1. With all respect, I do not agree with the opinion of the learned Judge Mr. Bennet, at present a Judge of this Court. The interpretation desired is of Section 242(1)(a), Tenancy Act. It is as follows:
An appeal shall lie to the District Judge from the decree of an Assistant Collector of the first class or a Collector in any of the suits included in group A of Sch. 4 in which (a) the amount or value of the subject-matter exceeds Rs. 200.
2. The learned Judge is of opinion that the subject-matter refers to the subject-matter of the appeal. Ever since 1887, when the Bengal, Agra and Assam Civil Courts Act (12 of 1887) was passed, jurisdiction of different Courts in appeal has been fixed in accordance with the subject-matter of the suit which has been made the criterion, and not the subject-matter of the appeal. The word 'which' must refer to the nearer word 'suits' and not to the further word 'appeal.' If the word 'which' is made to refer to the appeal, Clause (b) of the section will sound very strange. It is sufficient to put the two interpretations side by side to see which is the better and more natural interpretation:
In which suit the rent annually payable by a tenant has been in issue in the Court of first instance, and is in issue in the appeal.' is good drafting, while if we read
In which appeal the rent annually payable by a tenant has been in issue in the Court of first instance, and is in issue in the appeal.
much scope will be left for improvement in drafting. An appellate matter cannot be said to be in issue in the Court of first instance, while a suit matter can be in issue in the Court of first instance. Coining to the proviso, it is definitely stated there that when the amount or value of the subject-matter of the suit exceeds Rs. 5,000, the appeal shall lie to the High Court. The foundation of the jurisdiction of this Court is the subject-matter of the suit. A proviso refers back to make an exception in something that went before and not to make an exception in something totally different that may have preceded. There will also be a conflict of jurisdiction if the interpretation of the learned District Judge is accepted. According to the proviso, where the subject-matter of the suit exceeds Rs. 5,000 an appeal comes to this Court. Taking the instance of an appeal in such a suit of the value of Rs. 2,000, according to the proviso the appeal will lie here, while, according to the interpretation put by the learned Judge on the previous clause, the appeal will lie to the District Judge. When the jurisdiction is divided between the District Court and this Court the principle of division must be the same and not different. Finally, the words of Clause (a) are copied from Clause (a), Section 177, Act 2 of 1901 which were formerly copied from Section 189, Act 12 of 1881. The words have ever since 1881 been interpreted as 'subject-matter of the suit,' and when a particular interpretation has been attached to certain words the same interpretation should be attached to subsequent repealing Acts.
3. The order of the learned Judge returning the petition of appeal is set aside, and he is directed to admit the appeal and decide it according to law.
4. The memorandum of appeal filed here shall be returned to Mr. Panna Lal.
5. I make no order as to costs here. Costs below shall follow the result.