Hon’ble Sudhir Agarwal, J.—Heard Sri P.K. Jain, learned Senior Advocate for the petitioner and Sri Vishal Tandon, learned counsel for the respondent.

2. This writ petition is directed against the order dated 28.5.2003 (Annexure-7 to the writ petition) passed by Additional District Judge, Court No. 7, Muzaffar Nagar allowing respondent-tenant’s revision and setting aside Trial Court’s judgment dated 12.10.1998, whereby petitioner’s suit was decreed by Trial Court. The Revisional Court has remanded the matter to Trial Court.

3. The dispute relates to a shop of which petitioner is landlord and it was in the tenancy of respondent, Ashok Kumar Kaushik on a monthly rent of Rs. 600/- including water tax. The case set up by petitioner is that it was a new shop constructed in 1985 and onwards and first assessed by local municipal board for house tax in 1991, i.e., w.e.f. 1.4.1991. Accordingly it was a new construction which was completed in 1991 in terms of Section 2(2) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the “Act, 1972”), therefore, Act, 1972 was not attracted to the shop in question when landlord filed SCC Suit No. 71 of 1991 after determining tenancy of respondent by notice dated 11.4.1991. It was pleaded that the map for construction of shop in question was submitted with Nagar Palika, Shamli on 20.5.1985 and it was registered in the municipal record for assessment of house tax w.e.f. 1.4.1991 though otherwise civil construction was over in 1988.

4. This suit was contested by respondent-tenant on the ground that shop is an old one and governed by the provisions of Act, 1972.

5. The Trial Court decided the suit vide judgment dated 12.10.1998 upholding the case set up by petitioner-landlord that it was a new construction which was completed in 1991 when for the assessment it was registered in Nagar Palika Shamli on 18.1.1991 and, therefore, Act, 1972 was inapplicable to the shop in question, at the time when suit was filed. It held that tenancy rights are governed by common law statutes and tenancy having been determined by landlord by issuing a valid notice, the defendant was liable to vacate the shop. The Trial Court accordingly decreed the suit with further direction for payment of arrears of rent.

6. The respondent took up the matter in SCC Revision No. 94 of 1998 observing that landlord having not been able to prove, when he informed, for the first time, Nagar Palika, Shamli, about construction and completion of shop, and, the mere fact that it was assessed w.e.f. 1.4.1991 by itself would not be sufficient to show that it was recorded or reported by local municipal board in 1991, for the first time. The onus lie upon landlord, hence the finding recorded by Trial Court about inapplicability of Act, 1972 cannot sustain and the matter requires reconsideration, hence by means of impugned order dated 28.5.2003 the Revisional Court remanded the matter so as to decided by Trial Court, afresh.

7. Sri P.K. Jain, Senior Advocate, for the petitioner, contended that the mere fact that landlord could not inform as to on which date he submitted application before Nagar Palika Shamli for initiation of assessment proceedings, would not mean that the first assessment made in 1991 would be of no consequence. In absence of any evidence otherwise shown by tenant, the Revisional Court clearly misdirected itself by remanding the matter to Trial Court though on the basis of available evidence, it has already recorded a finding of fact. There was no reason or justification for Revisional Court to interfere therewith and it has exceeded with its revisional jurisdiction.

8. Sri Tandon, learned counsel appearing for respondent-tenant, on the contrary, has defended the judgment for the reasons stated therein.

9. So far as this Court is concerned, I have no manner of doubt that the onus to prove that Act, 1972 is inapplicable to a building, initially lie upon the landlord. While co