I.D Dua, C.J:— This is the defendant's revision against the judgment and decree of the learned Senior Subordinate Judge dated 15th July, 1961 which was ordered in September, 1961, to be heard early bat has unfortunately been delayed so long that it is being disposed of only today. Though the matter relates to the tenancy of the premises in question, luckily the question of eviction is no longer its controversy and I am only concerned with the question of fixation of standard rent.
2. It appears that in the ejectment proceedings in the Court of first instance, the defendant raised the plea of standard rent which was fixed by the trial Court at Rs. 12/8.per mensem.
3. On appeal, the learned Senior Subordinate Judge came to the conclusion that the demised shop was rebuilt in 1944 and after rebuilding, the same was let out to the tenant.
4. The agreed rent, it is common case of the parties, was Rs. 5312np. per mensem. The learned Senior Subordinate Judge accepted the unrebutted statement of Ishar Dass Architect that the cost of construction of the shop was Rs. 17,099/- and calculating 7½ per cent of this amoant to be Rs. 975/-, held the montly rent on the cost as deposed by Isher Dass to be Rs. 82. 15np. per mensem. In view of the calculation, the learned Senior Subordinate Judge observed that the agreed rent of Rs. 53. 12np. per mensem could not be considered to be unreasonable.
5. Now, if that be so and on the figures just mentioned this conclusion is not contested then the present case would not attract the provision of section 8(l)(b) of the delhi & ajmer rent control act of 1952 so as to Justify fixation of standard rent. This decision would indeed seem to conclude the matter so far as this revision is concerned, but the learned counsel for the petitioner has very eloquently argued that the conclusion of the lower Appellate Court that the cost of the construction as given by Ishar Dass should be accepted is not in accordance with law, and for this purpose he has tried to take me through the evidence of the Architect. I am a raid re-assessment or revalution of evidence is not within the scope of a revision even under section 35 of aforesaid act. However, wide the revisional jurisdiction of this Court under this provision as observed by the Supreme Court in Hari Shankar v. Rao Girdhari Lal Chowahary . 1962 64 P.L.R 1097., it does not create a right to have the case reheard, which means that there’ is no right of appeal on facts to this Court in the garb of the right of revision. It has further been clarified in the reported case that the phrase “according to law” appearing in section 35 refers to the decision as a whole and it is not proper to equate this expression with errors of law or of fact simpliciter. In so far as errors of fact are concerned, there has never been any controversy that such errors cannot ordinarily be corrected by his Court on revision unless the errors be such as to bring the infirmity within the expression “not according to law”. But the Supreme Court seems to go a step further and say that even an ordinary error of law may not always be open to correction on revision. If I may so put it, it really amounts to saving that unless there is in addition to an error of law; manifest injustice resulting therefrom, the overall decision may not fall within the expression “not in accordance with law”. On the facts and circumstances of the present case, I am far from satisfied that the impugned decision is not according to law or. has resulted in substantial or manifest injustice to the-tenant.
6. The lerned counsel tried to make oat a legal infirmity on the basis of thc.argumient that the estimate prepared by ‘Ishar Dass was nto incloded in the list of rdiance produced by the plaintiffs. This Cliticism was.correctly met by the lower Appellate Court when it laid that the plea of fixation of standard rent was raised by the tenant in reply to the application for ejectment etc. by the plaintiffs and it was pursuant to this. plea that an enquiry into the standard rent was held. The estimate was indeed prepared by a person who was to be cited as a witness and this. was done during the coarse of the trial. If that be so, then i t was nto under stood how it could legally be included in the list of reliance without doubt, must have been produced in Court long before the witeness was called. upon to prepare the estimate. This approach of the learned Senior Subordinate Judge is unexceptionable and no thing cogent has been shown to.find fault with.it
7. Antoher attempt made by the learned counsel for the.petitioner is that the discretion having been exercised by the trial Court in nto acffpting the estimate, the lower Appellate Court had erred in law in reversing that discretion and.accepting the estimate itself for the purpose of coming to its own conclusion. Except for the bald argument, no sound principle has been cited in support of this challenge, It must be in this connection be.remembered that the right of appeal given by the statute is unqualified and includes an appeal against orders includin those inded exercise of discretion. As to how far the discretion properly: exercised by the Court of the first instance should berespected, is a matter which must depend on the facts and circumstances of each case and it is wholly incorrect to lay down a rigid-rule of law that the Appellate Court shall never examine the order made in the exercise of discretion even-though there may be compelling and cogent grounds for doing so. Idu v. Kanwar . A.I.R 1933 Lah. 893., on which reliance has been placed on behalf of the petitioner is not only distinguishable, but even the rule of law laid down there does not go the length to which the learned counsel wants me to go. It was expressly recognised even in this decision that if a document has. been rejected in a manner contrary to well recognised judicial principles, then the Appellate Court can interfere. In the present case, in my opinion; the trial Court was not only wrong in doing so but it had done so in a capricious and arbitrary manner in which no reasonable judicial mind could have done so.
8. Lastly, it has been argued that at least the Lower Appellate Court should have granted to the tenant an opportunity of adducing evidence in rebuttal after accepting the estimate of the Architect. This contention again is devoid of merit. To start with, the document was already on the record and at the trial, the oral testimoney given by the Architect which was fought to be supported by the estimate, was also properly brought on the record in the normal course. It is not the petitioner's case that after the Architect's evidence, he was entitled under the law to rebut the oral testimoney and that he asked for an opportunity which was’ wrongly declined. In the lower Appellate Court also it is the oral testimony which has been relied upon, and if at all, the estimate was probably taken into account, only’ as a further guarantee that the oral statement was trustworthy. But when all is said and done, the fact remains that in the lower Appellate Court the tenant did not ask for any opportunity to adduce further evidence. The argument that. it was the bounden duty of the Court itself to call upon the party to produce the evidence, has neither been supported by any statutory provision, nor on any sound principle. On the facts and circumstances of this case, therefore I. am far from satisfied that the procedure adopted by the lower Appellate Court wag either On just or contrary to law or has resulted in any injustice to the petitioner.
9. For the reasons forgoing, this revision fails and is dismissed with costs
10. Petition dismissed.