# Radhey Shyam v. X Additional District and Sessions Judge and others

- **Citation:** (2002) 2 ILRA 437
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-07-05
- **Case number:** Civil Misc. Writ Petition No. 15965 of 2002
- **Bench:** Anjanai Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radhey-shyam-v-x-additional-district-and-sessions-judge-and-others-39933
- **Pages:** 3

## Headnote

Provincial Small Causes Courts Act 1887-
Section 25- suit for eviction on the
ground of arrears of rent- dismissed by
the trial court with specific findingdespite of 2nd and 3rd notice no suit
filed- Notice stand waived- Revisional
court has no power to record such
finding other than the finding of fact
recorded by trial court.

Held- para 5

Even
if
earlier
occupant
Sri
Hari
Baghwan Teneja might amount to sub-
letting but the fact is also that after the
service of second and third notices by
the land lord if no action is taken by the
land lord the notice stands waived. Thus,
finding recorded by the trial court that
suit deserves to be dismissed cannot be
said to be perverse findings which
required interference by the revisional
court to exercise its power under section
25 of the Provincial Small Cause Courts
Act, 1887.
Case law discussed:
1997 (1) ARC-338, 1999 (2) ARC- 524, 2000
(2) ARC-731, 1990 (1) ARC-93, 1982 ALJ-916

## Text

http://www.allahabadhighcourt.nic.in
2 All] Radhey Shyam V. X Additional District and Sessions Judge and others
437
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 5.7.2002

BEFORE
THE HON'BLE ANJANAI KUMAR, J.

Civil Misc. Writ Petition No. 15965 of 2002

Radhey Shyam

 ...Petitioner
Versus
X Additional District and Sessions Judge
and others

 ...Respondents

Counsel for the Petitioner:
Sri C.M.Rai

Counsel for the Respondents:
Sri Iqbal Ahmad
S.C.

Provincial Small Causes Courts Act 1887-
Section 25- suit for eviction on the
ground of arrears of rent- dismissed by
the trial court with specific findingdespite of 2nd and 3rd notice no suit
filed- Notice stand waived- Revisional
court has no power to record such
finding other than the finding of fact
recorded by trial court.

Held- para 5

Even
if
earlier
occupant
Sri
Hari
Baghwan Teneja might amount to sub-
letting but the fact is also that after the
service of second and third notices by
the land lord if no action is taken by the
land lord the notice stands waived. Thus,
finding recorded by the trial court that
suit deserves to be dismissed cannot be
said to be perverse findings which
required interference by the revisional
court to exercise its power under section
25 of the Provincial Small Cause Courts
Act, 1887.
Case law discussed:
1997 (1) ARC-338, 1999 (2) ARC- 524, 2000
(2) ARC-731, 1990 (1) ARC-93, 1982 ALJ-916

(Delivered by Hon'ble Anjani Kumar, J.)

1. This writ petition is filed by the
tenant against the judgement dated 19
February, 1996 passed by the Small
Causes Court, whereby the suit filed by
the land-lord -respondent for eviction due
to arrears of rent demanded from the
petitioner was dismissed. The demand
was for arrears of rent and water-tax
which had not been paid by the petitioner
inspite of demand and further the tenant
had sub- let the accommodation in favour
of one Sri Hari Bhagwan Tenaja and thus
may be liable for eviction. This suit was
filed by the land lord for the eviction,
which was contested by the tenantpetitioner. After affording opportunity to
the parties the trial court found that
accommodation in fact was sub-let by the
petitioner-tenant in favour of Sri Hari
Bhagwana Taneja, in full knowledge of
the land lord. The suit for eviction was,
therefore, dismissed with costs. The
defence taken by the tenant was that the
land lord was in know of the fact that Sri
Hari Bhagwan Taneja was carrying
business of manufacturing Wax Candle
alongwith Agarbati and, therefore, this
cannot be said to be sub-letting as the
same was within the knowledge of the
land lord. The trial court discussed the
case of the tenant, rejected the suit of land
lord and held that since it was in the
knowledge of the land lord that Sri Hari
Bhagwana Taneja was carrying business
with the tenant the same cannot be said to
be sub-let and dismissed the suit.

2. Aggrieved thereby the land lord
filed a revision under Section 25 of the
Provincial Small Cause Courts Act, 1887.
The revisional court on the basis of
findings recorded by the trial court found
that findings recorded by the trial court
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
438
deserves to be reversed and recorded its
own findings that the suit filed by the land
lord deserves to be decreed as trial court
committed error in dismissing the same.
The revisional court, therefore, decreed
the suit after recording its own findings.

3. Learned counsel for the petitioner
relied upon the decision of this court
reported in 1997 (1) Allahabad Rent
Cases at page 338, Sardar Gurdeep Singh
Vs. VIth Additional District Judge,
Kanpur Nagar and another. The law with
regard to the interference under Section
25 of the Provincial Small Cause Courts
Act, 1887 is well settled.

4. "It is the well settled in law that
the Revisional Court in exercise of the
power under Section 25 of the Act has got
no jurisdiction to reappraise the evidence
and reverse the findings of the trial court
on the questions of fact and substitute its
own finding in case the Revisional Court
is not satisfied with the findings of fact
recorded by the trial court, it could at the
best remand the case to the trial court.

