# Ram Suman Pandey & Ors. Revisionists v. Smt. Guddi Devi & Anr

- **Citation:** (2015) 2 ILRA 631
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-05-22
- **Case number:** Civil Revision No. 6 of 2006
- **Bench:** Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-suman-pandey-ors-revisionists-v-smt-guddi-devi-anr-43258
- **Pages:** 8

## Headnote

C.P.C. Section 115-Civil Revision-against
order allowing application under order
IX rule 6-Trail Court found not only
sufficient but good cause-held-proper-no
illegality or irregularity-shown-can not
be interfered.
Held: Para-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 defendantrespondent, 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.
Case Law discussed:
1993(11) LCD 1177; 2000 (18) LCD 757; 2012
(12) SCC 693; 1955 AIR (SC) 425; 1985 (3)
LCD 394; 1955 AIR (SC) 425; 1985 (3) LCD
394; 2002 AIR (Ald) 360; 1993(11) LCD 1177;
2000 (18) LCD 757; 1955 AIR (SC) 425; 2012
(12) SCC 693.

## Text

2 All] Ram Suman Pandey & Ors. Vs. Smt. Guddi Devi & Anr.
631
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.05.2015
BEFORE
THE HON'BLE ANIL KUMAR, J.
Civil Revision No. 6 of 2006
Ram Suman Pandey & Ors. ...Revisionists
Versus
Smt. Guddi Devi & Anr.
...Opp. Parties
Counsel for the Revisionists:
Mohan Singh
Counsel for the Opp. Parties:
Arti Ganguly, Hemant Kumar Mishra
C.P.C. Section 115-Civil Revision-against
order allowing application under order
IX rule 6-Trail Court found not only
sufficient but good cause-held-proper-no
illegality or irregularity-shown-can not
be interfered.
Held: Para-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 defendantrespondent, 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.
Case Law discussed:
1993(11) LCD 1177; 2000 (18) LCD 757; 2012
(12) SCC 693; 1955 AIR (SC) 425; 1985 (3)
LCD 394; 1955 AIR (SC) 425; 1985 (3) LCD
394; 2002 AIR (Ald) 360; 1993(11) LCD 1177;
2000 (18) LCD 757; 1955 AIR (SC) 425; 2012
(12) SCC 693.
(Delivered by Hon'ble Anil Kumar, J.)
1. Heard Sri Mohan Singh, learned
counsel for revisionists, Sri Hemant
Kumar Mishra, learned counsel for
respondents and perused the record.
2. Undisputed facts of the present case
are that the revisionists-plaintiffs filed a suit
for permanent injunction registered as
Regular Suit No. 80 of 2003 in the Court of
Civil Judge (Sr. Div.), Lucknow, thereafter
an application has been moved with a prayer
to proceed ex-parte against the defendant
under Order VIII Rule 10 CPC, allowed by
order dated 07.03.2005.
3. On 10.11.2015, defendantrespondent moved an application on
10.11.2005 for recall of the order dated
07.03.2005 to which objection has been
filed by the revisionists-plaintiffs, allowed
by order dated 23.12.2005 with a cost of
Rs. 50/- under challenge in the present
civil revision.
4. Sri Mohan Singh, learned counsel
for revisionists while challenging the
impugned order submits that no sufficient
reason/good cause has been shown by the
defendant for his non-appearance in the
matter in question, so, there is no
justification or reason on the part of court
below to pass the impugned order dated
23.12.2005 recalling the order dated
07.03.2005. In support of his argument he
has placed reliance on the following
judgments :-
1. Punjab National Bank Vs. Vijai
Kumar Dhariwal and others, 1993(11)
LCD 1177.
2. Prahlad Singh and another Vs.
Niyaz Ahmad and others, 2000 (18)
LCD 757.
3.
B. Madhuri Goud Vs. B.
Damodar Reddy, 2012 (12) SCC 693.
632
 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Accordingly, he submits that the
impugned order dated 23.12.2005 being
contrary to law, liable to be set aside.
6. Sri Hemant Kumar Mishra, learned
counsel for respondents-defendants while
supporting the impugned order submits that
after takint into consideration the cause shown
by the defendant for non-appearing on the
date when the suit was fixed and order dated
07.03.2005 has been passed to proceed exparte against him, the court below has allowed
the application for recall of the said order by
an order dated 23.12.2005 with a cost of Rs.
