1. This is an application in-revision directed against an order of the learned Additional Civil Judge of Moradabad by which he remanded the case to the Court of the learned Additional Munsif for trial according to law.
2. One Lala Jagannath brought a suit against two persons, Lala Narotam Dass and Lala Banshidhar, for recovery of a sum of Rs. 1070-6-. Banshidhar is a co-sharer in a village of, hich Narotam is the Lamberdar. Jagannath obtained a decree against Banshidhar and in execution thereof he purchased the profits due to Banshidhar from Narotam Das, as the Lamberdar of the Mohal for a period of three years. He then' brought the suit which has given rise to the present proceedings, in the Court of the Additional Munsif of Amroha, for the recovery of the profits for the period in question.
3. The suit was resisted on a variety' of ' grounds, but principally on the ground that the civil Court had no jurisdiction, as it was a suit by an assignee of a cosharer for profits and fell within the purview of Section 230, U. P. Tenancy Act (No. 17 [XVII]. of 1939).
4. The learned Additional Munsif gave effect to the plea of jurisdiction and returned the plaint for presentation to the proper Court. On appeal the learned Additional Civil Judge held otherwise and remanded the case to the Court of first instance. An application in revision against this order was presented to this Court.
5. A preliminary objection is taken to the hearing of this application on the ground that Clauses (2) and (3) of Section 291 constitute a bar to this-application in revision. This case came up originally before a learned Single Judge and he, by his order of 22-9-1945, referred it to a Division Bench. It is to be regretted that this preliminary objection was not taken by the opposite party before him. Be that as it may, as it is an objection which goes to the very root of the matter, we are bound to entertain it.
6. Section 291(2), U.P. Tenancy Act, is in these terms:
If the appellate Court has not before it all such materials, and remands the case, or framed issues and refers them for trial, or requires additional evidence to be taken, it may direct its order either to the Court in which the suit was instituted, or to such Court as it may declare to be competent to try the same.
7. Sub-clause (3) gays:
No objection shall be taken or raised in appeal or otherwise to any such order on the ground that it has been directed to a Court not competent to try the suit.
8. It is obvious that no appeal lies against this order. Even before the present Tenancy Act, the view of this Court, based on Section 269 of Act 8 III. of 1926, was that no appeal lay against an order of remand vile Rameshwar Dayal v. Om Prakash : AIR1932All40 and Baldeo Gir v. Beni Madho : AIR1931All415 .
9. The learned Counsel for the applicant, however, argues that what was or is prohibited is an appeal and there is nothing in the Act to prevent us from treating the appeal as an application in revision.
10. It appears to us that this argument loses sight of the emphatic nature of the prohibition contained in Sub-clause (3) of Section 291. It is not only an appeal which is prohibited, but every other proceeding calculated to challenge the propriety of the order of remand. The section says : 'No objection shall be taken or raised in appeal or otherwise.' If the intention of the Legislature was that the propriety of the order of remand should not be questioned, it is not for us to circumvent the effect of the prohibition by holding that, although an appeal did not lie, the order could be challenged by means of an application in revision. The law was laid down so far back as the year 1901 by their Lordships of the Judicial Committee in Ghulam Khan v. Muhammad Hassan ('02) 29 Cal. 167. They were dealing with an application in revision against an order passed in terms of an award. Section 622, Civil P.C. the Act of 1882, like the present Code of Civil Procedure, forbade an appeal in these terms:
No appeal shall lie from such decree except in so far as the decree is in excess of or not in accordance with the award.
11. The question was whether the decree could be challenged by means of an application in revision. At page 185 Lord Machaghten, delivering the judgment of the Board, observed as follows:
Their Lordships are inclined to agree with the view of Clark J., in Jhangi Ram v. Mt. Pudho Bai ('01) 84 P.R. 1901 that in the case of an award revision would be more objectionable than an appeal. If an application in revision were admissible in a case like the present, the finality of any award would be open to question. Their Lordships, however, are of opinion that suoh an application is incompetent.
