B SARJU SINGH Vs. BHARAKH CHAND

JUDGEMENT

(1.) This is a reference made by the District Judge of Azamgarh under Section 267 (Clause 2), Agra Tenancy Act, Act 3 of 1926. The facts are as follows:

(2.) A suit was brought by the opposite-party, Babu Harakh Chand and others against Babu Sarju Singh for arrears of rent in the Court of an Assistant Collector of the first class when the old Tenancy Act; viz., 2 of 1901, was in force. The suit was valued at Rs. 109. The defendants did not appear to contest the suit, and the plaintiffs suit was decreed ex parte. This was prior to the coming into force of the new Agra Tenancy Act. It is clear that on the date the ex parte decree was passed an appeal against the decision of the Assistant Collector could lie only in the Court of the District Judge. Sarju Singh did not appeal against that decree. He filed an application for the setting aside of the ex parte decree, and for the restoration of the suit under Order 9, Rule 13, Civil P.C. That application was rejected by the learned Assistant Collector of the first class on 21 October, 1926. The present Tenancy Act had in the meanwhile, on 7 September 1926, come into force. Sarju Singh filed an appeal against the order of the Asst. Collector in the Court of the Collector.

(3.) The learned Collector was of opinion that the appeal against the order rejecting the application for restoration of the suit lay in the Court of the District Judge and not in his Court, and accordingly directed the memorandum of appeal to be returned for presentation to the proper Court. Sarju Singh then presented the memorandum of appeal in the Court of the District Judge. The District Judge was of opinion that the appeal should be preferred to the Collector, and as such ordered the memorandum of appeal to be returned for presentation in the Court of the Collector. Thereupon Sarju Singh applied under Section 267 of the present Agra Tenancy Act for the matter to be referred for decision by this Co urt, and accordingly the present reference has been made.