50/-, hence, there is no illegality or infirmity in
the impugned order, accordingly, present
revision liable to be dismissed. In support of
his argument he has placed reliance on the
judgment given by Hon'ble the Apex Court in
the case of Sangram Singh Vs. Election
Tribunal, Kotah, 1955 AIR (SC) 425, Bajrang
Bahadur Tripathi Vs. Suraj Kumar and others,
1985 (3) LCD 394, Lal Bahadur Vs. IInd
Addl. Munsif, Fatehpur and others, 2002
AIR(Ald) 360.
7. I have heard learned counsel for
parties and gone through the record.
8. In order to decide the controversy
involved in the present case, it will be
appropriate to go through the relevant
provisions as provided under Order IX
Rule 6 CPC and Order IX Rule 7 CPC.
"Order IX Rule 6:-
6. Procedure when only plaintiff
appears-- (1) Where the plaintiff appears
and the defendant does not appear when
the suit is called on for hearing, then--
(a) When summons duly served--if it is
proved that the summons was duly
served, the Court may
make an order that the suit shall be
heard ex parte.
(b) When summons not duly served--
if it is not proved that the summons was
duly serve, the Court shall direct a second
summons to be issued and served on the
defendant;
(c) When summons served but not in
due time--if it is proved that the summons
was served on the defendant, but not in
sufficient time to enable him to appear
and answer on the day fixed in the
summons, the Court shall postpone the
hearing of the suit to future day to be
fixed by the Court, and shall direct notice
of such day to be given to the defendant.
(2)Where it is owing to the plaintiffs'
default that the summons was not duly
served or was not served in sufficient
time, the Court shall order the plaintiff to
pay
the
costs
occasioned
by
the
postponement. "
Order IX Rule 7:-
Procedure where defendant appears
on day of adjourned hearing and assigns
good cause for previous non-appearance--
Where the Court has adjourned the
hearing of the suit ex-parte and the
defendant, at or before such hearing,
appears and assigns good cause for his
previous non-appearance, he may, upon
such terms as the Court directs as to costs
or otherwise, be heard in answer to the
suit as if he had appeared on the day,
fixed for his appearance.
The application under Order IX Rule
7 CPC as it is evident from the reading of
the aforesaid Rule, can be filed at or
before the next date fixed for hearing. In
the instant case admittedly the application
under Order IX rule 7 CPC was filed by
the petitioners on 06.08.94. It was the date
after the next date fixed under order IX
rule-6 CPC.
2 All] Ram Suman Pandey & Ors. Vs. Smt. Guddi Devi & Anr.
633
9.

While
incorporating
the
provisions
of
order
IX
Rule
7
CPCHon'ble the Apex Court in the case of
Sangram Singh Vs. Election Tribunal,
Kotah, 1955 AIR (SC) 425, has held as
under:-
" We have seen that if the defendant
does not appear at the first hearing, the
Court can proceed ex parte, which means
that it can proceeded without a written
statement; and Order IX, rule 7 makes it
clear that unless good cause is shown the
defendant cannot be related to the position
that he would have occupied if he had
appeared. That means that he cannot put
in a written statement unless he is allowed
to do so, and if the case is one in which
the Court considers a written statement
should
have
been
put
in,
the
consequences, entailed by Order VIII,
rule 10 must be suffered.
What those consequences, should be
in a given case is for the Court, in the
exercise of its judicial discretion, to
determine. No hard and fast rule can be
laid down. In some cases an order
awarding costs to the plaintiff would meet
the ends of justice : an adjournment can
be granted or a written statement can be
considered on the spot and issues framed.
In other cases, the ends of justice may call
for more drastic action.
Now when we speak of the ends of
justice, we mean justice not only to the
defendant and to the other side but also to
witnesses and others who may be
inconvenienced. It is an unfortunate fact
that the convenience of the witness is
ordinarily lost sight of in this class of case
and yet he is the one that deserves the
greatest consideration. As a rule, he is not
particularly interested in the dispute but
he is vitally interested in his own affairs
which he is compelled to abandon
because a Court orders him to come to the
assistance of one or other of the parties to
a dispute. His own business has to suffer.
He may have to leave has family and his
affairs for days on end. He is usually out
of pocket. Often he is a poor man living in
an out of the way village and may have to
trudge many weary miles on foot.
And when he gets there, there are no
arrangements for him. He is not given
accommodation; and when he reaches the
Court, in most places there is no room in
which he can wait. He has to loiter about in
the verandahs or under the trees, shivering
in the cold of winter and exposed to the heat
of summer, wet and miserable in the rains :
and
then,
after
wasting
hours
and
sometimes days for his turn, he is brusquely
told that he must go back and come against
another day. Justice strongly demands that
this unfortunate section of the general
public compelled to discharge public duties,
usually at loss and inconvenience to
themselves, should not be ignored in the
overall picture of what will best serve the
ends of justice and it may well be a sound
exercise of discretion in a given case to
refuse an adjournment and permit the
plaintiff to examine the witnesses present
and not allow the defendant to cross
examine them, still less to adduce his own
evidence. It all depends on the particular
case.
But broadly speaking after all the
various factors have been take into
consideration and carefully weighed, the
endeavour should be to avoid snap
decisions and to afford litigants a real
opportunity of fighting out their cases
fairly and squarely. Costs will be
adequate compensation in many cases and
in others the Court has almost unlimited
discretion about the terms it can impose
provided
always
the
discretion
is
judicially exercised and is not arbitrary. "
634
 INDIAN LAW REPORTS ALLAHABAD SERIES
10. In the case of Bajrang Bahadur
Tripathi Vs. Suraj Kumar and others,
1985 (3) LCD 394, this Court after
placing reliance on the judgment given by
Hon'ble the Apex Court in the case of
Arjun Singh Vs. Mohindra kumar and
others, AIR 1964 SC 993, held as under:-
"Obviously this rule would apply
where the hearing of the suit ex parte has
been adjourned. Where the hearing has
not been adjourned, this rule will not be
attracted. Pronouncement of judgment is
not a part of the hearing of the suit. In the
present case the entire hearing had
concluded
on
15-2-1985
and
only
judgment remained to be pronounced. As
such, the defendant's application under
Order IX, Rule 7 was misconceived and
was rightly rejected by the Court below.
Once it is held that the application was
not maintainable, the question of its being
liberally dealt with does not arise at all.
However, the authorities relied upon by
the learned Counsel for submitting that
the application should be liberally dealt
with and the direction should be exercised
in favour of hearing may be noticed. The
first authority relied upon in this behalf is
Ramji Das v. Mohan Singh, 1978 ARC
496. This was a case under Order IX,
Rule 13, of the Code of Civil Procedure.
The next decision relied upon by the
learned Counsel is The Special Land
Acquisition
Officer,
Bangalore
v.
Adinarayan Setty, AIR 1959 SC 429. The
learned Counsel did not invite my
attention to any particular portion of this
judgment. This was a case under the Land
Acquisition Act and the propositions laid
down
by
their
Lordships
primarily
concerned
the
assessment
of
compensation. Arjun Singh v. Mohindra
Singh, AIR 1964 SC 993, is of no
assistance to the applicant; rather it is
against him. It was held in this case by their
Lordships that inherent power of the Court
cannot override the express provisions of
the statute and that Order IX, Rule 13
exhaust the whole gamut of situations that
might arise owing to non-appearance of
defendant during the course of trial. In this
very case it is also laid down by their
Lordships that where the hearing has been
completed and the case has been fixed for
pronouncement of judgment, Order IX,
Rule 7 is not attracted. The applicant did not
apply under Order IX, Rule 13 after the ex
parte decree had been passed. In the
circumstances, in view of the observations
made by their Lordships the applicant had
no right to claim setting aside of ex parte
order. Smt. Maneka Gandhi v. Union of
India, (1978) 1 SCC 248 : AIR 1978 SC
597, has no application to the facts of the
present case. In this case Smt. Maneka
Gandhi's passport was impounded without
giving her opportunity of hearing. It was
held by their Lordships of the Supreme
Court that the proceeding for impounding,
the passport was quasi-judicial in nature and
before
impounding
the
passport,
opportunity of hearing was required to be
given. In case on hand the applicant was
served with the summons and he had put in
appearance. He had notice of the date fixed
for hearing and yet he failed to appear
before the Court. It is not a case where
opportunity of hearing was not given to the
applicant. The opportunity of hearing was
given but he did not avail of the same. In
Savitri Amma Seethamma v. Artha Karthy,
(1983) 1 SCC 401 : AIR 1983 SC 318, it
was held that the non-appearance of a
counsel at the time of hearing on account of
being busy elsewhere was a sufficient cause
to entitle a party for restoration of the
proceedings.
This
judgment
has
no
application to the facts of the present case.
In Shankar Baksh Singh v. Maheshwar
2 All] Ram Suman Pandey & Ors. Vs. Smt. Guddi Devi & Anr.
635
Dayal, AIR 1931 Oudh 159, a Division
Bench of the Oudh Chief Court held that the
discretion conferred under Order IX, Rule
7, of the Code of Civil Procedure should be
liberally exercised. However, this authority
could be of assistance to the assistant only if
application under Order IX, Rule 7 was
maintainable. As held herein above, the
application of the applicant was not
maintainable. Accordingly, this authority is
of no assistance to the applicant." (See also
Lal Bahadur Vs. IInd Addl. Munsif,
Fatehpur and others, 2002 AIR(Ald) 360).
