BISHESHWAR PRASAD GAUTAM Vs. R K AGARWAL

JUDGEMENT

(1.) THIS is a defendants' appeal. It arises out of a suit for ejectment and arrears of repairs and damages, instituted in the court of Munsif, Allahabad. The suit was valued at less than Rs. 2,000.00. Before evidence in the suit could begin the U. P. Civil Laws Amendment Act, 1972 came into force. Under it suits for ejectment and recovery of arrears of rent and damages became small causes in nature. Section 9 of the Act provided for the transfer of such suits pending in regular courts to the court of small causes provided the recording of evidence had not begun. In the present case the recording of evidence commenced after the coming into force of the Amending Act. No objection that the suit should be transferred and heard by the court of small causes was in fact taken during the trial of the suit. The trial proceeded in the court of Munsif and ultimately the suit was decreed. Aggrieved, the defendant went up in appeal. The learned District Judge repelled the various submissions raised in support of it and dismissed it. The defendant then filed a second appeal in this Court.

(2.) AT the hearing of the second appeal a preliminary objection was taken on behalf of the respondent that no second appeal lay in view of Section 102 of the Code of Civil Procedure. The learned Single Judge, however, heard the appeal on the question that the decree passed by the trial Court was without jurisdiction and a nullity. He found that conflicting inferences could be drawn from different Full Bench decisions of this Court, and in view of the importance of the question involved in the context of the new Civil Laws Amendment Act, 1972, it was a fit case in which the appeal should be heard by a larger Full Bench, the learned Judge referred the appeal itself to a larger Bench. That is how the appeal has come up before this Full Bench.

(3.) SECTION 102 of the Code of Civil Procedure provides-