MT JANAK DULARI Vs. BISHAMBHER NATH

JUDGEMENT

(1.) This appeal is connected with Second Appeal No. 309 of 1928. Both the appeals are by defendant and arise out of two suits for profits filed in the revenue Court under Section 164, Agra Ten. Act, Act 2 of 1901. The trial Court ultimately passed decrees in both the suits in the plaintiff's favour on 8 March 1927. Both the suits were valued at more than Rs. 100 but at less than Rs. 200. On the date of the institution of the suit the old Agra Tenancy Act, (Act 2 of 1901) was in force but on the date of the decision by the Assistant Collector, the New Agra Tenancy Act (Act 3 of 1926) had come into force. By the former Tenancy Act an appeal was allowed to the District Judge against the decree of an Assistant Collector of the first class in any of the suits included in Group A and Group B of that Act in which the amount of the value of the subject matter exceeded Rs. 100. A suit for profits under Section 164 was included in Group B of that Act and as such an appeal against a decree in such suit, the valuation of which exceeds Rs. 100, lay to the District Judge under the old Act.

(2.) By the new Act an appeal in a suit for profits against the decree of an Assistant Collector of the first class is allowed in the Court of the District Judge, provided the amount of value of the subject matter of the suit exceeds Rs. 200.

(3.) It would thus appear that if the right of appeal was governed by the present Tenancy Act, the defendant had no right to appeal against the decrees of the Assistant Collector in the suits giving rise to the present appeal in the Court of the District Judge. But if the right of appeal is governed by the old Act, the defendant had undoubtedly a right of appeal. The learned District Judge on appeal by the defendant held that inasmuch as the decree of the Assistant Collector appealed against was passed after the coming into force of the present Tenancy Act, the right of appeal must be governed by that Act, and inasmuch as the valuation of the suits did not exceed Rs. 200, he was not competent to entertain the appeals. Holding this view he dismissed the appeals filed by the defendant. The learned Counsel for the defendant-appellant assails the decree of the learned District Judge on the ground that he was wrong in holding that the appeals filed by the defendant were not governed by the former Tenancy Act. This contention of the learned Counsel is well founded and is supported by the recent Full Bench decision of this Court reported in Rama Singha V/s. Shankar Dayal . It was held in that case that a suit which was instituted before the coming into force of the new Act but was decided after it had come into operation, was in the matter of appeals, governed by the old Act. Accordingly I hold that the learned District Judge was competent to entertain and hear the appeals, and the view of the law taken by him is erroneous. The learned Counsel for the respondents has not supported the decree of the District Judge on the ground that no appeal lay to him, but his contention before me is that the decree of the learned District Judge dismissing the appeals filed by the defendant should be upheld on the ground that the appeals filed by the defendant were filed beyond the expiry of the period of limitation. His argument is that though the right of appeal is a substantive right, no one has a vested right in a period of limitation and he argues that the Indian Limitation Act not having been made applicable to suits and proceedings under the new Agra Tenancy Act, Act 3 of 1926, the defendant is not entitled, in the computation of the period of limitation for filing an appeal to the exclusion of the time taken in obtaining certified copies of the judgment and decree of the learned Assistant Collector. In support of this contention he has placed reliance on the decision of Baijnath V/s. Doolarey Hajjam . It was held in that case that the rules of limitation are prima facie rules of procedure and that rules applicable to an appeal must be rules of limitation which are in force at the time when the appeal is filed. He has also placed reliance on Section 231, Agra Tenancy Act, and has argued that the provisions of that section lead to the conclusion that no section of the Indian Limitation Act except Section 5 of that Act has been made applicable to suits and proceedings under the Tenancy Act.