SYED MOHAMMAD ANIS Vs. IQBAL HUSAIN

JUDGEMENT

(1.) This appeal has been instituted against an order by the Additional Subordinate Judge of Fatehpur directing that a plaint should be returned to the plaintiffs for presentation to the proper Court. The plaintiffs alleged that one Chaudhri Afzal Husain had executed a zare poshgi lease in their favour. Under the terms of this lease they were to pay him a sum of Rs. 35,000 in advance. They wore also to make annual payments and had the right to remain in possession of the property leased for a period of 224 years. They paid the sum of Rs. 35,000. A short time afterwards, Chaudhri Afzal Husain died and was succeeded by the defendants. The defendants according to the plaint denied the validity of the lease and took possession of the property. The plaintiffs therefore claimed the return of the sum of Rs. 35,000 paid by them in advance upon the ground that consideration for the contract had failed. One of the defences taken in the Court below was that the suit should have been instituted in the Revenue Court and that the Civil Court had no jurisdiction to deal with it. The argument was that the suit was in effect one under Section 212, Agra Tenancy Act by a thekedar for compensation for wrongful dispossession by his landlord. Reliance was placed on the provisions of Section 230, Agra Tenancy Act, which lays down that no Court other than a Revenue Court shall take cognizance of any suit based on a cause of action in respect of which adequate relief could be obtained by means of a suit in a Revenue Court. The learned Additional Subordinate Judge accepted the contention of the defendants and passed the order against which this appeal has been filed.

(2.) It is argued before us that the suit as framed was one of which the Civil Court could take cognizance. We have examined the plaint and we find that there is force in this argument. The plaintiffs certainly in the first part of their plaint alleged that the lease was a valid one and denied the validity of a wakfnama executed by Afzal Husain of the property leased at a time prior to the lease. (One of the allegations imputed to the defendants was that they regarded the lease as invalid on account of the existence of the wakf.) After the plaintiffs had recited these facts, however, they stated in para. 11 of the plaint that the defendants denied the validity of the lease and did not admit the plaintiffs to be lessees. They went on to say that the defendants sometimes alleged that the plaintiff was a usufructuary mortgagee and other times alleged that he was a trespasser. They had already stated that they had been dispossessed. Inpara. 12 of their plaint they said that there had been a failure of consideration on account of the facts already alleged by them and they demanded the return of the sum of Rs. 35,000 which had been paid by them in advance. It seems to us that it was clearly the intention of the plaintiffs that for the purposes of their suit they would accept the contention of the defendants that the lease was invalid. When they said that there was a failure of consideration, they necessarily implied that the contract had ceased to have any validity-It had been urged very strongly before us that by framing their suit in this way they are attempting to evade the provisions of Secs.230 and 212, Agra Tenancy Act, and are also attempting to evade the law of limitation which requires under that Act that a suit of the nature contemplated by Section 212 should be instituted within a period of six months from the date of the dispossession. We do not think that there is any force in this argument. It is to be noticed that Section 230, Agra Tenancy Act implies that no suit shall be instituted in a Civil Court upon a cause of action upon which adequate relief could be obtained from a Revenue Court. The cause of action must be the same. A cause of action in our view is the sum of facts and allegations upon the basis of which the plaintiff claims a relief. If the plaintiffs in this suit had claimed a relief under Section 212, Agra Tenancy Act, one of the facts which they would have had to allege and prove was that they were thekadars or in other words that the theka was a valid theka. They had an alternative claim to relief upon the ground that the lease had been repudiated by the other party who had failed to supply the consideration which they had promised to supply.

(3.) It seems to us that the plaintiffs were entitled to say that they did not wish to go to the trouble and expense of proving the validity of the lease when they could accept the repudiation of the lease by the other party and claim on the basis of that repudiation a return of the money which they had paid in consideration of the execution of the lease. The cause of action was a different cause of action and consequently the provisions of Section 230, Agra Tenancy Act, do not apply. In our view this was a suit for the return of consideration paid when the consideration for a contract to be supplied by the other party had failed. This was a suit for the Civil Court and not for the Revenue Court. We consequently set aside the order of the Court below and direct that that Court will proceed with the suit and decide it according to law. The appellants will get the coats of this appeal.