# Km. Damyanti Manoocha v. A.D.J. Faizabad & Ors

- **Citation:** (2015) 2 ILRA 638
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-05-08
- **Case number:** Rent Control No. 59 of 2011
- **Bench:** Aditya Nath Mittal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-damyanti-manoocha-v-a-d-j-faizabad-ors-43261
- **Pages:** 15

## Headnote

(A)Small Causes Court Act, Section 25Power of Revisional Court-very limitedwhether of a tenant is chief tenant or
subtenant-being question of fact-can not
be touched by revisional court.
Held: Para-39
In the present case, learned Revisional
Court has exceeded in his jurisdiction in
view of the law settled regarding Section
25 of the Provincial Small Causes Courts
Act by reappreciating the evidence de
novo
and
coming
to
a
different
conclusion. If the Revisional Court was
of the view that the findings of the trial
court suffer from any infirmity, legal
weakness or otherwise erroneous, it has
power to remand the case to the trial
court for recording a fresh finding after
laying down appropriate guidelines. But
it was not within the competence of the
Revisional
Court
to
reassess
the
evidence himself and record his own
findings of fact in place of one recorded
by the trial court which was based on
appreciation of evidence.
(B)U.P. Act No. 13 of 1972-Section2(1)(g)-applicability-where
tenancy
2 All] Km. Damyanti Manoocha Vs. A.D.J. Faizabad & Ors.
639
being quite old-running since 1946-rate
of rent can be enhanced-while passing
ejectment-provisions of Section 2(1)(g)
not applicable-except other provisions of
the Act.
Held: Para-51
Considering the law laid down by Hon'ble
the Apex Court in Lachoo Mal vs. Radhey
Shyam (1971) 3 SCR 693, it is clarified that
this direction of enhancement of the rate of
rent/ damages is made in spite of the fact
that by virtue of Section 2 (1) (g) of Act
No.13 of 1972, the applicability of Section 2
(1) (g) is waived. Meaning thereby that
either of the party shall not be entitled to
take the benefit of Section 2 (1) (g) of Act
No.13 o f 1972 and other provisions of Act
No.13 of 1972 shall continue to apply.
Case Law discussed:
2000(2) ARC 344; 2000(2) ARC 739; 1990 (1)
ARC 517; [2010 (1) ARC 473]; AIR 1966 (Alld)
280; [1966 AWR 274]; AIR 1973 (Alld.) 217;
(2004) 4 Supreme Court Cases 794; (2007) 4
Supreme Court Cases 306; (2008) 7 Supeme
Court Cases 722; Civil Appeal No. 2147 of
1980; 1984 (2) LCD 189; [2008 (1) ARC 70];
AIR 1965 SC 1585; AIR 1969 SC 1344; 1995
Supp (4) SCC 675; JT 1998 (8) 157; JT 1999
(10) SC 51:2000 SCFBRC 27; 1965 ALJ 989
(DB); 1998 (2) ARC 575; 2004 (2) ARC 64;
2004 (2) ARC 652; ADJ 2004 (2) ARC 652; AIR
2011 SC 1940.

## Text

_Characters 0–39,871 of 50,195. This is a partial read: ask again with offset=39871 for what follows._

638
 INDIAN LAW REPORTS ALLAHABAD SERIES
the stage in which it then was if he
appeared subsequently and wanted to put
forward his evidence. The rule is
applicable if the defendant wants the court
to retrace its steps and to be allowed to
file written statement. But if the defendant
wants to proceed from the stage already
reached, he will have an absolute right
without obtaining the court's permission
to take part in the proceeding.
17. Accordingly, Order IX Rule 7
cannot be read to mean that defendant
cannot be allowed to appear at all if he
does not show good cause. All it means is
that he cannot be relegated to the position
he would have occupied if he had
appeared. He cannot be stopped from
participating in the proceeding simply
because he did not appear in the first or
some other hearing. He will have to show
good cause for his previous absence, only
if he desires to be relegated back to the
position in which he would have been put
if he had appeared at the previous
hearings, so that the proceedings in his
absence could be reopened.
18. In the instant case when an
application for recall of the ex-parte order
dated 07.03.2005 has been moved to
which objection has been filed by the
revisionist after taking into consideration
the cause which has been shown by the
defendant-respondent, the trial court has
come to the conclusion that there exists
sufficient cause rather good reason has
been shown by the defendant-respondent
for his previous non-appearance in the
proceeding of the suit, allowed by order
dated 23.12.2005, thus, I do not find any
illegality or infirmity in the same.
19. For the foregoing reason, the
revision lacks merit and is dismissed.
20. Office is directed to send the
lower court record to the court concerned.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.05.2015
BEFORE
THE HON'BLE ADITYA NATH MITTAL, J.
Rent Control No. 59 of 2011
Km. Damyanti Manoocha
 ...Petitioner
Versus
A.D.J. Faizabad & Ors.
