# Hammad v. Imityaz Ahmad) against present are hereby quashed. Application Allowed

- **Citation:** (2001) 2 ILRA 18
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hammad-v-imityaz-ahmad-against-present-are-hereby-quashed-application-allowed-39005
- **Pages:** 10

## Text

18 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
the present proceeding under Section 211
I.P.C. was filed two days after that order,
i.e. on 29.3.1997. The police which
submitted a report against this applicant
did not choose to prosecute him or even
recommend
for
his
prosecution
for
making an application on fabricated and
false charges. It is vested with such a
right. The court too was competent to
initiate such an action suo motu. The
complainant himself could also have
applied to the Magistrate for initiation of
such an action. In the absence of any of
these facts the opposite party cannot be
allowed to prosecute the applicant on his
own under Section 211 I.P.C. It shall
otherwise be an abuse of process of the
court.

8. In view of above, the present
application
is
allowed
and
the
proceedings pending in the court of
Additional Chief Judicial Magistrate I,
Azamgarh, in complaint case No. 386 of
1997
(Mohd.
Hammad
V.
Imityaz
Ahmad) against present applicant are
hereby quashed.
Application Allowed.

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By the Court

1.

This
is
tenant's
revision
application under section 25 of the
Provincial Small Causes Courts' Act
arising out of S.C.C. suit no. 17 of 1989
instituted by the plaintiff respondent
Ramshwar Dayal Gupta seeking the
eviction of the defendant-revisionist from
a portion of premises no. 88 Sadar Bazar
Road, Cantt. Mathura and for recovery of
arrears of rent and damages. A brief
backdrop to the short point in issue -
whether the provisions of U.P. Urban
Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972 (Act NO. XIII of
1972) (Hereinafter referred to as ' the Act
No. XIII of 1972') are applicable to the
rented accommodation or not - is that the
defendant-revisionist was inducted as
tenant in the disputed portion of the
house, aforesaid, comprising three rooms
and a shed in the southern portion for
running a school at the rate of Rs.800 per
month w.e.f. 01.05.1985. An agreement
dated 10.04.1984 was executed between
2All] Smt. Vijay Lakshmi Jain V. Rameshwar Dayal Gupta

the
parties.
The
plaintiff-respondent
(hereinafter referred to as 'the landlord')
was aggrieved on account of non-payment
of rent and consequently he served a
notice dated 27,8,1987 of demand and to
quit
on
the
applicant-defendant
(hereinafter referred to as 'the tenant')
who sent a reply thereto and also remitted
some amount of rent through a cheque.
Since after the termination of the tenancy,
the tenant failed to clear all the dues and
to vacate the premises, the landlord was
compelled to institute S.C.C. suit no. 17
of 1989 claiming a sum of Rs.20,740/- as
arrears for rent and pedentelite and future
mesne profits @800 per month, besides
the basic relief of delivery of possession
after eviction of the tenant. The suit was
contested by the tenant raising the
controversy with regard to the monthly
amount of rent which, according to her,
was Rs.700 per month only and not
Rs.800, as claimed by the landlord. It was
also pleaded that the provisions of the Act
no. XIII of 1972 apply to the disputed
accommodation
and
since
she
has
committed no default in payment of
arrears of rent as she has been depositing
the same under Section 30 of the Act no.
XIII of 1972, on the refusal of the
landlord to received the same, she cannot
labelled as a defaulter within the meaning
of Section 20(2) (a) of the Act no. XIII of
1972 She had also taken the plea that even
if it be treated that she has committed
default in payment of rent, she stands
relieved of the liability from eviction as
she has deposited the entire amount as
contemplated under Section 20(4) of the
Act no. XIII of 1972. Both the parties led
evidence before the trail court.

2. After appraising the evidence on
record and taking into consideration the
respective submissions of learned counsel
for the parties, a finding of fact has been
recorded that the provisions of the Act no.
XIII of 1972 do not apply to the disputed
accommodation and, therefore, on the
termination of the tenancy of the tenant
by a valid notice under Section 106 of the
Transfer of Property Act, she is liable to
be evicted. Accordingly, a decree has
been passed for eviction of the tenant
from the disputed accommodation and for
recovery arrears of rent and measne profit
as claimed by the landlord. It is in these
circumstances that the present revision
application has been preferred by the
tenant by invoking the provisions of
Section 25 of the Provincial small Causes
Courts' Act.

3. Heard Sri Rajesh Tandon, learned
Senior Advocate appearing on behalf of
the defendant-revisionist (tenant) as well
as Sri R.N. Bhalla, learned Senior
Advocate
representing
plaintiffrespondent (landlord), at considerable
length and perused the material brought
on record.

4. The parties would swim or sink
with the finding on the crucial question
whether or not the provisions of the Act
no. XIII of 1972 are applicable to the
disputed
accommodation.
Sri
Rajesh
Tandon,
learned
Senior
Advocate
appearing on behalf of the tenant,
vehemently argued that the evidence on
record would itself indicate that the
landlord has himself admitted that the
premises are covered by the provisions of
the Act no. XIII of 1972 as having been
constructed in the year 1970. He found his
submission on the admission made by the
landlord in P.A. Case no. 31 of 1992 filed
by him against the tenant under Section
21(1) (a) of the Act no. XIII of 1972 for
release of the tenanted accommodation
20 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
for his personal need. In that application,
a copy of which is Annexure A-3 to the
revision application, the landlord has, in
unambiguous terms, admitted that the
tenanted accommodation came into being
in the year 1970. Sri Lalta Prasad Garg,
who happened to be the Advocate for the
landlord also made a statement before the
prescribed Authority, a copy whereof in
Annexure A-4 to the revision application,
that the provisions of the Act no. XIII of
1972 applied to the accommodation in
respect of which the petition for release
had
been
filed.
The
landlord
-
Rameshwar Dayal Gupta filed his own
affidavit in the case, aforesaid, a copy of
which in Annexure 5, deposing that the
tenanted accommodation was built in the
year 1970. The release petition was
ultimately decided ex parte in favour of
the landlord who was successful in
dispossessing the tenant. The tenant took
steps to set aside the order dated
07.11.1999
by
the
tenanted
accommodation was released. Consequent
upon the setting aside of the order of
release, the tenant was put back in
possession and occupation of the tenanted
premises. The landlord filed Civil Misc.
Writ No. 435 of 1993 which was partly
allowed by order dated 08.03.1994 with
the observation that the landlord shall not
interfere with the possession of the tenant
and in her taking the connection for water
and electricity supply. Sri R.N. Bhalla,
learned Senior Advocate for the landlord
was not in a position and to assail the
admission with regard to the age of the
tenanted accommodation made by the
landlord in the release petition but took
the forceful stand that the admission of
the landlord in proceedings for release of
the tenanted accommodation is of no
relevance and consequence and the trial
court unmindful of the admission of the
landlord, has to decide, as a fact on the
basis of the evidence available on record,
as to when the premises came into
existence. It was maintained that the plea
of estoppel in such a matter is not
attracted. To support his contention, Sri
Bhalla placed reliance on the decision of
this court in Smt. Padmini Bala Rani Vs.
District Judge, Dehradun - 1983 A.R.C.-
159, in which the effect of the plea
regarding non-applicability of the Act
NO. XIII of 1972 was thrashed out. In
that case, the landlady had applied for
release of certain flats. On behalf of the
tenants, it was pleaded that the flats were
new constructions. It was held that
whether the disputed flats are new
constructions within the meaning of
Section 2(2) of the Act no. XIII of 1972 is
a question which goes to the root of the
jurisdiction of the rent control authorities
and where such is the case, please of
estoppel cannot come in the way of
landlady from contending that the Rent
Control Authorities have no jurisdiction
to pass orders in respect of the building
which are exempt from the operation of
the Act no. XIII of 1972 by virtue of
Section 2(2) of the said Act. A reference
was also made of the decision of this
court in Smt. Samundari Devi and another
Vs. Nand Kishore Marwa and other-1987
Alld,
L.J.-255
in which again the
provisions of Section 2(2) of the Act no.
XIII of 1972 came to be interpreted.

