Iqbal Ahmad, J.
1. This is an application in revision against a decree passed by the Small Cause Court Judge of Cawnpore. The suit was brought by the plaintiff opposite-party for recovering of an unsecured loan from the defendants. The defendants contested the suit inter alia on the ground that the learned Small Cause Court Judge of Cawnpore had no jurisdiction to try the suit. This contention of the defendants was inter alia based on the provision of Section 7, U.P. Agriculturists' Relief Act, which provides that notwith. standing anything contained in any other enactment for the time being in force, every suit for recovering an unsecured loan in which the defendant, or, where there are several defendants, any of the defendants, is an agriculturist, shall be instituted and tried in a Court within the local limits of whose jurisdiction the agriculturist defendant, or any of the agriculturist defendants, actually and voluntarily resides. It is unnecessary to notice the other provisions of Section 7. The defendants contended that as they were agriculturists and were residents of Barabanki district, the Court at Cawnpore had no jurisdiction to try the suit. The learned Small Cause Court Judge repelled this contention of the defendants with the following observation:
The defendants, no doubt, reside at Aliabad (Barabanki) and have some agricultural holding there. But it is also a fact admitted by defendant 2 and also by his witnesses that they have been doing business at the place. As such the defendants are not entitled to claim the benefit allowed to agriculturists by the new debt legislation. For all practical purposes they are to be treated as traders and not as tenants.
2. The fact that the defendants carried on some business in Cawnpore or did some trade could not affect the mandatory provisions of Section 7, Agriculturists' Relief Act. The cardinal question for the decision of the point of jurisdiction raised by the defendants was, where did the defendants actually and voluntarily reside. On this point there was no conflict of testimony and it was admitted on all hands that the defendants who were agriculturists were residents of Barabanki district. The learned Small Cause Court Judge of Cawnpore had therefore no jurisdiction to try the suit. The learned Counsel for the opposite party has placed reliance on Section 3, Agriculturists' Relief Act, and has contended that the defendants ought to have, in accordance with the provisions of that section, asked the learned Small Cause Court Judge to fix instalments. Section 3 has in my judgment no application to the case. When the defendants questioned the jurisdiction of the Court below to try the suit, it was unnecessary for them to invoke before that very Court the benefit of the provisions of Section 3 of the Act.
3. As the learned Judge of the Court below had no jurisdiction to try the suit, I must set aside the decree passed by him. Accordingly I set aside the decree sought to be revised and direct that the record be sent back to the learned Small Cause Court Judge of Cawnpore with the direction to return the plaint to the plaintiff for presentation to the proper Court. The defendant-applicants are entitled to their costs both here and in the Court below.