HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 683 of 2004 (M/S) Satey Singh Kandari. ……..Petitioner Versus Addl. District Judge/Vth FTC, Dehradun, A nd others. …….Respondents Mr. B.P. Nautiyal, Advocate for the petitioner, Mr. R.C. Arya, Brief Holder for the State/respondent nos. 1 & 2, Mr. Tribuwan S. Phartiyal, Advocate for respondent no.3. Dated: July 30, 2010 Hon’ble V.K. Bist, J. This petition has been filed by the petitioner challenging the judgment and orders dated 05.07.1995 passed by IInd Addl. Civil Judge, Dehradun in SCC Suit No. 37 of 1988 ‘Ambar Kukreti vs. Bachan Singh and others’ and judgment and order 19.07.2004 passed by Addl. District Judge/Vth F.T.C., Dehradun in SCC Revision No. 38 of 1995 ‘Satey Singh and another vs. Ambar Kukreti’. 2. Brief facts of the case, summarized in the petition, are that respondent no.3-Ambar Kukreti- plaintiff instituted a SCC suit against Bachan Singh and petitioner-defendants before the Court of Judge, Small Causes Court, Dehradun which was registered as SCC Suit No. 37 of 1988. The suit was for recovery of arrears of rent, possession of the premises in question by ejectment of the defendants and for mesne profit @ 50/- per month pendentelite and future till the date of possession is delivered to the plaintiff. 3. In the SCC suit, the plaintiff-Ambar Kukreti come up with the case that defendant no.1 Bachan Singh 2 was occupying premises forming part of 34, Karanpur, Dehradun on a monthly rent of Rs. 50/-. A consolidated notice dated 06.03.1987 was sent to the defendants by the plaintiff through his counsel for arrears of rent, mesne profit and ejectment by registered A.D. post as well as by U.P.C. and tenancy of the defendants was terminated with effect from the expiry of 30 days from the date following service of the notice and the defendants were asked to quit, vacate and deliver vacant physical possession of the said premises. It is further stated that the defendants are liable for eviction for the default in payment of rent and also on the ground that the defendant no.1 has sublet the premises in suit to defendant no.2-Satey Singh. Inspite of receipt of the notice, the defendant no.1 neither paid arrears of rent nor vacated the said premises. It is asserted that a sum of Rs. 1,200/- is due in respect of arrears of rent w.e.f. 01.02.1985. The defendant is also liable to pay mesne profit @ Rs. 50/- per month till the possession of the premises in suit is delivered. The defendant no.1 also committed default in payment of rent and inspite of various reminders and request as well as inspite of service of notice, he has not paid rent, as such, the defendant no.1 rendered himself liable for ejectment. The petitioner contested the said suit on the ground, interalia, that the petitioner is the tenant @ Rs. 16.75 per month in the property in suit and the property was taken on rent by the petitioner and respondent no.2 from the father of respondent no.3. It is further asserted in the written statement that after allotment order the respondents were conducting business jointly and benefit thereof was being divided equally. The petitioner is in possession of the disputed property prior to 5th July, 1976 with the consent of previous landlord Shri V.K. Kukreti 3 and the rent receipts were also being issued in the name of petitioner by the then landlord Shri V.K. Kukreti. The defendant no.2 paid rent to V.K. Kukreti till his death and thereafter the plaintiff had received the rent from the defendant no.2. The rent due from February, 1986 to 31st March, 1987 was sent to the plaintiff through money order, which was refused, therefore the same was deposited in the proceedings of Misc. Case No. 25 of 1988. Thereafter, the rent due till 31.12.1989 is deposited by defendant no.2 in the Court of Munsif, Dehradun. It is also pleaded in the written statement that there is no rent due against the petitioner, as such, the suit filed by the plaintiff for default in making payment of rent is not maintainable. It is further stated in the petition that the petitioner is legally co-tenant in the premises in suit. It is further stated that the petitioner filed money order receipts bearing signatures of father of the defendant no.1, who was the then landlord of the premises in suit. Lastly, it is stated that the petitioner is a regularized tenant in occupation of the disputed premises with the consent of landlord prior to 05.07.1976, as such he cannot be deemed to be sub-tenant. 