O.P Garg, J.:— This is tenant's revision application under Section 25 of the Provincial Small Causes Courts Act arising out of S.C.C suit No. 17 of 1989 instituted by the plaintiff-respondent Rameshwar Dayal Gupta seeking the eviction of the defendant-revisionist from a portion of premises No. 88 Sadar Bazar Road, Cantt. Mathura and for recovery of arrears of rent and damages. A brief backdrop to the short point in issue—whether the provisions of U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Act No. XIII of 1972) (hereinafter referred to as ‘the Act No. XIII of 1972’) are applicable to the tenanted accommodation or not—is that the defendant-revisionist was inducted as tenant in the disputed portion of the house, aforesaid, comprising three rooms and a shed in the southern portion for running a school at the rate of Rs. 800 per month w.e.f 1.5.1985 An agreement dated 10.4.1984 was executed between the parties. The plaintiff-respondent (hereinafter referred to as ‘the landlord’) was aggrieved on account of non-payment of rent and consequently he served a notice dated 27.8.1987 of demand and to quit on the applicant-defendant (hereinafter referred to as ‘the tenant’) who sent a reply thereto and also remitted some amount of rent through a cheque. Since after the termination of the tenancy, the tenant failed to clear all the dues and to vacate the premises, the landlord was compelled to institute S.C.C suit No. 17 of 1989 claiming a sum of Rs. 20,740/- as arrears of rent and pendente-lite and future mense profits @ Rs. 800 per month, besides the basic relief of delivery of possession after eviction of the tenant. The suit was contested by the tenant raising the controversy with regard to the monthly amount of rent which, according to her, was Rs. 700 per month only and not Rs. 800, as claimed by the landlord. It was also pleaded that the provisions of the Act No. XIII of 1972 apply to the disputed accommodation and since she has committed no default in payment of arrears of rent as she has been depositing the same under Section 30 of the Act No. XIII of 1972, on the refusal of the landlord to receive the same, she cannot be labelled as a defaulter within the meaning of Section 20(2)(a) of the Act No. XIII of 1972. She had also taken the plea that even if it be treated that she has committed default in payment of rent, she stands relieved of the liability from eviction as she has deposited the entire amount as contemplated under Section 20(4) of the Act No. XIII of 1972. Both the parties led evidence before the trial court.
2. After appraising the evidence on record and taking into consideration the respective submissions of learned counsel for the parties, a finding of fact has been recorded that the provisions of the Act No. XIII of 1972 do not apply to the disputed accommodation, and, therefore, on the termination of the tenancy of the tenant by a valid notice under Section 106 of the Transfer of Property Act, she is liable to be evicted. Accordingly, a decree has been passed for eviction of the tenant from the disputed accommodation and for recovery of arrears of rent and mesne profit as claimed by the landlord. It is in these circumstances that the present revision application has been preferred by the tenant by invoking the provisions of Section 25 of the Provincial Small Causes Courts Act.
3. Heard Sri Rajesh Tandon, learned Senior Advocate appearing on behalf of the defendant-revisionist (tenant) as well an Sri R.N Bhalla, learned Senior Advocate representing plaintiff-respondent (landlord), at considerable length and perused the material brought on record.
4. The parties would swim or sink with the finding on the crucial question whether or not the provisions of the Act No. XIII of 1972 are applicable to the disputed accommodation. Sri Rajesh Tandon, learned Senior Advocate appearing on behalf of the tenant, vehemently argued that the evidence on record would itself indicate that the landlord has himself admitted that the premises are covered by the provisions of the Act No. XIII of 1972 as having been constructed in the year 1970. He founded his submission on the admission made by the landlord in P.A Case No. 31 of 1992 filed by him against the tenant under Section 21(1)(a) of the Act No. XIII of 1972 for release of the tenanted accommodation for his personal need. In that application, a copy of which is Annexure A-3 to the revision application, the landlord has, in unambiguous terms, admitted that the tenanted accommodation came into being in the year 1970. Sri Lalta Prasad Garg, who happened to be the Advocate for the landlord also made a statement before the Prescribed Authority, a copy whereof is Annexure A-4 to the revision application, that the provisions of the Act No. XIII of 1972 applied to the accommodation in respect of which the petition for release had been filed. The landlord-Rameshwar Dayal Gupta filed his own affidavit in the case, aforesaid, a copy of which is Annexure 5, deposing that the tenanted accommodation was built in the year 1970. The release petition was ultimately decided ex-parte in favour of the landlord who was successful in dispossessing the tenant. The tenant took steps to set aside the order dated 7.11.1999 by which the tenanted accommodation was released. Consequent upon the setting aside of the order of release, the tenant was put back in possession and occupation of the tenanted premises. The landlord filed Civil Misc. Writ No. 435 of 1993 which was partly allowed by order dated 8.3.1994 with the observation that the landlord shall not interfere with the possession of the tenant and in her taking the connection for water and electricity supply. Sri R.N Bhalla, learned Senior Advocate for the landlord was not in a position to assail the admission with regard to the age of the tenanted accommodation made by the landlord in the release petition but took the forceful stand that the admission of the landlord in proceedings for release of the tenanted accommodation is of no relevance and consequence and the trial court unmindful of the admission of the landlord, has to decide, as a fact on the basis of the evidence available on record, as to when the premises came into existence. It was maintained that the plea of estoppel in such a matter is not attracted. To support his contention, Sri Bhalla placed reliance on the decision of this Court in Smt. Padmini Bala Rani v. District Judge, Dehradun . 