Allowed

Chaman Lal v. D.J. Haridwar and Ors.

Uttarakhand HC20 Jul 2017WPMS/1790/2006

Case brief

AI extract

What is this about?

A tenant challenged eviction from premises claimed to be exempt from rent control as society property. The Court held that the claimed exemptions were not established and that the revisional decision lacked reasons and consideration of rival contentions. It allowed the writ petition and quashed both impugned orders.

What did the court decide?

Both impugned orders quashed. No order as to costs.

Chaman Lal Vs D.J. Haridwar and Ors. — Landlord and Tenant | Uttarakhand HC (2017)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Writ Petition No. 1790 of 2006 (M/S)

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Chaman Lal S/o Prasadi Lal …...Petitioner

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Versus District Judge, Haridwar and others …… Respondents.

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Present:

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Mr. Siddhartha Singh, Advocate for the petitioner. Mr. Pankaj Purohit, Deputy Advocate General for the State of Uttarakhand. Mr. Rajendra Dobhal, Senior Advocate assisted by Lokendra Dobhal and Mr. Ashok Joshi, Advocates for the private respondents.

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Dated: 20^th July, 2017

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JUDGMENT

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Hon’ble Sharad Kumar Sharma, J.

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The petitioner is a tenant of the tenement described as property constituting part of Gurumandal Ashram. The challenge in the writ petition, as given by the petitioner is to the orders passed by the Provincial Small Cause Courts whereby the suit of the respondent landlord was decreed by the judgment dated 4^th October, 2004, and also the revisional order which affirmed the decree dated 04/10/2004 in the Revision No. 19 of 2004, by the judgment dated 2^nd November, 2006.

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The prime contention of the petitioner before this Court is, that he is the tenant of the tenement, in question, right since 1965, the then landlord to whom he remitted the rent was Swami Ramswarup, i.e. in persona, as there was no society existing as such. His contention is that undisputedly he was assessed and recorded as a tenant in the assessment records, showing him as to be the tenant of Swami Ramswarup. He further contends that ever since creation of tenancy in 1965, the said landlord used to issue rent receipts to the petitioner and the said process continued till 31^st

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December, 1981, on this aspect, there is no dispute between the parties.

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According to the petitioner, all these rent receipts were on record before the Court below on which he has placed reliance to substantiate that his tenancy exists since 1965.

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He further contends that when there was a denial from accepting the rent by Swami Ramswarup, he took recourse to Section 30 of Act No. 13 of 1972, for depositing the rent before the Court below and, according to Mr. Siddhartha Singh, his client continues to deposit the rent regularly without any break, even today.

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On perusal of the record, even as per the case of the parties to the writ petition, it reveals that the said called Society under which the respondents claim their right as landlord for the purpose of this case, was registered, for the first time, under the Societies Registration Act, on 2^nd December, 1984, bearing Registration No. 1340 of 1984-85. If the Society was registered, for the first time on 2^nd December, 1984, it goes without saying that the tenement was in existence much prior in time since 1965. Because it is not the case of the respondent that at any stage of time that the society built any structure thereafter for getting an exemption from Act. The bar of law which was sought to be pleaded by the respondents from the applicability of Act was that the proceedings before the Prescribed Authority under Act No. 13 of 1973, would not be applicable for the reason being that the property belongs to the Society. For the said purpose, the respondent landlord has to satisfy the ingredients given under Section 2 (f) of U.P. Act No. 13 of 1972, so as to seek an exemption from applicability of Act

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No. 13 of 1972 under Section 2 (bb) and 2 (f), which is quoted hereunder :

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“Section 2 - Exemptions from operation of Act. -(1) Nothing in this Act shall apply to [the following namely],

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(a) ………….

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(b) …………….

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(bb) any building belonging to or vested in a public charitable or public religious institution;

(bbb) ……………….

(d) ……………………

(e) …………………….

(f) any building built and held by a society registered under the Societies Registration Act, 1860 (Act No. XXI of 1860) or by a co-operative society, company or firm, and intended solely for its own occupation or for the occupation of any of its officers or servants, whether on rent or free of rent, or as a guest house, by whatever name called, for the occupation of persons having dealing with it in ordinary course of business;”

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On an interpretation to the intention of Legislature given of Sub-section (f) of Section 2 of Act No. 13 of 1972, the essential ingredients which are required to be fulfilled they are (i) that the property has to be the property which has been “built” and “ held by a society ”, which is not a case proved or pleaded by respondent, thus, it would be treated to be a property of individual landlord who collected rent. For an exemption under Section 2 (f), all elements of ‘built’; ‘held’ by ‘society’ as to be together;

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The Allahabad High Court in the case of Pearey Mohan and others Vs. 9^th Additional District Judge,

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Aligarh and others reported in 1995 ALL L.J. 897, has held in paragraph 4 as under:-

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“The contention of the petitioner is that the respondents occupation of the premises in question as tenant, amounts to the building being held by them (a society register under the Societies Registration Act 1860) within the meaning of Section 2 (1) (f) of the said Act. The contention is however, not tenable. What Section 2 (1) (f) envisages to be exempted from the operation of the Act is a building built or held by a society in its own rights and not as a tenant. The courts below did not commit any manifest error of law or error of jurisdiction in dismissing the plaintiffs’ suit.”