4. In support of their case both the parties led their oral and documentary evidence before the Court below and the Trial Court vide judgment and order dated 05.07.1995 decreed the suit. The petitioner, aggrieved with the order dated 05.07.1995, filed a revision before the Court of District Judge, Dehradun, which was lateron transferred to the Court of Addl. District Judge/V F.T.C., Dehradun. It is also stated in the petition that the petitioner filed additional evidence before the Revisional Court with the leave of the Court as per list dated 4 28.11.1997. The papers filed as addl. Evidence were material for proper disposal of the matter in issue between the parties as paper no. 24-c is the certificate issued by the Branch Manager, P.N.B., Karanpur, Dehradun which proves that on 04.04.1973 when the account was open by the petitioner, the address of the petitioner was of the disputed shop. Similarly, paper no. 26c-2 is the licence of the petitioner under Dukan Evam Vanijya Adhiniyam, which relates to the period of 1976- 77. It is further stated that the learned Revisional Court failed to pass any order regarding admission of these documents in evidence and the application thereof was not disposed of by the Revisional Court and without disposing the application for admission of additional evidence on record, the Revisional Court passed the order impugned. The said application is yet to be disposed of. Besides it, an application for summoning the defendant no.1, as witness, was moved with the further prayer that the petitioner be permitted to summon hand writing expert, but the same was also rejected by the Revisional Court. Against the order of Revisional Court, present petition is filed. 5. In reply to the contentions made in the petition, the plaintiff/respondent no.3 filed a counter affidavit whereby he raised preliminary objection that supervisory jurisdiction under Article-227 of the Constitution of India is not available to be exercised for reappraisal or evaluation of evidence. The petitioner is indulged in making incorrect and contradictory statement, therefore this petition is liable to be rejected. Further, the Trial Court has given findings on the issues framed by it on the basis of pleadings and evidence on 5 record. The Revisional Court has decided the issues and has upheld the judgment of the Trial Court. It is asserted that the orders impugned have not been challenged by the tenant. In fact, present petition has not been filed by the tenant rather it has been filed by the sub-tenant, who has impleaded the tenant as respondent no.4 in the petition, thus the petitioner has no right to file present petition on this score as well. In para-wise reply, the plaintiff has come up with the case that the suit was filed for recovery of rent, mesne profit and ejectment. Ejectment was sought on the ground of default in making payment of rent as well as on the ground of sub tenancy. Suit was filed against Shri Bachan Singh, who was a tenant, as well as against the petitioner who was a sub-tenant of Bachan Singh. It is asserted that the petitioner had not taken the property in suit on rent from the plaintiff. Neither the petitioner was tenant of the plaintiff nor was a tenant of plaintiff’s father. It is denied that the petitioner is in possession of the property in question prior to 05.07.1976. It is further submitted that plaintiff’s father Shri V.K. Kukreti, never gave consent to the petitioner, as alleged. Further, no rent receipts were ever issued in the name of the petitioner by plaintiff’s father. The rent was due on defendant no.1 w.e.f. 01.02.1985 and this fact has not been controverted by him. Defendant no.1 did not lead any oral evidence, therefore evidence led by plaintiff is to be construed as unrebutted. The plaintiff in the counter affidavit has further stated that additional evidence filed before the Revisional Court was duly considered. It was denied that the documents placed before Revisional Court can be considered as supportive of petitioner’s possession prior to 05.07.1976. It is stated in the counter affidavit that the Revisional Court has rightly rejected the 6 application for summoning the defendant no.1 as well as for summoning the handwriting expert. The alleged document paper nos. 45-c and 46-c have duly been considered by the Revisional Court and now there remains no application pending for admitting additional evidence before the Revisional Court. It is denied that the petitioner can construe himself as alleged regularized tenant. It is further stated that plaintiff’s father never issued any rent receipts to the petitioner. It is denied that the alleged rent receipts are signed by plaintiff’s father. Lastly, it is stated that the both the Courts below have fully considered the material evidence on record and passed the orders impugned. The Trial Court has decreed the suit filed by the plaintiff which was upheld by the Revisional Court. 6. I have heard Mr. B.P. Nautiyal, the learned counsel for the petitioner, Mr. R.C. Arya, Brief Holder for the State, Mr. Tribhuwan Singh Phartiyal, the learned counsel for respondent no.3 and perused the entire material available on record. 7. Mr. B.P. Nautiyal, the learned counsel for the petitioner first of all assailed the judgment and order dated 19.07.2004 passed by the Revisional Court on the ground that the same is passed without considering the application of the petitioner (paper no. 21-c) alongwith the list of documents (paper no. 23-c) for admitting the additional evidence on record of the Revision, therefore order dated 19.07.2004 is illegal and is liable to be quashed. He submitted that at the time of admitting the petition, this Court had observed that the Revisional Court has decided the revision without disposing of the 7 aforesaid application 23-c moved by the petitioner under Order 41 Rule 27 of the Code of Civil Procedure and by considering this fact, the writ petition was admitted. He argued that the order dated 19.07.2004 is liable to be quashed on this ground alone. In this regard, learned counsel for the petitioner placed reliance on the judgment of the Apex Court in Hakam Singh and another vs. State of Haryana and other, reported in 2008 AIR-SCW-5042 and submitted that in the light of the law laid down in the Hakam Singh’s case the writ petition is liable to be allowed and the Revision under assail is liable to be remanded back to the Revisional Court for deciding the same afresh, after deciding the application for admitting additional evidence on record. Learned counsel for the petitioner further placed reliance on the judgment rendered by the Division Bench of the Allahabad High Court in Babu Ram vs. Addl. District Judge, Dehradun and others, reported in 1983 (1) ARC page-15 and argued that the Revisional Court in exercise of powers conferred under Section 25 of the Provincial Small Causes Court Act, can admit additional evidence on record. 8. At this Mr. Tribhuwan Singh Phartiyal, the learned counsel for the respondent no.3 submitted that additional evidence cannot be admitted on record in a revision as Order 41 Rule 27 C.P.C. does not apply to a revision. 9. It is an admitted fact that application filed by the petitioner under Order 41 Rule 27 of Code of Civil Procedure was not considered by the Revisional Court and revision was dismissed. Application filed by the petitioner before the Revisional Court should have been decided 8 before deciding the revision. Such situation was also considered by the Hon’ble Supreme Court in the case of Hakam Singh and anr. Vs. State of Haryana and other, reported in 2008 AIR SCW 5042. Relevant paragraph nos. 4 and 5 of the said judgment are being reproduced below:- “4. Without going into the facts in detail, these appeals can be disposed of on a very short point. It is an admitted position that an application under Order 41 Rule 27 of the Code of Civil Procedure (In short “CODE”) for acceptance of additional evidence was filed before the High Court in the aforesaid First Appeals, which were dismissed by the High Court by the impugned order. However, the application for acceptance of additional evidence under Order 41 Rule 27 of the CODE was not considered by the High court while disposing of the appeal. 5. That being the position, without going into the legality and propriety of the impugned order of the High Court passed in the aforesaid appeals, we set aside the same and remit back the cases to the High Court for decision of the Appeals afresh on merits and in accordance with law along with the application for acceptance of additional evidence under Order 41 Rule 27 of the CODE.” 10. In view of above discussion, writ petition is allowed. Impugned order dated 19.07.2004 passed by Addl. District Judge, Dehradun/respondent no.1 in SCC Revision No. 38 of 1995 is hereby quashed. Matter is remanded back to the Revisional Court for deciding the revision afresh, after deciding the application 21-c on merit. Respondent is giving liberty to raise objection regarding maintainability of 21-c applications before the Revisional Court. While deciding the application as well as the revision, the Revisional Court shall not be influenced by any of the observations made in this order. 9 Revisional Court is also directed to decide the revision very-very expeditiously. 11. No order as to costs. (V.K. Bist, J.) 30.07.2010 NCM: