B.N. Nigam, J. - (1.) Smt. Tarawati filed regular suit no. 285 of 1956 in the court of Munsif South Lucknow against Sri Basant Lal Shah seeking a decree for ejectment and arrears of rent. The suit was contested and on the pleadings of the parties the learned Munsif framed the following issues:- 1. Whether the permission was obtained by fraud as alleged ? 2. Whether the A. C. M. II had jurisdiction to give permission to sue for ejectment ? 3. To what relief, if any, is the plaintiff entitled ? He answered issue no. 1 in the negative and issue no. 2 in the affirmative. In the event, he decreed the suit for ejectment and for recovery of Rs. 260/- with costs against the defendant. Against that judgment and decree, the defendant Sri Basant Lal Shah preferred an appeal before the District Judge, Lucknow. This appeal was heard by the learned Civil (II Civil and Sessions) Judge, Lucknow who by his judgment dated 4th March, 1958 dismissed the appeal and maintained the order of the learned Munsif with the modification that he set aside the decree for arrears of rent in consideration of certain deposits having been made under Sec. 7(C) of U.P. Act III of 1947. Now the defendant Sri Basant Lal Shah has come up in second appeal. I have heard the learned counsel for the appellant.
(2.) Only one point has been urged before me. The contention of the learned Counsel is that the Additional City Magistrate II had no jurisdiction to grant any permission. The plaintiff had filed an application for permission to file a suit for ejectment against the defendant-appellant. This application was disposed of by the Rent Control and Eviction Officer, Lucknow, by his order dated 20th August, 1954. The permission was refused. Against that refusal, a revision was preferred to the Commissioner Lucknow Division. This revision was disposed by the Additional Commissioner Rohilkhand-Lucknow Divisions by his order dated 18th January, 1955. The operative portion of the order reads: "I would hence allow this revision application, set aside the order passed by the learned R. C. and E. O. and remand the case back to him for deciding it afresh after considering all the evidence available on the record and after allowing the parties an opportunity to be heard. The learned Deputy Commissioner, Lucknow is requested to get the application disposed of by some officer other than the one who has expressed his opinion in the matter."
(3.) It is common case of the learned counsel that this order is not happily worded. Apparently the intention of the learned Additional Commissioner was that as the Rent Control and Eviction Officer had expressed his opinion in the previous order dated 20th August, 1954, it was desirable in the interest of justice to get the matter decided by some other officer. In the circumstances the proper order to pass was to remand the case not to the previous officer but to the District Magistrate and to permit him either to decide the case himself or to authorise some other officer to consider the application under Sec. 3 of Act III of 1947.;