A.P.Misra, J. - (1.) This writ petition is directed as against the order dated 22nd May, 1976 (Annexure-II to the writ petition) passed by the revisional court exercising powers under section 25 of the U.P. Provincial Small Causes Courts Act.
(2.) The brief facts of the case are that the petitioner is the owner and land- lord of the building situate in Mohalla Farash Tola alias Ghamandi Ka Gola City Azamgarh. The case of the petitioner is that he admitted respondent nos. 3 and 4 as his tenant for Rs. "0/- per month for running a shop in the aforesaid house. In the premises in question the respondents aforesaid were running a hotel in the name and design of Sindhi Hotel. The present suit was filed by the petitioners for ejectment of the said respondents from the disputed accommodation mainly on two grounds : firstly that in the disputed premises material alterations had been made and secondly that they had sub-let the accommodation in question to respondent no. 5. The trial court after taking into consideration the evidence on the record came to the conclusion that the material alterations were made in the said accommodation and respondent nos. 3 and 4 had sublet the same in favour of respondent no. 5. In view of this finding the said suit was decreed in favour of the petitioner. Respondent nos. 3 and 4 aggrieved by the said order filed the revision under section 25 of the aforesaid Act. The revisional court during the pendency of the revision permitted respondent nos. 3 and 4 to file a number of documents and the said documents were taken on the record and the decision was based taking into consideration those documents on the record. After admitting those documents the revisional court recorded a finding that there is no material on record to justify the finding recorded by the trial court that there was material alteration in disputed premises and the finding that there was sub-tenancy was also not sustainable in view of the evidence on record and also in view of the additional evidence filed by the parties. It is not in dispute that the revisional court in the present case appraised the evidence on record for drawing the conclusion that there was no sub-tenancy and there was no material alteration.
(3.) Counsel for the petitioner raised two points in the present writ petition; firstly that the revisional court had no jurisdiction to permit the additional evidence to be taken at the revisional stage and secondly that even if the said evidence was permitted the petitioner should have been granted opportunity tore but the same. It was also contended that in any case even if the revisional court had power, the proper course open for it was to remand the case back before the trial court for appraisal of evidence afresh in accordance with law. For this purpose reliance was placed by the council for the petitioner in the case of Smt. Gujja and others v. P.L. Nigam and others, 1982 ACJ 312 . The relevant portion is quoted here under : "Smt. Tewari appearing on behalf of the petitioners has relied on Kamini Khare v. Ram Naresh, 1979 ALJ 1263 . in which it has been held by Hon. Mahabir Singh, J. that a revisional court under section 25, Provincial Small Cause Act, has no power to take addi- tional evidence except in case where any evidence was disallowed illegally by the trial court and is sought to be given again before the revisional court. Apart from the reasoning given in the said ruling, it is to be noted that Order L, C.P.C. expressly excludes the provision of Order XLI in regard to Small Cause Cases. Sri H.S. Sahai, learned counsel for the opposite parties, has, however, contended that as Order XLI, rule 27 is excluded, there should be no difficulty in applying the provisions of section 151 C.P.C. and a revisional court can in exercise of inherent powers admit additional evidence. It is true that action under section 151 would be available to the revisional court even revision under section 25, Provincial Small Cause Courts Act. But the powers under section 151 cannot be exercised for admitting additional evidence in such a revision because, as held by division bench of this Court in Laxmi Kishore v. Har Prasad Shukla, 1979 AW 746 . the revisional court under section 25, has no power to reassess or re-appraise evidence. All that it can do is that if it finds that a particular finding of facts is vitiated by an error of law, or it 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. In view of this limited jurisdiction vested in the revisional court, no occasion arises for admitting additional evidence, if after hearing arguments in the case the revisional court find that for any substantial cause and in the interest of justice some additional evidence was required for enabling the court to decide the case satisfactorily, then it has got inherent powers to remand the case to the trial court and in that event it will be open to the trial court to admit additional evidence. While passing any such order, the revisional court and the trial court can put the parties to terms as to costs or otherwise." This decision clearly makes out that even if it could be said that there was power to admit the additional evidence on record, the proper course open to the revisional court was to send the case back before the trial court instead of deciding the same itself. Reliance was also placed on the same ground in the case of Kamini Khare v. Ram Naresh (supra). In that case the matter was further examined in respect of the power exercisable by the revisional court and it was held that order L.C.P.C. expressly excludes the provisions of Order XLI in regard to Small Causes Case. In fact the power exercised for permitting additional evidence to be taken on record is exercisable under order XLI Rule 27. Thus it was contended that if there was no power under Order XLI Rule 27 which was applicable to the proceedings of the court of Judge Small Causes, the admission of those additional evidence was without jurisdiction. However, in the same case it was further held that it is true that section 151 would be available to the revisional court even in a revision under section 25, Provincial Small Cause Court's Act. As far as this case is concerned the dispute has not been raised whether such power properly exercised or whether such power could be exercised under section 151 C.P.C. In any case by reading the judgment of the revisional Court it is clear that court first admitted the additional evidence and then it came to the conclusion that the finding recorded by the trial court in respect of sub-tenancy was not justified. In view of the aforesaid decisions I am of opinion that this case should be remanded to the court below for deciding afresh. A contention was also raised on behalf of the counsel for the respondents that in any case although additional evidence was taken at the revisional stage but reliance of the same was made only for the case of sub-tenancy and not for material alteration and as such the finding on the later aspect recorded by the court below should not be set aside. It is urged that the finding of material alteration was really reversed by the revisional court on the principle of law after coming into force the U.P. Act no. 13 of 1972 when there had been substantial change in sub-clause (c) and, therefore, it was incumbent on the trial court to have recorded a finding whether on account of material alteration there had been substantial damage to the building. It is true that the finding in respect of the material alteration has not been made by the trial court keeping this in mind but the revisional court decided it on appraisal of evidence itself which it could not have done in view of the case reported in Laxmi Kishore and another v. Har Prasad Shukla (supra) where a division bench of this Court has held that the revisional court under section 25 of the said Act has no power to reassess and reappraise the evidence. All that it can do is that if it finds that a particular finding of facts is vitiated by an error of law or if 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. In view of this decision, the revisional court should have sent the case back to the trial court even in respect of the finding of sub-tenancy for deciding the matter afresh. Keeping in view the aforesaid decision I am of opinion that it would be expedient in the interest of the parties that the case should be remanded to the trial court for deciding afresh mainly on the two points, whether there was any material alteration made or not and also whether there was any sub-tenancy created or not, after taking into consideration the additional evidence and in case no opportunity was granted to the petitioner to rebut the additional evidence, the trial court should grant that opportunity before deciding it. In deciding the question of sub tenancy, the trial court shall also take into consideration the legal flaw pointed out by the revisional court.;