Judgment:
Anjani Kumar, J.
1. This writ petition is directed under Article 226 of the Constitution of India by the petitioner-tenants against the order passed by revisional Court dated 15th October, 1998 whereby the revisional Court allowed the revision filed by the landlord and decreed the suit filed by the landlord after setting the order passed by the trial Court.,
2. The facts in brief are that respondent-landlord served a notice on the petitioners to the effect that the petitioners are in arrears of rent for one month and that they have not paid the amount of water tax amounting to Rs. 326/- for the month of September 1985 and that the notices are also in arrears of house and water tax amount to Rs. 320.60 which they have not paid. The notice goes to say that the petitioner-tenants have materially altered the shop in question without permission in writing of the landlord by removing its wooden door and fixing an iron shutter which is contrary to sanctioned map of the local authority and thus the aforesaid action of the tenants will come within the definition of material alteration which made the petitioners liable for ejectment. The notice, therefore, was given under Section 106 of the Transfer of Properties Act. While terminating the tenancy it was directed that the notices should vacate the premises within 30 days and also deposit the arrears of house and water tax failing which the action under law will be taken against the tenants. The tenants submitted reply to the aforesaid notice denying the allegations made therein. It is also pointed out that the tenants and Sri Om Prakash Rastogi, the father of the petitioner, have not been served with the notice. So far as arrears of rent for the months of September and October 1985 is concerned the same is being sent totalling Rs. 130/- by money order and house tax and water tax amounting to Rs. 185.04 from the month of April 1983 to March 1985 is also being paid by money order. Ultimately the landlord filed suit being suit No. 85 of 1996 before the Judge Small Cause Courts. On the similar allegations as have been raised in the reply to the notice, the petitioner-tenants filed their written statement denying the plaint allegations stating there that there is no alteration what to say of material alteration and there is no rent due as stated in the plaint. It is also stated by the tenants (defendants of the suit) that the shop was originally let out to the father of the petitioners and after his death all the heirs of Om Prakash Rastogi (deceased) inherited the tenancy as the premises was let out for non-residential purposes. It was also stated that the suit is barred by provisions of Section 20 of the U.P. Act No. 13 of 1972. The trial Court, after exchange of pleadings and after adducing evidence by the parties, framed the following issues:-
1. Whether the defendants without consent of the landlord-plaintiff have entered into material alteration in the shop in question?
2. Whether the defendants are utilizing the shop in question for the purposes other than it was let out to them?
3. Whether the notice dated 5th October 1985 served on the defendants is valid notice?
4. Whether the defendants have committed default in payment of rent?
5. Whether the suit is bad for non-joinder of necessary parties?
3. The trial Court has decided issue No. 1 in favour of the tenants and held that there is no material alteration. On issue No. 2 also the Trial Court found that the use of shop in question for running a medical shop instead of Biscuit shop would in no way amount to change of user of the premises. On issue No. 3 the trial Court found that after Om Prakash Rastogi the defendants have become tenants and not joint tenants. Therefore, it has been held by the trial Court that the suit is not bad because of non-service of notice on all the heirs. On the question of default the trial Court found that the tenants have deposited a sum of Rs. 130/- towards rent of September and October and Rs. 186/- towards house and water tax which has been sent by money order. Since the landlord has refused the aforesaid money orders, it was sent again and was again refused, therefore, the amount is deposited under Section 30 of the U.P. Act No. 13 of 1972. Thus the trial Court recorded a finding that there was no default within the meaning of the words used under Section 30 of Act No. 13 of 1972 as even according to contents of notice at the time of notice was given the rent of four months was not due and, therefore, it was found that it was not a valid notice. On issue No. 4 it was found that since money demanded by the landlord has already been paid and the landlord has not cross-examined the tenants on this aspect of the matter, this issue was also decided against the landlord. On the question of non-impleadment of all the heirs of Om Prakash Rastogi it was found by the trial Court that in view of definition given in Section 3-A (2) of the Act it was necessary that all the heirs of deceased Om Prakash Rastogi ought to have been impleaded as party and it is admitted that all the heirs are not impleaded. Thus the suit was dismissed by the trial Court.
4. Aggrieved thereby the landlord preferred a revision being Civil Revision No. 246 of 1994 before the Judge Small Cause Courts under Section 25 of Provincial Small Cause Courts Act which has been allowed by the revisional Court and revisional Court passed the order after setting the judgment of the trial Court and directed that the suit filed by the landlord stands decreed. It is this order which is under challenge by means of this writ petition by the tenants, inter alia on various grounds.
5. Learned Counsel for the petitioner has submitted that in view of settled law regarding exercise of jurisdiction by the revisional Court under Section 25 of the Provincial Small Cause Courts Act even if the revisional Court comes to a different conclusion it ought to have remanded back the matter to the trial Court and the revisional Court committed error in decreeing the suit. For the purpose of decision of present writ petition I am not expressing any opinion on other points raised by the learned Counsel for the petitioners as in my opinion this writ petition deserves to be allowed only on the point that the revisional Court has committed material irregularity in decreeing the suit after appreciating evidence on the record and thus it has travelled beyond the jurisdiction vested in it and the judgment is thus unsustainable.
6. Learned Counsel for the petitioners has relied upon a decision of the Uttaranchal High Court reported in 2003 (2) Allahabad Rent Cases 475 Para 14 wherein the judgment of the Apex Court reported in J.T. 1998 SC 157, Leeladhar Kandpal v. District Judge Almora has been relied upon. The relevant paragraph is quoted below:
'After making the above noted order the Court below has reassessed the entire evidence oral and documentary on the record and wrote judgment spreading over 52 type pages substituting its own findings for the findings recorded by the trial Court. Legally if in the opinion of the Court below the findings recorded by the trial Court were not legal after setting aside the said findings, it could at the best remand the case to the trial Court for decision afresh. It has acted illegally and in accesses of its jurisdiction in allowing the revision and decreeing the suit for ejectment on the ground of material alteration and structural changes.'
7. Similar view has been expressed by the Apex Court in the case reported in 1995 (4) SCC 675 Para 2, Shankaranarayan v. Punjab National Bank and the decision of this Court reported in 2003 (1) ARC 74 Para 6, Haseena Bibi v. VIth Additional District Judge, Allahabad whereby this Court relied upon the earlier decision reported in 1981 Allahabad Rent Cases 545.
8. Learned Counsel for the petitioners has further relied upon the following decisions:-
1990 (1) ARC 341 Para 10, Virendra Kumar v. Mohd. Navi, and 2002 (2) ARC 49 Para 4, Girja Shankar Trivedi v. Vth A.D.J. Kanpur.
9. Learned Counsel for the landlord-respondent has relied upon the decision 2000 (2) A.R.C. 739, Om Prakash and Ors. v. IInd A.D.J., Saharanpur and 2001 (2) ARC 518 : 2002 (1) A.W.C. 212, Para 16, Ram Avtar v. Jagannath Gupta and Anr..
10. From the aforesaid proposition of law settled by the Apex Court and Division Bench of this Court I find substance in the argument advanced on behalf of the petitioners. Without expressing any opinion on other points raised by learned Counsel for the petitioners, in view of what has been stated above this writ petition deserves to be succeeded and is hereby allowed. The order passed by the revisional Court dated 15th October, 1998 is quashed. The matter is sent back to the revision Court to decide the matter afresh in accordance with law and in the light of the observations made in this judgment.