...Respondents
Counsel for the Petitioner:
Mohd. Aslam Khan, M.A. Khan
Counsel for the Respondents:
Manish Kumar, I.D. Shukla, S.K. Mehrotra
(A)Small Causes Court Act, Section 25Power of Revisional Court-very limitedwhether of a tenant is chief tenant or
subtenant-being question of fact-can not
be touched by revisional court.
Held: Para-39
In the present case, learned Revisional
Court has exceeded in his jurisdiction in
view of the law settled regarding Section
25 of the Provincial Small Causes Courts
Act by reappreciating the evidence de
novo
and
coming
to
a
different
conclusion. If the Revisional Court was
of the view that the findings of the trial
court suffer from any infirmity, legal
weakness or otherwise erroneous, it has
power to remand the case to the trial
court for recording a fresh finding after
laying down appropriate guidelines. But
it was not within the competence of the
Revisional
Court
to
reassess
the
evidence himself and record his own
findings of fact in place of one recorded
by the trial court which was based on
appreciation of evidence.
(B)U.P. Act No. 13 of 1972-Section2(1)(g)-applicability-where
tenancy
2 All] Km. Damyanti Manoocha Vs. A.D.J. Faizabad & Ors.
639
being quite old-running since 1946-rate
of rent can be enhanced-while passing
ejectment-provisions of Section 2(1)(g)
not applicable-except other provisions of
the Act.
Held: Para-51
Considering the law laid down by Hon'ble
the Apex Court in Lachoo Mal vs. Radhey
Shyam (1971) 3 SCR 693, it is clarified that
this direction of enhancement of the rate of
rent/ damages is made in spite of the fact
that by virtue of Section 2 (1) (g) of Act
No.13 of 1972, the applicability of Section 2
(1) (g) is waived. Meaning thereby that
either of the party shall not be entitled to
take the benefit of Section 2 (1) (g) of Act
No.13 o f 1972 and other provisions of Act
No.13 of 1972 shall continue to apply.
Case Law discussed:
2000(2) ARC 344; 2000(2) ARC 739; 1990 (1)
ARC 517; [2010 (1) ARC 473]; AIR 1966 (Alld)
280; [1966 AWR 274]; AIR 1973 (Alld.) 217;
(2004) 4 Supreme Court Cases 794; (2007) 4
Supreme Court Cases 306; (2008) 7 Supeme
Court Cases 722; Civil Appeal No. 2147 of
1980; 1984 (2) LCD 189; [2008 (1) ARC 70];
AIR 1965 SC 1585; AIR 1969 SC 1344; 1995
Supp (4) SCC 675; JT 1998 (8) 157; JT 1999
(10) SC 51:2000 SCFBRC 27; 1965 ALJ 989
(DB); 1998 (2) ARC 575; 2004 (2) ARC 64;
2004 (2) ARC 652; ADJ 2004 (2) ARC 652; AIR
2011 SC 1940.
(Delivered by Hon'ble Aditya Nath Mittal, J.)
1. Heard learned counsel for the
petitioner, learned counsel appearing for
the opposite party no.14 and perused the
record.
2. This writ petition has been filed
with the prayer to issue a writ of certiorari
for quashing the judgment and order dated
31.01.2011, passed by the opposite party
no.1.
3. The brief facts of the case are that
the petitioner (landlady) had filed the suit
for ejectment, arrears of rent and damages
against the opposite party no.14 and
others on the ground that the said shop
was taken on rent by Gauri Shanker in the
name & Style of firm Gauri Shanker
Shyam Behari. The opposite party no.14
being daughter's son was not entitled to
inherit the tenancy rights but since he was
alleging to be a partner of the firm Gauri
Shanker Roop Narain, therefore, he has
been arrayed as a party. It was alleged
that the shop in dispute was not in the
tenancy of any firm rather it was in a
tenancy of Gauri Shanker in his individual
capacity. The landlady was not residing at
Faizabad as she was Lecturer in Jaipur.
When she came to Faizabad, she came to
know that the shop in dispute was
partitioned, which has changed its nature
and diminished its utility. The firm
Shyam Behari Shiv Das and the firm M/s
Gauri Shanker Roop Narain are subtenants, therefore, no notice was required
to be served upon them. As per the rent
deed dated 13.03.1946, the tenant was not
given the right to sub-let the shop. The
tenancy was terminated by notice dated
31.01.1981.
4. The suit was contested by the
opposite party no.14 and admitted the
petitioner to be the landlady and the rate
of rent. It was alleged that Gauri Shanker
and Shyam Behari were real brothers and
Gauri Shanker was the Karta of joint
Hindu family, and Shyam Behari was the
member. On the death of Gauri Shanker,
his three daughters and Roop Narain in
whose favour Smt. Rampati executed a
will on 09.01.2009 became tenants. Gauri
Shanker was carrying business in the firm
name and style Shyam Behari Shiv Das
and they are carrying on their respective
business since April, 1972. The suit was
also contested by the defendant nos.1, 6, 7
and 9, who also admitted the petitioner to
640
 INDIAN LAW REPORTS ALLAHABAD SERIES
be landlady but they denied the fact of
sub-letting. All the defendants have taken
the plea that the shop was taken on rent
by the firm Gauri Shanker Shyam Behari
and Shiv Das was the partner. It was also
alleged that the rent was paid by the firm.