1983 A.R.C 159., in which the effect of the plea regarding non-applicability of the Act No. XIII of 1972 was thrashed out. In that case, the landlady had applied for release of certain flats. On behalf of the tenants, it was pleaded that the flats were new constructions. It was held that whether the disputed flats are new constructions within the meaning of Section 2(2) of the Act No. XIII of 1972 is a question which goes to the root of the jurisdiction of the rent control authorities and where such is the case, plea of estoppel cannot come in the way of landlady from contending that the Rent Control Authorities have no jurisdiction to pass orders in respect of the buildings which are exempt from the operation of the Act No. XIII of 1972 by virtue of Section 2(2) of the said Act. A reference was also made to the decision of this Court in Smt. Samundari Devi v. Nand Kishore Marwa . 1987 Alld. L.J 255., in which again the provisions of Section 2(2) of the Act No. XIII of 1972 came to be interpreted.
5. Before embarking upon the discussion on the issue and sifting of the decisions, aforesaid, it would be proper for clear understanding to quote, in extenso, the provisions of Section 2(2) of the Act No. XIII of 1972, which run as follows:
“(2) Except as provided in sub-section (5) of Section 12, sub-section (1-A) of Section 21, sub-section (2) of Section 24, Sections 24, Section 24-A, 24-B, 24-C or sub-section (3) of Section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed:
Provided that where any building is constructed substantially out of funds obtained by way of loan or advance from the State Government or the Life Insurance Corporation of India or a bank or a co-operative society or the Uttar Pradesh Avas Evam Vikas Parishad, and the period of repayment of such loan or advance exceeds the aforesaid period of ten years then the reference in this sub-section to the period of ten years shall be deemed to be a reference to the period of fifteen years or the period ending with the date of actual repayment of such loan or advance (including interest), whichever is shorter:
Provided further that where construction of a building is completed on or after Appril 26, 1985 then the reference in this sub-section to the period of ten years shall be deemed to be a reference to a period of forty years from the date on which its construction is completed.
Explanation 1:—For the purposes of this section—
(a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time:
Provided that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants;
(b) ‘construction’ includes any new construction in place of an existing building which has been wholly or substantially demolished;
(c) where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition.”
The object of the aforesaid provision, it was held in Samundri Devi's case (supra), is to ensure a period of holiday for the landlord to encourage building activity. There is nothing in the scheme of the Act No. XIII of 1972, particularly, having regard to the objects with which it has been enacted to suggest that assumption of a date of completion of construction, different from the one provided for in explanation 1 to Section 2(2) of the Act No. XIII 1972 would sub-serve the objects of the Act or that fixing a date of completion of the construction of a building in terms of explanation 1 would, in any manner, defeat the object of the Act. Moreover, the mere fact that the deeming provision is expressed to be an explanation, will not alter its basic character nor limit it to a mere explanation of substantive provision. It was further observed that the explanation 1 to Section 2(2) contains a deeming clause. It creates a legal fiction. The language in which explanation 1(a) is couched is clear. In effect, it says that for purposes of sub-section (2) of Section 2, the construction of a building shall be deemed to have been completed (a) on the date on which its completion is reported to or otherwise recorded by the local Authority, and (b) in case of a building subject to assessment the date on which the first assessment thereof comes in effect, (c) and, where there is no report, record or assessment, the date on which it is actually occupied. This is the sequence in which the date of completion of construction is to be deemed for the purposes of Section 2(2). The legislature having regard to the fact that the building was to be kept out of the purview of the provisions of the Act No. XIII of 1972 for a specified period from the date of completion of its construction wished to ensure that the said date should be known with definiteness and, in order to achieve this it engrafted a legal fiction in respect of the said date. In order words, irrespective of what the actual date of completion of construction may be, the date, for purposes of Section 2(2), would be the one determined with reference to the deeming provisions contained in the Explanation. Where, irrespective of the reality, the legislature has unmistakably provided for assumption of the date of completion of the construction of a building in Explanation 1 to Section 2(2) of the Act No. XIII of 1972 it is immaterial whether the landlord admits or avers to a date of completion of construction of the building different from the one contemplated by the fiction. Normally an admission may be binding upon the person making it except where he is able to explain it away that principle will be wholly inapplicable to a case in which the Legislature, acting within its competence, mandates through a legal fiction assumption of a fact different from the reality. Though in the instant case, the landlord in the release proceeding under Section 21(1)(a) of the Act No. XIII of 1972 asserted in unerring terms that the tenanted accommodation came into being in the year 1970 the controversy whether the Act No. XIII of 1972 applies or not is to be determined with reference to the parameters laid down in Section 2(2) read with explanation 1. The admission or assertion of either of the parties would hardly be of any consequence.
6. There has been some controversy with regard to the burden of proof, whether it is initially on the landlord or the tenant. In Durga Prasad v. IIIrd Additional District Judge, Kanpur . 1985 1 A.R.C 398., it was held by this court that the burden to prove the fact that the provisions of the Act No. XIII of 1972 are attracted to the tenanted accommodation or not, lies on the landlord but where both the parties have led evidence to prove or disprove this fact, the revisional court has jurisdiction to record a finding on this jurisdictional fact and consequently the burden of proof looses its importance. There have been some conflicting decisions of this court as divergent views were expressed on the point (See Ram Pal Singh v. VI Additional District Judge . 1983 2 A.R.C 7.). It is not necessary to refer all such cases as the whole controversy came to be quelled by an authoritative pronouncement of the apex court in Ram Swaroop Rai v. Leelawati . 1980 6 ALR 359 SC., in which taking note of the fact that the provisions of the Act No. XIII of 1972 apply to all buildings except where the exemption operates, it was laid down that the landlord, who seeks exemption must prove that exemption. The burden is on him to make out that notwithstanding the rent control legislation, his building is out of its ambit. It is not for the tenant to prove that the building has been constructed beyond a period of ten years, but it is for the landlord/landlady to make out that the construction has been completed within ten years of the suit. In the same decision, it was further noticed that the statute makes it clear that reliance upon the municipal records, rather than on the lips of witnesses, is indicated to determine the date of completion and the nature of the construction. The oral evidence in the case is inconsequential being second-hand testimony. Even the recital in the rent deed that there was a new construction by the tenant and the landlady, neither of whom has any direct knowledge about the construction because the landlady had purchased that building. It was further observed that of course, an admission by the tenant is admission against him but an admission is not always conclusive especially in the light of the municipal records such as are available and the burden such as has been laid down by the Statute.
7. In the subsequent decision in Suresh Kumar Jain v. Shanti Swarup Jain . A.R.C 1997 1 640., the apex court has further dwelt over the same point and observed as follows:
“There is no dispute that the defendant appellant is a monthly tenant covered by the provisions of the said Rent Act. It is apparent that for mitigating the hardship likely to be meted out to a landlord who has made new construction by incuring substantial expenses, the landlord, in case of tenancy in a newly constructed building has been favoured with exemption of the rigours of the Tenancy Act in the matter of evicting a tenant inducted in such newly constructed premises. But such exemption is not unfettered but controlled by the provisions of Section 2(2) of the said Rent Act read with Explanation 1 and proviso to such Explanation 1. The outer limit of the period of exemption in respect of newly constructed building is ten years. Such outer limit of the period of exemption has been introduced for balancing the equities between the landlord and tenant. In order to ensure that such exemption in favour of the landlord is not extended indefinitely, the legislature has provided a mechanism for determining the date with reference to which the building in question will be deemed to have been constructed by indicating four distinct alternatives. As such four dates are likely to be different, Legislature, in its anxiety to ensure that the period of exemption is not unjustly extended beyond the period intended, has indicated that such period of exemption is to be reckoned from the date which is on the earliest point of time amongst four different deemed dates provided for in Explanation 1 to sub-section (2) of the U.P Rent Act. The four different dates for the purpose of exemption as to whether a newly constructed building is ten years old or not are as follows:—
(i) the date on which completion of the building is reported to local authority;
(ii) the date on which the completion of the building is otherwise reported by the local authority having jurisdiction;
(iii) the date on which the assessment of property tax is first made;
(iv) in the absence of any such report, record or assessment, the date on which the building was actually occupied.”
From a close reading of decisions of the apex court in Ram Swaroop Rai (supra) and Suresh Kumar Jain (supra), it follows that it is not for the tenant to prove that the building has been constructed beyond a period of ten years but it is for the landlord to make out that the construction has been completed within ten years of the suit. This is sensible not merely because the State expressly states so and the setting necessarily implies so but also because it is the landlord who knows best when the building was completed, and not the tenant. As between the two, the owner of the building must tell the Court when the building was constructed and not the tenant thereof. Speaking generally, it is fair that the onus of establishing the date of construction of the building is squarely laid on the landlord.
8. In the instant case, now let us examine whether the landlord has been able to satisfy the requirement of Section 2(2) read with explanation 1 of the Act No. XIII of 1972 for determining the question about the age of the tenanted accommodation. In the present case, there is absolutely no document on record filed either by the landlord or the tenant to establish when the tenanted accommodation, or for that matter, house No 88 Sadar Bazar Road, Cantt, Mathura came into being. There is only oral testimony of the parties. What the landlord has asserted has been repelled by the tenant and her another witness. The property, in question, is situate within the limits of the Cantonment of Mathura. The statute makes it clear that reliance upon municipal record, rather than on the lips of witnesses, is indicated to determine the date of completion and the nature of construction. The court below has failed to approach the question of age of the tenanted accommodation from a right angle and has misdirected itself in determining the same by adopting a totally wrong approach. The statutory guideline, as adumbrated under Section 2(2) read with explanation 1 of the Act No. XIII of 1972 has been wholly overlooked and legal position that the burden which lay on the landlord has not been appreciated. The finding recorded by the trial court is not only speculative in nature but scrappy and jumpy. Even otherwise, the tenant-revisionist did take steps to bring on record the extract from the municipal assessment register. She applied for a certified copy of the relevant extract from the municipal assessment register but it was not supplied to her on the ground that such a copy can be issued only to the landlord. The tenant-revisionist then moved an application before the trial court with the prayer that the original assessment resister may be summoned from the Cantonment Board. This application is dated 27.9.1995 on the record of the lower court. The relevant document which was highly germane for the determination of the controversy was not summoned by the trial court. It appears that the trial court was swayed away with the consideration that the question of the age of the tenanted accommodation may be gauged or decided with reference to the oral evidence of the parties. The ipsi dixit approach adopted by the trial court cannot but be condemned. The approach adopted by the court below is wholly against the statutory provisions and in violation of the guidelines laid down by the apex court as well as this court with regard to the burden of proof of the fact as to when the tenanted accommodation came into existence. At the cost of tautology, it may be made clear that the burden of proof clearly lay on the landlord to establish that the provisions of the Act No. XIII of 1972 are not applicable to the accommodation, in question and consequently, he is not required to establish one or more of the grounds contained under Section 20(2) of the Act No. XIII of 1972. The landlord could discharge the burden or establish the fact by bringing on record the municipal assessment extract or to lead other evidence as is contemplated under Section 2(2) read with explanation 1 of the Act No. XIII of 1972. It was not difficult for him to have obtained the copy of the assessment register if he was sure enough that he will get the benefit of the exemption from the provisions of Act No. XIII of 1972. Since I am going to remit the case for taking evidence on the point and to decide the controversy afresh, I would do better to refrain from making any further comments on the point, lest either of the parties any unnecessarily be prejudiced by the observations of this court.
9. Sri R.N Bhalla, Senior Advocate appeared to be of the view that this court exercising the revisional powers under Section 25 of the Provincial Small Causes Courts Act cannot lightly brush aside the finding of fact recorded by the trial court. To fortify his submission, Shri Bhalla placed reliance on the decision of this court is Laxmi Kishore v. Har Prasad Shukla . 1979 A.W.C 747., in which it was observed that the court deciding revision under Section 25 of the Provincial Small Causes Courts Act has to satisfy itself that the trial court's decree or order is according to law. It is true that a revisional court should keep in mind Hon'ble Supreme Court's dictum in Malini Ayyappa Naicker v. Seth Manghraj Udhavdas Firm . AIR 1969 S.C 1344., that a wrong decision on fact is also a decision according to law. Therefore, Sri Bhalla was of the view that even if the trial court has recorded a wrong finding and has taken a wrong view of the matter about the age of the tenanted accommodation, the wrong finding would also be a decision according to law and, therefore, it enjoys the immunity from interference by the revisional court. With due deference to the submission made by Sri Bhalla, I do not feel persuaded to agree with him. The question whether the provisions of the Act No. XIII of 1972 apply to the tenanted accommodation or not is a jurisdictional fact and goes to the very root of the matter. If the trial court has arrived at a particular conclusion without following the parameters or the guidelines laid down in Section 2(2) and Explanation 1 thereof of the Act No. XIII of 1972, or against the interpretation of the said provision, this court exercising revisional powers would not sit idle or be lethargic in the matter but would certainly step-into correct the jurisdictional error. The decision in the case of Laxmi Kishore (supra) relied upon by Sri Bhalla, if read in its entirety, may not supprt his contention. In the said decision, it has further been laid down that if it is found that a particular finding of fact is vitiated by an error of law, the revisional court has power to pass such order as the justice of the case requires; but it has no jurisdiction to reassess or reappraise evidence in order to determine an issue of fact for itself. If it cannot dispose of the case adequately without a finding on a particular issue of fact, it should send the case back after laying down proper guidelines. It cannot enter into the evidence, assess it and determine an issue of fact. A reference was also made to the decision of this court dated 11.1.2000 in Civil Misc. Writ No. 15447 of 1981 T.S Bajpai v. Ist Addl. District Judge Allahabad. In the said decision, this court did not approve the setting aside of the finding of the trial court by the appellate court and relying upon the decision in Laxmi Kishore's case (supra) allowed the writ petition and quashed the impugned order passed by the revisional court with the direction that the trial court shall, however, decide the matter afresh, keeping in view the observations made by the revisional court and in accordance with law. The said decision does not squarely applies to the facts of the present case. What is meant from a reading of the plethora of decisions on the point, it is clear that the revisional court should not embark upon de-novo examination of the finding of a fact recorded by the trial court. It has been rightly held that the revisional court is not empowered to look into the evidence of the case and to decide whether a finding of fact arrived at by the trial court is justified by the evidence on record or not.
10. The controversy whether a particular accommodation is to be governed by the provisions of Act No. XIII of 1972 or it is excepted from the operation of the said Act is a mixed question of law and facts. As stated above, the basic question with regard to the applicability of the Act has to be determined with reference to the provisions of Section 2(2) read with explanation 1 of the U.P Act. No. XIII of 1972 and no amount of oral evidence or admission of either of the parties would be sufficient to displace the entry made in the municipal record with regard to the tenanted accommodation. In the instant case, the tenanted accommodation is located within the cantonment area and surely there must be a record of the first assessment of the house in question. The crucial question could be determined by taking on record the entries made in the assessment register maintained by the Cantonment Board. The trial court has palpably committed a serious error by not requiring the landlord to produce the copy of the assessment register or by summoning the said document, if for certain reasons, copy thereof was not available. The landlord also did not take any steps in this regard in spite of the fact that the burden of proof lay squarely on him to establish that the disputed construction came into being within a period of ten years reckoned from before the date of the institution of the suit. It is, therefore, not the question of appraising or re-appraising by the revisional court the evidence recorded by the court below. As noticed above, the revisional court is duty bound to correct the apparent and glaring mistake committed by the court below and if the decision of the trial court is apparently against the law, or say, not according to law, in that event, the revisional court has to set aside the order. Therefore, the contention of Sri R.N Bhalla, Senior Advocate that this court exercising revisional powers cannot interfere with the finding of fact recorded by the court below does not go too far. The decision is required to be set aside as it is not according to law.
11. I am conscious of the fact that ordinarily, higher court should refrain from remanding the case to the lower court as it results in further consumption of time. But there may be some exceptional cases, like the present one, where the controversy cannot be decided without remanding the case as this court would be chary enough to permit the parties to lead evidence in the revisional proceedings. For the determination of the controversy, in hand, the matter, of necessity, has to be sent back to the trial court. It would not be proper for this court exercising the revisional jurisdiction to summon the documents and then to record evidence. This course would be expedient as it will be open both to the landlord as well as tenant to produce better municipal evidence in the light of what has been indicated above.
12. In the result, for the reasons mentioned above, the revision application is allowed and the impugned judgment and decree dated 31.3.1998 passed by 5th Additional District Judge, Mathura in S.C.C Suit No. 17 of 1989 are hereby set aside. The case is remanded to the court below for decision afresh according to law in the light of the observations made in the body of this decision. In view of the fact that the case was instituted about 12 years back, the trial court, subject to active co-operation and regular participation of the parties, will decide the same with all expedition, preferably within four months. The parties are directed to appear before the trial court on 3.4.2001
13. The Deputy Registrar concerned of the Registry of this court shall ensure that the original record of the case along with a copy of this judgment is returned so that it may reach the trial court before the date specified above.
Revision Allowed.