It is also well settled in law that if the
findings recorded by the trial court are not
based on any evidence or were in respect
of the jurisdictional fact, or were vitiated
by error of law, the Revisional Court is
entitled to interfere with the said findings
and could record its own findings."

5. By applying the principle laid
down in the aforesaid case, in the present
case it cannot be said that findings arrived
at by the trial court are perverse and,
therefore, view taken by the revisional
court for decreeing the suit of the land
lord is not in accordance with law. The
similar view was taken by this court in
1999 (2) Allahabad Rent Cases at page
524, Suresh Kumar Sahu Vs. Ram
Chandra Sahu and another and in case of
Om
Prakash
and
others
Vs.
Iind
Additional District Judge, Saharanpur and
others, 2000 (2) Allahabad Rent Cases, at
page 739 Learned counsel for the
petitioner further relied upon a decision
reported in AIR 1966, Allahabad at page
623, Ram Dayal Vs. Jawala Prasad,
whereby the court held that after service
of first notice as in the present case if no
suit is filed, the notice stands waived.
Even
if
earlier
occupant
Sri
Hari
Bhagwan Taneja might amount to subletting but the fact is also that after the
service of second and third notices by the
land lord if no action is taken by the land
lord the notice stands waived. Thus,
finding recorded by the trial court that suit
deserves to be dismissed cannot be said to
be perverse findings which required
interference by the revisional court to
exercise its power under section 25 of the
Provincial Small Cause Courts Act, 1887,
Learned counsel for the petitioner relied
upon the decision reported in 1990 (1)
Allahabad Rent Cases at page 93, Badri
Nath Garg Vs. Sheo Prasad Tandon and
1982 ALJ at page 916 Smt. Shyam Kumar
Gupta Vs. Shanker Sahai and another. In
view of the law laid down by this Court, I
am of the opinion that revisional court
committed error in decreeing the suit after
reversing the findings recorded by the
trial court and arrived at different
findings. In this view of the matter the
petition deserves to be allowed and the
order of the revisional court deserves to
be quashed. The matter is, therefore,
remanded back to the trial court to decide
it afresh in the light of the observations
made by the revisional court. As the case
is very old, therefore, trial court is
directed to decide the case within a period
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2 All] Smt. Har Piari Devi Gupta and others V. State of U.P. and others
439
of three months from the date a certified
copy of this order is served upon him.

6. What has been stated above, the
petition is allowed. The order of the
revisional court is quashed and the matter
is remanded back to the trial court. The
trial court is directed to decide the matter
within a period of three months from the
date a certified copy of this order is
served upon him, on the basis of evidence
on record and the observations made by
the revisional court after affording an
opportunity to the land lord as well as to
the tenant.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 5.7.2002

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 41552 of 1997

Smt. Har Piari Devi Gupta and others

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Dhan Prakash

Counsel for the Respondents:
S.C.

U.P. Act No. 13 of 1972- Section 21 (8)-
Enhancement of Rent- market value
assessed as Rs.921498/- enhancement
of rent from Rs.2000/- to Rs.4000/- not
proper is can not be less than1/12 of the
10% of market value-direction issue for
reconsideration.

Held- Para 3

The
Prescribed
Authority
and
the
Appellate Authority having come to the
conclusion that the market value of the
accommodation
in
question
being
Rs.9,21,498/-, the enhancement to the
extent to Rs.2,000/- by the Appellate
Authority is non-application of mind and
therefore deserves to be set aside and
rent should be fixed according to the
formula given under the Statute i.e.
Rs.12th of 10 percent of the market
value. 1/10 of the market value comes to
Rs.92149/- and 1/12 of this amount i.e.
Rs.9,21,498/- comes to roughly about
seventy six thousand and odd per month.
Since both the authorities have already
arrived at the conclusion that the market
value of the accommodation in question
under
the
tenancy
would
be
Rs.9,21,498/-, there was absolutely no
justification
in
not
fixing
the
rent
payable on the basis of the aforesaid
formula. The orders dated 21.11.1996
and
1.9.1997
passed
by
Prescribed
Authority
therefore
deserve
to
be
quashed to the extent the version of the
quantum of the rent payable by the
respondent-tenant.

(Delivered by Hon'ble Anjani Kumar, J.)

1. These two writ petitions, namely,
writ petition no.41552 of 1997 and 11836
of 2001 filed by petitioner, Smt. Har Piari
Devi Gupta and the land lord, the State of
U.P.
through
Collector,
Moradabad
challenging the orders passed by the
Prescribed Authority as well as by the
Appellate Authority under the provision
of Section 21 (8) of U.P. Act No. 13 of
1972, hereinafter shall be referred to as
the Act, since raise common question of
facts and law, thus being disposed of by
this common judgement together.

2. The facts leading to the filing of
present writ petition being writ petition
no. 41552 of 1997 are that the Respondent
no. 1 (petitioner in writ petition no. 11838
of 2001) is admittedly tenant of the
aforesaid accommodation in question.
The
petitioner
land
lord
filed
an