5. After appreciating the evidence
on record, the Judge, Small Cause Courts
came to the conclusion that the original
tenant had sub-let the said shop and there
was no illegality in the notice and thereby
the application was allowed by the
judgment and order dated 01.10.2008.
6.

The
said
judgment
was
challenged in Civil Revision No.144 of
2008 whereby the learned Revisional
Court had found that the shop was given
on rent to both Gauri Shanker and Shyam
Behari, therefore, there was no subletting. Learned Revisional Court also
came to the conclusion that Shiv Das was
also partner in the said firm, but the
original tenancy remained in the name of
Gauri Shanker Shyam Behari. Learned
Revisional Court also came to the
conclusion that there was no violation of
terms
and
conditions
of
the
rent
agreement and there was no sub-letting.
Accordingly, the learned Revisional Court
allowed the revision and set aside the
judgment and order dated 01.10.2008 by
the judgment and order dated 31.01.2011.
7. At the very outset, learned
counsel for the petitioner has requested to
treat this writ petition under Article 227 in
place of Article 226 of the Constitution of
India.
8. Learned counsel for the petitioner
has submitted that the learned Revisional
Court exceeded in his powers as provided
under Section 25 of the Small Cause
Courts Act and the Revisional Court
cannot reappraise the evidence. It has also
been submitted that Section 3 (e) and 7 (f)
of the Old Act also do not permit for
inducting the partner and under new act
also and in view of the provisions of
Sections 11 and 16, the sub-letting is
prohibited. It has also been submitted that
the rent deed was executed only by Gauri
Shanker and not by Shyam Behari.
Therefore Shyam Behari was not the
tenant, but learned Revisional Court has
misread the evidence on record and the
findings are perverse.
9. In support of his submission,
learned counsel for the petitioner has
relied upon the case Vijay Kumar Gupta
vs. Smt. Savitri Devi and another reported
in 2000 (2) ARC 344, in which Hon'ble
Single Judge of this Court has held that if
occupation of the petitioner is in violation
of provisions of Sections 11 and 13 of the
Act, he is liable to be evicted.
10. Learned counsel for the petitioner
has also relied upon the case Om Prakash
and others vs. IInd Additional District Judge,
Saharanpur and others reported in 2000 (2)
ARC 739, in which Hon'ble Single Judge of
this Court has held that in the revisional
jurisdiction under Section 25 of the Small
Cause Courts Act, the Revisional Court is
bound by findings of fact reached by the trial
court and it has no power to examine de
novo findings of fact. It has further been held
that Revisional Court has no jurisdiction to
reassess or reappraise the evidence in order
to determine the issues of fact. It has further
been held that if the Revisional Court defers,
it should remand the case for redecision.
11. Reliance has also been placed in
the case of Jagjit Singh vs. District Judge,
Dehradun and others reported in 1990 (1)
2 All] Km. Damyanti Manoocha Vs. A.D.J. Faizabad & Ors.
641
ARC 517, in which the Hon'ble Single
Judge of this Court has held that even the
consent of landlord in accepting the rent
cannot defeat the provisions of Sections,
11, 13, 15 and 31 of the Act No.13 of
1972.
12. Reliance has also been placed in
the case of Bhagwan Swarup (Dead)
through LRs. vs. Smt. Hamida Khatoon
(Dead) and others reported in [2010 (1)
ARC 473], in which, in interpreting the
provisions of Section 25 of the Small
Cause Courts Act, the Hon'ble Single
Judge of this Court has held that powers
of Revisional Court under Section 25 of
Small Cause Courts Act is limited and it
is not open to the Revisional Court to
reverse the findings of fact and to come to
its own conclusion.
13. Learned counsel for the
petitioner has also relied upon the case
Mohd. Ishaq vs. State of U.P. & others
reported in AIR 1966 (Alld) 280, in which
the Full Bench of this Court has held that
when
a
tenant-in-chief
vacates
the
accommodation by sub-letting it to
another
person,
then
the
District
Magistrate is required to pass an order
under Section 7 to the owner to let it to
another person. This law is regarding U.P.
(Temporary) Control of Rent & Eviction
Act, 1947. The similar view has also been
taken in the case of Sardar Harbans Singh
Sethi vs. Rent Control and Eviction
Officer, Nainital and others reported in
[1966 AWR 274].
14. Reliance has also been placed
upon the case Kunj Behari Lal Gupta vs.
Shri Shivji Maharaj, Birajman Mandir and
another reported in AIR 1973 (Alld.) 217,
in which Hon'ble the Single Judge of this
Court has held that the term 'tenant' in
Section 2 (g) does not include persons
enjoying benefit of contract of lease as
assignees.
15. On the other hand, learned
counsel for the opposite party no.14
(tenant) has submitted that the Revisional
Court has ample jurisdiction in case it
finds that the evidence on record has not
been considered. It has also been
considered that the firm is in existence
since long and all the receipts of rent have
been issued in the joint name. It has also
been submitted that there is no subtenancy and the learned Judge, Small
Causes Court had not appreciated the
evidence on record in right perspective.
Therefore, learned Revisional Court had
interfered with the findings. It has also
been submitted that the Revisional Court
can consider the evidence, which has not
been considered by the trial court, and
thereby no illegality or error of law has
been committed by the Revisional Court.
16. In support of his submission,
learned counsel for the opposite party
no.14 has relied upon the case Parvinder
Singh vs. Renu Gautam and others
reported in (2004) 4 Supreme Court Cases
794, in which the Hon'ble Supreme Court
has held as under:-
"The rent control legislations which
extend many a protection to the tenant,
also provide for grounds of eviction. One
such ground, most common in all the
legislations, is subletting or parting with
possession of the tenancy premises by the
tenant. Rent control laws usually protect
the tenant so long as he may himself use
the premises but not his transferee
inducted into possession of the premises,
in breach of the contract or the law,
which act is often done with the object of
642
 INDIAN LAW REPORTS ALLAHABAD SERIES
illegitimate profiteering or rack renting.
To defeat the provisions of law, a device is
at times adopted by unscrupulous tenants
and sub-tenants of bringing into existence a
deed
of partnership which gives the
relationship of tenant and sub-tenant an
outward appearance of partnership while in
effect what has come into existence is a subtenancy
or
parting
with
possession
camouflaged
under
the
cloak
of
partnership. Merely because a tenant has
entered into a partnership he cannot
necessarily be held to have sublet the
premises or parted with possession thereof
in favour of his partners. If the tenant is
actively associated with the partnership
business and retains the use and control
over the tenancy premises with him, may be
along with the partners, the tenant may not
be said to have parted with possession.
However, if the user and control of the
tenancy premises has been parted with and
deed of partnership has been drawn up as
an indirect method of collecting the
consideration for creation of sub-tenancy or
for providing a cloak or cover to conceal
the transaction not permitted by law, the
Court is not estopped from tearing the veil
of partnership and finding out the real
nature of transaction entered into between
the tenant and the alleged sub-tenant".
17. Reliance has also been placed upon
the case Amar Nath Agarwalla vs. Dhillon
Transport Agency reported in (2007) 4
Supreme Court Cases 306, in which Hon'ble
the Supreme Court has held as under:-
"The question is whether carrying on
business by one of the partners of the firm
which was originally the tenant amounts
to sub-letting of the premises by the
original tenant.
In Murli Dhar v. Chuni Lal and Ors.,
(1969) RCR 563 this Court had repelled
the contention that the old firm and the
new firm being two different legal entities,
the occupation of the shop by the new firm
was occupation by the legal entity other
than the original tenant and such
occupation proved sub-letting. Repelling
the contention this Court held:-
"This contention is entirely without
substance. A firm, unless expressly
provided for the purpose of any statute
which is not the case here, is not a legal
entity.
The
firm
name
is
only
a
compendious way of describing the
partners
of
the
firm.
Therefore,
occupation by a firm is only occupation
by its partners. Here the firms have a
common partner. Hence the occupation
has been by one of the original tenants."
In
Mohammedkasam
Haji
Gulambhai v. Bakerali Fatehali (Dead)
by LRs., Reported in [1998] 7 SCC 608
this Court observed:
"There is absolute prohibition on the
tenant from sub-letting, assigning or
transferring in any other manner his
interest in the tenanted premises. There
appears to be no way around this subject of
course if there is any contract to the
contrary between the landlord and the
tenant. In a partnership where the tenant is
a partner, he retains legal possession of the
premises as a partnership is a compendium
of the names of all the partners. In a
partnership, the tenant does not divest
himself of his right in the premises. On the
question of sub-letting etc. the law is now
very explicit. There is prohibition in
absolute terms on the tenant from subletting, assignment or disposition of his
interest in the tenanted premises."
The same principle was reiterated by
this Court in Mahendra Saree Emporium
(II) v. G.V. Srinivasa Murthy, reported in
[2005] 1 SCC 481 wherein this Court
held:
2 All] Km. Damyanti Manoocha Vs. A.D.J. Faizabad & Ors.
643
"The mere fact that another person is
allowed to use the premises while the
lesses retains the legal possession is not
enough to create a sub lease. Thus, the
thrust is, as laid down by this Court, on
finding out who is in legal possession of
the premises. So long as the legal
possession remains with the tenant the
mere factum of the tenant having entered
into partnership for the purpose of
carrying on the business in the tenancy
premises would not amount to sub-letting.
In Parvinder Singh vs. Renu Gautam
(2004) 4 SCC 794, a three-Judge Bench
of this Court devised the test in these
terms: (SCC P. 799, Para 8) "If the tenant
is actively associated with the partnership
business and retains the use and control
over the tenancy premises with him, may
be along with the partners, the tenant may
not be said to have parted with
possession. However, if the user and
control of the tenancy premises has been
parted with and deed of partnership has
been drawn up as an indirect method of
collecting the consideration for creation
of sub-tenancy or for providing a cloak or
cover to conceal a transaction not
permitted by law, the Court is not
estopped from tearing the veil of
partnership and finding out the real
nature
of
transaction
entered
into
between the tenant and the alleged subtenant."
Applying these principle to the
instant case, it is patent that one of the
partners of the firm which was the
original tenant has continued in legal
possession of the premises as a partner of
another firm constituted after dissolution
of the original firm. Thus the legal
possession is retained by a partner who
was one of the original tenants. In these
circumstances, we find no fault with the
finding of the High Court there was no
sub-letting of the premises and hence the
suit
for
eviction
deserved
to
be
dismissed."
18. Learned counsel for the opposite
party no.14 has also relied upon the case
Nirmal Kanta (Dead) through Lrs vs.
Ashok Kumar and another reported in
(2008) 7 Supreme Court Cases 722, in
which the Hon'ble Supreme Court in para16 has held as under:-
"16. What constitutes sub-letting has
repeatedly fallen for the consideration of
this Court in various cases and it is now
well-established that a sub-tenancy or a
sub-letting comes into existence when the
tenant inducts a third party/stranger to
the
landlord
into
the
tenanted
accommodation and parts with possession
thereof wholly or in part in favour of such
third party and puts him in exclusive
possession thereof. The lessor and/or a
landlord seeking eviction of a lessee or
tenant alleging creation of a sub-tenancy
has to prove such allegation by producing
proper evidence to that effect. Once it is
proved that the lessee and/or tenant has
parted with exclusive possession of the
demised
premises
for
a
monetary
consideration, the creation of a subtenancy and/or the allegation of subletting stands established."
19. Reliance has also been placed upon
the judgment of Hon'ble Supreme Court
delivered in the case Civil Appeal No.2147
of 1980; Jagdish Prasad vs. Smt. Angoori
Devi decided on March 15, 1984 reported in
1984 (2) LCD 189, in which Hon'ble the
Supreme Court has held as under:-
"The legal position having been
totally misconceived by the trial court and
644
 INDIAN LAW REPORTS ALLAHABAD SERIES
there being an assumption of the position
which the landlord was required to prove
by evidence, the revisional authority
entitled to Point out the legal error and
rectify the defect. This is all that had been
done by the Additional District Judge.
In the case of Syed Yakoob v. K.S.
Radhakrishna & Ors.,(1964) SCR64, a
Constitution Bench of this Court indicated
the scope of interference in a certiorari
proceeding by saying that a writ of
certiorari is issued for correcting the
errors of jurisdiction committed by the
courts or tribunals in cases where they
exceed their jurisdiction or fail to exercise
it or exercise it illegally or improperly.
i.e. where an order is passed without
hearing the party sought to be affected by
it or where the procedure adopted is
opposed to principles of natural justice. A
caution was indicated by saying that the
jurisdiction to issue a writ of certiorari is
a supervisory one and in exercising it, the
court is not entitled to act as a court of
appeal. That necessarily means that the
findings of fact arrived at by the inferior
court or tribunal are binding. An error of
law apparent on the face of the record
could be corrected by a writ of certiorari,
but not an error of fact, however, grave it
may appear to be."
20. Learned counsel for the opposite
party no.14 has also placed reliance upon
the judgment of this Court delivered in
Writ Petition No.14768 of 1990; Abdul
Hamid vs. IXth ADJ, Bulandshahr and
other, decided on May 11, 2007 reported
in [2008 (1) ARC 70], in which Hon'ble
Single Judge of this Court in paras-9, 11
and 14 has held as under:-
"9. In Hari Shanker and other v.
Girdharilal, AIR 1963
SC 698, the
Supreme Court held that a decision given
according to law would not be set aside
except on certain errors of law. A division
bench of this Court in Laxmi Kishore and
another v Har Prasad Shukla, AIR 1979
AWC 746 held that the Court exercising
revision power under Section 25 does not
possess jurisdiction to determine issues of
fact itself by entering into the evidence
and assessing it. The revisional Court had
no jurisdiction to reassess or reappraise
the evidence the evidence or determine an
issue of fact but, the revisional Court
would be justified to interfere in a finding
of fact where it finds that the trial court
had based its finding on no evidence or
that the findings was perverse or that it
had ignored a vital piece of material
evidence."
The Division Bench held-
"As already seen, a Court acting
under Section 25 of the provincial Small
Cause Courts Act has no such power. The
power to determine question of fact has
been expressly taken away."
And further held-
"The Court deciding a revision under
Section 25 of the Provincipal Small Cause
Courts Act has to satisfy itself that the
trial Courts' decree or order is according
to law. Of course, the Revisional Court
should keep in mind the Supreme Court's
dictum in Naicker' case that a wrong
decision on fact is also a decision
according to law."
And further held-
"If it finds that there is no evidence
to sustain a finding on a particular issue
of fact, it can ignore that finding. Same
will be the case where that findings is
based only on inadmissible evidence. In
such cases, the Court will be justified in
deciding the question of fact itself,
because the evidence is all one way. No
assessment is needed. The Court can also
decide the revision only a question of law
2 All] Km. Damyanti Manoocha Vs. A.D.J. Faizabad & Ors.
645
or some preliminary point of law, viz,
validity of notice, is sufficient or its
decision.
But, if it finds that a particular finding
of fact is vitiated by an error of law, it has
power to pass such order as the justice of the
case requires, but it has no jurisdiction to
reassess or reappraise the evidence in order
to determine an issue of fact for itself. If it
cannot dispose of the case adequately
without a finding on a articular issue of fact,
it should send the case back after laying
down proper guidelines. It cannot enter into
the evidence, assess it and determine an
issue of fact."
"11. In the light of the aforesaid
judgments, the revisional Court can ignore a
finding on a particular issue of fact, if it finds
that there was no evidence to sustain such a
finding on that
particular issue. The
revisional Court could also ignore a finding
where it was based on inadmissible evidence.
The revisional Court, if it finds that a
particular finding of fact was vitiated by an
error of law, it had power to pass such order
as the justice of the case may require".
"14. In the light of the aforesaid, this
Court holds that the revisional Court
rightly ignored the findings given by the
trial court and correctly assessed the
evidence in coming to the conclusion that
the petitioner had constructed additional
rooms. The revisional Court was within
its power and was competent to assess the
evidence which was in consonance of the
powers provided under Section 25 of the
Provincial Small Cause Courts Act. It was
not necessary for the revisional Court to
remit the matter back to the trial Court
for reconsideration".
21. In view of the above, the
following points need to be adjudicated.
(i) What are the power of Revisional
Court under Section 25 of Small Causes
Courts Act and whether it can reappreciate the evidence on record or not ?
(ii) Whether the shop in question was
sub-letted or not ?
22. In the present case, learned trial
court after appreciating the evidence of
both the parties has come to the
conclusion that the basis of tenancy was
of the agreement dated 13.03.1946. It has
also been come to the conclusion that in
breach of conditions of agreement dated
13.03.1946, there was sub-letting of the
shop in question, therefore, the tenant was
liable to be evicted.
23. Learned Revisional Court has
drawn the conclusion that Shiv Das was a
business partner but he was not subtenant. Learned Revisional Court has also
come to the conclusion that Gauri
Shanker and Shyam Behari both were
joint tenants. Therefore the findings of
learned court below are wrong and
accordingly the revision was allowed and
the judgment and decree dated 01.10.2008
was set aside.
24.
From the pleadings and evidence
of both the parties, it is not disputed that the
basis of tenancy was the rent deed dated
13.03.1946. Both the courts below have
interpreted this rent deed in their own way.
The main consideration before the trial court
was (i) whether the shop in question was in
the sole tenancy of Gauri Shanker, or (ii)
whether the shop in question was in joint
tenancy of Gauri Shanker and Shyam Behari
or (iii) whether the tenancy was in the name
of partnership firm M/s Gauri Shanker
Shyam Behari.
25. Learned trial court has come to
the conclusion that it was in the sole
tenancy of Gauri Shanker while learned
646
 INDIAN LAW REPORTS ALLAHABAD SERIES
Revisional Court has come to the
conclusion that it was in the joint tenancy
of Gauri Shanker and Shyam Behari. The
plea was also raised before the Revisional
Court that because the said shop was in
the tenancy of firm Gauri Shanker Shyam
Behari, therefore Shiv Das could not be
inducted as partner in the firm without the
consent of the landlady. This contention
was not accepted by the Revisional Court.
26. As far as powers of Revisional
Court under Section 25 of Provincial
Small Causes Courts Act are concerned,
Section 25 reads as under:-
"25. Revision of decrees and orders
of Courts of Small Causes.-The District
Judge, for the purpose of satisfying
himself that a decree or order made in
any case decided by a Court of Small
Causes was according to law, may of his
own motion, or on the application on an
aggrieved party made within thirty days
from the date of such decree or order, call
for the case and pass such order with
respect thereto as he thinks fit :
Provided that in relation to any case
decided by a District Judge or Additional
District Judge exercising the jurisdiction
of a Judge of Small Causes, the power of
revision under this section shall vest in
the High Court."
27. Section 25 of the. Small Causes
Courts Act came to be interpreted before
the Apex Court and this Court in number
of cases. By the Apex Court and this
Court, it has consistently been held that
the District Judge or the High Court, in
exercise of powers under Section 25 of
the Small Cause Courts Act, has got
limited jurisdiction. In the revision under
the aforesaid Section, the Court could see
that the decree or order in any case
decided by the Court of Judge Small
Causes was according to law or not.
