KHUDIRAM KUNDU Vs. SURENDRA MOHAN CHAKRABURTY

JUDGEMENT

(1.) THE petitioner in this rule is defendant 2. A suit was brought against two defendants by the plaintiff opposite party 1 in the Baliaghata Union Court, District Bogra, being Suit No. 110 of 1933. On the allegations made in the petition, the suit appeared to be one for recovery of arrears of rent which Under Section 75, Bengal Village Self-Government Act, would not lie in a Union Court. On 12 November 1933, before the suit was actually brought, to a hearing, the petitioner, defendant 2, made an application Under Section 81 of the Act for time in order to move the petition for transfer. But the Union Court refused the application on the ground that it was objected to by defendant 1 because he being a poor man would not be able to conduct the case at Bogra. THEreafter the Union Court decreed the suit. THE petitioner filed a motion before the District Judge, but it was summarily rejected. It is contended for the opposite party in this Court that the present application Under Section 115, Civil P.C., and Section 107, Government of India Act, would not lie because by Section 93, Bengal Village Self-Government Act, the provisions of the Civil Procedure Code, would not apply to any suit before the Union Court. This provision however does not affect the powers of the High Court as derived from Section 115, Civil P.C., and Section 107, Government of India Act.

(2.) ON the merits of the application it does not appear that the learned Judge at all considered the question whether there was any failure of justice. Under Sec. 81 of the Act, the Union Court was bound to give defendant 2 an opportunity to move the application for transfer inspite of the objection of defendant 1. In these circumstances, the rule must be made absolute, the orders complained against must be vacated, and the suit will be transferred to the Court of the Munsif at Bogra for trial. The petitioner will get his costs of this rule, hearing fee one gold mohur.