# Anil Kumar Agarwal v. M/s Devasheesh Business India Pvt. Ltd. & Ors. 1500 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 3 ILRA 1499
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-27
- **Case number:** Matter Under Article 227 No. 8920 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-agarwal-v-m-s-devasheesh-business-india-pvt-ltd-ors-1500-indian-law-51531
- **Pages:** 9

## Headnote

Law
-
U.P.Urban
Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 - Section 20(4) - Against decree
for eviction - Plaintiff - respondents filed
Suit against tenant-petitioner, asserting
tenancy of demised shop purchased by
them vide sale deed - Tenant, on monthly
tenant at Rs.220/-, exclusive of tax, was
in arrears since January 1991 - Plaintiffs,
as purchasers, claimed entitlement to
recover all arrears, contending that Act,
1972 was inapplicable
-
Relying on
mistaken facts in O.S., plaintiffs issued
notice erroneously describing tenancy -
On acquiring information, they revoked it
by next notice clarified demised shop built
in 1986, demanded arrears, determined
tenancy u/s 106 TPA, 1882 - Tenant,
despite notice, neither paid arrears nor
vacated - During pendency, Vipul Garg
replaced Smt. Rashmi Bansal as Director
and impleaded as plaintiff No.3 - Plaintiffs
sought eviction, arrears from 01.04.2012
to 28.02.2015 and mesne profits - Suit
decreed for eviction with delivery of
possession and for damages at Rs.220/-
per
month
from
02.05.2014
to
28.02.2015, and thereafter till possession
- Tenant assailed decree in SCC Revision -
Revision
allowed,
set
aside
decree,
remanded
matter
for
fresh
decision
regarding applicability of Act, 1972 and
benefit
u/s
20(4)
-
Held,
remand
unwarranted,
as
sufficient
evidence
available before Revisional Court for final
decision u/s 25 of Small Cause Courts Act,
1887 - Leaving little for Trial Court on two
issues, it was wasteful of time and money,
since Section 25 empowers Revisional
Court to decide suit where Trial Court
findings perverse or illegal. (Para 5 to 7,
17, 18)

Writ petition partly allowed. (E-13)

List of Cases cited:

## Text

3 All. Anil Kumar Agarwal Vs. M/s Devasheesh Business India Pvt. Ltd. & Ors.
1499
the payment of the said amount of money
by giving a notice in writing, to the drawer
of the cheque, within 15 days of the receipt
of information by him from the bank
regarding the return of the cheque as
unpaid;

(v) the drawer of such cheque
fails to make payment of the said amount
of money to the payee or the holder in due
course of the cheque within 15 days of the
receipt of the said notice."

19. The conditions precedent to
constitute an offence, as prescribed under
the proviso to Section 138, were subject
matter of consideration in MSR Leathers
Vs. S. Palaniappan And Another3 ,
wherein it was held that only upon
satisfaction
of
all
three
conditions
enumerated under clauses (a), (b) and (c) of
the proviso to Section 138, can an offence
be said to have been committed by the
person issuing the cheque.

20. Section 142 of the N.I. Act has
been considered
in
the
decision
in
Yogendra Pratap Singh Vs. Savitri
Pandey And Another4, and it has been
held that the said section prescribes the
mode and also the time within which a
complaint for an offence under Section 138
of the N.I. Act can be filed.

21. In the instant case, the cheque
drawn by the petitioner, was presented by
the respondent no. 2, on 18.09.2019, and
thereafter, on 04.01.2020 i.e. within thirty
days of the receipt of the return memo
dated 17.12.2019 from the bank, the
respondent no. 2 (payee) of the cheque,
gave notice to the petitioner and the said
notice was received by him on 08.01.2020.

22. The petitioner had 15 days' period
to make the payment of the said amount
from the date of receipt of notice, on
08.01.2020, and the said period expired on
23.01.2020. The cause of action for filing
the
complaint,
therefore,
arose
on
23.01.2020, as per clause (c) of the proviso
of Section 138.

