- (1.) S. K. Phaujdar, J. This revision ap plication under Section 25 of the Provincial Small Causes Courts Act is directed against the judgment and decree dated 1-3-97 passed by XHIth Additional District Judge, Kanpur Nagar, in S. C. C. Suit No. 29 of 1996. It was a suit for eviction of a tenant after due service of notice under Section 106 of the T. P. Act. The plaintiffs had alleged that the tenancy was created through an agreement. The notice also made mention about that agreement. The agreement in question was an unregistered one and the trial court held that it was inadmissible and could not be acted upon. The court, however, found that the relationship of the landlord and the tenant was there and the tenancy was from month to month. The court below believed the oral evidence on the point of rate of rent as well. The court acted upon the notice that was proved before it and the aforesaid decree was passed.
(2.) THE learned counsel for the revisionist argued that the rent agreement was an invalid document and no suit could have been filed on the basis thereof. It was further stated that the suit was bad because the S. C. C. Court had no jurisdiction to try it and the plaint should have been rejected under Order 7, Rule ll (d) of the C. P. C. It was further argued that no oral evidence was to be accepted against the contents of a document and as such the court below had no authority to act upon the oral evidence when there was an agreement on record between the parties. It was further argued that the valuation of the suit was Rs. 47,000 and the suit was beyond the nature of small cause suit. In the instant case the plaintiffs described themselves as landlords of the suit property and described the defendant as tenant thereof. It was stated further in the plaint that the defendant had executed an agreement accepting his tenancy. The defendant accepted the tenancy under the plaintiffs and stated that the rate of rent was Rs. 1,000. In view of this admission the agreement which was an unregistered one was not only inadmissible but was also insig nificant. Even if the agreement was void and its term could not be enforced, the admitted tenancy, in absence of any agreement, would be deemed to be a month to month tenancy and court below had rightly rejected the agreement and rightly accepted the tenancy as a month to month one. The learned coun sel for the revisionist proposed to rely on case laws wherein suits based on inadmis sible agreement were held not main tainable. This point of law is not in dispute in this case but the admitted facts disclosed that the month to month tenancy, whether created by agreement or otherwise, was not disputed. Thus the case law relied upon by the revisionist have no bearing to the present set of facts. It was argued that if the rate of rent would not have been held to be Rs. 2,000 per month, the case would have come under the purview of the U. P. Act XIII of 1972 and in such a case a mere notice terminating the tenancy would not have been sufficient for claiming eviction unless one or the other ground mentioned in Section 20 of U. P. Act XIII of 1972 was pressed. Oral evidence was led in the court below to prove the rate of rent. The court below had not acted upon the agreement even for a collateral purpose and it rightly held that rate of rent could not be regarded as a collateral purpose. He had discussed the evidence on record and the circumstances placed on record to conclude that the rate of rent was Rs. 2,000 per month and not Rs. 1,000 as alleged by the defen dant. This was purely a finding on fact and may not, therefore, be interfered in revision.
(3.) THE third point raised by the learned counsel is'regarding admission of oral evidence against the contents of a docu ment. THE document in question is an in admissible one and it was, therefore, not to be read as evidence. Moreover evidence was led to prove the rate of rent and it was not for the purpose of contradicting anus term of that agreement. Section 91 was, there fore, no bar to the entertainment of the oral evidence on the point of rate of rent. It was urged finally by the learned counsel for the revisionist that the valuation of the suit being Rs. 47,000 and the suit was beyond the congnizance of the Small Causes court. It was pointed out by the respondents, however, that this issue was not pressed before the court below and may not, there fore, be agitated in this Court. When it is a question of jurisdiction the mere fact that the point was not raised before the court below may not stand on the way of agitating the matter in this Court sitting in a revision under Section 25 of the Provincial Small Causes Courts Act, as th? parties, by their consent or action, may not confer a jurisdic tion to a Court which would otherwise lack jurisdiction. This Court is, therefore, com petent to decide whether the trial Judge had the jurisdiction to take up a small cause suit of the valuation of Rs. 47,000.;