- (1.) TARUN Agarwala, J. Suit No. 75 of 1976 was filed for the eviction and for arrears of rent against the petitioner. The said suit was decreed. The petitioner filed a revision which was allowed and the decree of eviction and for arrears was set aside by a judgment dated 18-4-1978. The landlord did not pursue the matter and the matter become final. It transpires that the landlord issued a notice dated 17-10-1983, under Section 106 of the Transfer of Property Act, determining the tenancy on the ground of arrears of rent w. e. f. 21-3- 1973 and, on the ground of making material alteration in the building by construction of rooms thereby diminishing its value and utility. Upon the expiry of the period of notice, the landlord instituted a suit. The trial Court, dismissed the suit, on the ground that there was no default and also on the ground that there was no construction in the tenanted premises and that the construction so made was outside the tenanted premises which did not diminish the value of the building.
(2.) AGGRIEVED, the landlord filed a revision under Section 25 of the Provincial Small Cause Courts Act, which was allowed by the impugned judgment and the suit was decreed for eviction on the ground that the petitioner had made material alteration in the building which had diminished its value. The petitioner, being aggrieved by the aforesaid order, has filed the present writ petition. Heard Sri M. A. Qadeer, the learned Counsel for the petitioner and Sri B. D. Mandhyan, the learned Counsel for the respondents. The learned Counsel for the petitioner submitted that the revisional Court exceeded its jurisdiction in examining the findings of fact reached by the trial Court. The Court exercising revisional power under Section 25 of the Act does not possess jurisdiction to determine an issue of fact itself by entering into the evidence and assessing it, and therefore, the revisional Court committed an error in interfering in the findings of fact recorded by the trial Court. In support of his submission, the learned Counsel for the petitioner placed reliance upon a decision of a Division Bench of this Court in Laxmi Kishore & Anr. v. Har Prasad Shukla, AIR 1979 A. W. C. 746.
(3.) THE learned Counsel for the petitioner further submitted that even otherwise, it was a case of no evidence or inadmissible evidence, inasmuch as, the findings arrived at by the revisional Court was based on surmises and conjectures and that, in any case, the construction alleged to have been made was outside the tenanted premises which cannot be made a ground for eviction under Section 20 (2) (c) of the U. P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 (hereinafter referred to as the Act ). On the other hand, the learned Counsel for the respondents submitted that the trial Court had ignored the Commissioner's report and had dismissed the suit on the ground that an unfinished "khokha" was constructed outside the tenanted premises which was insufficient for eviction under Section 20 (c) (2) of the Act which was against the findings recorded by the Commissioner, who categorically stated in his report that two rooms were also constructed inside the tenanted premises. The learned Counsel further submitted that the Commissioner report was confirmed and was part of the record of the trial Court which was ignored by the trial Court, and therefore, the revisional had rightly exercised it powers under Section 25 of the Act, since the finding of the trial Court was not based on evidence. The learned Counsel, further submitted, that the trial Court also laid much emphasis on the earlier judgment of the trial Court in earlier proceedings in coming to the conclusion that the tenanted premises was more than one room which again was based on surmises and conjecture and on presumptions rather than on concrete evidence that was already existing on the record.;