23. The complaint having been filed
on 20.02.2020, was within the prescribed
period of one month as per clause (b) of
sub-Section (1) of Section 138, from the
date on which the cause of action arose on
23.01.2020, and accordingly the court
concerned would be within its right to take
cognizance of the offence, as provided
under Section 142.

24. The summoning order dated
02.12.2021 and the order dated 21.06.2023
passed in the revision, therefore, cannot be
faulted on the ground of limitation.

25. No other ground has been urged,
which may persuade this Court to exercise
its supervisory jurisdiction under Article
227 of the Constitution of India, in the facts
of the case.

26. The petition stands dismissed
accordingly.
----------
(2024) 3 ILRA 1499
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.02.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Matter Under Article 227 No. 8920 of 2023

Anil Kumar Agarwal ...Petitioners
Versus
M/s Devasheesh Business India Pvt. Ltd. &
Ors. ...Respondents
1500 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Smt. Rama Goel Bansal, Ms. Shalini Goel

Counsel for the Respondents:
Sri Ajay Kumar Singh, Sri Ashish Kumar Singh

Civil
Law
-
U.P.Urban
Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 - Section 20(4) - Against decree
for eviction - Plaintiff - respondents filed
Suit against tenant-petitioner, asserting
tenancy of demised shop purchased by
them vide sale deed - Tenant, on monthly
tenant at Rs.220/-, exclusive of tax, was
in arrears since January 1991 - Plaintiffs,
as purchasers, claimed entitlement to
recover all arrears, contending that Act,
1972 was inapplicable
-
Relying on
mistaken facts in O.S., plaintiffs issued
notice erroneously describing tenancy -
On acquiring information, they revoked it
by next notice clarified demised shop built
in 1986, demanded arrears, determined
tenancy u/s 106 TPA, 1882 - Tenant,
despite notice, neither paid arrears nor
vacated - During pendency, Vipul Garg
replaced Smt. Rashmi Bansal as Director
and impleaded as plaintiff No.3 - Plaintiffs
sought eviction, arrears from 01.04.2012
to 28.02.2015 and mesne profits - Suit
decreed for eviction with delivery of
possession and for damages at Rs.220/-
per
month
from
02.05.2014
to
28.02.2015, and thereafter till possession
- Tenant assailed decree in SCC Revision -
Revision
allowed,
set
aside
decree,
remanded
matter
for
fresh
decision
regarding applicability of Act, 1972 and
benefit
u/s
20(4)
-
Held,
remand
unwarranted,
as
sufficient
evidence
available before Revisional Court for final
decision u/s 25 of Small Cause Courts Act,
1887 - Leaving little for Trial Court on two
issues, it was wasteful of time and money,
since Section 25 empowers Revisional
Court to decide suit where Trial Court
findings perverse or illegal. (Para 5 to 7,
17, 18)

Writ petition partly allowed. (E-13)

List of Cases cited:
1. Anwar Uddin Vs 1st Additional District Judge,
Aligarh & ors.., 1999 (2) A.W.C. 1332, (Para 14)

2. Surya Prakash Gupta Vs Smt. Santosh Kumari
& anr., 2012 (1) ADJ 109 (Para 13)

3. Mundri Lal Vs Sushila Rani (Smt) & anr.,
(2007) 8 SCC 609, (Paras 22, 23)

(Delivered by Hon'ble J.J. Munir, J.)

1. This petition under Article 227 of
the Constitution has been preferred by the
tenant, assailing an order of remand dated
12.07.2023 passed by the Additional
District Judge, Court No. 6, Mathura on a
revision preferred by him, setting aside the
decree for eviction and recovery of arrears
of rent passed by the Trial Court against the
tenant.

2. The tenant, though successful
before the Court of revision in dislodging
the decree of eviction and recovery of
arrears of rent etc., says that all evidence
was there on record, on the foot of which
the Revisional Court ought to have finally
determined the suit. Instead, he remanded
the suit to the Trial Court. And, that is why
the tenant has preferred the present
revision.

3. Mr. Ashish Kumar Singh, learned
Counsel, appearing on behalf of the
plaintiff-landlords, waived opportunity to
file a counter affidavit on 28.08.2023,
whereupon this petition was admitted to
hearing and heard forthwith. Judgment was
reserved.

4. Heard Ms. Rama Goel Bansal,
learned
Counsel
for
the
petitionerdefendant and Mr. Ashish Kumar Singh,
learned Counsel appearing on behalf of the
plaintiff-respondents.
3 All. Anil Kumar Agarwal Vs. M/s Devasheesh Business India Pvt. Ltd. & Ors.
1501

5. The plaintiff-respondents instituted
SCC Suit No.13 of 2015 against the tenantpetitioner1 with a case that the tenant is in
occupation of premises, bearing Water Rate
Nos.1409/2-1409/2A (old) and No.167/205
(new). The said premises are entered in the
Municipal Assessment Record for the years
1987-93 with the Nagar Palika, Mathura as
one situate at 2161/M, Bharatpur Gate,
Mohalla Guru Nanak Nagar, Junction
Road, Mathura. The former owner and
landlord of the premises were Vinod
Sharma, Pramod Sharma and Ashok
Sharma, all sons of the late Jagannath
Sharma and Smt. Anita Rishi and Komal
Sharma,
from
whom
the
plaintiffrespondents
purchased
the
demised
premises, a shop, vide registered sale deed
dated 02.05.2014 for their own need. The
owner, prior to the plaintiffs' vendee, was
Jagannath Sharma, who had purchased the
demised premises from Smt. Chhakko Bai.
The tenant occupied the premises on a
monthly rent of Rs.220/-, exclusive of tax.
The demised premises was earlier a
kachcha shop with a tiled roof constructed
in the year 1982. In place of the kachcha
shop, the then owner got a new shop
constructed in the year 1986, which was
assessed to house tax for the first time by
the Nagar Palika Parishad, Mathura in the
year 1987. The provisions of the Uttar
Pradesh Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972 (U.P.
Act No.13 of 1972)2 do not apply to the
demised shop. The defendant is in arrears
of rent since the month of January, 1991
and he owed all this rent to the plaintiffrespondents'
predecessor-in-title,
the
former landlord and owner. The plaintiffrespondents have acquired the right to
recover all rent due in terms of the sale
deed executed in their favour.

6. Relying upon the averments in O.S.
No.267 of 2014, Anil Kumar and others v.
Vinod Sharma and others, pending before
the Civil Judge (Jr. Div.), Mathura, a suit
brought on wrong facts, the plaintiffrespondents, mistaking those facts, pleaded
by the tenant as correct, caused a notice
dated 08.07.2014 to be served upon the
defendant through their Counsel. In the said
notice, the terms of the tenancy were
incorrectly mentioned to say that a plot of
land was let out to the tenant by the former
landlord. Upon acquisition of complete
information,
the
plaintiff-respondents
caused a notice dated 05.11.2014 to be
served upon the tenant, mentioning that the
previous notice be treated revoked, and
further saying that the demised shop was
constructed by the previous owner in the
year 1986. By the said notice, the plaintiffrespondents demanded arrears of rent and
determined the tenancy under Section 106
of the Transfer of Property Act, 1882.

7. The notice was served upon the
tenant, but was answered taking an
incorrect stand. The rent due was not
remitted nor the demised shop vacated.
Pending suit, Smt. Rashmi Bansal, who
was a Director of the plaintiff-respondent
No.1, resigned, her resignation being
accepted on 20.10.2020. In her place, Vipul
Garg was appointed the Director, who was
impleaded as plaintiff No.3 to the suit. The
plaintiff-respondents, on the said facts,
sought a decree for eviction and recovery
of arrears of rent from 01.04.2012 to
28.02.2015, besides pendente lite and
future mesne profits.

8. The suit was contested by the
tenant on various grounds, including that
the demised premises were constructed in
the year 1981, and not the year 1986.
According to the tenant, a plot of land
situate at Sonkh Adda, Junction Road,
District Mathura was leased out to his
1502 INDIAN LAW REPORTS ALLAHABAD SERIES
mother Smt. Vimla Devi by its previous
owners and landlords, Ghanshyam, Brij
Bihari, Baikunth Nath, Anil Kumar and
Rakesh Kumar on 01.06.1980. The rent
settled was a quarterly sum of Rs.660/-,
that would work out to Rs.220/- a month,
inclusive of all taxes. The terms of the lease
obliged the tenant's mother Smt. Vimla
Devi to construct a shop on the demised
land and the cost of construction would be
payable by the landlords, Ghanshyam and
others to Smt. Vimla Devi. The tenant's
mother, Smt. Vimla Devi got the demised
shop constructed with the consent of the
then owners and landlords, Ghanshyam and
others, incurring a total expenditure of
Rs.8500/-. The cost of construction was not
paid to the tenant's mother by the then
owners and landlords.

9. It is pleaded that an agreement was
entered into between the tenant's mother,
Smt. Vimla Devi and the former owners
and landlords, Ghanshyam and others on
30.01.1982, where it was covenanted that
except for default in payment of two
successive quarterly rent, despite service of
notice, the tenant's mother would not be
evicted. After demise of his parents, the
tenant, along with his brothers and sisters,
occupies the demised shop, where for the
time being he runs a restaurant, as his
means of livelihood and to provide for his
siblings.

10. The demised shop and the
adjoining property were purchased long
ago by Jagannath. Jagannath is no more
and his heirs and transferees are bound by
the terms of the demise between the
tenant's mother, the late Smt. Vimla Devi
and the former owners and landlords. In
violation of the terms of the lease,
Jagannath instituted SCC Suit No.3 of 1990
against the tenant's mother, Smt. Vimla
Devi, which is pending before the learned
Additional District Judge-II, Mathura and
proceedings whereof have been stayed by
this Court. The tenant's mother, the late
Smt. Vimla Devi had been regularly
depositing rent in the said suit in
accordance with law and after her death,
the tenant's father regularly deposited due
rent. In this manner, rent up to 31.12.2013
has been deposited in Court. Upon inquiries
made by the tenant and one Munna, it
transpired that Jagannath Sharma's heirs
have transferred the demised shop and
those held on a tenancy by Munna in the
landlords' favour vide registered sale deed
dated 16.04.2014.

11. For some time past, the Director/
Employees/ Agents have been troubling the
tenant with their efforts to forcibly
dispossess him from the demised shop.
Therefore, the tenant brought a suit for the
permanent injunction against the landlords,
bearing Suit No.267 of 2014, Anil Kumar
and others v. Vinod Kumar and others,
which is pending before the Civil Judge (Jr.
Div.), Mathura. The tenant and the other
co-tenants of the demised shop, transferred
to the landlord by the alleged sale deed
dated 02.05.2014, upon provision of a copy
thereof as well as that of the authority
letter, are willing to pay rent to them. The
landlords, without serving a notice upon the
co-tenants, have proceeded against the
tenant, which is illegal. The tenant has
answered the notices dated 08.07.2014 and
05.07.2014, stating correct facts vide his
replies
dated
05/06.08.2014
and
03.12.2014, respectively. So long as SCC
Suit No.3 of 1990 is pending, the present
suit is not maintainable and liable to be
stayed under section 10 of the Code of
Civil Procedure, 19803.
3 All. Anil Kumar Agarwal Vs. M/s Devasheesh Business India Pvt. Ltd. & Ors.
1503

12. The demised shop, shown by
letter P1 in the map, annexed to the written
statement, was got constructed by the
tenant's mother Smt. Vimla Devi in the
year 1981 and was completed in the said
year. Payment of rent for the said shop
commenced
in
that
year.
In
these
circumstances, the provisions of the Act of
1972 are applicable to the demised shop.
Although, the tenant's mother, the late Smt.
Vimla Devi and her successors never
committed any default in the payment of
rent, yet if, in the opinion of the Court, any
default is found, the tenant is entitled to the
benefit of Section 20(4) of the Act of 1972.
In view of the aforesaid facts, the notice is
invalid
and
the
tenancy
cannot
be
terminated thereby. The landlords have
deliberately, on false and frivolous pleas, in
order to make unlawful gain, instituted the
present
suit,
which
deserves
to
be
dismissed with special costs of Rs.20,000/-
under Section 35-A of the Code.

13. A replication and additional
written statement were also filed, as also a
written statement, in answer to certain
amendments made to the plaint, and a
further replication by the landlords as well.

14. On the pleadings of parties, as
many as fourteen issues were framed,
which read (translated into English from
Hindi):

(1) Whether there is relationship
of landlord and tenant between parties?

(2) Whether on the basis of the
plaint allegations, the plaintiffs are entitled
to the reliefs

sought?

(3) Whether the defendant, since
the month of January, 1991, did not pay
rent despite

demand?

(4)
Whether
the
plaintiffs
terminated the defendant's tenancy vide
notice dated 05.11.2014?

(5) Whether the provisions of
U.P. Act No.13 of 1972 are applicable to
the suit property?

(6) Whether the defendant is
entitled to the benefit of Section 20(4) of
U.P. Act No.13 of
1972?

(7) Whether the plaintiffs are
entitled to relief, if any?

(8) Whether any cause of action
has arisen to the plaintiffs?

(9) Whether the suit is bad for
non-joinder?

(10) Whether the plaintiffs' suit is
barred by estoppel?

(11) Whether the plaintiffs' suit is
liable to be stayed under Section 10 of the
Code of Civil
Procedure?

(12) Whether the plaintiffs' suit is
not maintainable?

(13) Whether the suit property is
situate in Mohalla Badri Nagar, Bharatpur
Gate, Mathura?

(14) Whether the instant suit is
bad for mis-joinder?

15. Substantial documentary evidence
was led on behalf of the landlords and
tenant and two witnesses each were
examined. There is a detailed summary of
all this evidence set out in the judgment of
the Trial Court. No useful purpose would
be
served,
looking
to
the
limited
controversy here, by referring to it all over
again, except to the extent relevant. That
will be done during the course of this
judgment.

16. Issue No.1 was decided in the
manner that the parties stood in the
relationship of landlord and tenant with the
rent being Rs.220/- per month together with
1504 INDIAN LAW REPORTS ALLAHABAD SERIES
taxes. Issues Nos.5 and 6 were answered in
the manner that the provisions of the Act of
1972 were not applicable to the demised
shop and that the tenant was not entitled to
the benefit of Section 20(4) of the Act last
mentioned. Issues Nos.3 and 4 were
decided together by the Trial Court and
both answered in the affirmative, holding
that the tenant was in default of rent since
02.05.2014, which he did not pay despite
demand, and that the landlords determined
the tenant's demise vide notice dated
05.11.2014. Issue No.8 was answered in
the affirmative, holding that the plaintiffs
had an emergent cause of action to bring
the suit. Issues Nos.9 and 14 were again
decided together by the Trial Court,
answering them in the negative, holding
that the suit was neither bad for non-joinder
of parties or mis-joinder. Issue No.10 was
also answered in the negative, holding that
the suit was not barred by estoppel. Issue
No.11 was answered in the negative,
holding that the defendant, who bore
burden on the issue, did not say much to
discharge it. Issue No.12 was again a
defendant's issue and was decided in the
negative, holding that there was nothing
established to show that the plaintiffs' suit
was not maintainable. Issue No.13 was
answered in the negative, because it was
not pressed during trial by the defendant.
Issues Nos.2 and 7 were decided together,
holding that the plaintiff-landlords were
entitled to a decree for eviction against the
tenant and to recover damages for use and
occupation for the period 01.04.2012 to
28.02.2015 as well as pendente lite and
future.