28. In the State of Kerala v. K.M.C.
Abdula and Company, AIR 1965 SC
1585, while considering the provisions of
Section 12 of Madras General Sales Tax
Act,
which
was
analogous
to the
provisions of Section 25 of the aforesaid
Act, the Apex Court has held as under :
"There is an essential distinction
between an appeal and revision. The
distinction is based on difference implicit
in the said two expressions. An appeal is
a continuation of the proceeding; in fact
the entire proceedings are before the
appellate court and it has power to
scrutinize the evidence subject to the
statutory limitation prescribed. But in the
case of a revision whatever powers the
revisional authority may or may not, does
not have power to review the evidence
unless statute specifically conferred on it
that power."
29. In Malini Ayappa Naicker v.
Seth Manghraj Udhaudas, AIR 1969 SC
1344, it was ruled by the Supreme Court
that while exercising the power under
Section 75 (1) of Provincial Insolvency
Act, which is analogous to the provisions
of Section 25 of the Small Cause Courts
Act, the High Court is by and large bound
by the findings of fact reached by the
District Court. It was also observed that a
wrong decision on facts by a competent
authority is also a decision according to
law and the Revisional Court has no
power to review the findings of fact
reached by the trial court.
30. In Dr. D. Sankaranarayanan v.
Punjab National Bank, 1995 Supp (4)
SCC 675, it was held as under :
2 All] Km. Damyanti Manoocha Vs. A.D.J. Faizabad & Ors.
647
"We are of the view that the learned
counsel for the appellant is right when he
contends that the revision petition was
treated by the High Court as if it were a
second appeal and upon a reassessment
of the evidence, the findings of facts of the
first appellate court were reversed."
"Thus, in our view, the revisional
power of High Court under Section 25 of
the Act not being an appellate power. It is
impermissible for the High Court to
reassess the evidence in a revision
petition filed under Section 25 of the Act."
31. In Rafat Ali v. Sugni Bai and
others, JT 1998 (8) SC 157, the Apex
Court taking into consideration the
decision in Sri Raj Laxmi Dyeing Works
v. Rangaswami, JT 1998 (4) SC 46, as
well as in Sarla Ahuja v. United India
Insurance Company Ltd., JT 1998 (7) SC
297, ruled that the High Court should not
interfere with the findings of fact merely
because it does not agree with the
findings of the subordinate authority and
that it was not open to the High Court to
substitute the findings of the Lower
Courts with its own findings in exercise
of its limited supervisory jurisdiction.
32. Similar view has been taken by
the Supreme Court in Ramdoss v. K.
Thangavelu, JT 1999 (10) SC 51: 2000
SCFBRC 27, wherein while considering
the scope of Section 25 of the T. N.
Buildings (Lease and Rent Control) Act,
1960 which is analogous to the provisions
of the Act, it was ruled as under :
"The High Court, under Section 25 of
the Act, can call for and examine the record
of the appellate authority in order to satisfy
itself as to regularity of such proceedings or
the correctness, legality or propriety of any
decision or orders passed therein."
33. Beginning with Ram Narain v. K.
L. S. Vishwakarma, 1965 ALJ 989 (DB) and
another Division Bench's decision in Laxmi
Kishore and another v. Har Prasad Shukla,
1981 ARC 545, this Court has consistently
taken the view that in exercise of powers
under Section 25 of the Provincial Small
Cause Courts Act, the Revisional Court has
got no jurisdiction to re-appraise the
evidence and to substitute its own findings
on the questions of fact in place of findings
recorded by the trial court. A reference in this
regard may be made to the decisions in
Prayag Narain Gaur v. Muneshwar Das and
anothe,. 1979 ARC 341; Gopal Krishna
Andley u. Vth Additional District Judge,
Kanpur and others, 1982 (1) ARC 45 ; Fakir
Chand v. IInd Additional District Judge,
Aligharh and others, 1984 (1) ARC 68;
Jagdish Prasad v. Angoori Devi, 1984 (1)
ARC 679; Manmohan Dixit v. Additional
District Judge/Special Judge (E. C. Act),
Jalaun at Orai and others, 1996 (2) ARC 561
; Smt. Fatima Begum and others v. IVth
Additional District Judge, Jhansi and others,
1997(2) ARC 107 and Durga Prasad and
others v. VIIth Additional District Judge,
Kanpur Nagar and others, 1998 (1) ARC
470.
34.
In view of the above, the law is
settled that the Revisional Court could ignore
the finding of fact recorded by the trial court
and could record its own finding where the
finding of the trial court is based on no
evidence or there is absolutely no evidence
on record to sustain a particular finding of
fact, or it is based on inadmissible evidence
or the same is perverse in the sense that no
reasonable man could have ever reached to
the conclusion arrived at by the Court below.
35. In 1998 (2) ARC 575, Murti Shri
Laxman Ji Maharaj v. Panna Lal Sahu and
another, it was ruled as under:-
648
 INDIAN LAW REPORTS ALLAHABAD SERIES
"If the Revision Court was of the
view that the finding of the trial court
suffered
from
any
infirmity,
legal
weakness or otherwise was erroneous, it
had the power to remand the case to the
trial court for recording a fresh finding
after laying down appropriate guidelines
but it was not within the competence of
the Revisional Judge to assess the
evidence himself and record his own
finding of fact in place of the one
recorded by the trial court which was
based on appreciation of evidence."