5. Before embarking upon the
discussion on the issue and sifting of the
decisions, aforesaid, it would be proper
for clear understanding to quote, in
extenso, the provisions of Section 2(2) of
the Act no. XIII of 1972, which run as
follows:

"(2) except as provided in subsection (5) of Section 12, sub-section (1-
2All] Smt. Vijay Lakshmi Jain V. Rameshwar Dayal Gupta

A) of Section 21, Sub-section (2) of
Section 24, Sections 24, Sections 24-A
24-B, 24-C or sub-section (3) of Section
29, nothing in this Act shall apply to a
building during a period of ten years from
the date on which its construction is
completed:

Provided that where any building is
constructed substantially out of funds
obtained by way of loan or advance from
the State Government or Life Insurance
Corporation of India or a bank or a cooperative society or the Uttar Pradesh
Avas Evan Vikas Parishad, and the period
of repayment of such loan or advance
excess the aforesaid period of ten years
then the reference in this sub-section to
the period of ten years shall be deemed to
be a reference to the period of fifteen
years or the period ending with the date of
actual repayment of such loan or advance
(including interest), whichever is shorter.:

Provided
further
that
where
construction of a building is completed on
or after April 26, 1985 then the reference
in this sub-section to the period of ten
years shall be deemed to be a reference to
a period of forty years from the date on
which its construction is completed.

Explanation 1- For the purposes of this
Section -

(a) the construction of a building shall
be deemed to have been completed on the
date on which the completion thereof is
reported to or otherwise recorded by the
local authority having jurisdiction, and in
the case of building subject to assessment,
the date on which the first assessment
thereof comes into effect, and where the
said dates are different, the earliest of the
said dates, and in the absence of any such
report, record or assessment, the date on
which it is actually occupied (not
including occupation merely for the
purposes of supervising the construction
or
guarding
the
building
under
construction) for the first time:

Provided that there may be different
dates of completion of construction in
respect of different parts of a building
which are either designed as separate
units or are occupied separately by the
landlord and one or more tenants or by
different tenants;

(b) 'construction'
includes
any
new
construction in place of an existing
building which has been wholly or
substantially demolished;

(c) where such substantial addition is
made to an existing building that the
existing building becomes only a minor
part thereof the whole of the building
including the existing building shall be
deemed to be constructed on the date of
completion of the said addition."

6. The object of the aforesaid
provision, it was held in Samundri Devi's
case (supra), is to ensure a period of
holiday for the landlord to encourage
building activity. There is nothing in the
scheme of the Act no. XIII of 1972,
particularly, having regard to the objects
with which it has been enacted to suggest
that assumption of a date of completion of
construction, different from the one
provided for in explanation 1 to Section
2(2) of the Act no XIII of 1972 would
sub-serve the objects of the Act or that
fixing in date of completion of the
construction of a building in terms of
explanation 1 would, in any manner,
defeat the object of the Act. Moreover,
22 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
the mere fact that the deeming provision
in expressed to be an explanation, will not
alter its basis character nor limit it to a
mere
explanation
of
substantive
provision. It was further observed that the
explanation 1 to Section 2(2) contains a
deeming clause. It creates a legal fiction.
The language in which explanation 1(a) is
couched is clear. In effect, it says that for
purposes of sub-section (2) of Section 2,
the construction of a building shall be
deemed to have been completed (a) on the
date on which its completion is reported
to or otherwise recorded by the local
Authority; and (b) in case of a building
subject to assessment the date on which
the first assessment thereof comes in
effect, (c) and, where there is no report,
record or assessment, the date on which it
is actually occupied. This is sequence in
which
the
date
of
completion
of
construction is to be deemed for the
purposes of Section 2(2). The legislature
having regard to the fact that the building
was to be kept out of the purview of the
provisions of the Act no. XIII of 1972 for
a specified period from the date of
completion of its construction wished to
ensure that the said date should be known
with definiteness and, in order to achieve
this it engrafted a legal fiction in respect
of the said date. In order to achieve this it
engrafted a legal fiction in respect of the
said date. In other words, irrespective of
what the actual date of completion of
construction may be, the date, for
purposes of Section 2(2), would be the
one determined with reference to the
deeming provisions contained in the
Explanation. Where, irrespective of the
reality, the Legislature has unmistakably
provided for assumption of the date of
completion of the construction of a
building in Explanation 1 to Section 2(2)
of the Act no. XIII of 1972 it is
immaterial whether the landlord admits or
avers to a date of completion of
construction of the building different from
the one contemplated by the fiction.
Normally an admission may be binding
upon the person making it except where
he is able to explain it away that principle
will be wholly inapplicable to a case in
which the Legislature, acting within its
competence, mandates through a legal
fiction assumption of a fact different from
the reality. Though in the instant case, the
landlord in the release proceeding under
Section 21(1)(a) of the Act no. XIII of
1972 asserted in unerring terms that the
tenanted accommodation came into being
in the year 1970 the controversy whether
the Act no. XIII of 1972 applies or not is
to be determined with reference to
parameters laid down in Section 2(2) read
with explanation 1. The admission or
assertion of either of the parties would
hardly be any consequence.

7. There has been some controversy
with regard to the burden of proof,
whether it is initially on the landlord or
the tenant. In Durga Prasad Vs. IIIrd
Additional District Judge, Kanpur and
another - 1985(1) A.R.C.-398 it was held
by this court that the burden to prove the
fact that the provisions of the Act no. XIII
of 1972 are attracted to the tenanted
accommodation or not, lies on the
landlord but where both the parties have
led evidence to prove or disprove this
fact, the revisional court has jurisdiction
to record a finding on this jurisdictional
fact and consequently the burden of proof
looses it importance. There have been
some conflicting decisions of this court as
divergent views were expressed on the
point (See Ram Pal Singh Vs. VI
Additional District Judge and others-
1983 (2) A.R.C.-7). It is not necessary to
2All] Smt. Vijay Lakshmi Jain V. Rameshwar Dayal Gupta

refer all such cases as the whole
controversy came to be quelled by an
authoritative pronouncement of the apex
court in Ram Swaroop Rai Vs. Smt.
Leelawati-1980 A.R.C.-466 in which
taking note of the fact that the provisions
of the Act no. XIII of 1972 apply to all
buildings except where that exemption
operates, it was laid down that the
landlord, who seeks exemption must
prove that exemption. The burden is on
him to make out that notwithstanding the
rent control legislation, his building is out
of its ambit. It is not for the tenant to
prove
that
the
building
has
been
constructed beyond a period of ten years,
but it is for the landlord/landlady to make
out that the construction has been
completed within ten years of the suit. In
the same decisions, it was further noticed
that the stature makes it clear that reliance
upon the municipal records, rather than on
the lips of witnesses, is indicated to
determine the date of completion and the
nature of the construction. The oral
evidence in the case is inconsequential
being second-hand testimony. Even the
recital in he rent deed that there was a
new construction by the tenant and the
landlady, nether of whim has any direct
knowledge about the construction because
the landlady had purchased that building.
It was further observed that of course, an
admission by the tenant is admission
against him but an admission is not
always conclusive especially in the light
of the municipal records such as are
available and the burden such as has been
laid down by the Stature.

