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Judgment
Rakesh Tiwari, J.—Heard learned Counsel for the parties.
By means of this petition the petitioners are challenging the validity and correctness of the order dated 19.4.2007, passed by the Addl. District Judge, Court No. 9, Aligarh in S.C.C. Revision No. 51 of 2004 arising out of Suit No. 128 of 1995 dated 17.4.2004.
Brief facts culled out from the petition are that the respondent-landlord filed S.C.C. suit against the petitioner, which was registered as 128 of 1995 alleging therein that the petitioners are tenant in Shop No. 34 Banke Market, Bada Bazar, Aligarh on monthly rent @ Rs. 300 since 1.4.1992.
The averments made in the plaint is that the petitioners are carrying on the business of betel leaves (Tendupatta) from the said shop. The suit was contested by the petitioner by filing written statement stating therein that they are not the tenants in the shop nor it is a shop. It is rather a space left out for construction of urinal where the petitioners are keeping their ''dhakel''. The petitioners also denied the allegation made in the plaint that there is any relationship of landlord and tenant between them and the respondent.
The S.C.C. suit was dismissed in favour of the petitioners on the ground that (1) no relationship of landlord and tenant was established between the petitioners and respondent, (ii) it Is not a shop, (iii) it is the space for urinal and (iv) no business of tendupatta is being carried by the petitioners in the said premises.
Aggrieved by the aforesaid order, the respondent filed revision against the order dated 17.4.2004, which was registered as S.C.C. Suit No. 51 of 2004. The revision was allowed on 19.4.2007 by the Court of Addl. District Judge, Court No. 9, Aligarh and remanded back to the Court concerned for fresh consideration in light of observation and legal proposition laid down in the judgment.
The petitioners have filed this petition challenging the order passed by the revisional court on the ground that it is arbitrary, unjust and illegal.
The contention of the counsel for the petitioners is that the findings arrived by the revisional court that tenancy has been proved due to non-evidence given by the respondent by the petitioners is totally incorrect. The revisional court while setting aside the finding of the trial court and at best can remand the matter for deciding against setting aside the finding of trial court.
Counsel for the petitioner has relied upon the decision rendered in Laxmi Ktshore and Anr. v. Har Prasad Shukla 1981 ARC 545 wherein guidelines and revisional powers have been laid down in paragraphs 18 to 21. In that case the Court has held that while deciding a revision u/s 25 of the Provincial Small Cause Courts Act, the Court has to satisfy itself that the decree of the trial court or order is according to law, keeping in mind the dictum of the Apex Court in Malini Ayyappa Naicker (Now Dead) through I.R. etc. Vs. Seth Manghraj Udhavadas Firm by Managing Partner Chathurthuj Chhabildas (Dead) Thereafter by I.Ss. and Others, that a wrong decision on fact is also a decree according to law.
The Court further has held that if it finds that there is no evidence to sustain a finding on a particular issue of fact, it can ignore that finding and in such a case, the Court itself would be justified in deciding the question of fact, because the evidence is all one way. The Court can also decide the revision if only a question of law or some preliminary point of law is sufficient for its decision. But if it finds that a particular finding of fact is vitiated by an error of law, it has a power to pass such order as the Justice in the case requires ; but it has no jurisdiction or reassess to reappraise the evidence in order to determine an issue of fact for itself.
In the instant case the revisional court on a consideration of the evidence on record of a case found that the findings recorded by the trial court are vitiated by an error of law. It noticed that the shop No. 34 has been left for a toilet without construction of floor, plaster on walls, fixation of doors or shelter as such the petitioner has started keeping their ''dhakel'' or thelagari for their business of Tendupatta.
In paragraphs 25 and 26 of the Judgment the revisional court noted the contention of the petitioners that plaintiff can even take possession of the shop in dispute and as he would have no objection either at present or in future.
Paragraphs 25 and 26 of the Judgment are as under:
Vipakshigarn/Pratlwadigam ki Or Se 63Ga Sapathpatra (Undertaking Sri Pramod Kumar Wa Pramod Kumar) Ki Or Se Prastut Ktya Gaya Hai Jismetn Yah Bayan Diya Gaya Hai Ki "Wastav Me Dukan No. 34 Ukt Makan Ka Mutralay Chhora Gaya Hai Aaj Tak Ukt Vivadit Dukan Mein Na Farsh Hai Na Plaster, Na Kiwar Na Hi Koi Shatter Hat
Mad Sankhya 4 Mein Yah Bayan Diya Gaya Hai Ki Wadi Aaj Abhi Dukan No. 34 Par Apna Adpatya Kayam Karale Pratiwadigarn Ko Katai Koi AtraJ Nahin Hai.
(Note: Paras 25 and 26 quoted above are in Deonagri Lipi in original text)
The said shop left in the market "might be for the purpose of urinal but never had been used as such. Once the petitioner has taken stand that there is no relationship of landlord and tenant and that the petitioners can always take possession of the said shop, which has left for construction of a urinal, he has no case to challenge the order before this Court.
The revisional court j after considering the evidence and pleadings on record has remanded the matter to the trial court for decision afresh in accordance with law. The revisional court has noted the provision of law while deciding the order and taking into consideration of the admission of the petitioner for coming to the conclusion from the photographs filed before it that the petitioners were using the aforesaid place of shop No. 34 left for construction of urinal for keeping their thelagari on which they were doing business of Tendupatta. The revisional court has given findings of fact that premises in dispute was being used by the petitioners for'' keeping thelagari, and that the trial court had committed an error apparent on the face of record and has recorded perverse findings.
It is the power of the revisional court to remand the matter indicating where the trial court had erred in deciding the case.
In view of the own admission of the petitioners in paras 25 and 26, the case cited by the petitioners are not applicable.
No illegality or infirmity has been shown by the counsel for the petitioners in the judgment of the revisional court impugned in the writ petition.
It is not a case for interference in writ jurisdiction under Article 226 of the Constitution.
The writ petition is accordingly dismissed.
No order as to costs.