Skip to content


Zafar HusaIn Vs. Manzoor Husain - Court Judgment

LegalCrystal Citation
SubjectCivil; Tenancy
CourtAllahabad
Decided On
Reported inAIR1943All209
AppellantZafar Husain
RespondentManzoor Husain
Excerpt:
- .....is an application in revision under section 115, civil p.c., against the order of the additional civil judge instructing the munsif to keep this plaint on his file. if this revision had been filed under the u.p. tenancy act, of 1939 it would have been under section 276 which is practically the same as section 115, civil p.c. under section 269, u.p. tenancy act, an appeal will lie to the high court in this case. in my opinion, therefore, no application will lie under section 276 and it is not possible at this stage to interfere with the order of the additional civil judge on a purely technical question, 'which court has jurisdiction'. it will be noted that in section 115 the words 'and in which no appeal lies thereto' are substantially the same as the words in section 276 'and in which.....
Judgment:
ORDER

Plowden, J.

1. This is a revision under Section 276, U.P. Tenancy Act, 1939, against the order of the District Judge of Cawnpore dated 16th July 1941 which held that the plaintiff was a cosharer although not a co-owner of certain property and was, therefore, entitled to bring his suit under Section 226, Agra Tenancy Act of 1926 in the revenue Court. The question for decision was whether the plaintiff should file his suit in the revenue or in the civil Court. The defendant who is lambardar argued that he is a mutwalli and the sole owner of the property and the plaintiff is merely entitled to maintenance. It is difficult to make a distinction between profits in the ordinary sense of the word and maintenance from profits of an estate. Under Section 266, U.P. Tenancy Act, the appeal in this case would lie to the District Judge unless the amount of the subject-matter exceeded Rs. 5000 in which case it would lie to the High Court. Under. Section 269 an appeal would lie to the High Court on any of the grounds specified in Section 100, Civil P.C. Section 100 (c) lays down that 'a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force' is a reason for an appeal in the High Court. It is obvious that if the case is tried by a revenue Court instead of by a civil Court this can be called substantial error or defect in procedure and consequently an appeal lies under Section 269 to the High Court from the appellate decree of the District Judge. This application has been filed under Section 276 as I have already stated. Under this section, the High Court may call for the record of any suit or application which has been decided by any subordinate revenue Court and, in which an appeal lies to the District Judge and in which no appeal lies to the High Court. In my opinion, as an appeal lies to the High Court in this case under Section 269 it was not the intention of the Legislature that an application in revision should also lie to the High Court during the pendency of the suit against the District Judge's decision in which Court the suit should be heard; this can only be decided by the High Court on appeal under Section 269. The application is dismissed. I make no order as to costs in this Court.

2. This application is similar to No. 292 of 1941 which is decided in the same way in the absence of the applicants' pleader who has not given his brief to anybody else. This is an application in revision under Section 115, Civil P.C., against the order of the Additional Civil Judge instructing the Munsif to keep this plaint on his file. If this revision had been filed under the U.P. Tenancy Act, of 1939 it would have been under Section 276 which is practically the same as Section 115, Civil P.C. Under Section 269, U.P. Tenancy Act, an appeal will lie to the High Court in this case. In my opinion, therefore, no application will lie under Section 276 and it is not possible at this stage to interfere with the order of the Additional Civil Judge on a purely technical question, 'which Court has jurisdiction'. It will be noted that in Section 115 the words 'and in which no appeal lies thereto' are substantially the same as the words in Section 276 'and in which an appeal lies to the District Judge and in which no appeal lies to the High Court.' The application is dismissed. I make no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //