The Court affirmed that a Revisional Court may not remand a case if sufficient evidence exists to decide the matter, and the dismissal of a prior suit does not invoke res judicata if not decided on merits.

JUDGMENT :

Saral Srivastava, J.

Heard Sri Ashish Agrawal, learned counsel for the petitioners, and Sri Arvind Srivastava, learned counsel for the respondents.

2. The petitioners through the present writ petition have prayed for setting aside the order dated 3.8.2013 passed by the Additional District Judge, Court No. 3, Etawah in S.C.C. Revision No. 1 of 2013 (Abdul Gaffar v. Smt. Sita Gupta and others) by which the revision filed by respondent No. 2-Abdul Gaffar was allowed. The Revisional Court remanded the matter to the Trial Court.

3. The facts in brief are that two shops bearing Municipal No. 168-A/1 and 168-A/2 are situated in Mohalla Sabitganj, Etawah. Later on, the number of the shops mentioned above has been changed by the Nagar Nigam. Shop No. 168-A/1 was numbered 168 and Shop No. 168-A/2 was allotted No. 168-A by Nagar Palika (hereinafter referred to as 'suit property'). One Sone Lal S/o Bhure Lal Vishwakarma was the owner of the suit property. He took a loan from U.P. Financial Corporation, Kanpur (hereinafter referred to as 'U.P.F.C.'). Since he could not repay the loan taken from U.P.F.C., therefore, U.P.F.C. to recover the loan amount, put the suit property into auction on 18.11.1978 in which one Vinay Kumar Gupta was the highest bidder, and the suit property was auctioned to him.

4. Consequent to the auction of the suit property to Vinay Kumar Gupta, the U.P.F.C. issued the sale certificate on 24.2.1979 in respect of the suit property. The suit property was in possession of one Abdul Gaffar. The auction purchaser-Vinay Kumar Gupta instituted Original Suit No. 6 of 1982 against the State of U.P. and Sone Lal Sharma (the then owner of suit property) praying for a decree of possession.

5. In the said suit, Abdul Gaffar filed an impleadment application on the ground that since he was in possession of the suit property, therefore, any decree passed in Original Suit No. 6 of 1982 would prejudice the rights of Abdul Gaffar. The said impleadment application of Abdul Gaffar was allowed by the Trial Court. However, the Original Suit No. 6 of 1982 was later on dismissed in default.

6. According to petitioners, the suit property was purchased by one Shrawan Kumar Gupta, husband of petitioner No. 1 and father of petitioner Nos. 2 and 3 by sale-deed dated 23.4.1992. After purchasing the suit property, Shrawan Kumar Gupta instituted S.C.C. Suit No. 40 of 1992 against Abdul Gaffar praying for a decree of eviction and recovery of arrears of rent. Shrawan Kumar Gupta died during the pendency of the aforesaid suit and after his death, petitioners being heirs of Shrawan Kumar Gupta were substituted as plaintiffs in the aforesaid suit.

7. The case of the petitioners in the suit was that Abdul Gaffar was the tenant of the suit property and after the purchase of the suit property by Vinay Kumar Gupta in an auction by U.P.F.C., Abdul Gaffar did not pay the rent since 18.11.1978. It is further pleaded that the plaintiff sent a registered notice dated 28.10.1992 to Abdul Gaffar terminating the tenancy, but he refused to accept the said notice. In the aforesaid backdrop, the petitioners/plaintiff have prayed for the aforesaid relief in the suit.

8. The S.C.C. Suit No. 40 of 1992 was contested by Abdul Gaffar by filing a written statement wherein he admitted in paragraph 9 of the written statement that he was a tenant of the erstwhile owner of the suit property Sone Lal Sharma on a rent of Rs. 15/- per month since 1976. He denied the title of the petitioners over the suit property on the ground that since the suit property was a Waqf Property and Case No. 91 of 1995 (Shrawan Kumar v. U.P. Sunni Central Board) in this respect was pending in the Court of Civil Judge (Senior Division), Etawah which was later on transferred to the Court of Chief Judicial Magistrate-III in which Abdul Gaffar had also applied impleadment and until the Original Suit No. 91 of 1995 is decided, the present case i.e. S.C.C. Suit No. 40 of 1992 may be stayed.

9. It is further