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The Allahabad High Court in the case of Bans Bahadur

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Singh Vs. IInd Additional District Judge, Ballia and others reported in ARC 1993 (1) p/333 has held in paragraph 9 and 10 as under :

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“9. Clause (f) of sub-section (1) of section 2 of the Act is attracted to a building on the existence of two basic conditions, namely, the construction and holding thereof by a society registered under the Societies Registration Act or by a Co-operative Society, company or firm solely for its own occupation or for the occupation of any of its officers or servants, whether on rent or free of rent, or as a guest house, by whatever name called, for the occupation of persons having dealing with it in the ordinary' course of business. 'Building' and 'holding' of building for the specified purpose are the necessary ingredients for the applicability of the provisions of clause (f) of subsection (1) of section 2 of the Act.

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In the instant case, one of the basic ingredients, namely, the factum of building the building in dispute by the contesting Respondent Educational Society is, admittedly, missing. In this

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view of the matter, the exemption Conceived of by clause (f) of sub-section (1) of section 2 of the Act is not available to the building in dispute. The view of the revisional authority is in conformity with this legal position and is not open to any challenge.”

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The registration of the Society as held on 2^nd December, 1984, and as claimed by the respondent, will in itself not amount to make the provision under Act No. 13 of 1972, inapplicable under the pretext that it was built and held by the society, the reason being, at no point of time, nor it is case of respondent that there was any transfer or vesting of the property or endowment to the society, thus, it continued to be property of individual even in the Municipal records. As per the petitioner, not it has been recorded with society. Case was decided by Court below.

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Hence, as a matter of fact, the society even after its registration, never became owner of property and continued to be the property under law in the name of Swami Ramswarup an individual not as a collective legal entity of society created under Act.

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Another remarkable feature which is sought to be ventured is the impact of Sub-section (bb) of Section 2 of Act No. 13 of 1972, for getting an exemption from the applicability of the Act No. 13 of 1972, what is essential is that the building should be “belonging” or “vested” to the charitable society, as it has been already mentioned above while referring to sub-section (f) of Section 2, in the absence of there being any transfer, dedication or vesting of the property to the society, which was constructed much prior to the creation of the society, itself in 1965 atleast from day which tenancy began the implications of Sub-section (bb) and (f) of Section 2 would make the Act applicable, no

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exemption is available to respondent from the Act. If it be so, the proceedings before Provincial Small Courts Act will not be tenable, which will render the proceedings vitiated right from its inception.

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The intention of the Legislature by incorporation of Section 2 (bb) which deals with the term of belonging to charitable society would be exempted from the applicability of Act No. 13 of 1972. The argument of the learned counsel for the petitioner is that actually the society might have been registered in the year 1984, but ever since then till date it had never performed any function which can be said to be charitable in nature. He further submits that it is not even the case of the respondent before the Court below, being established by some proof, to show any activity of charitable or public nature, which society has taken by them since their registration. Hence, Section 2 (bb), for the purposes of attracting the exemption from the applicability of the Act. All the three ingredients have to be read together, i.e. it is the property belonging to the society, title of which is vested to the Society and the same is being utilized for charitable purposes. Word “charitable” purposes in itself is continuous form of action, means the activity of charity should be continued and uninterrupted. This is not the case of the respondent before the Court nor any details of the charitable activity have been given for which they can contend that they are involved in any charitable or public activity. If there is no plea by the respondent or parties seeking an exemption from the applicability of the Act, he will have to plead and establish the purpose of the charitable activities undertaken by society. Thus, the responsibility was not discharged by

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the respondents to get an exemption from the applicability of the Act.

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The Allahabad High Court in the case of Kapoori Devi (Smt) and another Vs. District Judge, Kanpur Nagar and others reported in [2007 (3) ARC 851 ] , has held in paragraph 11 as under :-

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“10. Both the Courts below, after appreciation of documentary and oral evidences on the record, recorded a specific finding of fact, that the building in dispute is being used by general public and is for charitable purposes as it is owned by charitable trust, hence falls out side purview of Act. The objection of the tenant that no charitable trust was ever formed and the evidence given by the landlords in support of their case is regarding public society hence the building is owned by charitable society and not trust. The evidence cannot be read in respect of landlord being a charitable trust was also considered by the Courts below. A finding of fact has been recorded that the building in dispute is being used for charitable purposes only without any profit which shows the intention to serve the society and general public. It was also recorded that the trustees are neither using the disputed property for themselves nor any profit is being earned by them from it and even assuming (for the sake of argument) that the building is owned by a charitable society, even then, such societies serving the general public without any profit or earning are exempted from the operation of the Act as they fall within the meaning of the definition. The word "charitable institution" of the Act in section 2(bb) is defined as under:-

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“Section 2(bb).-Any building belonging to be vested in a public charitable or public religious institution.

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Section 3(4).--Charitable institution.-Means any establishment, undertaking, organization, or association for a charitable purposes and includes a specific endowment.