17. The suit was, accordingly, decreed
for eviction with the direction to deliver
possession within two months to the
landlords. In addition, the tenant was
ordered to pay damages at the rate of
Rs.220/- per month from 02.05.2014 to
28.02.2015. The tenant was further ordered
to pay, at the same rate, damages for use
and occupation until delivery of possession.
This decree passed by the Judge, Small
Cause Court was assailed by a revision
under Section 25 of the Provincial Small
Cause Courts Act, 1887, carried to the
District Judge of Mathura, where it was
numbered as SCC Revision No.92 of 2022.
The revision aforesaid came up for hearing
before the Additional District Judge, Court
No.6, Mathura on 12.07.2023. The learned
Additional District Judge, by a judgment
and order of the date last mentioned,
allowed the revision, set aside the Trial
Court's decree and remanded the suit for
trial afresh with reference to Issues Nos.5
and 6. These issues, as already discussed,
were to the effect if the Act of 1972 was
applicable to the demised shop, and, if the
tenant was entitled to the benefit of Section
20(4) of the last mentioned Act. The
learned Additional District Judge held that
the Trial Court in reaching its conclusion
that the Act did not apply, had ignored
from consideration the certified copy of the
Municipal
Assessment,
bearing
Paper
No.99-Ga/2, which proves that the demised
shop was constructed much prior to
26.04.1985 and had been recorded in the
Palika
Assessment
way
back
on
30.06.1981. It has also been remarked that
in the tax assessment list for the year 1970
to 1987, the demised shop's construction
had been reported in the quarterly report
and the said shop assessed to tax by the
Nagar Palika, Mathura with effect from
01.04.1981. The premises were assigned
number 1409/M. It was mentioned in the
records of the Nagar Palika, at that time, as
a pucca shop, newly constructed. The
learned Judge remarked that the aforesaid
assessment, Paper No.99-Ga has been
totally ignored from consideration by the
3 All. Anil Kumar Agarwal Vs. M/s Devasheesh Business India Pvt. Ltd. & Ors.
1505
Trial Judge and findings recorded entirely
on the basis of the assessment for the years
1987-93, bearing Paper No.21-Ga/14, while
rendering judgment on Issues Nos.5 and 6.
It must be remarked that though the entire
suit has been remanded for trial afresh, the
findings recorded by the learned Judge in
the Revisional Court would clearly show
that what he really intends is a decision
afresh by the Trial Court on Issues Nos.5
and 6.

18. Upon hearing learned Counsel for
the parties, what this Court notices is that
for one the Revisional Court has recorded
remarks of a kind that do not leave much to
be decided by the Trial Court on Issues
Nos.5 and 6. In addition, more than
sufficient evidence was available on record
before the Revisional Court to enable it to
pronounce judgment in the suit, deciding it
finally in exercise of powers under Section
25 of the Provincial Small Cause Courts
Act, 1887. The order of remand, therefore,
passed by the Revisional Court is not only
unnecessary, but also an exercise that is
wasteful of public time and money. It
would serve no cause of justice. The
consequence of the remand would be a
repetition of the trial on at least two issues
and a further revision by the aggrieved
party. It is a settled principle of the law that
if the Court of appeal or revision has all the
evidence before it to enable it to decide the
suit, an order of remand ought not to be
made. Perhaps, the order of remand has
been passed by the Court of revision
because of a hesitation about limitations on
the Revisional Court's power in recording
findings of fact or interfering with such
findings
regarded
inherent
in
that
jurisdiction. The powers under Section 25
of the Provincial Small Cause Courts Act
are wide, much wider than those under
Section 115 of the Code. If the view taken
by the Trial Court is perverse or manifestly
illegal, the Revisional Court hearing a
revision under Section 25 has all the
jurisdiction to pass judgment, deciding the
suit in case there is sufficient evidence on
record. In this connection reference may be
made to the decision of this Court in
Anwar Uddin v. 1st Additional District
Judge, Aligarh and others4, where it was
observed :

14. The contention that if the
finding recorded by the learned Small
Cause Court was erroneous, the revisional
court ought to have remanded the case to
the Small Cause Court for deciding the
same, has also no merit, because evidence
was already on record which was not
correctly appreciated by the learned Small
Cause Court and, therefore, in such a
situation, the learned revisional court was
justified in deciding the issue itself on the
basis of material and evidence on record,
instead of remanding back the matter to the
learned Small Cause Court. The authorities
cited by the learned counsel for the
petitioner do not apply in the facts of the
present case. That apart, this Court while
disposing of the earlier Writ Petition No.
4290 of 1980 of the petitioner, vide order
dated 2.9.1982. remitted the case to the
learned revisional court for disposing of the
revision on merit. Therefore, the learned
revisional court has not committed any
error or illegality in deciding the issue in
terms of the direction of this Court.

19. The same issue was also up for
consideration before this Court in Surya
Prakash Gupta v. Smt. Santosh Kumari
and another5, where it was held :

13. There is no quarrel with the
proposition of law that ordinarily the
Revisional Court under Section 25 of the
1506 INDIAN LAW REPORTS ALLAHABAD SERIES
Act cannot record finding of fact on the
issue of fact on which no finding has been
recorded by the trial Court however in
exceptional cases, the revisional can record
its own finding. Since, in the present case,
entire evidence was available on record, it
was not necessary for the Revisional Court
to have remitted the case to the trial Court
for the purpose of recording a finding of
fact, the Revisional Court can decide the
case itself on the basis of the material
available on record. There is no prohibition
in law that under no circumstances, the
Revisional Court can record its finding
particularly when the entire evidence is
available on record. Here, it is not a case of
reassessment or reappraisal of evidence. It
cannot be ignored that when the matter was
remitted to the trial Court by the Revisional
Court by its order dated 20.10.2010 for
taking evidence, no objection whatsoever
was raised by the petitioner, rather he
complied with the order and appeared
before the trial Court, and lead evidence in
his support and also opposed the prayer of
the Respondent No. 1 in the trial Court to
record finding of fact on the evidence
recorded by it. Now after more than a year,
he cannot be permitted to raise an objection
that the Revisional Court cannot record a
finding on the evidence collected by the
lower Court particularly when already there
is an order of this Court in writ petition No.
48214 of 2010 directing the Revisional
Court to decide the S.S.C. Revision No. 7
of 2009, Surya Prakash v. Smt. Santosh
Kumari and another, within a period of two
months from the date of production of a
certified copy of this order.

20. No doubt, in these cases, there
was a direction by this Court to the
Revisional Court to decide the revision on
merits with the existing evidence on record
etc., but that, in our opinion, would not
make much difference. After all, this Court
does not confer jurisdiction on a Court
which it does not possess. It would also be
of relevance to refer to the decision of the
Supreme Court in Mundri Lal v. Sushila
Rani (Smt) and another6, where their
Lordships, comparing the powers of
revision under Section 25 of the Provincial
Small Cause Courts Act, 1887 and Section
15 of the Code, observed :

22. There cannot be any doubt
whatsoever that the revisional jurisdiction
of the High Court under Section 25 of the
Provincial Small Cause Courts Act is wider
than Section 115 of the Code of Civil
Procedure. But the fact that a revision is
provided for by the statute, and not an
appeal, itself is suggestive of the fact that
ordinarily revisional jurisdiction can be
exercised only when a question of law
arises.

