AUSERI LAL Vs. MULLHAN

JUDGEMENT

(1.) THE plaintiff obtained a lease of some grass land, situated in the Cawnpore cantonment, from the cantonment committee. He sub-let that land for grazing purposes to another person at a fixed rate per cattle. THE present suit was filed by him for the recovery of the rent payable by the latter. THE suit was clearly one for the rent of the grazing area let to the defendant; and it was excluded from the cognizance of the Small Cause Court by Clause (8) of Schedule II of the Provincial Small Cause Courts Act (No. IX of 1887). It was not a suit for the recovery of the price of grass sold to be cut, and the decision in B. and N.-W. Railway V/s. Bandhu Singh (1909) I.L.R. 31 All. 342 does not, therefore, apply, nor was it a suit for the recovery of the rent of land situated in a mahal and let for grazing purposes, and the decision in Manohar Lal V/s. Gauri (1913) 12 A.L.J. 36 is equally inapplicable. THE defendant was entitled to use the land and the grass growing on it for grazing purposes during the period for which the lease was granted; and the order of the court below returning the plaint cannot, therefore, be sustained. THE present application in revision is not directed solely against the erroneous order of the appellate court upholding the order of the Munsif. It is also directed against the order of the Munsif returning the plaint for presentation to the proper court; and, as pointed out in Chandu Lal V/s. Koka Mal (1920) I.L.R. 43 All. 334, a refusal of a court to exercise the jurisdiction vested in it by law can legitimately form the subject of revision. THE application is, therefore, allowed and the orders passed by the courts below are set aside with a direction to the court of first instance to restore the suit to its original number and to proceed with its hearing in the manner provided by the law. THE costs here and hitherto will abide the result.