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Explanation.--For the purpose of this clause, the word "charitable purpose" includes

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relief of poverty, education, medical relief and advancement or welfare to the general public or any other section thereof not being an objection of an exclusively religious nature.””

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Admittedly, the aforesaid amendments was brought into effect by an insertion made by U.P. Act No. 5 of 1995 w.e.f. 26^th September, 1994. Though the amendment was notified on 26^th September, 1995, an interesting issue which may crop up as what would be the impact of the notices which are issued under Section 106 of Transfer of Property Act, terminating the tenancy, when a legislation is made effective with retrospective effect and its notification is published subsequently. No time happens to be between the period of publication of notification and its applicability with retrospective effect.

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This Court is of the view that under the Act, the inception of the proceedings under Section 15 would commence from the date of the expiry of the period of termination of tenancy. Since the said period was expiring during the period when the Act was made retrospectively effective, it would be creating a bona fide doubt about the proceedings being initiated at the behest of the termination of the tenancy by the notice dated 24^th May, 1995, issued under Section 106 of Transfer of Property Act. However, this Court, at this stage, is not venturing into that controversy as to what would be the legal impact on the notice issued during intervening period from the date of the notification of insertion of the amendment under Section 2 and the issuance of notice under Section 106, as none of the counsel have developed their case from this prospective.

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Before the learned Trial Court when the eviction proceedings were initiated, based on the notice of

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termination of the tenancy, various points of controversy were determined including the one with regard to the applicability of the Act. On reading the findings recorded by the learned Provincial Small Cause Courts while decreeing the suit by the judgment dated 4^th October, 2004, this Court feels that the learned Provincial Small Cause Courts has gone berserk, while interpreting the constitution of the “Society” by misconstruing it to be a “Trust”.

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This interpretation is absolutely untenable the reason being that the existence of any legal entity, whether it is a Society or a Trust has its genesis on the basis of statutes for example the society under the Society Registration Act and the Trust under the Indian Trust Act and the existence of both cannot be intermingled by treating the Society as to be the trust or vice versa. Hence, proceeding on the premise, that the society which came into force 2^nd December, 1984, was a Trust is by a misinterpretation to the facts and evidence on record and even carving out a third case which was not even pleaded because the analogy of placing the Trust as Society or vice versa on the same pedestal was not tenable for the reason they have got altogether different configuration and purpose to be attained. The meaning of term “Society” as given in the Black’s Law Dictionary reads as under :-

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“Society. 1. A community of people, as of a state, nation, or locality, with common cultures, traditions, and interests.

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Civil society. The political body of a state or nation; the body politic.

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An association or company of persons (usu. unincorporated) united by mutual consent, to

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deliberate, determine, and act jointly for a common purpose.”

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Similarly, the “Trust” which has been defined under Black’s Law Dictionary, reads as under :-

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“trust, 1. The right, enforceable solely in equity, to the beneficial enjoyment of property to which another person holds the legal title; a property interest held by one person (the trustee) at the request of another (the settler) for the benefit of a third party (the beneficiary). For a trust to be valid, it must involve specific property, reflect the settlor’s intent, and be created for a lawful purpose. The tow primary types of trusts are private trusts and charitable and conversion. A fiduciary relationship regarding property and charging the person with title to the property with equitable duties to deal with it for another’s benefit; the confidence placed in a trustee, together with the trustee’s obligations toward the property and the beneficiary.”

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Since the purpose is different than for the purpose of Act No. 13 of 1972, the Society can never be treated as to be a Trust.

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Under the Indian Trusts Act, Trust as described under Section 3, is an obligation annexed to the ownership of the property. Without elucidating it, the definition of Trust under the Indian Trusts Act reads as under :-

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“Section 3 - Interpretation-clause - "trust". - A "trust" is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner:

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"author of the trust"; "trustee"; "beneficiary"; "trust-property"; "beneficial interest"; "instrument of trust".

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the person who reposes or declares the confidence is called the "author of the trust"; the person who accepts the confidence is called the "trustee"; the person for whose benefit the confidence is accepted is called the "beneficiary"; the subjectmatter of the trust is called "trust-property" or "trustmoney"; the "beneficial interest" or "interest" of the beneficiary is his right against the trustee as owner of the trust-properly; and the instrument, if any, by which the trust is declared is called the 'instrument of trust;”

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Thus, the society can never be treated as to be a Trust so far it relates to the impact of the Act No. 13 of 1972 is concerned. Thus, the Courts below have erred by law in interpreting the term “Society” as to be a Trust for applying the provision of Section 2 (bb) and 2 (f).

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On the aforesaid premise, the Provincial Small Cause Courts decreed the suit against which the petitioner preferred a Revision which was numbered as Revision No. 19 of 2004, which too has been dismissed by the judgment dated 2^nd April, 2006, thereby, affirming the judgment and decree dated 4^th October, 2004, is perverse and without application of judicious mind and law.

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The learned counsel for the petitioner submits that in the proceedings contemplated under Provincial Small Cause Courts Act, though, they are covered by the provisions of Order 50, wherein the provision of Order 14 has been exempted from its applicability, but still the Provincial Small Cause Courts Act provides framing of points of determination for deciding the inter se rights and effect termination of the tenancy. Meaning thereby, the Trial Court

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decides the lis between the parties based on findings of point of determination.

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On the Revision being preferred by the aggrieved party against the judgment and decree of Provincial Small Cause Courts Act, it more or less takes the shape of a First Appeal since the summary proceedings of the Provincial Small Cause Courts, for the first time, are kept to the judicious scrutiny before a Superior Court by invoking the provision under Section 25 of the Provincial Small Cause Courts Act.

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One of the issue which was raised by the petitioner was that the judgment of the Revisional Court is too cryptic, perverse and based on the non consideration of the case projected before the Court as virtually no reason ha been assigned, and even so much so, no pleadings or findings have been considered by the Court.

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On this argument of petitioner, the learned counsel for the respondents submitted that since the Revisional Court was exercising the revisional powers under Section 25 of the Provincial Small Cause Courts Act, the Revisional Court had limited powers to re-appreciate the evidence and substitute its own finding as it would be contrary to the scope of interference under Section 25 of the Act.

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The argument of learned counsel for the respondents was an effort to bring the provision of Section 25 of Provincial Small Cause Courts Act within the ambit of the provisions of revision contemplated under Section 115 of the C.P.C. or synonymous to it. This argument extended by the counsel is not permissible the reason being that Provincial Small Cause Courts while exercising the power for deciding a dispute under Section 50 of the Act. This procedure is

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circumscribed by the provisions contained under Order 15, meaning thereby, the detail scrutiny or critical analysis of the issue raised by the parties is not done by the learned Trial Court.

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In another word, a judgment which is rendered by the Provincial Small Cause Courts, for the first time, it becomes subject matter of judicious scrutiny by a superior Court when it exercises its revisional power. Hence, the revisional power under Section 25, more or less, imbibes the power of the Appellate Court. It has been laid down by various judgment that the revisional Court, under Provincial Small Cause Courts Act have exercised the power under Section 25 of the Act does have the power to re-appreciate the evidence or take additional evidence and if this be so, it has the trappings of the power of the Appellate Court.

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The Allahabad High Court in the case of Anwar Uddin Vs. 1^st Addl. District Jude, Aligarh and others reported in ARC 1993 (35) p/305, has held in paragraph 11 as under :

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“11. So far as the first contention of the learned counsel for the petitioner about the scope of interference on the finding of facts by re-appreciating the evidence on record by the revisional court, it is settled legal position that the revisional court while exercising revisional power under Section 25 of the Act, normally will not set aside the finding on the question of fact to substitute its own finding, but it is also equally settled that where the revisional court finds that the judgment under revision suffers from the vice of perversity or it is based on wrong appreciation of evidence, the revisional court will interfere with the same and set aside such finding. Similarly, if it is found

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that the judgment of the Small Cause Court is not according to law, the revisional court will set aside such a judgment because the exercise of power of revision under the Act is wider in scope than that of Section 115 of the Code of Civil Procedure where the scope of revision is limited to correct error of jurisdiction only. Whereas under Section 25 of the Act, the revisional court is required to examine the order under revision as a whole and to be satisfied that it does not suffer from error of law as well as of fact and is according to law. The judgment and decree of the Court of Small Cause is final and against it no appeal lies except from certain orders specified under clause (ff) or clause (h) of sub-section (1) of Section 104 of the Code of Civil Procedure as provided under Section 24 of the Act, and is only revisable under Section 25 of the Act if it is not according to law. Thus, if the order under revision under Section 25 of the Act is found to be perverse or based on wrong conclusion of legal question or some gross injustice has been done, the revisional court has ample powers to set aside such judgment and decree which is causing injustice to the party and is not supported with good reasons. However, it should not disturb the finding of fact on flimsy grounds by re-assessing or reappraising the evidence in order to determine the issue of fact for itself, unless it is perverse based on wrong appreciation of evidence or misinterpretation of law.”

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The learned counsel for the petitioner, Mr. Siddhartha Singh, submitted that since the revision arising out of the order of Provincial Small Cause Courts Act has a wider

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power than that of Section 115 C.P.C. and more or less, the revisional Court exercises the appellate power, though nomenclatured as revision. Any order passed by the Provincial Small Cause Courts under the principle of merger will merge with the order of the revisional Court and at that stage when the judicious scrutiny is being made to the Revisional Court’s order, the findings of the orders of Provincial Small Cause Courts merges with the Revisional Court. If the proposition is taken into consideration, in that eventuality, it is incumbent on the Revisional Court which exercises the Revisional power in the shape of wider jurisdiction as an appeal, it was incumbent that the Revisional Court ought to have considered and recorded the findings as pleaded by the parties before it.

