The Court has the power to review an order if it was passed under a mistake, suffers from error apparent on face of the order, or will lead to failure of justice.

( 1 ) THE dispute relates to a shop in House No. S. 9/475-4-A situate in Mohalla Nai Basti Pandeypur District Varanasi of which the contesting respondents are the landlords and the petitioner is the tenant on monthly rent of Rs. 800/ -.

( 2 ) S. C. C. Suit No. 19 of 2001 giving rise to present writ petition was instituted by the respondents herein against the petitioner for recovery of arrears of rent amounting to Rs. 25,000/- for the period 1. 10. 1998 to 31. 3. 2001 damages from 15. 5. 2001 to 2. 7. 2001 amounting to Rs. 1254/- and pendente lite @ Rs. 800/-per month and ejectment of the present petitioner.

( 3 ) IT was pleaded that Ashok Kumar Singh the predecessor in interest of the plaintiff landlords was the owner of the shop in question who let it out to the defendant-petitioner with effect from 26. 10. 1991 under a rent note and Ashok Kumar Singh on having expired the plaintiffs succeeded to the property. The defendant is in arrears since 1. 10. 1998, 31. 3. 2001 and he has failed to pay the rent inspite of notice of demand and ejectment dated 5. 8. 2000. The tenancy was terminated by the registered notice dated 10. 4. 2001 served on 14. 4. 2001 as the provisions of U. P. Act No. 13 of 1972 are not applicable as the building in question is a new construction within the meaning of the said Act.

( 4 ) IN the written statement the landlord has not denied the rate of rent. however, it was pleaded that Late Ashok Kumar Singh had taken a sum of Rs. 25,000/- as advance, who used to record the receipt of the rent in a copy maintained by him and after adjusting the said amount of Rs. 25,000/-, the defendant tenant is not a defaulter. The rent for the month of July 2000 was sent by money order which was not accepted by the landlord.

( 5 ) THE parties led evidence in support of their respective case and the following issues were framed by the Trial Judge :-

1. Whether the defendant is a defaulter? 2. Whether the house in question is a new construction and the provision of U. P. No. 13 of 1972 are not applicable? 3. Relief, if any, to which the plaintiffs may be found entitled?

( 6 ) THE Trial Judge vide judgment and decree dated 31. 3. 2003 dismissed the suit on the finding that there was no default as the defendant has deposited the rent in Case No. 19 of 2001 through tenders and admittedly Ashok Kumar Singh had taken a sum of Rs. 25000/- as advance and no argument was advanced by the parties with respect to default.

( 7 ) UNDER Issue No. 2 it was found that the provisions of U. P. Act No. 13 of 1972 are applicable. To arrive at the finding, the Trial Judge was of the view that part of the building in question was erected earlier and was let out to the tenant in the year 1984 and as such the first assessment dated 26. 7. 1993 in favour of Ashok Kumar Singh of the building in question is of little consequence. The building in question was constructed even prior to 1994 and was let out to the defendant on 1. 6. 1984, as is evident from the photo copy of the agreement between the parties. The suit was dismissed on 31. 3. 2003. On the very next day a review application purporting to be under Order XLVII, Rule 1, C. P. C. read with section 114, C. P. C. was filed on the ground that there is an error apparent on the face of record.

( 8 ) IT was stated in the review application that the fact that the tenancy commenced with effect from 26. 10. 1994 as pleaded by the plaintiffs was admitted by the defendant in his written statement and in the oral deposition as well. The photo copy of the alleged agreement dated 1. 6. 1984 is a forged and fictitious document and could not have been considered or relied upon as it is beyond the pleadings of the defendant. The second ground taken was that the said photostat copy of the agreement is not admissible in evidence and the judgment has been delivered by overlooking written statement and the statement of the defendant. The next ground raised was that building in question is a new co