Allahabad High Court
Amar Nath vs Smt. Meena Devi on 24 May, 2019
Equivalent citations: AIRONLINE 2019 ALL 1232, (2019) 136 ALL LR 348 (2019) 2 ALL RENTCAS 793, (2019) 2 ALL RENTCAS 793
Author: Y.K.Srivastava
Bench: Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 01.05.2019. Delivered on 24.05.2019 Court No. - 58 Case :- S.C.C. REVISION No. - 57 of 2015 Revisionist :- Amar Nath Opposite Party :- Smt. Meena Devi Counsel for Revisionist :- Tarun Varma,Anand Verma,Arpit Agarwal Counsel for Opposite Party :- K.M. Tripathi,R.K. Dubey,S.K. Sharma,Vineet Kumar Singh Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. Heard Sri Arpit Agarwal, learned counsel for the revisionist and Sri H.N. Singh, learned Senior Counsel assisted by Sri Rishabh Srivastava, learned counsel appearing for the respondent.
2. The present revision has been filed with a prayer to set aside the order dated 13.11.2014 passed by the Additional District Judge, Court No.3/Judge Small Causes Court, Gorakhpur in SCC Suit No.14 of 2002 whereby the suit for eviction and arrears of rent has been decreed.
3. Briefly stated the facts of the case are that the plaintiff-landlord filed SCC Suit No.14 of 2002 before the Judge, Small Causes Court, Gorakhpur on 31.05.2002 asserting that the defendant was a tenant in the shop in question. It was pleaded that the tenancy started from 01.03.2000 and was for eleven months only, and the rate of rent was agreed at Rs.3000/- per month excluding the amount due towards house tax and water tax, and the tenant had defaulted in payment of rent from March 2000 to January 2001, hence the landlord had served a notice dated 06.03.2002 demanding arrears of rent and also terminating tenancy which was served on the tenant on 08.03.2002, and upon expiry of the notice period of thirty days a suit for eviction and arrears of rent was filed.
4. The suit was contested by the defendant-tenant who filed his written statement wherein he admitted the factum of tenancy but according to him the agreed rate of rent was Rs.1000/- per month. It was also asserted that the tenancy started from December 2000 and the amount towards water tax and house tax was included in the rent itself. It was also stated that since there was no assessment of water tax and house tax over the building and the tenanted shop, the same was not paid. It was further pleaded that the tenancy was not for eleven month but was on month to month basis. It was further asserted that an advance of Rs.1,00,000/- had been paid by the tenant at the time of construction of the shop, and it was agreed between the parties that the said amount would be adjusted from the rent.
5. The tenant denied that any rent note or agreement was executed between the parties and also denied that he was in arrears of rent. It was further pleaded that he had deposited rent from 28.01.2003 upto March 2003 at the rate of Rs.1000/- per month with house tax and water tax at the rate of 24% and that the rent from the period of December 2002 to January 2003 was adjusted from the advance amount said to have been paid to the landlord. The factum of service of notice was denied. On the basis of the pleadings of the parties the following issues were framed :-
"1. Whether the tenant has defaulted payment of rent?
2. Whether the tenant has defaulted payment of house tax and water tax?
3. Whether the landlord is entitled to a decree of eviction against the tenant?
4. Whether the notice regarding demand of rent and termination of tenancy is property served on the tenant?
5. Whether the tenant had deposited Rs.74,000/- as advance rent with the landlord?
6. To which relief is the landlord entitled?"
6. The issue nos.1, 2 and 5 were taken up together, and it was held that the tenancy was not for a fixed term of eleven months rather it was on a month to month basis and the rent was held proved as being at Rs.1000/- per month exclusive of house tax and water tax, and also that the tenancy was regulated by the provisions of U.P. Act No.13 of 1972. It was held proved that the tenancy had started from December 2000 as asserted by the tenant and not since 01.03.2000 which was the plaint case.
7. Learned Senior Counsel appearing for the respondent-landlord has very fairly submitted that he does not dispute the aforementioned findings which have been returned by the revisional court, and that the parties are ad idem in so far as the determination made by the trial court on issue nos.1, 2 and 5 is concerned.
8. On the point of default, the trial court has taken note of the fact that since it was the case of the tenant was that he had paid an advance of Rs.1,00,000/- at the time when the shop was being constructed which according to him was agreed between the parties to be adjusted from the rent on monthly basis, the burden to prove this fact was on the tenant. It has also been taken note of that there was neither any agreement in writing with regard to payment of the advance amount nor that the said advance would be adjusted on a monthly basis from the rent, and also there was no witness to the payment or to any agreement regarding adjustment of advance. The solitary evidence of the tenant (DW-1) has not been held to be reliable, and the assertion with regard to the payment of advance or any agreement that the same was to be adjusted from the rent, has been held to have been not proved.
9. Further, taking into consideration that the tenant had not filed any receipt of rent regarding the period from the month of December 2000 upto the date of notice for termination of tenancy and demand of arrears, and also that he had not stated on oath that the amount towards arrears of rent and taxes were tendered by him to the landlord or were deposited under Section 20(4) of the U.P. Act No.13 of 1972, it was held that the tenant was in arrears of rent since December 2000 till the date of notice. It was also held not proved that any advance rent had been deposited by the tenant to the landlord.
10. As regards the issue relating to service of notice terminating tenancy, notice has been taken of the fact that the landlord had asserted that the notice dated 06.03.2002 terminating tenancy and demanding arrears of rent was served upon the tenant on 08.03.2002 at his shop address. The case of tenant was that he had denied receiving the notice and had pleaded that the notice was never served. The plaintiff-landlord had filed the acknowledgment receipt bearing the signature of the tenant, and the husband of the landlord (PW-1) appearing as witness from the side of the landlord had proved the notice and had stated on oath that notice was sent by registered post on the house and the shop address of the tenant. The notice sent on the house address was said to have been returned unserved and the notice on the shop address was asserted to have been personally served on the tenant and the acknowledgment receipt signed by the tenant was said to have been received by the landlord. The landlord on his part proved the notice and also the signature of the tenant on the acknowledgment receipt as well as receipts regarding the registered post by which notices were sent.
11. The case of the defendant-tenant was that the address on the notice was incomplete, and that the seal affixed on the acknowledgment receipt was that of "Alok Cassettes Centre" whereas the address of the defendant-tenant was mentioned as "Alok Music Centre" in the body of the plaint, hence it was asserted that notice could not have been held to have been legally served.
12. This argument was contested by the plaintiff-landlord by submitting that the notice having been sent by registered post there was a presumption that it was served, and also that the burden was on the tenant addressee to prove that the acknowledgment receipt did not bear his signature. It was contended that mere denial is not sufficient to rebut the presumption.
13. The trial court following the judgment in the case of Ganga Ram Vs. Smt. Phulwati1 for the proposition that mere denial was not sufficient to rebut the presumption of service of notice, has held that the notice demanding arrears of rent and terminating tenancy was proved to have been served upon the tenant. The notice terminating the tenancy having been held to be proved and the defendant-tenant having been held to be in arrears of rent for more than four months for which he had defaulted, and also the fact that he did not tender the rent or make the deposit as required under Section 20(4) of the U.P. Act No.13 of 1972 the trial court has recorded a finding that the notice in question had legally terminated the tenancy.
14. On the issue of the relief which the landlord was entitled to, the trial court has held the landlord to be entitled to receive rent at the rate of Rs.1000/- from 01.12.2000 upto 08.04.2002 alongwith house tax and water tax at the rate of 24% of annual rent for the said period and also that the landlord was entitled to get compensation for the unauthorized use and occupation of the disputed property at the rate of Rs.1000/- per month from 09.04.2002 till delivery of its vacant possession by the tenant to the landlord.
15. The suit was accordingly decreed with costs.
16. The parties are admittedly not at issue with regard to the findings returned by the trial court with regard to the rate of rent being Rs.1,00,000/- per month, the tenancy being on month to month basis, and the tenancy being regulated in terms of the provisions of U.P. Act No.13 of 1972, and also that the tenancy started from the month of December 2000.
17. On the point of default it is the case of the defendant-tenant that he had paid an advance of Rs.1000/- at the time when the shop was being constructed, and it was agreed between the parties that the advance amount would be adjusted from the rent on a month to month basis. It is an admitted position that there was no agreement in writing with regard to the payment of advance amount of Rs.1,00,000/- nor was there any agreement in writing between the parties that the aforesaid advance amount would be adjusted on a monthly basis from the rent, and also there was no witness to prove the payment of the advance amount or that there was any agreement for adjustment of the advance on a monthly basis from the rent. The burden of proving the factum of advance having been paid or that there was any agreement between the parties with regard to adjustment of the advance amount from the monthly rent was clearly on the defendant-tenant, and apart from his solitary statement made on oath which has not been held to be reliable by the trial court there was no other evidence to support the claim with regard to payment of advance.
18. Accordingly, the finding recorded by the trial court with regard to the assertion made by the tenant in respect of payment of advance or the adjustment of the advance from the monthly rent, having held to be not proved, cannot be faulted with.
19. The defendant-tenant having not been able to prove the assertion with regard to the advance amount having been paid and also not being able to prove that there was any agreement with regard to adjustment of the alleged advance amount from the monthly rent coupled with the fact that no rent receipt for the period of December 2000 upto the date of the notice terminating his tenancy having been filed by the defendant-tenant nor any statement on oath having been made that the rent alongwith taxes were tendered by him to the landlord or was deposited under Section 20(4), the finding returned by the trial court that the tenant was in arrears of rent from December 2000 till the date of notice and that he had defaulted in making payment of rent cannot be said to be contrary to the evidence on record.
20. As regards the service of notice, the plaintiff-landlord had filed the acknowledgment receipt bearing the signature of the tenant and the husband of the landlord (PW-1) had appeared as witness and had proved the notice and also stated on oath that the notice was sent by registered post on the house and the shop address of the tenant. The notice sent on the house address was returned unserved and the notice on the shop address was personally served on the tenant and the acknowledgment receipt signed by the tenant was received by the landlord.
21. A defence sought to be taken by the defendant-tenant is that the address on the notice was incomplete and it bears the seal of "Alok Cassettes Centre" whereas the address of the defendant-tenant is "Alok Music Centre". The tenant has, however, not categorically denied his signatures on the acknowledgment receipt. This together with the fact that the notice had been sent by registered post, the trial court in view of the settled legal position has drawn a presumption of service of notice, and the said presumption having not been rebutted by the defendant-tenant by leading any cogent evidence the notice has been held to be legally served on the tenant, and the finding returned in this regard also does not suffer from any perversity or illegality.
22. As regards the presumption of service of notice it is legally well settled that if a notice is sent by landlord to the tenant by registered post and the acknowledgment is received back by the landlord with the postal endorsement of refusal by the addressee, presumption of service would have to be drawn against the tenant unless the tenant proves otherwise by adducing cogent evidence.
23. In this regard reference may be made to the judgment in the case of Green View Radio Service Vs. Laxmibai Ramji & Anr.2 wherein it was held as follows:-
"3. In this connection, we may also point out that the provisions of Section 106 of the Transfer of Property Act require that notice to quit has to be sent either by post to the party or be tendered or delivered personally to such party or to one of his family members or servants at his residence or if such tender or delivery is not practicable, affixed to a conspicuous part of the property. The service is complete when the notice is sent by post. In the present case, as pointed out earlier, the notice was sent by the plaintiff's advocate by registered post acknowledgement due. The acknowledgement signed by the party was received by the advocate of the plaintiff. Thus in our view the presumption of service of a letter sent by registered post can be rebutted by the addressee by appearing as witness and stating that he never received such letter. If the acknowledgement due receipt contains the signatures of the addressee himself and the addressee as a witness states that he never received such letter and the acknowledgement due does not bear his signature and such statement of the addressee is believed then it would be a sufficient rebuttal of the presumption drawn against him. The burden would then shift on the plaintiff who wants to rely on such presumption to satisfy the court by leading oral or documentary evidence to prove the service of such letter on the addressee. This rebuttal by the defendant of the presumption drawn against him would of course depend on the veracity of his statement. The court in the facts and circumstances of a case may not consider such denial by the defendant as truthful and in that case such denial alone would not be sufficient. But if there is nothing to disbelieve the statement of the defendant then it would be sufficient rebuttal of the presumption of service of such letter or notice sent to him by registered post."
24. This Court, in the case of Brij Nandan Gupta Vs. III Additional District Judge, Rampur & Anr.3 placing reliance upon the judgment in Anil Kumar Vs. Nanak Chandra Verma4 has held that in case of notice sent by registered post and the endorsement of postman that notice was refused by the tenant, a bare denial of service by the tenant would not be sufficient to rebut the presumption of service of notice. The observations made in the case of Brij Nandan Gupta (supra) are as follows:-
"21. Similarly, if a notice has been sent by landlord by registered post and it is received back with an endorsement made by an official of Post Office namely Postman that it was refused by the addressee, presumption of service upon addressee shall be drawn unless the tenant prove that the letter was never offered to him by the Postman and endorsement made thereon is not correct. The tenant's bare denial would not be sufficient in such a case and he will have to prove his case by adducing relevant evidence. Such denial can be by making statement on oath and in such case onus would shift on the landlord to prove that refusal was by the tenant which he can show by summoning the postman and adducing his oral evidence. However, this is one aspect of the matter. Sometimes from the conduct of tenant or other circumstances, his denial even if on oath, can justifiably be disproved by the Court without having Postman examined. There is no hard and fast rule on this aspect as observed by the Apex Court in Anil Kumar Vs. Nanak Chandra Verma, AIR 1990 SC 1215."
25. In Samittri Devi & Anr. Vs. Sampuran Singh & Anr.5 it was held that notice having been sent under certificate of posting and a copy of the notice alongwith certificate of posting having been produced before the court, in the absence of any allegation that the certificate was wrongly procured, a presumption that notice was duly served would be drawn.
26. Again, in the case of C.C. Alavi Haji Vs. Palapetty Muhammed & Anr.6 in the context of a notice sent under Section 138 proviso of the Negotiable Instrument Act, 1881 it was held that when a notice is sent by registered post and is returned with the postal endorsement of refusal, due service has to be presumed. The observations made in the aforementioned judgment are as follows:-
"13. According to Section 114 of the Act, read with Illustration (f) thereunder, when it appears to the court that the common course of business renders it probable that a thing would happen, the court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the GC Act is a far stronger presumption. Further, while Section 114 of the Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of the GC Act is extracted below:
"27. Meaning of service by post.--Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression ''serve' or either of the expression ''give' or ''send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed. (Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647 : AIR 1992 SC 1604]; State of M.P. v. Hiralal [(1996) 7 SCC 523] and V. Raja Kumari v. P. Subbarama Naidu [(2004) 8 SCC 774 : 2005 SCC (Cri) 393] .) It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved."
27. In Harcharan Singh Vs. Shivrani & Ors.7 a three-Judge Bench held that notice sent by landlord to tenant by properly addressing, prepaying and posting by registered post, amounts to the proper service of notice and tenant's refusal to accept it would imply his knowledge of its contents. The observations made in this regard are as follows:-
"7. Section 27 of the General Clauses Act, 1897 deals with the topic-- "Meaning of service by post" and says that where any Central Act or Regulation authorises or requires any document to be served by post, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting it by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. The section thus raises a presumption of due service or proper service if the document sought to be served is sent by properly addressing, prepaying and posting by registered post to the addressee and such presumption is raised irrespective of whether any acknowledgment due is received from the addressee or not. It is obvious that when the section raises the presumption that the service shall be deemed to have been effected it means the addressee to whom the communication is sent must be taken to have known the contents of the document sought to be served upon him without anything more. Similar presumption is raised under illustration (f) to Section 114 of the Indian Evidence Act whereunder it is stated that the court may presume that the common course of business has been followed in a particular case, that is to say, when a letter is sent by post by prepaying and properly addressing it the same has been received by the addressee. Undoubtedly, the presumptions both under Section 27 of the General Clauses Act as well as under Section 114 of the Evidence Act are rebuttable but in the absence of proof to the contrary the presumption of proper service or effective service on the addressee would arise. In the instant case, additionally, there was positive evidence of the postman to the effect that the registered envelope was actually tendered by him to the appellant on November 10, 1966 but the appellant refused to accept. In other words, there was due service effected upon the appellant by refusal. In such circumstances, we are clearly of the view, that the High Court was right in coming to the conclusion that the appellant must be imputed with the knowledge of the contents of the notice which he refused to accept. It is impossible to accept the contention that when factually there was refusal to accept the notice on the part of the appellant he could not be visited with the knowledge of the contents of the registered notice because, in our view, the presumption raised under Section 27 of the General Clauses Act as well as under Section 114 of the Indian Evidence Act is one of proper or effective service which must mean service of everything that is contained in the notice. It is impossible to countenance the suggestion that before knowledge of the contents of the notice could be imputed the sealed envelope must be opened and read by the addressee or when the addressee happens to be an illiterate person the contents should be read over to him by the postman or someone else. Such things do not occur when the addressee is determined to decline to accept the sealed envelope. It would, therefore, be reasonable to hold that when service is effected by refusal of a postal communication the addressee must be imputed with the knowledge of the contents thereof and, in our view, this follows upon the presumptions that are raised under Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act."
