JUDGEMENT
Prakash Krishna, J. -
(1.) THE present writ petition is directed against the order dated 23-7-1998 passed by the respondent no. 1 in SCC revision no. 30 of 1996 Abdul Saleem Vs. Shahar Yaar Khan. THE facts of the case lie in a narrow compass. THE petitioner instituted SCC suit no. 48 of 1990 against the respondent no. 2 herein, on the allegations that he is the owner and landlord of a shop bounded at the foot of the plaint, situate in Mohalla Ghair Jafar Khan, Bareilly. THE respondent no. 2 is a tenant therein on monthly rent of Rs. 150/-. THE said shop was let out to him under a 'Qabuliyat' dated 1-1-1987. THE tenancy of the respondent tenant has been determined by a notice dated 14-9-1990, which was served on 21-9-1990. THE defendant has failed to pay the rent of the said shop since 1-1-1988. By means of the said suit, a decree for recovery of arrears of rent, damages and ejectment was prayed for. THE tenant respondent came out with the case that there is no relationship of landlord and tenant in between the parties. He, as a matter of fact, pleaded that he has no concern with the shop in dispute nor had entered into any such 'Qabuliyat' as pleaded by the plaintiff. On the basis of the pleadings of the parties, the trial court framed point for determination and, after appreciating the evidence of the parties, reached to the conclusion that there was a relationship of landlord and tenant in between the parties, the Qabuliat dated 1-1-1987 is fully proved and the defendant, having failed to pay the arrears of rent inspite of service of notice, is liable for eviction. THE suit for recovery of Rs. 5,175/-, as arrears of rent and damages and ejectment, was decreed by the judgment and decree dated 23-8-1993. THE said decree has been set aside by the revisional court in SCC revision no. 30 of 1996. THE revisional court has found that there is no relationship of landlord and tenant in between the parties. Challenging the aforesaid judgment, the present writ petition has been filed. Learned counsel for the petitioner submits that the trial court has recorded a finding on appreciation of evidence that there was a relationship of landlord and tenant in between the parties. Before the trial court, attesting witnesses of Qabuliyat dated 1-1-1987 were examined. THEy deposed and proved the execution of the said Qabuliyat by the defendant in favour of the plaintiff. In addition to above, as is evident from the order of the trial court, the court itself compared the signatures of the defendant on the said Qabuliyat along with the acknowledge due of the notice and reached to the conclusion that the said Qabuliyat was executed by the defendant tenant. THE revisional court reappreciated the evidence on record and reached to a different conclusion, which could not have been done in view of limited jurisdiction under Section 25 of Provincial Small Cause Courts Act. Considered the above submission of the learned counsel for the petitioner. A bare perusal of the judgment of the trial court would show that the trial court considered each and every aspect of the case. It considered the evidence produced by the parties as also the evidence of the marginal witnesses of the said Qabuliyat. Not only this, the trial court examined himself the signatures of the defendant on the Qabuliyat and after comparing it with his admitted signatures on the A.D. of the notice, reached to the conclusion that the Qabuliyat was duly executed by the defendant tenant. THE said finding recorded by the trial court is a well considered finding and is based on appreciation of evidence on record. THE revisional court reappreciated the evidence and reached to a different conclusion. It is well settled that the power exercised by the revisional court under Section 25 of the Provincial Small Cause Courts Act is limited one. A court exercising jurisdiction under Section 25 of the Act cannot reappreciate the evidence and reach to a different conclusion as held by a Division of this Court in Laxmi Kishore and another Vs. Har Prasad Shukla, 1981 ARC 545. It has been held that a revisional court can set aside the findings of fact only if such finding of fact is perverse or some relevant material has been over looked by a trial court. This is not so in the present case. Apart from the above, the trial court itself compared the signatures of the defendant respondent with his admitted signatures on the A.D. of notice which was not done by the revisional court nor the revisional court has taken into consideration the oral testimony of the two marginal witnesses on the said Qabuliyat. In this view of the matter, the revisional court, while passing the impugned order, has exceeded in its jurisdiction by reappreciating the evidence on record. I find sufficient force in the contentions of the learned counsel for the petitioner. In view of the above, the writ petition succeeds and is allowed. THE judgment and order of the revisional court dated 23-7-1998 is hereby set aside and that of the trial court is restored back. Since none appeared on behalf of the respondent, no order as to costs.;
Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.