Secondly there is no legal and valid evidence to prove the factum of subletting. As to the first question regaiding lack of opportunity to produce evidence it has been contended by the [learned counsel for the petitioners that the revisional court while hearing the revision against the judgment dated 21-7-1984 had no jurisdiction to permit additional evidence in view of the fact that Order 41 Rule 27 CPC dealing with additional evidence in appeals does not apply to revisions. This contention [however, does not have force. A court hearing revision under section 25 Provincial Small Cause Courts Act does have the inherent power in view of the provisions of Section 151 of CPC to permit additional evidence to be brought on record at revisional stage, where such evidence in necessary for doing justice between the parties. This view finds support the principles laid down in Baboo Ram v. Additional District Judge Dehradun, 1983 (1) ARC 15 and Smt. Gulabi Devi v. Additional District Judge/Special Judge E. C. Act Etawah, 1992 (1) ARC 148. The plea that the documentary evidence brought on record at the stage of revision could not be legally considered against the petitioners due to lack of opportunity of rebuttal is also not tenable. In the instant case the documents were admitted on record after hearing the parties by the revisional court which specifically mentioned in its judgment dated 18-9-1991 that the same can also be looked into while deciding the question in issue. It is true that the trial court after remand rejected the prayer of the petitioners to lead additional evidence on the question of sub-tenancy. but as has been pointed out by the learned revisional court in its order dated 28-10-1993, there was sufficient material on record from both sides and the case had been remanded earlier to the trial court for fresh appraisal off the evidence and decide the question of sub-tenancy according to law. Obviously it was so done because the revisional court under section 25 of the Provincial Small Cause Courts Act did not have the power to assess the evidence itself on facts. Apart from it till this stage, the petitioners have not pointed out as to what evidence they intended to produce in rebuttal of the documents admitted by the revisional court. Clearly therefore, there was no prejudice caused to the petitioners and the impugned finding and judgment could not be assailed on account of lack of opportunity of evidence in rebuttal.;