23. We, however, do not mean to
say that under no circumstances finding of
fact cannot be interfered therewith. A pure
finding of fact based on appreciation of
evidence although may not be interfered
with but if such finding has been arrived at
upon taking into consideration irrelevant
factors or therefor relevant fact has been
ignored, the revisional court will have the
requisite jurisdiction to interfere with a
finding of fact. Applicability of the
provisions of Section 2(2) of the Act may
in that sense involve determination of
mixed question of law and fact.

21. In the totality of circumstances,
this Court is of opinion that the impugned
remand order dated 12.07.2023 passed by
the Additional District Judge, Court No. 6,
Mathura in S.C.C. Revision No. 92 of 2022
deserves
to
be
set
aside.
3 All. Vipin Kumar Vs. Dr. Wahid Ahmad Qureshi & Ors.
1507

22. In the result, this petition stands
allowed in part. The impugned judgment
and order dated 12.07.2023 passed by the
Additional District Judge, Court No. 6,
Mathura is hereby set aside, with a
direction to the Revisional Court to
determine the revision on merits, deciding
the suit, after hearing both parties, bearing
in mind the guidance in this judgment.

23. Since the suit is one of the year
2015, it is directed that the Revisional
Court shall proceed to hear the revision,
fixing two dates of effective hearing every
week and decide it within a period of two
months from the date of receipt of a copy
of this judgment.

24. There shall be no order as to costs.

25. The Registrar (Compliance) is
directed to communicate this order to the
Additional District Judge, Court No. 6,
Mathura through the learned District Judge,
Mathura.
----------
(2024) 3 ILRA 1507
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.01.2024

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Matter Under Article 227 No. 10305 of 2023

Vipin Kumar ...Petitioner
Versus
Dr. Wahid Ahmad Qureshi & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Sumit Daga
Counsel for the Respondents:
--
Criminal Law - Code of Civil Procedure,
1908 - Order XI Rules 15, 16, 21 -
Constitution of India,1950 - Article 227 -
Petitioner
challenged
the
order
dated
02.09.2023 by Additional District Judge, Meerut,
dismissing applications (Paper Nos. 225 Ga and
229 Ga) in Civil Appeal No. 157/2010, seeking
dismissal of Original Suit No. 823/2000 for noncompliance with document inspection notice
under Order XI Rule 16 and clarification on
document filing. Suit for specific performance of
a 1975 sale agreement was decreed on
27.08.2010. Petitioner, during appeal, sought
inspection of documents referenced in the
plaint, claiming applicability of Order XI to
appeals under Section 107 and Order XLI Rule
33 CPC. Court held that post-1999 amendment,
Order XI Rule 15 limits inspection to "at or
before settlement of issues," and petitioner,
having contested the suit on merits, could not
claim inspection at appellate stage. Reliance on
Peoples Education Society Vs St. of A.P., 1971
(1) ALT 63, and Jankidas Vs Kaushalya Devi, AIR
1943 Lahore 207, misplaced as pre-amendment.
Salem Advocate Bar Association Vs U.O.I.,
(2005) 6 SCC 344, clarified discretion in
inspection timing but not applicable post-decree.
No denial of defence opportunity, as suit was
fully contested. Order upheld; petition dismissed
for lack of merit. (Paras 9-17)

Case Law Cited:

1. Peoples Education Society, Bombay Vs St. of
A.P., 1971 (1) ALT 63 (Para 8)

2. Jankidas Vs Kaushalya Devi, AIR 1943 Lahore
207 (Paras 8, 11)

3. Nagpur Glass Works Ltd. Vs Shree Onama
Glass Works Ltd., AIR 1938 Nag 239 (Para 12)

4. Salem Advocate Bar Association Vs U.O.I.,
(2005) 6 SCC 344 (Para 15)

(Delivered by Hon'ble Manish Kumar
Nigam, J.)

1. Heard learned Counsel for the
parties and perused the record.