11. In the case of Punjab National
Bank Vs. Vijay Kumar Dhariwal, 1993
(11) LCD 1177, this Court has held as
under:-
"Having gone through the judgment
of the Court below and heard the learned
Counsels for the parties I have not been
able to find that any finding has been
recorded by the Court below on the
question of good cause for previous nonappearance of the defendant. There being
no finding if good cause for previous nonappearance has been shown or established
the Court below could not proceed with
the passing of the order it had passed.
When the law requires certain things to be
done and conferred a power to doing that
things in certain specified manner then by
necessary implication what follows from
it is that act has got to be done or that
particular powers have got to be exercised
in that manner alone and not otherwise,
other modes of exercise of that power are
closed, See State of Uttar Pradesh v.
Singham Singh , A.I.R. 1964 S.C. 358.
12. And in the case of Prahlad Singh
and another Vs. Niyaz Ahmad and others,
2000 (18) LCD 757, it has been held as
under:-
"Learned counsel for the petitioner in
support of his submission referred to and
relied upon the decision of the Apex
Court in Arjun Singh u. Mohindra Kumar
and others. AIR 1964 SC 993, and the
decision of this Court in Bajrang Bahadur
Tripathi v. Suraj Kumar, 1985 (3) LCD
394.
In
Arjun
Singh's
case,
the
controversy Involved was as to whether
an order passed in exercise of power
under Order IX, Rule 7. C.P.C. rejecting
the application to set aside the order to
proceed ex parte would operate as res
Judicata.
In
the
present
case,
the
application under Order IX, Rule 7,
C.P.C. was dismissed. The order of
dismissing the said application has
become final; but the petitioner again
filed an application under Order IX, Rule
7, C.P.C. The question was as to whether
the subsequent application was hit by
principle of res judicata, The Courts
below answered the said question in
affirmative. In Arjun Singh's case (supra),
it was held that the order passed under
Order IX, Rule 7, C.P.C. will not operate
as res Judicata while dealing with an
application under Order IX, Rule 13,
C.P.C. In the present case, so far, the
decree has not been passed ex parte. In
case the suit is decreed, it would be open
to the petitioner to file an application
under Order IX, Rule 13. C.P.C. Thus the
decision in Arjun Singh's cose has got no
application to the facts of this case.
13. In Bajrang Bahadur Tripathi's
case (supra) aforesaid decision of the
Supreme Court came to be considered,
after taking into consideration the said
decision, it was ruled as under by this
Court :
"The
learned
counsel
for
the
plaintiff-opposite parties submitted that
after ex parte evidence had already been
recorded, the defend ant-applicant had no
636
 INDIAN LAW REPORTS ALLAHABAD SERIES
right to make application under Order IX.
Rule 7, and, therefore, the said application
was misconceived and had been rightly
rejected by the Court below. For making
this submission that the application, at the
stage at which it was moved, was not
maintainable, the learned counsel has
relied upon Arjun Singh v. Mohindra
Kumar and others, AIR 1964 SC 993. In
this case, it was held by their Lordships
that if the entirety of the hearing had been
completed and only judgment remained to
be pronounced. Order IX. Rule 7 was not
applicable".
"Arjun Singh v. Mohindra Stngh and
others, AIR 1964 SC 993, is of no
assistance to the applicant ; rather it is
against him. It was held in this case by
their Lordships that Inherent power of the
Court
cannot
override
the
express
provisions of the statute and that Order
IX, Rule 7 and Order IX, Rule 13 exhaust
the whole gamut of situations that might
arise
owing
to
non-appearance
of
defendant during the course of trial. In
this very case it is also laid down by their
Lordships that where the hearing has been
completed and the case has been fixed for
pronouncement of Judgment, Order IX,
Rule 7 is not attracted. The applicant did
not apply under Order IX, Rule 13 after
the ex parte decree had been passed. In
the circumstances. In view of the
observations made by their Lordships the
applicant had no right to claim setting
aside of ex parte order".
14. In this case, as stated above, the
trial court directed to proceed ex parte on
19.5.1994 and fixed for 15.7.1994 for
hearing. On 15.7.1994 the plaintiffrespondent produced his evidence as ex
parte. Thereafter the application under
Order IX. Rule 7. C.P.C. was filed on
6.8.1994 which was apparently not
maintainable. The subsequent application
filed by the petitioner again under Order
IX, Rule 7. C.P.C. on 11.8.1994 for the
same relief i.e. for setting aside the order
dated 15.7.1994, the said application was
clearly barred by Section 11, C.P.C."
13. Thus, the settled provisions of
law in regard to provisions of Order IX
Rule 7 CPC is to the affect that when
defendant appears and assigns good cause
for his previous non-appearance he may,
upon such terms as the Court directs as to
costs or otherwise, be allowed to be heard
and answer to the suit as if he had
appeared on the day, fixed for his
appearance.
14. So far as the good cause and
sufficient cause for non-appearance is
concerned, the said words has been
interpreted by the Hon'ble the Superme
Court in the case of Sangram Singh Vs.
Election Tribunal, Kotah, 1955 AIR (SC)
425, as under:-
"Next, there must be ever present to
the mind the fact that our laws of
procedure are grounded on a principle of
natural justice which requires that men
should not be condemned unheard, that
decisions should not be reached behind
their backs, that proceedings that affect
their lives and property should not
continue in their absence and that they
should
not
be
precluded
from
participating in them. Of course, there
must be exceptions and where they are
clearly defined they must be given effect
to. But taken by and large, and subject to
that proviso, our laws of procedure should
be construed, wherever that is reasonably
possible, in the light of that principle.
The existence of such a principle has
been doubted, and in any event was
condemned
as
unworkable
and
2 All] Ram Suman Pandey & Ors. Vs. Smt. Guddi Devi & Anr.
637
impractical by O'Sullivan, J. in Hariram v.
Pribhdas(1). He regarded it as an
indeterminate term "liable to cause
misconception" and his views were shared
by Wanchoo, C. J. and Bapna, J. in
Rajasthan: Sewa Ram v. Misrimal(1). But
that a law of natural justice exists in the
sense that a party must be heard in a
Court of law, or at any rate be afforded an
opportunity to appear and defend himself,
unless there is express provision to the
contrary, is, we think, beyond dispute. See
the observations of the Privy Council in
Balakrighna
Udayar
v.
Vasudeva
Ayyar(3), and especially in T. M. Barret
v. African Products Ltd.(1) where Lord
Buckmaaster said "Do forms or procedure
should ever be permitted to exclude the
presentation of a litigant's defence". Also
Hari Vishnu's case which we have just
quoted.
In our opinion, Wallace, J. was right in
VenkataSubbiah v. Lakshminarassimham(5)
in holding that "One cardinal principle to be
observed in trials by a Court obviously is that
a party has a right to (1) A.I.R 1945 Sind
98,102 (2) A.I.R. 1952 Raj. 12,14.
(3) A.I.R. 40 Mad. 793, 800 (4)
A.I.R. 1928 P.C. 261, 262.
(5) A.I.R. 1925 Mad. 1274.
appear and plead his cause on all
occasions when that cause comes on for
hearing", and that "It follows that a party
should not be deprived of that right and in
fact the Court has no option to refuse that
right, unless the Code of Civil Procedure
deprives him of it".
Let us now examine that Code; and
first, we will turn to the body of the Code.
Section 27 provides that "Where a suit has
been duly instituted, a summons may be
issued to the defendant to appear and
answer the claim".
15. And in the case of B. Madhuri
Goud Vs. B. Damodar Reddy, 2012 (12)
SCC 693, after placing reliance on its
earlier judgment in the case of Moniben
Devraj Shah Vs. Municipal Corpn., 2012
(5) SCC 157, held as under:-
"23. What needs to be emphasised is
that even though a liberal and justiceoriented approach is required to be
adopted in the exercise of power under
Section 5 of the Limitation Act and other
similar statutes, the courts can neither
become oblivious of the fact that the
successful litigant has acquired certain
rights on the basis of the judgment under
challenge and a lot of time is consumed at
various stages of litigation apart from the
cost.
24. What colour the expression
'sufficient cause' would get in the factual
matrix of a given case would largely
depend on bona fide nature of the
explanation. If the court finds that there
has been no negligence on the part of the
applicant and the cause shown for the
delay does not lack bona fides, then it
may condone the delay. If, on the other
hand, the explanation given by the
applicant is found to be concocted or he is
thoroughly negligent in prosecuting his
cause, then it would be a legitimate
exercise of discretion not to condone the
delay."
16. Further, Order IX Rule 6 covers
the case of a defendant who did not
appear at all on the first hearing date and
suit was adjourned after declaring hm ex
parte, as also a defendant who absented
after filing written statement. In both
cases the ex - parte order only covered the
period during which the defendant was
actually absent and it did not act as a bar
to his resuming appearance in the suit at
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