S.K. Ghose, J.
1. The petitioner in this case instituted a civil suit before the Union Bench Court making a claim of Rupees 136-12-9 against the opposite party. On 7th May 1933 the case came on for hearing, but the opposite party applied for time on the ground of ill-health. This was refused by the Union Court and the trial of the suit was proceeded with. Three witnesses for the plaintiff were examined and cross-examined. Thereafter, the Union Court fixed 21st May 1933 for further hearing. On that date the opposite party appeared and stated that he had no witness to examine. On the same day the Union Court decreed the suit. Meanwhile, on 12th May 1933, after the conclusion of the examination of the plaintiff's witnesses, the opposite party made an application before the local Munsiff for the transfer of the suit and the learned Munsiff made an order calling for the record of the suit from the Union Court. But apparently, this order did not reach the Union Court before it delivered judgment as mentioned already. It also does not appear that the opposite party intimated to the Union Court that an application as aforesaid had been made to the Munsiff. Thereafter, the opposite party moved the District Judge of 24 Parganas to have the decree of the Union Court vacated and to have the suit re-tried in the Court of the Munsiff. On 26th August 1933, the learned Judge made an order in favour of the opposite party whereupon the plaintiff filed this application under Section 115, Civil P.C., and under Section 107, Government of India Act. Under Section 88, Bengal Village Self Government Act 1919, a District Judge may make an order, such as has been made by the learned Judge in this case, if he is satisfied that there has been a failure of justice. In his order the learned Judge does not say that there has been a failure of justice, and it seems to me to be doubtful whether the learned Judge at all directed his mind to this aspect of the question. On the facts as they appear, no case of failure of justice has been made out, since the case was decided upon the evidence in a Court of competent jurisdiction. Under Section 74, of the Act, the Union Court has concurrent jurisdiction with the Court of the Munsiff; but the Munsiff has the power to withdraw the suit on the application of the defendant made in accordance with the provisions of Section 81. According to the latter section, if before the commencement of the hearing of the suit, the defendant notifies to the Union Court that he intends to apply, that Court shall postpone the trial. It is necessary therefore that an intimation to the Union Court be given before the commencement of the hearing of the suit. This is the express provision of the Act and it is in accordance with the principles of Sections 21 and 22, Civil P.C. The opposite party in a counter-affidavit states that on 7th May he did intimate to the Union Court that he intended to apply to the Munsiff. This statement appears to be false, because it is in conflict with his own application which was filed before the Union Court on that date in which he merely stated that he wanted an adjournment on the ground of illness. He appears to have been present before the Union Court throughout the trial and apparently took the chance of getting a decision in his favour. On the facts stated above, the application for transfer before the Munsiff was not in accordance with Section 81 of the Act nor was the order of the learned Judge made in accordance with S, 88 of the Act.
2. In this view, the Rule must be made absolute. The order of the learned Judge complained of must be vacated and the decree of the Union Court must stand confirmed. The petitioner will get his costs: hearing fee two gold mohurs.