A.B. Srivastava, J. - (1.) IN this writ petition affidavits have been exchanged by the parties. Hence it is being finally disposed of at admission stage in accordance with the rules of the Court after hearing the learned counsel for the parties. This is a tenants petition against whom ex -parte decree dated 10.12.1991 for ejectment and arrears of rent etc. was passed by the J.S.C.C. Saharanpur. After complying with the requirements of Section 17 of the Provincial Small Cause Court Act, the petitioner filed an application under order 9 R.XIII C.P.C. on the ground that he could not appear on the date of hearing because a few days before it his wife fell seriously ill and had to be taken to Meerut for operation. The application was opposed by the other side. By his order dated 16.9.1992, the J.S.C.C. allowed the application and set aside the ex -parte decree. On revision being preferred by the respondent landlord the revisional court by impugned order dated 22.12.1993 set aside the order dated 16.9.1992 and dismissed the application under order 9 R.XIII C.P.C.
(2.) THE main contention in this writ petition of the learned counsel for the petitioner is that the revisional court had no jurisdiction to enter into the questions of fact and set aside the order passed by the J.S.C.C. The contention on the other hand of the learned counsel for the respondent is that the revisional court was entitled to see whether the finding and the order of the J.S.C.C. was perverse and the order of J.S.C.C. being so, the revisional court was perfectly justified in setting aside the same. It is settled law that in a revision under Section 25 of the Provincial Small Cause Court Act the re visional court is entitled to see the legality or otherwise of the finding or the order of the court of small causes but is not entitled to re -assess the evidence itself. In case, it finds re -assessment necessary, it will have to remand the case for such re -appraisal to the court of small causes.
(3.) IN the instant case, the revisional court was justified in its criticism of the approach of the J.S.C.C. in so far as he did not at all decide the question, as to whether on account of illness of the petitioner's wife he was prevented from appearing on the date of hearing, and was entitled to get the decree set aside. The same mistake however, was committed by the revisional court when it without getting the said question decided in accordance with law, rushed to dismiss the application under Order 9 R.XIII C.P.C. itself.;