8. In the subsequent decision in
Suresh Kumar Jain Vs. Shanti Swarup
Jain and others- A.R.C. 1997 (1)-640, the
apex court has further dwelt over the
same point and observed as follows:-
"There is no dispute that the
defendant appellant is a monthly tenant
covered by the provisions of the said Rent
Act. It is apparent that for mitigating the
hardship likely to be meted out to a
landlord who has made new construction
by incurring substantial expenses, the
landlord, in case of tenancy in a newly
constructed building has been favoured
with exemption of the rigours of the
Tenancy Act in the matter of evicting a
tenant inducted in such newly constructed
premises. But such exemption in not
unfettered
but
controlled
by
the
provisions of Section 2(2) of the said Rent
Act read with Explanation 1 and proviso
to such Explanation 1. The outer limit of
the period of exemption in respect of
newly constructed building is ten years.
Such outer limit of the period of
exemption
has
been
introduced
for
balancing
the
equities
between
the
landlord and tenant. In order to ensure
that such exemption in favour of the
landlord is not extended indefinitely, the
legislature has provided a mechanism for
determining the date with reference to
which the building in question will be
deemed to have been constructed by
indicating four distinct alternative. As
such, four dates are likely to be different,
Legislature, in its anxiety to ensure that
the period of exemption is not unjustly
extended beyond the period intended, has
indicated that such period of exemption is
to be reckoned from the date which is on
the earliest point of time amongst four
different deemed dates provided for in
Explanation 1 to sub section (2) of the
U.P. Rent Act. The four different dates for
the purpose of exemption as to whether a
newly constructed building is ten years
old or not are as follows:-
24 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
(i) the date on which completion of the
building is reported to local authority;

(ii) the date on which the completion of
the building is otherwise reported by the
local authority having jurisdiction;

(iii) the date on which the assessment or
property tax is first made;

(iv) In the absence of any such report,
record or assessment, the date on which
the building was actually occupied".

9. From a close reading of the
decision of the apex court in Ram Saroop
Rai (supra) and Suresh Kumar Jain
(supra), it follows that it is not for the
tenant to prove that the building has been
constructed beyond a period of ten years
but it is for the landlord to make out that
the construction has been completed
within ten years of the suit. This is
sensible not merely because the Statute
expressly states so and the setting
necessarily implies so but also because it
is the landlord who knows best when the
building was completed, and not the
tenant. As between the two, the owner of
the building must tell the Court when the
building was constructed and not the
tenant thereof. Speaking generally, it is
fair that the onus of establishing the date
of construction of the building is squarely
laid on the landlord.

10. In the instant case, now let us
examine whether the landlord has been
able to satisfy the requirement of Section
2(22) read with explanation 1 of the Act
no. XIII of 1972 for determining the
question about the age of the tenanted
accommodation. In the present case, there
is absolutely no document on record filed
either by the landlord or the tenant to
establish
when
the
tenanted
accommodation, or for that matter, house
no. 88 Sadar Bazar Road, Cantt. Mathura
came into being. There is only parol
testimony of the parties. What the
landlord has asserted has been repelled by
the tenant and her another witness. The
property, in question, is situate within the
limits of the Cantonment of Mathura. The
statue makes it clear that reliance upon
municipal records, rather than on the lips
of witnesses, is indicated to determine the
date of completion and the nature of
construction. The court below has failed
to approach the question of age of the
tenanted accommodation from a right
angle and has misdirected itself in
determining the same by adopting a
totally wrong approach. The statutory
guideline, as adumbrated under Section
2(2) read with explanation 1 of the Act
no. XIII of 1972 has been wholly
overlooked and legal position that the
burden which lay on the landlord has not
been appreciated. The finding recorded by
the trail court is not only speculative in
nature but scrappy and jumpy. Even
otherwise, the tenant-revisionist did take
steps to bring on record the extract from
the municipal assessment register. She
applied for a certified copy of the relevant
extract from the municipal assessment
register but it was not supplied to her on
the ground that such a copy can be issued
only
to
the
landlord.
The
tenantrevisionist then moved an application
before the trail court with the prayer that
the original assessment register may be
summoned from the Cantonment Board.
This application is dated 27.09.1995 on
the record of the lower court. The relevant
document which was highly germane for
the determination of the controversy was
not summoned by the trail court. It
appears that the trail court was swayed
2All] Smt. Vijay Lakshmi Jain V. Rameshwar Dayal Gupta

away with the consideration that the
question of the age of the tenanted
accommodation
may
be
gauged
or
decided with reference to the oral
evidence of the parties. The ipsi dixit
approach adopted by the trail court cannot
but be condemned. The approach adopted
by the court below is wholly against the
statutory provision and in violation of the
guidelines laid down by the apex court as
well as this court with regard to the
burden of proof of the fact as to when the
tenanted
accommodation
came
into
existence. At the cost of tautology, it may
be made clear that the burden of proof
clearly lay on the landlord to establish
that the provisions of the Act no. XIII of
1972
are
not
applicable
to
the
accommodation,
in
question
and
consequently, he is not required to
establish one or more of the ground
contained under Section 20(2) of the Act
no. XIII of 1972. The landlord could
discharge the burden or establish the fact
by bringing on record the municipal
assessment extract or to lead other
evidence as is contemplated under Section
2(2) read with explanation 1 of the Act
no. XIII of 1972. It was not difficult for
him to have obtained the copy of the
assessment register if he was sure enough
that he will get the benefit of the
exemption from the provisions of Act no.
XIII of 1972. Since I am going to remit
the case for taking evidence on the point
and to decided the controversy afresh, I
would do better to refrain from making
any further comments on the point, lest
either of the parties may unnecessarily be
prejudiced by the observations of this
court.

11.

Sri
R.N. Bhalla, Senior
Advocate appeared to be of the view that
this court exercising the revisional powers
under section 25 of the Provincial Small
Causes Courts' Act cannot lightly brush
aside the finding of fact recorded by the
trail court. To fortify his submission, Sri
Bhalla placed reliance on the decision of
this court in Laxmi Kishore and another
Vs. Har Prasad Shukla-1979 A.W.C.-747
in which it was observed that the court
deciding revision under Section 25 of the
Provisional Small Causes courts' Act has
to satisfy itself that the trail court's decree
or order is according to law. It is true that
a revisional court should keep in mind
Hon'ble Supreme Court's dictum in
Malini
Ayyappa
Naicker
V.
Seth
Manghraj Udhavdas Firm - A.I.R. 1969
S.C.-1377 that a wrong decision on fact is
also
a
decision
according
to
law.
Therefore, Sri Bhalla was of the view that
even if the trail court has recorded a
wrong finding would also be a decision
according to law and, therefore, it enjoys
the immunity from interference by the
revisional court. With due deference to
the submission made by Sri Bhalla, I do
not feel persuaded to agree with him. The
question whether the provisions of the Act
No. XIII of 1972 apply to the tenanted
accommodation or not is a jurisdictional
fact and goes to the very root of the
matter. If the trail court has arrived at a
particular conclusion without following
the parameters or the guidelines laid down
in Section 2(2) and Explanation 1
therefore of the Act no. XIII of 1972, or
against the interpretation of the said
provision, this court exercising revisional
powers would not sit idle or be lethargic
in the matter but would certainly step-in
to correct the jurisdictional error. The
decision in the case of Laxmi Kishore
(supra) relied upon by Sri Bhalla, if read
in its entirety, may not support his
contention. In the said decision, it has
further been laid down that if it is found
26 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
that a particular finding of fact is vitiated
by an error of law, the revisional court has
power to pass such order as the justice of
the case requires; but it has no jurisdiction
to reassess or reappraise evidence in order
to determine an issue of fact for itself. It
cannot dispose of the case adequately
without a finding on a particular issue of
fact, it should send the case back after
laying down proper guidelines. It cannot
enter into the evidence, asses it and
determine an issue of fact. A reference
was also made to the decision of this court
dated 11.01.2000 in Civil Misc. Writ No.
15447 of 1981 R.S. Bajpai Vs. 1st Addl.
District Judge Allahabd and others. In the
said decision, this court did not approve
the setting aside of the finding of the trail
court by the appellate court and relying
upon the decision in Laxmi Kishore's
case (supra) allowed the writ petition and
quashed the impugned order passed by the
revisional court with the direction that the
trail court shall, however, decide the
matter afresh, keeping in view the
observation made by the revisional court
and in accordance with law. The said
decision does not squarely applies to facts
of the present case. What is meant from a
reading of the plethora of decisions on the
point, it is clear that the revisional court
should
not
embark
upon
de
novo
examination of the finding of a fact
recorded by the trail court. It has been
rightly held that the revisional court is not
empowered to look into the evidence of
the case and to decide whether a finding
of fact arrived at by the trail court is
justified by the evidence on record or not.

12. The controversy whether a
particular
accommodation
is
to
be
governed by the provisions of Act no.
XIII of 1972 or it is excepted from the
operation of the said Act is a mixed
question of law and facts. As stated
above, the basis question with regard to
the applicability of the Act has to be
determined
with
reference
to
the
provisions of Section 2(2) read with
explanation 1 of the U.P. Act no. XIII of
1972 and no amount of oral evidence or
admission of either of the parties would
be sufficient to displace the entry made in
the municipal record with regard to the
tenanted accommodation. In the instant
case, the tenanted accommodation is
located within the cantonment area and
surely there must be a record of the first
assessment of the house in question. The
crucial question could be determined by
taking on record the entries made in the
assessment register maintained by the
Cantonment Board. The trail court has
palpably committed a serious error by not
requiring the landlord to produce the copy
of
the
assessment
register
or
by
summoning the said document, if for
certain reasons, copy thereof was not
available. The landlord also did not take
any steps in this regard in spite of the fact
that the burden of proof lay squarely on
him
to
establish
that
the disputed
construction came into being within a
period of ten years reckoned from before
the date of the institution of the suit. It is,
therefore, not the question of appraising
or re-appraising by the revisional court
the evidence recorded by the court below.
As noticed above, the revisional court is
duty bound to correct the apparent and
glaring mistake committed by the court
below and if the decision of the trail court
is apparently against the law, or say, not
according to law, in that event, the
revisional court has to set aside the order.
Therefore, the contention of Sri R.N.
Bhalla, Senior Advocate that this court
exercising
revisional
powers
cannot
interfere with the finding of fact recorded
2All] Ali Johad Naqvi V. Allahabad Development Authority and another

by the court below does not go too far.
The decision is required to be setaside as
it is not according to law.

13. I am conscious of the fact that
ordinarily, higher court should refrain
from remanding the case to the lower
court as it results in further consumption
of time. But there may be some
exceptional cases, like the present one,
where the controversy cannot be decided
without remanding the case as this court
would be chary enough to permit the
parties to lead evidence in the revisional
proceedings for the determination of the
controversy, in hand the matter of
necessity it has to be sent back to the trail
court. it would not be proper for this court
exercising the revisional jurisdiction to
summon the documents and then to record
evidence. This course would be expedient
as it will be open both to the landlord as
well as tenant to produce better municipal
evidence in the light of what has been
indicated above.

14. In the result, for the reasons
mentioned above, the reasons mentioned
above, the revision application is allowed
and the impugned judgement and decree
dated 31.03.1998 passed by 5th Additional
District Judge, Mathura in S.C.C. suit no.
17 of 1989 are hereby set aside. The case
is remanded to the court below for
decision afresh according to law in the
light of observation made in the body of
this decision. In view of the fact that the
case was instituted about 12 years back,
the trail court, subject to active cooperation and regular participation of the
parties, will decide the same with all
expedition, preferably within four months.
The parties are directed to appear before
the trail court on 03.04.2001.

15. The Deputy Registrar concerned
of the Registry of this court shall ensure
that the original record of the case along
with a copy of this judgement is returned
so that it may reach the trail court before
the date specified above.
Revision Allowed.

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