28. The burden to rebut the presumption of service of notice sent under registered cover, is on the the party who seeks to challenge the factum of service. In this regard reference may be held to the judgment in the case of Gujrat Electricity Board & Anr. Vs. Atmaram Sungomal Poshani8 :-
"8. There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service. In the instant case the respondent failed to discharge this burden as he failed to place material before the court to show that the endorsement made by the postal authorities was wrong and incorrect. Mere denial made by the respondent in the circumstances of the case was not sufficient to rebut the presumption relating to service of the registered cover..."
29. A similar view has been reiterated in CIT Vs. V.K.Gururaj9, Shimla Development Authority Vs. Santosh Sharma10 and Sunil Kumar Sambhudayal Gupta (Dr.) and others Vs. State of Maharashtra11.
30. Following the aforementioned judgment in the case of Gujrat Electricity Board (supra) this Court in Jhabul Ram Vs. District Judge, Ballia & Ors.12 has held as under:-
"8. The courts below have categorically found that on behalf of the petitioner there was only bald denial in respect of the endorsement of refusal upon the registered cover containing the notice. The denial was not supported by any, further material. Mere denial of refusal on the part of the addressee of registered cover is not enough to rebut the presumption of service upon him. If the letter under registered cover returned back with a postal endorsement that the addressee refused to accept the same, there is a rebuttable presumption of service. The presumption of service can be rebutted by producing material to show that the endorsement of refusal was wrong. Dealing with the question of presumption with regard to service of a letter sent under registered cover, the Hon'ble Supreme Court, in its decision rendered in the case of Gujrat Electricity Board v. Atam Ram 1989 (59) FLR 474 (SC), has ruled thus:
"There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service. In the instant case the respondent failed to discharge this burden as he failed to place material before the court to show that the endorsement made by the postal authorities was wrong and incorrect. Mere denial made by the respondent in the circumstances of the case was not sufficient to rebut the presumption relating to service of the registered cover."
9. Bald denial of the petitioner could not absolve him from the burden of rebutting the presumption of service of notice arising from the endorsement by the postal authorities on the registered cover containing the notice. The courts below did not commit any error, muchless an error apparent on the face of record, in holding that the notice in question was duly served on the petitioner."
31. On the question of sufficiency of service of a notice to quit sent by registered post, this Court may refer to the judgment in the case of Harihar Banerji Vs. Ramsashi Roy13, wherein it was held that a notice to quit is to be construed not with a desire to find fault in it which would render it defective but should be construed ut res magis valeat quam pereat. It was also held that when a notice is sent by registered post properly addressed there was a strong presumption that the notice was properly delivered in the usual course. The observations made in the aforementioned judgment of Harihar Banerji (supra) are as follows :-
"Next and lastly as to the service of the notice to quit. Sect. 106th section of the Transfer of Property Act, 1882, only requires that such a notice should be tendered or delivered to the party intended to be bound by it either personally or to one of his family or servants at his residence, or, if such tender or delivery be not practicable, affixed to a conspicuous part of the property....
xxxxxx ......if a letter properly directed, containing a notice to quit, is proved to have been put into the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office, and was received by the person to whom it was addressed. That presumption would appear to their Lordships to apply with still greater force to letters which the sender has taken the precaution to register, and is not rebutted, but strengthened by the fact that a receipt for the letter is produced signed on behalf of the addressee by some person other than the addressee himself."
32. Counsel appearing for the revisionist has not been able to dispute the aforementioned legal proposition with regard to the presumption to be drawn in respect of a notice sent by registered post.
33. Lastly, placing reliance upon the provisions contained under Section 7 of the U.P. Act No.13 of 1972 it is sought to be contended that the liability to pay taxes is only in respect of the water tax, and the tenant would not be liable for payment of house tax. In view of clause (b) of Section 7 which provides that the liability to pay house tax would be to the extent of 25% of every enhancement in house tax made after commencement of the Act, or such portion thereof, as is not occasioned on account of increase in the assessment of the building as a result of enhancement of rent under the provisions of Section 5, it is contended that the aforementioned condition under clause (b) of Section 7 having not been fulfilled, the tenant would not be held to be liable for house tax.
34. Learned Senior Counsel appearing for the respondent has very fairly stated that in so far as the liability for payment of house tax and water tax is concerned he does not propose to raise any dispute with regard to the claim made by the revisionist-tenant, and the decree of the trial court in so far as it imposes the liability for payment of house tax and water tax, may accordingly be modified.
35. No other argument was raised by the learned counsel for the revisionist.
36. The scope of revisional jurisdiction under Section 25 of the Provincial Small Cause Courts Act, 1887 (in short 'the Act, 1887') fell for consideration in a recent judgment of the Supreme Court in the case of Trilok Singh Chauhan V. Ram Lal & Ors.14, wherein referring to the earlier judgments in the case of Hari Shankar Vs. Rao Girdhari Lal Chowdhury15, Bell & Co. Ltd. Vs. Waman Hemraj16 and Mundri Lal Vs. Sushhila Rani17, it has been held as follows:-
"15. The scope of Section 25 of the 1887 Act, came for consideration before this Court on several occasions. In Hari Shankar v. Rao Girdhari Lal Chowdhury [AIR 1963 SC 698], in paras 9 and 10, this Court laid down the following: (AIR p. 701) "9. The section we are dealing with, is almost the same as Section 25 of the Provincial Small Cause Courts Act. That section has been considered by the High Courts in numerous cases and diverse interpretations have been given. The powers that it is said to confer would make a broad spectrum commencing, at one end, with the view that only substantial errors of law can be corrected under it, and ending, at the other, with a power of interference a little better than what an appeal gives. It is useless to discuss those cases in some of which the observations were probably made under compulsion of certain unusual facts. It is sufficient to say that we consider that the most accurate exposition of the meaning of such sections is that of Beaumont, C.J. (as he then was) in Bell & Co. Ltd. v. Waman Hemraj [1937 SCC OnLine Bom 99 : (1938) 40 Bom LR 125 : AIR 1938 Bom 223], where the learned Chief Justice, dealing with Section 25 of the Provincial Small Cause Courts Act, observed: (SCC OnLine Bom paras 3-4) ''3. ... The object of Section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law.
4. The section does not enumerate the cases in which the Court may interfere in revision, as does, Section 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at.' This observation has our full concurrence.
10. What the learned Chief Justice has said applies to Section 35 of the Act, with which we are concerned. Judged from this point of view, the learned Single Judge was not justified in interfering with a plain finding of fact and more so, because he himself proceeded on a wrong assumption."
16. Another judgment which needs to be noted is judgment of this Court in Mundri Lal v. Sushila Rani [(2007) 8 SCC 609]. This Court held that jurisdiction under Section 25 of the 1887 Act, is wider than the revisional jurisdiction under Section 115 CPC. But pure finding of fact based on appreciation of evidence may not be interfered with, in exercise of jurisdiction under Section 25 of the 1887 Act. The Court also explained the circumstances under which, findings can be interfered with in exercise of jurisdiction under Section 25. There are very limited grounds on which there can be interference in exercise of jurisdiction under Section 25; they are, when (i) findings are perverse or (ii) based on no material or (iii) findings have been arrived at upon taking into consideration the inadmissible evidence or (iv) findings have been arrived at without consideration of relevant evidence."
37. Counsel for the revisionist has not been able to point out any material error or illegality in the order passed by the trial court so as to warrant interference in exercise of revisional jurisdiction under Section 25 of the Act, 1887.
38. The revision is devoid of merits and is accordingly dismissed.
39. In view of the statement made by the learned Senior Counsel appearing on behalf of the respondent-landlord the decree is modified by providing that petitioner-tenant would not be liable for payment of house tax and water tax as directed by the trial court. Subject to the aforesaid the judgment/decree dated 13.11.2014 passed by the Additional District Judge, Court No.3/Judge, Small Causes Court, Gorakhpur is affirmed.
Order Date :- 24.05.2019 Pratima (Dr.Y.K.Srivastava,J.)