Hon’ble D.P. Singh, J.—Heard learned counsel for the parties.

2. This petition is directed against a revisional order dated 5th of October 2007 by which the eviction suit of the respondent landlord has been decreed.

3. The relevant facts are that the respondent landlord is the owner of House No. 65, Khatriyana Mohalla in Jhansi where the petitioners were the tenants of a shop at Rs. 500/- per month. The landlord filed Suit No. 66 of 1997 against the petitioner tenants with the allegation that the disputed premises was built in 1991 where both the petitioners were taken as tenants in 1992 when a rent note was also executed between them. However, the petitioners fell in arrears of rent from January 1997 and neither paid the arrears nor vacated the premises despite notice dated 26.6.1997, therefore, the necessity to file the suit.

4. The petitioner No. 1 did not file his written statement and proceedings against him were taken ex parte vide order dated 28th of January 1998. Petitioner No. 2 filed his written statement, admitting the tenancy but denied that it was a new construction and U.P. Act No. 13 of 1972 were applicable as the building was built about 20 years ago. It was further stated that when the landlord refused to accept the rent, it was sent by money order which was also refused and therefore, rent was deposited under Section 30 of the Act in Misc. Case No. 87 of 1997 and after filing of the suit, it is being deposited in the Court. The service for notice was denied and it was also pleaded that the landlord had taken a premium of Rs. 1.5 lacs when the house was given on rent but no receipt was given.

5. After the parties had led their evidence, the trial Court disbelieved the documentary evidence filed on behalf of the landlord, including the rent note to prove that it was a new construction whereafter it went on to hold that the Act was applicable. It further held that the notice was duly served, but went on to hold that though rent of five months was due, it was tendered to the landlord within 30 days of the notice through money order which was refused and therefore, the tenant was not a defaulter and dismissed the suit.

6. During pendency of the revision, the landlord filed certain more documents in order to prove that the building was newly constructed and not covered by the Act. After relying upon various judgments of the Apex Court and this Court, the Revisional Court held that it had the jurisdiction to examine the question whether the Act did apply to the disputed premises and went on to hold that it was a new construction on the basis of the map, notice, assessment, rent note etc. and after holding that the Act did not apply, on the basis of documents already filed in the trial Court, it decreed the suit and thus this petition.

7. Learned counsel for the petitioner has urged that the Revisional Court could not have set aside the findings of fact based on record returned by the trial Court and at best, he could have remanded the matter for decision afresh. He has relied upon a Single Judge judgment of this Court rendered in the case of Sri Rohit Rastogi v. Vth Addl. District Judge, Gorakhpur, (Civil Misc. Writ Petition No. 37903 of 1998) decided on 14.12.2004 and the judgment of the Apex Court rendered in the case of Mundri Lal v. Sushila Rani (Smt.) and another, 2007 (8) SCC 609.

8. No doubt, normally a Revisional Court is precluded from re-examining a question of fact and taking a contrary view without there being any jurisdictional error involved. In the present case, the question whether it was a new building and Act No. 30 was applicable, is a mixed question of law and fact, as held by the Apex Court in Mundri Lal (supra). The Revisional Court after relying upon the judgment of the Apex Court in the case of Ram Swarup v. Lilawati, 1980 ALJ 651 and two decisions of this Court rendered in the cases of Om Prakash v. Ist Addl. District Judge, Bijnor, 1984 (2) ARC 58 and Bhopal Singh v. VII Addl. Distr