Umesh Chandra, J. - (1.) -This is a revision under section 25 Provincial Small Causes Courts Act directed against the judgment and decree, dated 2-11-1985 passed by Special Judge (E. C. Act) Banda, decreeing the plaintiffs suit for ejectment of the petitioner Sheo Ratan Lal Srivastava from the premises in suit described at the end of the plaint, for recovery of arrears of rent and for damages for use and occupation.
(2.) PLAINTIFF Manohar Lal filed a suit claiming these reliefs on the ground that the defendant, the sitting tenant on a monthly rent of Rs. 40/- had made a default in payment of rent due from 19-5-1981 inspite of the service of notice on him on 16-3-1982. The defendant contested the suit on the ground- 1.that the rate of rent was Rs. 25/- per month and not Rs. 40/- per month as alleged by the plaintiff. 2.that there has been no default in payment of the arrears of rent, the entire amount of rent till May, 1982 having been paid. 3.At the first hearing of the suit the tenant has unconditionally deposited the entire amount as required under sub-section (4) of Section 20 of Act No. 13 of 1972. Thereafter, the plaintiff opposite party moved an amendment application and para 5 A added to the plaint under order dated 18-10-82 it was alleged that the defendant on 10-6-76 had purchased plot 5ft. long and 22ft. wide and in October, 1981 he had constructed thereon two rooms, a kitchen and a bath room and the sitting tenant was using the same for residential purpose. This allegation was denied by the defendant by filing an additional written statement and therefore, the last point of dispute between the parties was as to whether the plaintiff's suit for the ejectment of the defendant from the premises in suit could be decreed. On these pleadings three points for consideration were framed by the Special Judge, firstly, as to the rate of rent, secondly, as to whether there was default in payment of arrears of rent and lastly, whether the tenant was relieved against his liability for eviction on the ground mentioned in sub-clause (4) aforesaid. The revisional jurisdiction under section 25 of the Provincial Small Cause Courts Act is not as wide as the appellate jurisdiction under section 96 of the Civil Procedure Code. It is a settled law that the court exercising power under section 25 of this Act has no jurisdiction to re-assess the evidence on record on pure issues of facts. Under section 25 of this Act, the High Court cannot constitute itself a court of appeal. Unless there was no evidence before the Judge to support the finding or unless the finding was impossible or perverse one, it is unfair to interfere on the revisional side. Therefore, when the finding of fact recorded by the trial judge is supported by the oral and documentary evidence and circumstances appearing from the evidence on record, it is not assailable in revision under section 25 of the Provincial Small Cause Courts Act. In Hansraj v. Puran Lal Sharma, 1981 ALJ 35 this Court has held that "under section 25, the High Court has limited jurisdiction to find whether the judgment given by the Small Cause Court is in accordance with law. Where the Small Cause Court after considering evidence comes to a finding that the defendant was defaulter of rent, it being a finding of fact, the High Court cannot reappraise evidence and arrive at a finding different from that of the court below. "
(3.) ON the first two points raised above, namely, as to the rate of rent and secondly, as to whether there was default in payment of arrears of rent, the findings of the Special Judge (E. C. Act) is based on the evidence on record. As to the rate of rent, according to Manohar Singh, the agreed rate of rent was Rs. 40/- per month, agreed to between Sheo Ratan Lal, petitioner and the respondents grand mother Smt. Piyaria. ON the other hand the defendant asserted vide paragraph 2 of the additional plea taken in the written statement that the agreed rent was Rs. 25/- per month. A few points may be mentioned. Firstly, the defendant in the written statement has not taken the case that originally the agreed rent was Rs. 20/- per month and it was enhanced to Rs. 25/-per month after about 3-4 years. Secondly, the oral evidence consisting of the statements of Shiv Ratan Lal DW 1 and Laxmi Narain are conflicting on these two points inasmuch as according to the defendant the agreed rent was enhanced in April 1976 and before 3-4 years before, it was only Rs. 20/- per month. But according to Laxmi Narain it was only in 1975 that the agreed rent was Rs. 20/- per month. It may be mentioned that Laxmi Narain was not present when the rent was enhanced. Thirdly, Shiv Ratan Lai, the defendant did not state that Laxmi Narain was present when the rent was originally agreed. In fact he stated that he has no evidence to establish that the agreed rent was Rs. 25/-per month. Lastly, though a notice of demand dated 16-1-1982 was served on the defendant claiming rent from 19th of May, 1981 at the rate of Rs. 40/- per month, the defendant remained silent, the defendant's explanation as to why no reply was sent to this notice has been, rejected by the trial court for very good reason. Consequently, the plaintiff succeeded in establishing that the agreed rent was Rs. 40/- per month. The defendant asserted payment of the entire rent. According to him rent till January, 1982 had been paid directly to the previous landlady. He had sent money order of Rs. 100/- being rent for four months from February 1982 but the same was refused by the plaintiff. There is no evidence regarding payment of rent till January 1982 and the Special Judge was justified in recording a finding that the defendant felt in arrears of rent and inspite of the service of notice the same was not paid by him and therefore, he committed default in payment of the arrears of rent. The findings on both these points are confirmed.;