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In the Case of Rauf Vs. III Addl. District Judge, Deoria and another reported in AIR 2002, Allahabad 20, the Hon’ble Court in para 20 has held as under :-

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“20. As a last straw, Sri H. S. N. Tripathi, learned counsel for the petitioner canvassed the point that the revisional court was not justified in disturbing the finding of fact arrived at by the trial court by substituting its own finding. It was argued that whether or not the petitioner has committed default in payment of arrears of rent was question of fact and since the trial court has recorded a finding that there was not default on the part of the petitioner, the revisional court was not justified in taking a contrary view. In support of his contention, Sri Tripathi placed reliance on the decision of this Court in Laxmi Kishore and others v. Har Prasad Shukla and others 1979 All CJ 473 ; Om Prakash Gupta v. Additional District Judge, Aligarh 1976 (2) ARC 532 ; Man Mohan Dixit v. Additional District Judge 1996 2 ARC 561 : Anwaruddin v. Additional District Judge, Aligarh and others 1999 ACJ 54 Rajendra Nath Tripathi v. Jagdish Nath Gupta 1999 ACJ 431 and Har Swamp Nigam a. District Judge and others 1999 All CJ 990. There can be

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quarrel about the proposition of law laid down in the said decisions about the scope and power of the revisional court. The law on the point has been succinctly specified in paragraph 11 of the report in Anwaruddin's case (supra) which reads as under :

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"11. So far as the first contention of the learned counsel for the petitioner about the scope of interference on the finding of facts reappreciating the evidence on record by the revisional court, it is settled legal position that the revisional court while exercising revisional power under Section 25 of the Act, normally will not set aside the finding on the question of fact to substitute its own finding, but it is also equally settled that where the revisional court finds that the judgment under revision suffers from the vice of perversity or it is based on wrong appreciation of evidence, the revisional court will interfere with the same and set aside such finding. Similarly, if it is found that the judgment of the Small Cause Court is not according to law, the revisional court will set aside such a judgment because the exercise of power of revision under the Act is wider in scope than that of Section 115 of the Code of Civil Procedure where the scope of revision is limited to correct error of jurisdiction only. Whereas under Section 25 of the Act the revisional court is required to examine the order under revision as a whole and to be satisfied that it does not suffer from error of law as well as of fact and is according to law. The judgment and decree of the Court of Small Cause is final and against it no appeal lies except from certain orders specified under clause (ff) or clause (h) of sub-section (1) of Section 104 of the Code of Civil Procedure as provided under Section 24 of the Act, and is only revisable under Section 25 of the Act if it is not according to law. Thus. If the order under revision under Section 25 of the Act is found to be perverse or based on wrong conclusion of legal question or some gross injustice has been done, the revisional court has ample power to set aside such Judgment and decree which is causing injustice to the party and is not supported with good reasons.

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However, it should not disturb the finding of fact on flimsy grounds by re-assessing or reappraising the evidence in order to determine the issue of fact for itself, unless it is perverse based on wrong appreciation of evidence of misinterpretation of law."

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A close analysis of the above observations would make it clear that if the revisional court finds that the judgment of the trial court under revision is perverse or is based on wrong appreciation of evidence, it is the duty of the revisional court to stepin to rectify the mistake. The finding of fact recorded by the trial court ios not sacrosanct. If ultimately it is found that It is not according to law or is based on misreading or misappraisal of the evidence or the view taken Is perverse, the revisional court would not hesitate in setting it aside. In the instant case, the trial court has proceeded on an illegal and unwarranted assumption that it was the duty of the landlord to disprove payment of rent by the tenant. The burden of payment of rent was wrongly shifted on the landlord. This glaring Illegality could be corrected by the revisional court. As a matter of fact, the revisional court has observed that the view taken by the trial court was perverse. Since the decision of trial court was not in accordance with law for the reasons stated above, the revisional court was Justified in setting aside the decision, which was against law. The decision of the revisional court cannot be faulted on any ground, whatsoever.”

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In the case of Punjab National Bank Vs. Ganga Narain Kapur reported in AIR 1994, Allahabad 221, the Hon’ble Court in para 32 has held as under :-

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“32. There is no doubt that if it is proved or shown that the decree has been passed by a Court having no jurisdiction, the decree can be said to be one not in accordance with law. There is no doubt as laid down in Joy Chand Lal Vs. Kamalaksha (AIR 1949 PC 239) and in the case of Chaudhari Jagdish Prasad v. Ganga Prasad Chaturvedi reported in AIR 1959 SC 492 and Rama Aver v. Sunderesa Poumapoonder reported in [1966]3SCR474 , in the context of revisional jurisdiction of the High Court under Section

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115 of the Civil Procedure Code where the revisional powers of the High Court are confined to error of jurisdiction only i.e. excess of jurisdiction or to say exercise of jurisdiction not vested, with refusal to exercise of jurisdiction vested or usurpation of jurisdiction by a Court on the basis of an erroneous decision arrived at by it in respect of a jurisdictional fact or the question touching jurisdiction or refusal to exercise of jurisdiction vested on the ground of erroneous decision on questions of jurisdictional fact or law as well as, acting of Court illegally or with material irregularity are all covered within the expression jurisdictional error and a decree passed by a Court below after having committed jurisdictional error can be termed not to have been passed in accordance with law, for the purpose of Section 25 Small Causes Courts Act, but the scope of power under Section 25 of the Provincial Small Causes Courts Act is not as limited or restricted one as is revisional jurisdiction of the High Court under Section 115 of the Civil Procedure Code. The scope of jurisdiction under Section 25 of the Provincial Small Causes Courts Act is wider than the revisional jurisdiction of the High Court under Section 115 of the C.P.C.”

