JUDGMENT
Anjani Kumar, J.
1. This is a writ petition by the tenant against the judgment and order of the revisional Court dated 23rd September, 2004 whereby the revisional Court has allowed the revision filed by the landlord who was aggrieved by the order of the trial Court whereby the suit filed by the plaintiff-landlord was dismissed. The revisional Court by the order impugned has set aside the order passed by the trial Court and decreed the suit filed by the revisionist-landlord, respondent in this writ petition and the relief regarding recovery of arrears of rent and damages for occupation for the period before institution of the suit has been refused. It is also held by the revisional Court that the plaintiff would be entitled to recover the amount of damages for occupation from the petitioner-tenant for the period of institution of the suit till the decision of the suit property at the rate of Rs. 150/- per month.
2. The plaintiff-landlord filed a suit for ejectment and arrears of rent against the petitioner-tenant on the allegation that the petitioner is the tenant of the accommodation in question on a rent of Rs. 400/- per month and that his tenancy starts with 26th of the calender month and ends on 25th of the succeeding month. The defendant-tenant is further liable to pay water tax at the rate of 12% and house tax at the rate of 5-12%. The provisions of U.P. Act No. 13 of 1972 (in short the Act) are not applicable to the accommodation in question. The defendant had not paid rent since the month of June 1992. The tenancy of the petitioner-tenant had already been determined by the notice dated 14th April 1995 and in spite of notice being received the tenant had neither paid arrears of rent nor vacated the accommodation in question. The aforesaid claim of the landlord-respondent was denied by the petitioner-tenant wherein he has only admitted that the rent of the accommodation in question was Rs. 150/- per month plus tax and not Rs. 400/- as alleged by the landlord. It is wholly incorrect that he agreed Rs. 400/- as rent plus taxes. It is also denied by the tenant that provisions of U.P. Act No. 13 of 1972 are not applicable and other pleas.
3. On the pleadings of the parties and the evidence on the record the trial Court arrived at a conclusion that provisions of U.P. Act No. 13 of 1972 are applicable and that the tenant had deposited rent upto 24th November, 1995 under Section 30 of the Act in Misc. Case No. 20 of 1995 in the Court of Munisf, Najeebabad, therefore, the statement that there is any arrears of rent is wholly incorrect and is denied, On the contrary it is alleged that since the plaintiff-landlord is demanding an arbitrary enhancement of rent that is why the suit has been filed which is based on incorrect facts. The trial Court by its order dated 1st March 2002 dismissed the suit filed by the plaintiff landlord. The landlord thereafter filed SCC Revision No. 22 of 2002. The revisional Court has found that the findings arrived at by the trial Court regarding the applicability of the provisions of U.P. Act No. 13 of 1972 is based on non-consideration of material evidence and also consideration of evidence which was not admissible, namely, the municipal assessment relating to the year 1979 to 1986 has been relied upon that the constitution of the building with a shop in dispute situated in the year 1979. On the issue of rent and default in payment of rent the trial Court did not rely the rent deed Ga-42 filed by the plaintiff in support of his case rather it has relied on photostat copy of rent deed filed by the defendant-tenant and as such he believed the case of the tenant that the landlord received the sum of Rs. 3,000/- as advance payment of the rent from the tenant and further that Rs. 100/- per month was agreed to be adjusted out of the aforesaid advance of Rs. 3,000/- per month and that Rs. 3,000/- having been adjusted towards the rent was enhanced to Rs. 150/- per month which the tenant continued to pay to the plaintiff. The trial Court further found that the case of the plaintiff was not proved by the plaintiff, therefore, suit was dismissed as the tenant is protected by the provisions of Section 20 (2) of the Act. The landlord filed a revision before the revisional Court. The revisional Court has considered the findings recorded by the trial Court and found that the trial Court rejected the admissible evidence and thereafter arrived at a conclusion which is summed up in Para 10 of the judgment as under:-
“In light of the rival contention of the parties I have gone through the record carefully in this regard and have also perused the documents relied on by the parties. Rent agreement Ga-42 filed by the plaintiff and Ga-24 filed by the defendant are before me and I have found that the learned lower Court has travelled into the controversy in details and both the parties have examined their writing experts regarding genuineness of their respective documents and it has considered the evidence led by the parties.”
4. Thus, the revisional Court has given cogent reasons based on material on record for reversing the findings arrived at by the trial Court.”
5. The revisional Court while discussing the point of applicability of U.P. Act No. 13 of 1972 has arrived at the conclusion that the view taken by the trial Court regarding applicability of U.P. Act No. 13 of 1972 to the shop in question is contrary to law laid down by the Apex Court in the case of Suresh Chand v. Gulam Chisti, 1982 (1) ARC 392 wherein provision of Section 2 (2) of the Act has interpreted by the Apex Court after considering the decision of the Apex Court reported in ARC 1997 (1) SC 640, Suresh Kumar Jain v. Shanti Swarup Jain and Ors., relied, upon by Counsel for the tenant-petitioner. The revisional Court has summed up in paragraph 21 that the first assessment of the accommodation is the date of completion of building in absence of any other evidence on the record and arrived at the conclusion that the trial Court has arrived at the conclusion regarding completion of building ignoring the material evidence which is admissible evidence. Thus the conclusion that the provisions of Act No. 13 of 1972 are applicable, suffers from manifest error of law, as per the decision of Division Bench of this Court reported in 1981 ARC 545, Laxmi Kishore and Anr. v. Har Prasad Shukla, and therefore, the revisional Court held that since the provisions of Act No. 13 of 1972 are not applicable to the building in dispute, the termination of tenancy having been found to be valid the defendant is liable to be evicted and the plaintiff is entitled to receive the amount of Rs. 150/- per month and decreed the suit. Learned Counsel for the petitioner relied upon a Division Bench decision of this Court reported in 1981 ARC 545, Laxmi Kishore and Anr. v. Har Prasad Shukla, wherein the Division Bench has held as under in Paras 18, 19, 20 and 21:-
“18. The Court deciding a revision under Section 25 of the Provincial Small Cause Courts Act has to satisfy that the trial Courts decree or order is according to law. Of course, the Revisional Court should keep in mind the Supreme Courts dictum in Naicker’s case (supra) that a wrong decision on fact is also a decision according to law.
19. If it finds that there is no evidence to sustain a finding on a particular issue of fact, it can ignore the finding. Same will be the case where the finding 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 decided the revision if only a question of law or some preliminary point of law, viz., Validity of notice is sufficient for its decision.
20. But, if it is finds that a particular finding of facts 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 particular issue of fact. It should send the case back after laying down proper guidelines. It cannot inter into the evidence, assess it and determine an issue of fact.
21. Our answer to the question referred to us is that, in the stated circumstances, the revisional Court has no power to consider the evidence for itself in order to determine an issue of fact. The proper course is to remand the case to the trial Court.”
6. In view of the aforesaid Division Bench decision the order of the revisional Court requires to be modified to the extent that the matter should have remanded back to the trial Court. Thus this writ petition succeeds in part and the judgment and order of the revisional Court dated 23rd September, 2004 is modified to the extent that operative portion of the judgment would be as under:-
“That the order of the trial Court dated 1st March, 2002 is set aside. The matter is remanded back to the trial Court for decision in the light of the observation made in the order of the revisional Court and in accordance with law.”
7. Since the matter is old the revisional Court is directed to decide the revision on the basis of material already on the record within a period of three months from the date of presentation of a certified copy of this matter.
8. In the result the writ petition is allowed in part and remanded back to the trial Court.