KAMANI KHARE Vs. RAM NARESH PANDEY

JUDGEMENT

(1.) THIS is a revision by the plaintiff against the order passed in revision by the Additional District Judge, Lucknow dismissing his suit for ejectment. The applicant alleged that the defendant opposite party No. 1 was her tenant of the first floor of House No. 60 Rath Khana, Ward Wazirganj, P. S. Naka Hindola Lucknow at the rate of Rs.21/- p. m. It was also alleged that he was a owner and landlord of half share and the remaining share belonged to defendant opposite party No. 2. It was further alleged that the defendant No. 1 had not paid rent after 30-9-1972 in spite of repeated request and that he had also kept a sub-tenant without his permission. So after serving the required notice for termination of tenancy and demand, a suit was filed for ejectment recovery of arrears of rent and damages for use and occupation. The defendant opposite party No. 2 alone contested the suit. While admitting him to be a tenant of the applicant, be alleged that be had paid rent to the applicant, up to the month of October, 1972 and as he did not give any receipt, he deposited the amount of rent from November, 1972 to January, 1974 in the Court of Munsif under Section 30 of U. P. Act No. 13 of 1972 and thus he was not a defaulter. He also denied sub-letting. The trial Court held that the rent for October, 1972 had not been paid. He also held that though the opposite party No. 2 had deposited rent in Court under Section 30 of U. P. Act No. XIII of 1972 it was not a valid deposit in the eye of law and so he was a defaulter. He further held that the opposite party No. 1 had kept one Shiv Narain as sub-tenant without consent of the landlord. Accordingly he decreed the suit with costs. On revision under Section 25 of the Provincial Small Cause Courts Act, the learned Additional District Judge admitted some additional evidence to show that the defendant-opposite party No. 2 was really contesting the case of the plaintiff-applicant to realise the entire rent. For this further reason, he held that the deport by the defendant opposite party No. 1 under Section 30 of U. P. Act No. XIII of 1972 was valid and so he was not a defaulter. He also held that the view of the trial Court that the opposite party No. 1 had kept one Sheo Narain, son-in-law of his brother as a sub-tenant was not based upon any evidence and so he reversed that finding as well. Thus he allowed the revision in so far as it related to the decree for ejectment and dismissed the applicant's claim for ejectment. In this Court the applicant had contended that the learned revisional Court had no jurisdiction to entertain additional evidence under Order 21, Rule 27 C. P. C. and that in any case his receiving that evidence and giving no opportunity to him to contest the application was clearly a material irregu larity in the disposal of the revision. It was also alleged that actually the notice which was filed by way of additional evidence has also not been pro perly proved. He further re-iterated the pleas which he had taken in the Courts below that the deposit was not legal and that had been a case of sub letting. The first question which arises here is whether the revisional Court under Section 25 of Provincial Small Cause Courts Act has power to admit any additional evidence. There is no provision in the Small Cause Courts Act empowering revi-sional Court under Section 25 of the said Act to admit additional evidence. The learned counsel for the plaintiff-opposite parties contends that Section 7 of the Code of Civil Procedure excepts certain provisions of the C. P. C. from the purview of the Small Cause Courts and that does not exclude Order 41, Rule 27 C. P. C. The provisions of Order 41, Rule 27 C. P. C. however apply only to appellate Court. They do not have reference to the revisional Court. Only Section 25 of the Provincial Small Cause Courts Act is relevant as to the powers of a revisional Court under the Act. The provisions of this section merely require a revisional Court to see whether the order passed by the trial Court was contrary to law. It thus is not a Court of fact like an appellate Court. It is merely concerned with the legality of the proceedings and the inference drawn by it. Learned counsel for the respondents referred to Shanker Ram Chandra Abhyankar v. Krishnaji Dattatraya Babat A.I.R. 1970S.C. 1, that the revisional jurisdiction is a part of the appellate jurisdiction and, therefore, it cannot be said that the revisional Court would not have the same power as the appellate Court in admitting additional evidence. One is here not concerned with the nature of the power. The appellate Court exercise powers as a superior Court to rectify the mistakes, if any, committed by the trial Court. A ravisional Court also does the same thing and hence to that extent the revisional Court may be said to be exercising the power of the appellate Court jurisdiction, but it does not mean that the revisional Court exercises all the powers of the appellate Court What power the revisional Court has, would be seen only from the provisions of this section by