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Yet again in another case, Babu Ram Vs. Additional District Judge, Dehradun and another, reported in AIR 1983 Allahabad 170, the Hon’ble Court in paragraph 19 and 20 has held as under :-

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“19. From what we have said above, we find that a Court under Section 25 can take into account subsequent or new facts which had emerged since the giving of the decision by the Judge of the Small Causes. In taking the new fact into account the court may sometime be called upon to amend the pleadings or take documentary or oral evidence and for that purpose the proper course for the court under Section 25 would be to set aside the order of the Judge Small Causes and send the matter back to him for deciding the rights of the parties on its basis. In Balai Chandra v. Sheodhari Jatav (Supra), the Supreme Court held:

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“Once pleadings are permitted to be amended which bring into focus altogether new or disputed questions of fact, new or fresh disputed questions of fact, which have to be resolved by additional evidence, that would be necessary to be led. The function between the appreciation of evidence, more properly to be undertaken by the trial court...”

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Out of the decisions relied upon by the learned Counsel for the Petitioner, one of them was reported in Smt. Kamini Khare v. Ram Naresh (supra). In this case the learned Judge held that no additional evidence could be admitted in revision under Section 25. We wish to add as and when any occasion which has been narrated by us above arises, the additional evidence may be admitted but in that event also the revising court will not be entitled to set aside a finding of fact.”

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Yet again in the case of Radhey Lal Vs. Special Judge, Bulandshahr and other reported in ARC 1992 (22) p/98, has held in paragraph No. 5 as under :-

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“5. The provisions contained in Section 17 of the Provincial Small Cause Courts Act, 1887 provide that the procedure prescribed in the Code of Civil Procedure, 1908 shall, save in so; far as is otherwise provided by that Code or by the said Act, be the procedure followed in a court of small causes in all suits cognizable by it and in all proceedings arising out of such suits. Order 'L' Rule 1 of the Code of Civil Procedure provides that the provisions specified in that order shall not extend to courts constituted under the Provincial Small Cause Courts Act, 1987. However, the provisions specified therein do not include the provisions contained in either under Order IX of the Code of Civil Procedure or the provisions contained In Order XVII of the Code of Civil Procedure or Section 141 or Section 151 thereof. Since the provisions contained in Section 17 of the Act are enabling provisions for procedural application, obviously therefore, the aforesaid provisions stand clearly attracted to the proceedings of a revision contemplated under Section 25 of the Provincial Small Cause Courts Act wherein the revisional court for the purpose of

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satisfying itself that a decree or order made in any case decided by a court of small causes was according to law may call for the case and pass such order with respect thereto as It thinks fit, while It is true that the provisions relating to procedure governing a revisions contemplated under Section 25 of the Provincial Small Cause Courts Act have not been specified It has to be borne in mind that considering the nature of the proceedings envisaged under Section 23 of the Act, once a revision is entertained the suit will be deemed to be pending In the shape of the revision and just as an appeal is a continuation of a suit similarly a revision under Section 25 of the Provincial Small Cause Courts Act is also to be treated as a continuation of the suit It should not be overlooked that where statutes are silent and remedy has to be sought by recourse to basic principles, it is the duty of the court to devise procedural rule by analogy and expediency.”

¶113

Per contra, the case of Mr. Rajendra Dobhal, learned Senior Counsel for the respondents, while pressing his contentions, submits that since the judgments of the Courts below are concluded by findings of fact, this Court ought to desist from exercising its jurisdiction under Article 227 of the Constitution of India.

¶114

In support of his contention, he has placed reliance on various judgments. But before this Court considers the impact of those judgments laying down the ratio pertaining to the concurrent findings of fact, it is pertinent to mention that the revisional Court’s order cannot be termed as concurrent in its findings of facts because said judgment has not considered the respective case of the parties as projected before the Revisional Court.

¶115

The learned counsel for the respondents, at the first instance, has placed reliance in the case of Ranjeet Singh Vs. Ravi Prakash reported in 2004 (1) ARC 613, in which, the Court was considering non concurrent proceedings under Section 21 (1) (b) of the Act No. 13 of 1972.

¶116

¶117

The Hon’ble Apex Court in that given set of circumstances has considered the judgment of reversal as to that the High Court was exercising an Appellate jurisdiction, while considering the judgment under Section 22 of Act No. 13 of 1972. The said ratio would not be applicable for the reasons being that those were the proceedings where the question of maintainability before the Court was not involved and secondly, those were the proceedings where the Prescribed Authority as well as the Appellate Authority has considered the rival cases, considered pleadings, recorded findings and had passed the judgment.

¶118

The Hon’ble Apex Court observed that since the Appellate order was a reasoned order, hence, its reversal by the High Court while exercising the powers of certiorari could not be done as the High Court should not exercise the powers of an Appellate authority. But in the instant case, on perusal of the judgment of revision, it was on exclusive issue pertaining to the maintainability of the proceedings as to whether the same has to be taken under the Act of 13 of 1972 or before the Provincial Small Causes Courts. This legal issue which was dealt with by the revisional Court was cryptically dealt without considering the controversy in its true perspective. Hence, the judgment of the revisional Court, since has not considered the entire issues or points of determination and facts, was bad in the eyes of law.

