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Kedar Nath Kanu v. Mahabir Prasad
Judgment Summary — N.N. Sharma, J. (Revision against Small Causes Court decree)
Factual and Procedural Background
This is a defendant's revision against the judgment and decree of the Judge, Small Cause Courts, Deoria (Sri R.C. Chaturvedi, IInd Additional District Judge) in S.C.C. Suit No. 3 of 1981. The plaintiff sued for recovery of possession and arrears of rent totaling Rs. 3,240 (at Rs. 90 per month). The trial court decreed the claim, awarded mesne profits at the stated rate until recovery of possession (subject to payment of necessary court fees), and awarded costs of the suit.
The plaintiff's claim rested on a Kabuliyat (rent-note) dated 6-1-1973, allegedly executed by the defendant, creating a landlord–tenant relationship. The plaintiff alleged arrears of rent and service of a composite notice of demand and ejectment which the defendant refused on 11-12-1980. The defendant resisted on multiple grounds, including denial of any landlord–tenant relationship, assertion that he was tenant of a joint Hindu family (of which plaintiff and his brothers were members), that the plaintiff could not sue as sole landlord in Small Causes Court, that there was no rent default, and that the plaintiff evaded receiving rent to manufacture grounds for eviction. The defendant also deposited rent under Section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972, from 20-3-1981.
The learned trial judge framed five issues, found a landlord–tenant relationship and that the disputed premises fell to the plaintiff in a partition decree (Issue No. 1), and found on Issue No. 2 that the plaintiff committed default in payment of rent and that the notice was valid, resulting in the decree described above. The defendant filed the present revision against that decree.
Legal Issues Presented
- Whether the High Court notification dated 25-10-1972 conferring jurisdiction of Small Cause Courts on District Judges and Additional District Judges was valid, in view of Section 15 of the Provincial Small Cause Courts Act, 1887 and the later enactment of Sub-section (4) of Section 25 of the Bengal, Agra and Assam Civil Courts Act by the U.P. Civil Laws (Amendment) Act, 1973.
- Whether conferring jurisdiction of the Small Causes Court without pecuniary limitation (i.e., irrespective of valuation) is arbitrary or discriminatory and therefore violative of Article 14 of the Constitution of India.
- Whether the rent-note (Kabuliyat) dated 6-1-1973 was admissible and valid to create a landlord–tenant relationship in view of Sections 11, 13 and 31(1) of U.P. Act No. XIII of 1972 and related statutory provisions.
- Whether Section 14 (as amended) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act (the 1976 amendment) regularised pre-existing tenancies and could validate the tenancy asserted by the plaintiff.
- Whether an unregistered, allegedly perpetual rent-note violates Section 107 of the Transfer of Property Act and Section 49 of the Registration Act and therefore is inadmissible for proving tenancy (including for collateral purposes).
- Whether the plaintiff had pleaded or otherwise established that a landlord–tenant relationship existed prior to the execution of the rent-note, such that Small Causes jurisdiction and the relief claimed were properly invoked.
Arguments of the Parties
Revisionist (Defendant) — Principal contentions
- The High Court notification (25-10-1972) conferring Small Causes jurisdiction on District Judges/Addl. District Judges was ineffective because Section 15 of the Provincial Small Causes Courts Act, 1887 barred such conferment; the later Sub-section (4) of Section 25 (Bengal, Agra & Assam Civil Courts Act) enacted by the U.P. Civil Laws (Amendment) Act, 1973 could not validate the earlier notification.
- Delegation of Small Causes jurisdiction irrespective of valuation (i.e., unlimited pecuniary jurisdiction) was arbitrary, discriminatory and violated Article 14 of the Constitution.
- The rent-note dated 6-1-1973 was void or inadmissible: it was executed after U.P. Act No. XIII of 1972 came into force; Sections 11, 13 and 31(1) of that Act render such contracts void. Consequently, no landlord–tenant relationship arose from that document.
- The rent-note was for an unlimited period and unregistered, thus offending Section 107 of the Transfer of Property Act and Section 49 of the Registration Act; it could not be relied upon even for collateral purposes to prove tenancy.
- The pleadings did not show any tenancy existing prior to the rent-note; the defendant never admitted the plaintiff as sole landlord and parties are bound by their pleadings.
Respondent (Plaintiff) / Respondent's Counsel — Principal contentions
- The plaintiff relied on the rent-note of 6-1-1973 to establish landlord–tenant relationship and the claim for rent and ejectment in the Small Causes Court.
- Respondent's counsel (Sri T.P. Singh) pointed out that the defendant had been a tenant of the joint Hindu family prior to operation of the U.P. Act No. XIII of 1972, and produced a memorandum of partition dated 30-3-1972 and a decree dated 10-3-1973 to show that the rent-note was executed subsequently to those events.
- Respondent relied upon Section 14 (as amended) of the U.P. Urban Buildings Act (the 1976 amendment) to argue that occupation of existing tenants was regularised (subject to the conditions in Section 14), thereby validating the tenancy position for purposes of the suit.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of Kerala v. N.M. Thomas, (1976) 2 SCC 310 : AIR 1976 SC 490 | Authority cited by revisionist in relation to objections to conferment of jurisdiction / classification challenges (Article 14 related argument referenced). | The court observed that this authority did not deal with Section 25 of the Provincial Small Causes Courts Act and therefore was inapplicable to the question at hand; it did not support the contention that conferment was arbitrary. |
| K.T. Moopil Nair v. State of Kerala, AIR 1961 SC 552 | Authority cited by revisionist in connection with challenges to conferment of jurisdiction and classification under Article 14. | Court found the authority not to cover the specific statutory provision (Section 25) and therefore not persuasive for the defendant's contention. |
| Nellivil Kunhali v. State of Kerala, AIR 1966 Ker. 14 | Authority cited by revisionist along with other Kerala cases on classification/administrative conferment issues. | Court held this authority likewise did not address Section 25 and was not applicable to invalidate the High Court notification. |
| Rajendra Shah v. Smt. Kamla Devi, Vol. 1, Allahabad Rent Cases 1983 p. 337 | Interprets Provincial Small Cause Courts Act, 1887 (Section 15) and Bengal, Agra & Assam Civil Courts Act (Section 25) — addresses validity of conferment of Small Cause jurisdiction on other classes of civil courts. | The court treated this authority as binding and dispositive: it supports the validity and effectiveness of the High Court notification dated 25-10-1972. The revision court followed this precedent and rejected the challenge to jurisdiction. |
| Navin Chandra Sharma v. VIth Addl. Distt and Sessions Judge, Meerut, AIR 1983 All. p.116 : 1983 (1) ARC 50 | Held that tenancy contracts entered into after coming into force of U.P. Act No. XIII of 1972 are rendered void by Sections 11, 13 and 31(1) of that Act. | The court noted this authority was relied upon by the revisionist. The court analysed the factual matrix and Section 14 (1976 amendment) and determined the authority did not conclusively decide the instant question because the issue of prior possession/consent was not admitted by the tenant in the present case. |
| Bishan Chand Chaurasiya v. IIIrd Addl. District Judge, Aligarh, U.P. Rent Control Cases 1983 p.126 : 1983 (1) ARC 126 | Explains the scope and ingredients of Section 14 of the U.P. Urban Buildings Act (regularisation provision). | Court noted this authority's exposition that Section 14 operates only where the tenant was in possession with landlord's consent immediately before commencement of the 1976 amendment and where no eviction suit was pending. The court applied that principle to examine whether Section 14 could aid the plaintiff. |
| Girish Nath Pandey v. Jagar Nath Prasad, U.P. Rent Control Cases 1983 p.73 : 1983 (1) ARC 696 | Holds that a person in possession with landlord's consent immediately before 5-7-1976 becomes a tenant under the Act despite Section 13 to the contrary. | Cited by the court as authority on the effect of pre-5-7-1976 possession with consent; the court observed that these principles could apply only if the plaintiff established such prior tenancy, which was not admitted in this case. |
| Ram Saran v. Smt. Laxmi Devi, ARC 1984 (1) p.47 | States that an unregistered instrument like a Kabuliyat cannot be used to establish lease terms, though it may be admissible for collateral purposes such as character/nature of possession, subject to limits. | The court relied on this line of authority to assess admissibility of the unregistered rent-note and concluded that in the present case the rent-note could not be admitted even for collateral purposes because it was the sole basis for claiming tenancy and the defendant had been in prior possession contrary to the assertion in the plaint. |
| Mst. Kripal Kaur v. Bechan Singh, AIR 1958 SC 199 | Explains that admitting an unregistered document to alter the character of prior possession (converting adverse into permissive possession) circumvents the Registration Act; such use is not permissible. | The court cited this principle to support the conclusion that the unregistered Kabuliyat could not be used to establish or alter the nature of prior possession to the plaintiff's advantage in the absence of proper registration. |
Court's Reasoning and Analysis
The court proceeded through the principal contentions in sequence and applied statutory text and precedents cited in the record:
- Jurisdictional challenge: The revisionist contended the High Court notification (25-10-1972) was ineffective because Section 15 of the Provincial Small Causes Courts Act did not permit conferment of Small Cause jurisdiction on other classes of civil courts. The court reviewed the authorities relied upon by the revisionist (including several Supreme Court and Kerala cases) and found them inapplicable to Section 25. The court considered Rajendra Shah v. Smt. Kamla Devi (Allahabad Rent Cases) as binding authority holding that Section 25 of the Bengal, Agra & Assam Civil Courts Act and the powers conferred thereby validated the notification. Being bound by this precedent, the court repelled the jurisdictional challenge and declined to refer the matter to a larger Bench.
- Article 14/pecuniary-limit challenge: The revisionist argued that conferring unlimited pecuniary jurisdiction on Small Causes Courts was arbitrary. The court observed the argument but treated the precedents cited as not directly applicable to Section 25 and relied on the binding local authority (Rajendra Shah) to uphold the notification. The court therefore rejected the argument attacking conferment as arbitrary.
- Admissibility and validity of the rent-note (Kabuliyat): The court examined whether the rent-note dated 6-1-1973 could be admitted and relied upon to establish a landlord–tenant relationship in Small Causes Court. The revisionist relied on Navin Chandra Sharma, which held that contracts of tenancy entered after U.P. Act No. XIII of 1972 came into force may be void under Sections 11, 13 and 31(1) of that Act. The respondent relied on evidence and on Section 14 (1976 amendment) that regularised occupation of tenants who were in possession with landlord's consent immediately before the 1976 commencement date.
- Application of Section 14 and factual matrix: The court noted that Section 14 (as amended) operates only where the tenant was in possession with the consent of the landlord immediately before the commencement of the 1976 amendment and where no eviction suit was pending on that date. The court emphasised that in the present litigation the defendant emphatically denied that the plaintiff was his landlord or that he occupied the premises with the plaintiff's consent prior to the rent-note’s execution. Because the plaintiff's case rested solely on the rent-note (executed after the Act) and there was no pleading that tenancy existed prior to that document, Section 14 could not be invoked to cure the defect for the plaintiff.
- Unregistered/perpetual rent-note and registration/transfers law: The court analysed the rent-note's terms and form. It observed the rent-note was for an unspecified/unlimited period, unregistered, and thus implicated Section 107 of the Transfer of Property Act and Section 49 of the Registration Act. The court applied authorities (Ram Saran; Mst. Kripal Kaur) explaining that an unregistered document cannot be used to establish a lease where doing so would effectively circumvent the Registration Act or alter prior possession from adverse to permissive. The court concluded the rent-note was inadmissible even for collateral purposes in the present factual matrix because doing so would amount to using the document as the sole basis to confer tenancy status where no prior tenancy had been pleaded or admitted.
- Pleadings and burden: The court emphasised that parties are bound by their pleadings. There was no averment in the plaint showing tenancy or consented possession prior to the rent-note. There was no record that the defendant was a party to any partition decree in a manner that supported the plaintiff's assertion. Given the absence of such pleading and the defendant's categorical denial, the court found the plaintiff could not successfully rely on the rent-note to establish the prerequisite landlord–tenant relationship required for a Small Causes ejectment/rent suit.
- Conclusion of analysis: For these reasons—(a) the jurisdictional challenge failed in light of binding local precedent; but (b) the substantive case of the plaintiff failed because the rent-note was inadmissible and did not establish a pre-existing tenancy or consented occupation—the court allowed the revision, set aside the impugned judgment and order, and made no order as to costs.
Holding and Implications
Core Holding: REVISION ALLOWED; THE IMPUGNED JUDGMENT AND DECREE ARE SET ASIDE.
Consequences and implications:
- The decree and order of the Small Causes Court (Deoria) in S.C.C. Suit No. 3 of 1981, which had decreed recovery of possession and arrears of rent and awarded mesne profits and costs, are set aside as a result of this revision.
- The court ordered no costs for the revision ("I make no order as to costs of this revision"), so there is no costs award in favour of either party from this court.
- The direct effect is that the plaintiff's basis for recovery (the unregistered Kabuliyat of 6-1-1973) was held inadmissible in the present factual and pleading context; consequently, plaintiff is not entitled to the relief previously granted by the trial court.
- The court expressly followed an earlier local precedent (Rajendra Shah v. Smt. Kamla Devi) on the validity of the High Court notification; the opinion does not purport to lay down any new, general principle beyond its application to the present facts. The court did not refer the legal question about conferment of jurisdiction to a larger Bench and did not purport to overrule existing binding authority.
Disposition
Revision allowed.
N.N Sharma, J.:— This is a defendant's revision directed against the judgment and decree of learned Judge Small Cause Courts, Deoria, Sri R.C Chaturvedi, (IInd Addl. District Judge) in S.C.C suit No. 3 of 1981. Plaintiff's suit for recovery of possession and arrears of rent amounting to Rs. 3240 at the rate of Rs. 90 per month was decreed; mesne profits at the aforesaid rate till the date of recovery of possession were also allowed on payment of necessary court fees, alongwith the costs of the suit.
2. The suit was filed with the allegations that plaintiff was the sole landlord and defendant was the tenant in the disputed premises on the basis of a Kabuliyat dated 6-1-1973. That document was executed by defendant himself. The tenant fell in arrears of rent which remained unpaid despite a composite notice of demand and ejectment which was refused on 11-12-1980. The claim was resisted on the ground that there was no relationship of landlord and tenant subsisting between the parties; defendant was the tenant of plaintiff and his brothers who were members of joint Hindu family; it was not open to the plaintiff to bring an action in the court of Judge Small Causes claiming himself to be the sole landlord; there was no default in payment of rent; plaintiff deliberately evaded to receive the rent in order to eject the defendant by hook or crook Rent has been deposited under Section 30 of U.P Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (Act No. 13 of 1972) from 20-3-1981.
3. Learned trial Judge framed five issued in the suit. He found under issue No. 1 that there was relationship of landlord and tenant between the parties; in a partition decree the disputed premises fell in share of plaintiff.
4. Under issue No. 2 he found that plaintiff committed default in payment of rent. He further found that the notice was valid. In the result claim was decreed as given above.
5. Aggrieved by the decision defendant has filed this revision.
6. I have heard learned counsel for the parties at length and perused the record.
7. On behalf of the revisionist it was submitted that the Notification issued by the High Court conferring upon all the District Judges and Addl. District Judges the jurisdiction of Judge Small Causes Court was ineffective because on 25-10-1972 the Provincial Small Cause Courts Act, 1887 did not permit such conferment of jurisdiction. Section 15 of the Provincial Small Causes Court Act was a bar to such conferment of jurisdiction. That bar was removed by enactment of Sub-section (4) of Section 25 of Bengal, Agra and Assam Civil Courts Act. This Sub-section (4) was enacted by U.P Civil Laws (Amendment) Act, 1973 which came into force on October 19, 1973, although Sub-section (4) of Section 25 was given retrospective operation from 20-9-1972 yet the Notification of the High Court dated 25-10-1972 was not validated. The notification did not become effective.
8. Learned counsel for the revisionist further argued that delegation of powers to Small Cause Court of jurisdiction for deciding the suit irrespective of its valuation was purely arbitrary, discriminatory and hit by Article 14 of the Constitution of India.
9. Learned counsel for the revisionist further pointed out that such courts were known as courts of Small Causes on account of the limited pecuniary jurisdiction. Learned counsel for the revisionist took me through the statement of objects and reasons of Presidency Small Cause Courts Act, 1882 and the various amendments introduced in the Act through subsequent amendments. There was no reasonable classification for conferring such unlimited pecuniary jurisdiction on the Court of Small Causes when the suits on regular side provide for atleast an appeal. The evidence in trial of such suits was not recorded in full; even the Court was empowered not to frame proper issues and dispose of the suits in a summary fashion irrespective of its valuation. Such unlimited pecuniary jurisdiction could not be conferred on Judge of Small Causes Court without any reasonable basis. Such summary disposal of suits of unlimited pecuniary jurisdiction was unjust.
10. In this connection learned counsel for the revisionist invited my attention to State of Kerala v. N.M Thomas, reported in (1976) 2 SCC 310 : AIR 1976 SC p. 490 and K.T Moopil Nair v. State of Kerala reported in AIR 1961 SC p. 552 and Nellivil Kunhali v. State of Kerala reported in AIR 1966 Ker p. 14. I have carefully gone through all these authorities. None of these authorities cover a case under Section 25 of Provincial Small Causes Court Act all these authorities are wide off the mark. None of these authorities stigmatises such conferment of powers as arbitrary or irrational.
11. There are several authorities of this Court against such submissions. I I may only refer to Rajendra Shah v. Smt. Kamla Devi reported in Vol. 1, Allahabad Rent Cases 1983 p. 337 which lays down:—
“(A) Provincial Small Cause Courts Act, 1887, Section 15 Bengal, Agra and Assam Civil Courts Act, 1887 Sec. 25—Conferment of jurisdiction of Small Cause Court—Section 15 of P.S.C.C Act confers, such jurisdiction of Courts constituted and established by Small Cause Courts Act only—When other classes of Civil Courts are conferred with jurisdiction of Small Cause Court, that is dealt with by Section 25 of B.A.A.C.C Act—State Government and High Court, has been given powers by Section 25 to confer jurisdiction of Small Cause Court on District Judges and Addl. District Judge— Thus, Notification issued on October 25, 1972 by High Court is valid and effective since the date it was issued.”
12. I am bound by aforesaid authority and see no good reason to strike I a discordant note and refer the matter to a larger Bench for decision afresh as I prayed. So, this contention is repelled.
13. The next contention was that the rent-note dated 6-1-1973 which was the basis of the suit was inadmissible in evidence and was void being unregistered and did not create any relationship of landlord and tenant between the parties. It was executed by defendant under deception and the relationship of landlord and tenant could not arise in the teeth of Section 11 of Act No. XIII of 1972.
14. In this connection reliance was placed upon Navin Chandra Sharma v. VIth Addl. Distt and Sessions Judge, Meerut reported in AIR 1983 All. p. 116 : 1983 (1) ARC 50. In that case a contract of tenancy was entered into after coming into force of U.P Act No. XIII of 1972. The lessor brought a suit for ejectment and rent on its basis. It was held that Sections 11, 13 and 31 Sub-clause (1) of the aforesaid Act (Act No. XIII of 1972) renders such contract void and the plaintiff-landlord was not entitled to any relief. Learned counsel for the respondent Sri T.P Singh pointed out that defendant was a tenant of the joint Hindu family prior to the coming in operation of the aforesaid Act No. XIII of 1972. He filed a memorandum of partition dated 30-3-1972 and decree dated 10-3-1973 to show that the said rent-note came to be executed subsequently. In the instant case Section 14 of the aforesaid Act regularises the relationship of the parties. Section 14 is worded as below:—
“Regularization of occupation of existing tenants.—Notwithstanding anything contained in this Act or any other law for the time being in force, any licensee (within the meaning of Section 2-A) or a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, not being a person against whom any suit or proceeding for eviction is pending before any court or authority on the date of such commencement shall be deemed to be an authorised licensee or tenant of such building.”
15. Thus, any irregularity in creation of tenancy prior to 5-7-1976 stood cured by operation of Section 14 of the Act which was amended on that date.
16. In this connection reliance was also placed upon Bishan Chand Chaurasiya v. IIIrd Addl. District Judge, Aligarh reported in U.P Rent Control Cases 1983, p. 126 : 1983 (1) ARC 126 which explained the ingredients of Section 14. Sec. 14 operated only when the tenant was in possession with the consent of the landlord immediately before the commencement of U.P Act No. 28 of 1976 and no suit or proceeding for his eviction were pending on the date of such commencement. So despite passing the order of allotment such occupation could not be deemed as unauthorised.
17. The next authority relied upon by him has been reported in Girish Nath Pandey v. Jagar Nath Prasad, U.P Rent Control Cases, 1983 p. 73 : 1983 (1) ARC 696 where it was laid that any person in possession of any premises as tenant with the consent of landlord immediately before 5-7-1976 would automatically be tenant under the Act notwithstanding to provision of Section 13 of the Act to the contrary.
18. None of these authorities is in point because it was never admitted by the tenant that plaintiff was his landlord and occupied the premises in pursuance of such relationship prior to the coming in operation of the said Act. He emphatically denied the relationship of landlord and tenant subsisting between the parties. A suit on regular side would have laid to evict the trespasser but no suit under Small Cause Courts side would lie unless there was a relationship of landlord and tenant subsisting between the parties. Under the circumstances when plaintiff based himself in his plaint simply on the aforesaid rent-note which created the tenancy subsequently to the coming in operation of the said Act and defeat was not curable and no relief was awardable to the plaintiff.
19. There is yet another point in favour of the revisionist.
20. The rent-note aforesaid was for unlimited period and was unregistered I and thus violated the provisions of Section 107 of Transfer of Property Act and Section 49 of Registration Act.
21. There is no averment in the plaint to show that there was any relationship of landlord and tenant subsisting between the parties prior to the execution of the Kabuliyat which was simply executed for collateral purposes as was argued before me by learned counsel for the respondent.
22. A mere look at the aforesaid Kabuliyat shall go to disclose that rent at the rate of Rs. 90/- per month was payable; it was to expire at the end of the month and commence from Phussudi-Sambat 2029. Whenever the tenant was to vacate the premises he had to deliver the possession to the landlord. There was no specification of the period of tenancy.
23. There is nothing on record to show that the tenant was already party to any partition decree. There is no averment in the plaint to show that the tenancy was created prior to the execution of rent-note. Defendant never admitted the plaintiff as the sole landlord as was the case put forward by him in the plaint. Parties are tied down to their pleadings.
24. In Ram Saran v. Smt. Laxmi Devi reported in ARC 1984 (1) p. 47 it was observed:—
“The proposition that an unregistered instrument like the Kabuliyat in the present case, cannot be looked into for finding out the terms of the lease between the parties, is well-settled. It is also equally settled that such a document can be looked into for a collateral purpose. The character and nature of possession is such a collateral purpose about which an unregistered document like a Kabuliyat can be looked into but that will be of no avail to the applicant in the instant case for the simple reason that Smt. Laxmi Devi, admittedly, had continued in possession over the property in suit from before the execution of the Kabuliyat by her. In such a situation, as laid down by the Supreme Court in Mst. Kripal Kaur v. Bechan Singh, AIR 1958 SC 199, the admission of a unregistered document like a Kabuliyat for determining the nature of possession after the date of its execution “would be to treat it as operating to destroy the nature of the previous possession and to convert what had started as adverse possession in to permissive possession and therefore, to give effect to the agreement contained in it which admittedly cannot be done for want of registration. The Supreme Court proceeded to observe that to admit such a document in evidence, for the purposes sought, would really amount to getting round the statutory bar imposed by Section 49 of the Registration Act.
It is clear from the plaint of the instant case that no oral tenancy was set up by the plaintiff. The plaintiff baldly stated in his plaint that he was the landlord of the property in suit of which Smt. Laxmi Devi was the tenant and when this assertion was countered by Smt. Laxmi Devi, he came out with the unregistered Kabuliyat to establish the relationship of landlord and tenant between himself and Smt. Laxmi Devi. This being the sole basis upon which plaintiff Ram Saran brought to establish his right to eject Smt. Laxmi Devi, it is obvious that he could not fall back upon the unregistered Kabuliyat even for the purpose of showing that Smt. Laxmi Devi was in possession of the property under permission from him.”.
25. So, on a careful perusal of the pleadings of the parties and their statements, I find that the aforesaid rent-note was inadmissible for any collateral purpose. There was nothing in the conduct of defendant to disentitle him from raising the aforesaid pleas which went to the root of the matter. In the result the revision is allowed. The impugned judgment and order are set aside. However, in the circumstances of the case I make no order as to costs of this revision.
26. Revision allowed.
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