which the revisional power has been conferred upon the Court. As shown above Section 25 of the Provincial Small Cause Courts Act does no; give the revisional Court as much power as to an appellate Court. The learned counsel then referred to Swastik Oil Mills Ltd. v. H. B. Munshi, Deputy Commissioner of Sales Tax A.I.R. 1968 S.C. 813, wherein it was held that a revising authority can in the circumstance of a particular case admit addition al evidence. That case is however a different one. The Supreme Court was dealing with the powers of a revising authority under Section 31 of the Bom bay Sales Tax Act. There the words were that the revising authority, was entitled to examine the correctness, legality and propriety of the order under revision. It was thus held that these words were wide enough to empower the revising authority to hold an enquiry or direct an enquiry to be held and to admit additional evidence for that purpose. Here the revisional Court under Section 25 of the Provincial Small Cause Courts Act has not been given such wide powers. It has been merely allowed to see whether the proceedings in the trial Court were according to law. So this does not entitle the revis ional Court to hold enquiry or direct an enquiry to be held. The learned counsel then referred to Kishan Kumar Agarwal v. 7s/Addi tional District and Sessions Judge, Saharanpur and others 1978 Alld. Rent Cases 294. Here it was held that the appellate authority under Section 22 of U. P. Act No. XIII of 1972 had power to admit additional evidence in accordance with the provision or Order 41, Rule 27 G. P. C. which was applicable to these authorities. THIS ruling also is not applicable to the point in question here. The additional evidence was admitted there by the appellate authority while here the case is of a revisional authority. Moreover, it was held in that case that such power was specifically conferred on the Courts in view of Section 34 of U. P. Act No. XIII of 1972. I of course do not agree with that view because Section 34 of U. P Act No. XIII of 1972 does not confer any such power. It only makes certain powers of a Civil Court specifically mentioned therein to be applicable. Order 41, Rule 27 C. P. C. is not one of the orders made applicable. However, as that point does not arise here, it is not necessary to refer this matter to a Division Bench. Lastly the learned counsel has referred to Central India Motors, Bhopal v. G. P. Srivastava and others A.I.R. 1956 Bhopal 9, wherein it was held that the revisional Court could admit additional evidence under Section 25 of the Provincial Small Cause Courts Act. But in that there was no discussion with reference to any provisions to show as to how additional evidence could be admitted. THIS appears to have not been challenged. There only this point was under discus sion whether the case was such as was covered by Order 41, Rule 27 O. P. C. It is thus clear that Order 41, Rule 27 C. P. C. would not be applicable to Provincial Small Cause Courts for admitting additional evidence. How ever, only one situation can be visualised wherein even under Section 2i of the Act, such a power can be said to exist. If the lower Court had refused to allow a party to file any evidence and that order is found contraiy to law, the revisional Court can set aside that order and either admit it itself or if the circumstances so require remand the case with the direction to admit it. THIS will be necessary when something more, besides admitting it is required. Thus if it needs oral evidence or other party is to be given opportunity to rebut it, remand is the only way. In this case there was no such contingency. The opposite party had not been refused to file such a paper. The learned lower revisional Court was thus wrong in allowing any additional evidence. Moreover, it was also wrong to admit additional evidence without asking the plaintiff-applicant whether he wants to rebut it. That too was a material irregularity committed by him. The finding of the revisional Court, therefore, stands vitiated. Learned counsel for the parties contended that in that case the matter may have to be sent back to the lower revisional Court to decide it afresh after excluding this additional evidence, for it cannot be said as to what view the Court would have formed without it. I agree. It is really not possible to say as to what view the revisional Court would have taken if this additional evidence would not have been admitted by him. THIS Court under Section 115 C. P. C. should not normally substitute his own view of the evidence and should give an opportunity to the lower revisional authority to decide the case within the scope of the powers conferred upon it. The revision, therefore, succeeds, the order passed by the revisional Court is set aside. The case goes back to the revisional Court to decide the case afresh in the light of the obeervations made above. In the circumstances of the case costs shall abide the result of the order of the revisional Court. As the matter has become quite old, the revisional Court will take up this case on a priority basis.