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Jawahir and ors. Vs. Jadu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1949All120
AppellantJawahir and ors.
RespondentJadu
Excerpt:
- - in the explanation, however, it is said that a plea of tenancy which is clearly untenable and intended only to oust the jurisdiction of the civil court shall not be deemed to raise a plea of tenancy......been determined by a court of competent jurisdiction, the civil court shall frame an issue on the plea of tenancy and submit the record to the appropriate revenue court for the decision of that issue. in the explanation, however, it is said that a plea of tenancy which is clearly untenable and intended only to oust the jurisdiction of the civil court shall not be deemed to raise a plea of tenancy. i, however, do not find it necessary to consider that aspect of the matter in the present case. but my view is that inasmuch as a case under section 12, u.p. agriculturists' relief act, 1934, is not a suit but an application, the provisions of section 288, u.p. tenancy act, 1939, which apply only to suits, will not apply.2. it is pointed out on behalf of the applicants that an application.....
Judgment:
ORDER

Harish Chandra, J.

1. This application arises out of an application under Section 12, U.P. Agriculturists' Relief Act, and the point raised is that although the applicants who are opposite parties in the Court below have raised the question that they are tenants of the land in suit, the learned Munsif has refused to refer the issue arising out of that plea for decision to a revenue Court as required by Section 288. U.P. Tenancy Act, 1939. Section 288 requires that in any suit relating to agricultural land instituted in a civil Court in which any question regarding tenant right arises and such question has not previously been determined by a Court of competent jurisdiction, the civil Court shall frame an issue on the plea of tenancy and submit the record to the appropriate revenue Court for the decision of that issue. In the Explanation, however, it is said that a plea of tenancy which is clearly untenable and intended only to oust the jurisdiction of the civil Court shall not be deemed to raise a plea of tenancy. I, however, do not find it necessary to consider that aspect of the matter in the present case. But my view is that inasmuch as a case under Section 12, U.P. Agriculturists' Relief Act, 1934, is not a suit but an application, the provisions of Section 288, U.P. Tenancy Act, 1939, which apply only to suits, will not apply.

2. It is pointed out on behalf of the applicants that an application under Section 12, U.P. Agriculturists' Relief Act, is to all intents and purposes a suit. No doubt, Section 27 of the Act provides that the provisions in the Code of Civil Procedure in regard to suits shall be followed, so far as they can be made applicable to all proceedings under the chapter in which Section 12 occurs. But that would not, in my view, make an application under Section 12 a suit. There are fundamental differences between suits and applications. Among other things the provisions of Section 11, Civil P.C., apply to suits only and I sea on reason why the term suit used in Section 288, U.P. Tenancy Act, 1939, should be given a wide interpretation so as to include applications also.

3. It is pointed out by learned Counsel for the applicants that the term 'plaint' has not been defined in the Code of Civil Procedure and I am referred to the case of Assan and Ors. v. Pathumma and others reported in 22 Mad. 494. On p. 502 the definition of a 'plaint' has been given by the learned Judge and it is pointed out by learned Counsel for the applicants that an application under Section 12, U.P. Agriculturists' Belief Act, would also answer that definition. That may be so. But the use of the term 'application' under Section 12 of that Act, was obviously deliberate and there can be no doubt that the intention of the Legislature was that an application under Section 12 should not be treated as a suit, the reason being that it wanted to provide a somewhat Speedy remedy for the redemption of mortgages contemplated by that section. In my opinion, the provisions of Section 288, U.P. Tenancy Act, 1939, are not applicable to applications under Section 12, U.P. Agriculturists, Relief Act, 1934. The application is accordingly rejected.


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