FASAHAT ULLAH KHAN Vs. MAULA BUX

JUDGEMENT

(1.) This appeal arises out of the following circumstances. The plaintiff applicants as zamindars sued the defendant-respondent for arrears of rent at the rate of Rs. 110 per annum and the defence was that the proper rent was Rs. 50 per annum. The trial Court finding that there had been an oral agreement between the parties to raise the rent from Rs. 50 to Rs. 110, decreed the plaintiffs suit but the lower Appellate Court (the District Judge) found that the rent could not be raised by such an oral agreement under Sec. 69 of the Tenancy Act. He further found, however, that the tenant had made encroachments and that the agreement really referred to a separate tenancy or at any rate it was not confined to the original 19 bighas in regard to which the tenant had originally entered on an agreement with the zamindars. He, therefore, allowed the appeal. The defendant, therefore, made an application for review of the order on the ground that there was a mistake or error appellant on the face of the record in that the and which was the subject- matter of the suit was the same original 19 bighas which had formed the original tenancy enjoyed by the defendant. The District Judge Mr. G.O. Allen who was not the same Judge who had passed the appellate decree allowed the application for review holding. If the error is not apparent on the face of the record, it, is certainly of that nature and it is from this order that the present appeal is made.

(2.) A preliminary objection has been advanced that no appeal lies, and I am of opinion, that this must prevail. The cases in which an appeal will lie against an order granting an application for review are enumerated in Rule 7 of Order XLVII. It has certainly been argued that whatever the provisions of Order XLVII are and appeal will lie against an order passed in review under the provisions of Clause (w) of Rule 1 of Order XLIII, and there is a decision of the Bombay High Court in Daso Keshav Panahbhavi V/s. Karbasappa Kariyappa Mudhol 94 Ind. Cas. 591 : 27 Bom. L.R. 1446 : A.I.R. 1926 Bom. 121 to which reference has been made in support of this argument. But I think it is clear that the provisions of Order XLVII which contains rules specifically framed to govern procedure in regard to applications for review, and which, moreover follows later in the Code than Order XLIII, must modify the provisions of Order XLIII. If any authority is needed for such a conclusion it is supplied by the cases of Shaukat Ali Vs. Shakila Bano and Sunder v. Habib Chick 60 Ind.Cas. 81 : 18 A.L.J. 838 : 2 U.P.L.R. (A) 283 both of which are decisions of Benches of this High Court.

(3.) Under Rule 7 of Order XLVII an appeal will lie from the order of the court granting an application in contravention of the provisions of Rule 2 and it has been sought to show that the order of the District Judge in the present case was passed in contravention of Rule 2. I have described above the circumstances in which the application was made. Rule 2 lays down certain provisions for the presentation of an application for review. Such an application may be made on one of more of three grounds as provided in Rule 1: