K.N.Goyal, J. - (1.) THIS is plaintiffs' Writ Petition arising out of a decision in a Small Cause Court suit for rent and ejectment which was brought by them against defendants -respondents on the ground of sub -letting in respect of a shop under Section 20(2)(c) of U.P. Act No. 13 of 1972. The suit was decreed by the trial Court which held that the defendant No. 3 (who is nephew of defendant No. 1) was sub -tenant of defendant No. 1 the tenant -in -chief. Admittedly no permission for sub -letting had been obtained from the plaintiffs -landlords. The defence was that the two defendants constituted a Joint Hindu Family and that the business of that family was being carried on in the shop. This was disbelieved by the trial Court which relied on a statement of defendant No. 2 in sales -tax proceedings in which he had said that the business belonged to himself. The revisional Court found that the trial Court had not taken into consideration on admission of the plaintiff -petitioner in an earlier proceeding under Section 3 of U.P. Act No. 3 of 1947 in which is had been alleged that the defendants were carrying on joint family business. The revisional Court reversed the finding and held that there was no sub -letting. On this view the suit was dismissed. I have heard learned counsel for the parties.
(2.) IT is true that the trial Court did not refer at all to the admission of the plaintiffs in the earlier proceedings, which has been relied on by the revisional Court. The finding of the trial Court on the question of sub -letting was thus, vitiated by non -consideration of relevant and material piece of evidence. The revisional Court was, therefore, justified in holding the finding to be illegal. It is, however, settled that a revisional Court under Section 25 of the provincial small cause Court Act cannot re -assess the evidence though it may point out any legal error committed by the trial Court in arriving at a finding of fact. A reference in this connection may be made to the decision in Babu Ram v. The Addl. District Judge, 1983 (1) A.R.C. 15. In that case it was held that if the trial Court chooses to admit additional evidence it should remit the case to the trial Court as the function of appreciation of evidence is more properly undertaken by the trial Court as held by the Hon'ble Supreme Court in Balai Chandra v. Sheodhari Jatav : A.I.R. 1978 S.C. 1062. Learned counsel for the respondents has relied on Jagdish Prasad v. Angoori Devi : A.I.R. 1984 S.C. 1447 : 1984 (2) L.C.D. 189 in which case the revisional Courts' contrary finding was upheld. The facts of that case are distinguishable. The trial Court had arrived at an inference of sub -letting merely on the basis of the circumstance that the alleged sub -tenant was found sitting on the shop of the tenant. As there was no other material on the record to support the finding of sub -letting the revisional Court was held justified in reversing the finding. It was however, clarified by the Hon'ble Supreme Court that "this was not an attempt to -assess the evidence. In the instant case we are faced with conflicting admissions, one of the one of the defendant in different earlier proceedings. It is therefore, for the trial Court to re -assess the evidence after taking into account both the sets of admissions which may or may not be consistent with the case set -up in the instant case by the parties." In this view of the matter the Writ Petition is allowed and the judgment and order of the revisional Court contained in annexure 4 are hereby quashed. At the same time the judgment and order passed by the trial Court, annexure 3, are also quashed. The trial Court shall now readmit the suit at its original number and decide it afresh in accordance with law. No order is made as to costs.;