¶119

Under the CPC the proper judgment has been defined under Sub-section (9) of Section 2, which reads as under :-

¶120

““Judgment” means the statement given by the Judge on the grounds of a decree or order;”

¶121

¶122

On precise reading of the definition, it is the expression of reasoning which a judge has to consider to make an order a judgment which means that a Judge should have considered the rival contentions raised by the parties, applies its mind and more importantly assign his rational for either accepting or not accepting the version of either of the parties. It is an issue of preponderance, which has been always a contention as to what would constitute to be a judgment.

¶123

The Hon’ble Apex Court in a case of Shah Babulal Khimji Vs. Jayaben D. Kania and another reported in AIR 1981 SC 1786 has observed that when the Trial Judge decides a controversy which affects a valuable rights of the parties to the dispute to bring the same within the purview of a judgment, means it should render a decision in the matter of rights where an adjudication is required and that is why the Hon’ble Apex Court in para 119 of the judgment Shah Babulal Khimji (Supra) has observed that once it is an adjudication, it should contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceedings.

¶124

The Rajasthan High Court in the case of Smt. Krishna Devi Vs. Raj Kumar and another reported in AIR 1986 Rajasthan 72, while considering the definition of judgment has held in paragraph 15 as under :-

¶125

“I have also considered the judgment under appeal. O. VIII R. 10 CPC contains the words “that the Court shall pronounce the judgment”. “Judgment” has been defined in S. 2 (9) C.P.C. It is as follows:

¶126

“Judgment means the statement given by the Judge on the grounds of a decree or order;”

¶127

The learned District Judge has merely mentioned in the judgment under appeal that the suit of the plaintiff is decreed under O. VIII, R.10 CPC. It is silent with respect to the statement of the grounds on which the decree is passed.”

¶128

¶129

The learned counsel for the respondent has placed reliance in the case of Lachman Deo Vs. D.J. Naintal and others, reported in ARC 2000 (2) 32. In the said judgment, the Coordinate Bench of Allahabad High Court, while considering the effect of Section 2 (1) (bb) read with Section 3 (R) of the Indian Evidence Act, came to the conclusion that U.P. Act 13 of 1972 is not applicable to Gandhi Ashram and thus the suit filed by the Gandhi Ashram against the private individuals would not be available. In the said case, the consideration was as to the establishment of the fact as to whether a society like Gandhi Ashram is engaged in a charitable activity is essential or not. The Court, while dismissing the writ petition and holding that the Gandhi Ashram would be falling within the ambit of being a charitable institution and thus the provision of Act No. 13 of 1972 would not be applicable if considered it from the view point of its Memorandum of Association. The establishment of the fact pertaining to the activities being conducted by Gandhi Ashram, thus, holding it to be a public charitable institution. In another word, before attracting the exemption under Section 2 for bringing any institution within a charitable activity, it is the responsibility of the plaintiff of the SCC Suit to prove that any charitable activity is continuing to be carried by evidence on record to seek an exemption.

¶130

In the present case, this responsibility was not discharged by the plaintiff to show that at the time when the suit was instituted and when the society was created in 1984 or thereafter, the society still continued to be involved its activity charitable or public act. Hence, before seeking an exemption, it has to be settled by evidence that public

¶131

¶132

charitable activity is going on which was not done in the instant case. Hence, the said judgment too will not help the respondents.

¶133

Another judgment on which the learned Counsel for the respondents has placed reliance in the case of G. Amalorpavam and others Vs. R.C. Diocese of Madurai and others reported in 2006 (3) SCC 224.

¶134

The Hon’ble Apex Court in the said judgment was dealing with the impact of the Order 41 Rule 31 in the proceedings which was emanating from the Regular Civil Suit and this was the case where the Hon’ble Apex Court was ceased with the issue as to what extent the Appellate Court will exercise power under either of the condition under Order 41 Rule 31 and what would form the contents of the judgment.

¶135

Yet again, this Court, feels that first of all the instant case was not emanating from the Regular Civil Suit but from the provisions Provincial Small Cause Courts Act and, hence, the ratio as propounded by the Hon’ble Apex Court, this Court is absolutely in agreement with it. But this Court feels that at that point of time, the Hon’ble Apex Court was considering the said judgment from the view point of applicability of Order 41 Rule 31 in a regular civil proceedings.

¶136

Let the judgment be considered in the light of the present case and even if it is stretched to that extent, even then, the judgment impugned passed by the Revisinal Court does not satisfy the principle of Order 41 Rule 31, hence, the judgment does not come to the rescue of the respondent.

¶137

The authority on which the learned counsel for the respondent relies upon is the authority reported in 2014 (9)

¶138

¶139

SCC 78 in the case of Hindustan Patroleum Corporation Ltd. Vs. Dilbahar Singh.

