IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 3091 of 2001 (M/S) (Old No. 14024 of 1989) Arvind Mohan Badoni S/o Sri Paras Ram Badoni Resident of 227 / 226 Khurbura Mohalla, Dehradun. ...…………. Petitioner Versus 1. Additional District Judge III Dehradun. 2. Sri Madan Mohan Srivastava (since deceased) S/o late Sri Raghubir Dayal 3. Smt. Navedita Rana W/o Sri Surender Kumar 4. Sri Vivek Mohan S/o Madan Mohan 5. Sri Digvendra Mohan S/o Madan Mohan Respondents No. 2 to 5 are resident of 19, Kaonli Road, Dehradun District Dehradun. ...…………. Respondents Mr. Rajendra Dobhal, Advocate for the petitioner. Mr. Arvind Vashistha, Advocate for respondents No. 2 to 5. Hon’ble Prafulla C. Pant, J. By means of this petition, moved under Article 226 / 227 of the Constitution of India, the petitioner has challenged the order dated 17.05.1989, passed by III Additional District Judge, Dehradun, on review application No. 02 of 1982. 2) Heard learned counsel for the parties. 2 3) Brief facts of the case giving rise to this petition are that original plaintiff Smt. Prabha Kumari (since deceased) was the owner of the property No. 262, Mohalla Khurbura, Dehradun. She instituted suit for ejectment of the defendant Arvind Mohan Badoni from the property, and also prayed for recovery of arrears of rent and mesne profits at the rate of Rs. 60/- per month. It was pleaded by her that provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short U.P. Act No. 13 of 1972) are applicable to the building in question. It was further pleaded by her that the defendant, who was a tenant in the property in suit committed default in payment of rent for a period of more than four months, on which a notice dated 17.09.1981 was served on him, which he refused to accept. On this Small Cause Suit No. 02 of 1982 was filed before the trial court (Judge, Small Cause Court / Munisf, Dehradun). The suit was contested by the tenant (present petitioner), who filed his written statement in which it is pleaded by him that though the plaintiff is the owner of the property in suit, but the defendant is not her tenant. It is specifically pleaded by him that he has not committed any default in payment of rent. He has further pleaded that he did not receive any notice from the plaintiff. In the additional pleas it has been stated by him that infact he (defendant) got possession of the land in suit from Parsi Devi original owner of the land from whom the plaintiff had purchased the land vide sale deed dated 11.07.1980. It is further stated by him that after 3 setting up a tin shed over it he (defendant) is running a school as a licensee. 4) The trial court after recording the evidence and hearing the parties vide judgment and decree dated 18.07.1986, dismissed the S.C.C. Suit No. 02 of 1982, holding that the relationship of landlord and tenant is not established on the record, nor service of notice is proved on the defendant. 5) Aggrieved by said judgment and decree dated 18.07.1986, passed by the trial court, the land lady (Prabha Kumari) filed S.C.C. Revision No. 32 of 1986. During pendency of revision the original plaintiff / revisionist died and in her place her legal heirs were substituted. After hearing learned counsel for the legal heirs of the revisionist, the revision was dismissed on merits, by the revisional court vide its judgment and order dated 19.08.1988. The revisional court concurred with the trial court that the relationship of landlord and the tenant between the parties is not established on the record. Rather, from the notice itself, given by the plaintiff to the defendant, it is clear that she has alleged that the defendant occupied the property in suit illegally without allotment. Thereafter, it appears that a Review Application No. 02 of 1989 was moved on behalf of the landlords and said review application was allowed, vide impugned order dated 17.05.1989, whereby the review application was allowed and not only the order passed on 19.08.1988 by the revisional court, in S.C.C. No. 32 of 4 1986 was recalled, but also, the decree passed by the Judge, Small Cause Courts in the suit was reversed, and suit was decreed for ejectment of the defendant. Hence, this petition is filed by the tenant before the Allahabad High Court in 1989. The writ petition is received by transfer to this Court under Section 35 of the U.P. Re- organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. 6) Learned counsel for the petitioner / defendant submitted that the scope of review jurisdiction under Order XLVII Rule 1 of the Code of Civil Procedure, 1908, is limited. A revisional court could have exercised that jurisdiction on discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of review applicant, and as such, could not be produced at the time when the decree / order was passed, or the court has committed error apparent on the face of the record, or for any other similar sufficient reason. In support of his contention learned counsel for the petitioner drew attention of this Court to the principle of law laid down in Dokka Samuel Vs. Dr. Jacob Lazarus Chelly; (1997) 4 Supreme Court Cases 478, in which it has been held that an omission to cite an authority of law is no ground for reviewing by a court its prior judgment. Perusal of the impugned order passed under review jurisdiction by the revisional court shows that review application has been allowed and the order earlier passed by the revisional court and the one passed by the trial court, are set aside only on the ground that in 5 the case of Bhagwati Prasad Vs. Chandramaul; AIR 1966 Supreme Court 735, it has been held that even if the landlord and tenant relationship is not established, a decree of ejectment can be passed where the ownership of the plaintiff is admitted to the defendant and he has no right to continue in occupation. 7) Having heard learned counsel for the parties and after going through the referred case laws, this Court finds that the III Additional District Judge, Dehradun (respondent No. 1) has committed grave error of law in allowing the review application merely on the ground that counsel could not show him an authority of law (Bhagwati Prasad Vs. Chandramaul; AIR 1966 S.C. 735). Not only this, the said court has wrongly applied the case law. In the case of Bhagwati Prasad Vs. Chandramaul (supra) the suit was instituted before a regular court for ejectment of the defendant. Said regular court had authority not only to pass a decree of ejectment against the tenant but also against a trespasser. Facts in the present case are different. In the present case, the suit has been instituted before the Judge, Small Cause Courts, who was competent to take cognizance for ejectment in a suit against tenant under Section 20 of the U.P. Act No. 13 of 1972, while the decree for ejectment against the trespasser or the persons whose license stood terminated could have been passed by the regular civil court. In these circumstances, this Court finds that the impugned order passed by the respondent No. 1 (III Addl. District Judge, Dehradun) allowing the review application, 6 whereby the order dated 19.08.1988, passed by the revisional court and order dated 18.07.1986, passed by the Judge, Small Cause Courts are set aside and suit is decreed for ejectment is erroneous in law. Even otherwise, the revisional court which exercised the review jurisdiction has erred in law in ignoring the fact that the suit was not dismissed by the trial court only on the ground that the relationship of landlord and tenant was not established on the record, but also on the ground that notice was not served on the defendant. Said finding of the trial court has not been touched nor reversed by the revisional court. 8) In the above circumstances, for the reasons as discussed above, this petition moved under Article 226 / 227 of the Constitution of India, deserves to be allowed. The same is allowed. The impugned order dated 17.05.1989, passed by III Additional District Judge, Dehradun, on Review Application No. 02 of 1982, is set aside. The order dated 19.08.1988, passed by said court in Revision No. 32 of 1986 and the one dated 18.07.1986, passed by the Judge, Small Cause Court / Munsif, Dehradun, are restored with the observation that the owners of the property, if they so like, may institute suit before the regular court for ejectment of the person whose license stood terminated. (Prafulla C. Pant, J.) [ Dt: May 11, 2009 H.Negi