12. The point came up for consideration before a Bench of the Oudh Chief Court in Nihal Singh v. Ganesh Dass Ram Gopal 0044/1936 The learned Judges had before them a case under the U.P. Agriculturists' Relief Act. Section 5 of that Act provides:
If, on the application of the judgment-debtor the Court refuses to grant instalments, or grants a number of period of instalments which the judgment-debtor considers to be inadequate, its order shall be appealable to the Court to which the Court passing the order is immediately subordinate and the decision of the appellate Court shall be final.
Following the case in Ghulam Khan v. Muhammad Hassan ('02) 29 Cal. 167 they said:
If an application in revision were admissible in a case like the present it would clearly frustrate the intention of the Legislature that the decision of the appellate Court is to be final.
13. Mr. Haksar, the learned Counsel for the applicant, who has argued the case with ability and fairness, has tried to meet the preliminary objection by taking his stand on Ram Iqbal Rai v. Telesari Kuari : AIR1930All713 and Nizakat Ali v. Shaukat Hussain : AIR1943All300 .
14. The case in Ram Iqbal Rai v. Telesari Kuari : AIR1930All713 requires careful consideration, although it must be con, ceded that as pointed out by the learned Counsel for the opposite party, it has no application to the facts of the present case.
15. That was a case under Section 99(1)(b), Agra Tenancy Act of 1926. The present is, on the other hand, a case under Section 230, U.P. Tenancy Act of 1939. The provision of law corresponding to Section 99 of the Act of 1926 in the present Tenancy Act is 183. Suits under Section 99 are mentioned in Group B of the Fourth Schedule. It is serial No. 12. They are suits triable by an Assistant Collector of the first class and an appeal lay to the' Commissioner. Section 230, U.P. Tenancy Act, is to be found in Group A of the Fourth Schedule and is serial No. 14. They are suits triable by an Assistant Collector of the first class and an appeal lies to the civil Court. It is in this background that the Full Bench case has to be studied.
16. It might also be mentioned that Sections 268 and 269 of the Act of 1926 correspond to Sections 290 and 291 of the present Tenancy Act.
17. In Ram Iqbal Rai v. Telesari Kuar : AIR1930All713 an appeal did not lie to the District Judge. It is for this reason that Section 291, Clause (2) and (3) did not come into play at all and did not, therefore, shut out an objection as to jurisdiction in appeal. The key to the problem is furnished by the following observation of Nimatullah J. at page 1243 of the Report:
Sections 268 and 269 are intended to apply to a class of suits which lie on the border line between those clearly cognizable by revenue Court and those cognizable by a civil Court. For such suits a common Court of appeal has been provided for and its order as regards the Court which should try it on remand is made final.
18. The test, therefore, is not the original forum but the appellate forum. If the matter could be taken in appeal to the District Judge and not to the Commissioner, the prohibition as against an objection as to jurisdiction contained in Section 291, U.P. Tenancy Act, will come in full force.
19. The ratio appears to be that if the District Judge had jurisdiction to hear the appeal, the Legislature is prepared to condone even an error of law or the wrongful exercise of that jurisdiction; not so if he had no jurisdiction to hear the appeal at all.
20. The case in Nizakat Ali v. Shaukat Hussain : AIR1943All300 says nothing new. If, however, it were necessary to say so, we might mention that we feel it extremely difficult to share the view of the learned Judge. That was, like the case before us, a case under Section 230, U.P. Tenancy Act. In entertaining the application in revision the learned Judge applied the principle of law laid down in Ram Iqbal Rai v. Telesari Kuari : AIR1930All713 . We have already indicated our reasons for holding that a case under Section 230, U.P. Tenancy Act, does not 'attract the application of the principle laid down in Ram Iqbal Rai v. Telesari Kuari : AIR1930All713 .
21. We are, therefore, of opinion that the preliminary objection must prevail. Accordingly we dismiss this application. In view, however, of the fact that this objection was not raised before the learned single Judge, we pass no order as to costs.