JUDGMENT

Abdul Raoof, J. - This application for revision must be allowed. The facts out of which it has arisen may shortly be stated as follows:

On the 15th April, 1911 Shankar Das executed an agreement in favour of the plaintiff promising to rent a shop to him at a rental of Rs. 40 per mensem. The shop was in possession of a third party as a tenant. Shankar Das undertook to recover possession from the third party and deliver it to the plaintiff. Shankar Das succeeded in obtaining possession of the shop but failed to fulfil the contract which he had made with the plaintiff. In accordance with the terms of the agreement the plaintiff instituted a suit for recovery of Rs. 200 as damages. The Court of first instance decreed the suit in part and granted a decree for Rs. 180. Both parties were, dissatisfied with it. Shankar Das, defendant, appealed to the lower Appellate Courts and the plaintiff filed cross-objections to the effect that be was entitled to a decree for Rs. 200. The lower Appellate Court went out of its way to determine the question whether the plaintiff was a benamidar or the real person who wanted to take the shop on rent, and having found that he was merely a benamidar, held that he was not entitled to maintain the suit. The result was that the appeal was accepted and. the suit of the plaintiff was dismissed.

2. The plaintiff has therefore, come up in revision to this Court and on his behalf Lala Hargopal has argued that the view taken by the lower Appellate Court is opposed to the rule laid down by their Lordships of the Privy Council in Gur Narain v. Sheo Lal Singh A.I.R. 1918 P.C. 140 and Bhana Mal v. Beli Ram A.I.R. 1921 Lab. 129. It is not suggested by the Counsel for the opposite side that there was anything illegal in this benami transaction. That being so, the plaintiff was clearly entitled to maintain the suit.

3. It, however, remains to decide whether in a case of this nature I can interfere with the decision of the lower Appellate Court in revision. There is no doubt that the lower Appellate Court had jurisdiction to decide the case, and that in the exercise of that jurisdiction, the lower Appellate Court has come to a wrong decision, is ii open to this Court to interfere with that decision under Section 115 of the Code of Civil Procedure?

4. I think his case clearly comes with in the purview of Section 115. No doubt the Court had jurisdiction to decide the case, but in the exercise of that jurisdiction it has acted illegally. Practically, it has refused to decide the case on the merits on the mistaken view that as a benamidar the plaintiff was not competent to maintain the suit.

5. I set aside the decision of the lower Appellate Court on this preliminary point and remand the case to that Court with' the direction that the appeal be placed on its original number in the register of pending appeals and be disposed of according to law. Cost will abide the result.