¶140

In the said case, the Hon’ble Apex Court was considering the proceedings emanating from the Harayana Urban Control of Rent Eviction Act, 1973 and that of Kerala Building (Lease and Rent Control) Act, 1965 and Tamilnadu Rent Control Act and their revisional powers for su moto or on an application of an aggrieved party calling for the case and examining the records.

¶141

The Hon’ble Apex Court in the said judgment has observed that though the powers of the Revisional Court as given under Section 25 of the Provincial Small Courts Act or the revisional powers given under the Statutory Act cannot be circumscribed by the powers as compared to Section 115 of the C.P.C.

¶142

The Apex Court has held that though the revisional powers power under the Statute like Provincial Small Courts Act are much wider but only restrictions which it was imposed by the said judgment, is that the High Court under the cloak of revisional power cannot sit as Appellate Court. The reply to this argument by the learned counsel for the respondents would be yet again the same that when the appellate court’s exercising its powers, it exercises powers on considerations of facts and law both. Whereas the Revisional powers, it is confined to those ingredients which are contemplated under the revisional powers created under the Statute is wider.

¶143

Since, Section 25 hand an amplitude which was wider than the Section 115, it was not combined by the Revisional Court in the present case too should have considered the case in its entirety. Having not done so and cryptically

¶144

¶145

rendering the judgment would not be an appropriate exercise of powers under a revision. This Court feels that the issue which is being dealt with in the instant case since being the applicability of the proceedings and under which it should be drawn is absolutely legal issue where no reappreciation of evidence or fact is to be done by the Court while exercising its jurisdiction under Article 227 of the Constitution of India.

¶146

This Court under Article 227 is only adjudicating the decision making process, as to whether the Revisional Court has rightly come to the conclusion by a rightful interpretation of the provisions pertaining to the applicability of the Act, thus, it cannot be nomenclatured as if this Court was exercising an appellate jurisdiction over the revisional Court’s order. Thus, this Court does not feel that any benefit could be derived by the respondents from the said judgment as it is not a rehearing of the case but only an adjudication of the issue about the applicability of the Act.

¶147

The judgment of Kapoori Devi (Supra) where the Coordinate Bench has restricted the interpretation of charitable institution in the jurisdiction under Article 227 of the Constitution of India would come into play only when the plaintiff by evidence and fact has already established before the Court below that it was a charitable institution involved and performing continuously a public and charitable activities. A presumption in the absence of the evidence of a charitable activity cannot be drawn, it has to be established.

¶148

The counsel for the respondents further placed reliance on the powers of the Revisional Court as settled by

¶149

¶150

the judgment reported in 2016 (1) ARC 394, Syed Mehdi Husain Khan @ Akhta Jafri Vs. Addl. District & Sessions Judge; 2016 (1) ARC 460, Pramod Kumar and another Vs. Shreyans Kumar Jain; and 2016 (2) ARC 82, Sabiya Begum (Smt) Vs. Dr. M. Hayat Ansari.

¶151

This Court is in complete agreement with regard to the ratio laid down by the aforesaid judgments of the Coordinate Bench of Allahabad High Court. It is yet again repeated, no doubt about it that the Revisional Court exercising powers under Section 25 cannot re-appreciate the evidence for coming to a conclusion. But the aforesaid judgments had not considered the revisional powers under Section 25 that they are not synonymous to the revisional powers under Section 115 C.P.C. They are wider enough to re-appreciate the evidence to come to the logical conclusion in relation to and applicability of the Act, which goes to the root of the matter because in the absence of which no logical conclusion could be derived.

¶152

In the case, this Court, yet again repeats another fact that the revisional Court’s judgment is not a judgment which is concluded on consideration of the facts as it was before the Court below. It is based upon an absolute notion of the revisional Court without considering the actual controversy and the manner in which the conclusion has been drawn which was the subject matter of scrutiny of issues involved with regard to the powers of the revisional Court before this Court.

¶153

Hence, it has been laid down by various pronouncements that when the Revisional Court exercises power under Section 25, its power is synonymous to that of the power of the Appellate Court and it is bound to consider

¶154

¶155

the rival contention as raised by the parties and cannot summarily decide the revision by a cryptic and non speaking finding and too without considering the respective case or pleading which was required to be done by the Revisional Court.

¶156

On perusal of the Revisional Court’s order, the learned District Judge has not considered and recorded the findings on any of the ground taken and argued before him rather to the contrary, he carved out a third case which was not even pleaded or pressed before him by the parties and it was beyond the case which was respectively developed before the Provincial Small Cause Courts.

¶157

Judicious propriety demanded that atleast once the Court was sitting in a revisional jurisdiction exercising a power of revision against the order passed by the Subordinate Courts, it ought to have considered and recorded the findings with regard to the factual aspect as well as the law which was pressed by the parties. Since, the same was not done, this Court feels that the judgment impugned dated 2^nd November, 2006, cannot be termed as to be a judgment at all because it was rendered without assigning any reason and considering the rival contentions, as such, the writ petition succeeds and is allowed. The impugned orders are quashed. No order as to costs.

¶158

(Sharad Kumar Sharma, J.)

¶159

20.07.2017 Shiv

¶160

Chaman Lal v. D.J. Haridwar and Ors.

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Chaman Lal v. D.J. Haridwar and Ors.

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