36. The law relied upon by learned
counsel for the opposite parties in Laxmi
Kishore and another vs. Har Prasad
Shukla, AIR 1979 AWC 746 also says
that the Revisional Court would be
justified to interfere in a finding of fact
where it finds that the trial court had
based its finding on no evidence or that
the findings were perverse or that it had
ignored a vital piece of material evidence.
The reliance has also been placed upon
the case Mool Narain Mehrotra vs. Smt.
Gulab Devi and others, 1987 (2) ARC
411, in which it has been held that the
Revisional Court could also ignore a
finding
where
it
was
based
on
inadmissible evidence. The Revisional
Court, if it finds that a particular finding
of fact was vitiated by an error of law, it
had power to pass such order as the
justice of the case may require.
37. Considering all the aforesaid law
regarding powers of the Revisional Court,
and applying the principles laid down in
the aforesaid law in the context of the
pleadings, documentary evidence and the
findings, it cannot be said that the trial
court has based its finding on no
evidence. It can also not be said that the
findings of trial court had ignored any
vital piece of material evidence. It can
also not be said that the findings were
based on inadmissible evidence. It cannot
be disputed that in the present case
learned Revisional Court has reassessed
the evidence on record de novo and has
drawn a different conclusion reversing the
findings of fact arrived by the trial court.
It is undisputedly a finding of fact that
who was the tenant i.e. Gauri Shanker in a
sole capacity or Gauri Shanker and
Shyam Behari in the joint capacity or the
firm Gauri Shanker Shyam Behari. The
impact of decision of all these three
aspects of tenant shall be far reaching. If
Gauri Shanker is found to be sole tenant
then the position shall be different and the
question of sub-tenancy may arise. But if
Gauri Shanker and Shyam Behari were
the joint tenants then the heirs of Shyam
Behari may also be treated to be the
tenant after the death of Shyam Behari.
But if the firm Gauri Shanker Shyam
Behari is treated to be tenant then Shiv
Das cannot be said to be sub-tenant
because the apex court in Parvinder Singh
vs. Renu Gautam and others (supra) has
held as under:-
"The rent control legislations which
extend many a protection to the tenant,
also provide for grounds of eviction. One
such ground, most common in all the
legislations, is subletting or parting with
possession of the tenancy premises by the
tenant. Rent control laws usually protect
the tenant so long as he may himself use
the premises but not his transferee
inducted into possession of the premises,
in breach of the contract or the law,
which act is often done with the object of
illegitimate profiteering or rack renting.
To defeat the provisions of law, a device
is at times adopted by unscrupulous
tenants and sub-tenants of bringing into
2 All] Km. Damyanti Manoocha Vs. A.D.J. Faizabad & Ors.
649
existence a deed of partnership which
gives the relationship of tenant and subtenant
an
outward
appearance
of
partnership while in effect what has come
into existence is a sub-tenancy or parting
with possession camouflaged under the
cloak of partnership. Merely because a
tenant has entered into a partnership he
cannot necessarily be held to have sublet
the premises or parted with possession
thereof in favour of his partners. If the
tenant is actively associated with the
partnership business and retains the use
and control over the tenancy premises with
him, may be along with the partners, the
tenant may not be said to have parted with
possession. However, if the user and control
of the tenancy premises has been parted
with and deed of partnership has been
drawn up as an indirect method of
collecting the consideration for creation of
sub-tenancy or for providing a cloak or
cover to conceal the transaction not
permitted by law, the Court is not estopped
from tearing the veil of partnership and
finding out the real nature of transaction
entered into between the tenant and the
alleged sub-tenant".
38. In Amar Nath Agarwalla vs.
Dhillon Transport Agency (supra) the
Hon'ble Apex Court has further held that
one of the partners of the firm which was
the original tenant has continued in legal
possession of the premises as a partner of
another firm constituted after dissolution
of the original firm, the legal possession is
retained by a partner who was one of the
original tenants and it cannot be said to be
sub-letting of the premises.
39. As held above, it is question of
fact that whether Gauri Shanker was sole
tenant or Gauri Shanker and Shyam
Behari were joint tenant or M/s Gauri
Shanker Shyam Behari were tenant is a
question of fact. The findings of both the
courts below are in conflict with each
other. In the present case, learned
Revisional Court has exceeded in his
jurisdiction in view of the law settled
regarding Section 25 of the Provincial
Small
Causes
Courts
Act
by
reappreciating the evidence de novo and
coming to a different conclusion. If the
Revisional Court was of the view that the
findings of the trial court suffer from any
infirmity, legal weakness or otherwise
erroneous, it has power to remand the
case to the trial court for recording a fresh
finding after laying down appropriate
guidelines. But it was not within the
competence of the Revisional Court to
reassess the evidence himself and record
his own findings of fact in place of one
recorded by the trial court which was
based on appreciation of evidence.
40.