Sir John Edge, C.J:— I am of opinion that this case must be remanded to the Court of first instance, to be tried and disposed of according to law. I think the lower Court has taken an incorrect view of the effect and scope of s. 93 of the Rent Act. This suit was not one for ejectment; it was a suit brought by a landlord who, so far as appears, was not asking for the ejectment of his tenant, but was seeking to compel him to remove trees which, we must assume for the purposes of the present case, the plaintiff was in a position to show had been planted upon land contrary to custom on the terms of the tenure. Now, with all due deference to the opinion of the Judges who decided the case of Deodat Tewari v. Gopi Misr, I have much doubt whether in that case I should have come [36] to the same conclusion. It might possibly be said that this was a suit to prohibit an act or breach mentioned in cl. (cc) of s. 93 of the Rent Act. The suit, however, is one to obtain a mandatory injunction not to prohibit a person from planting trees, but to uproot trees which have already been planted. Without expressing any view on the merits, I would remand the case to the first Court under s. 562 of the Code.
The defendant must bear the costs of the litigation hitherto, for he has prevented the plaintiff from having had his suit tried, and has put him to the cost of going to the Judge and coming to this Court.
Oldfield, J.:— I am entirely of the same opinion.
Case remanded.