JUDGMENT

Bennett, J - This is an application in revision under Section 113, Civil P.C., against the judgment and decree dated 5th October 1938, passed by the learned Additional Civil Judge of Gonda dismissing an appeal against an order passed by the Munsif of Tarabganj returning a plaint filed in his Court for presentation to the Cawnpore Court under Rule 10 of Order 7, Civil P.C. A preliminary objection has been put forward that as under Section 100, Civil P.C., a second appeal might have been filed against the order passed, the question being purely a legal question, an application under Section 115 does not lie. In reply it is pointed out that an appeal lay to the Additional Civil Judge under Clause (a) of Rule 1 of Order 43. This rule provides that an appeal shall lie from certain orders under the provisions of Section 104. A reference to Section 104 shows that no appeal shall lie from any order passed in appeal under that section. The section provides inter alia for appeals against orders made under rules from which an appeal is expressly provided by rules. In the present case the rule providing for an appeal is that contained in Clause (a) of Rule 1 of Order 43. It was argued that Rule 10 and 11 of Order 7 should be read together and that Rule 11 provides for all cases in which the plaint may be returned. This is clearly wrong. Rule 10 provides for the return of a plaint to the Court in which the (suit should have been instituted. But 1.1 provides for (cases where the plaint shall be rejected where it is on the face of it defective. The two rules have 'nothing in common.

2. It was held by the Allahabad High Court in Naubat Singh v. Baldeo Singh ('11) 33 All. 479 that a second appeal would not lie against the judgment and decree of an appellate Court which allowed an appeal and remanded the suit to a trial Court which had returned the plaint for presentation to the proper Court. There was a similar decision by the Bombay High Court in Nilkanth Vasudeo v. Balvant Pandurang, AIR1925Bom431 . I am therefore of opinion that there is no force in the preliminary objection. It has also to be considered whether a revision application is barrel on another ground. The question is one of jurisdiction, but it cannot be disputed that the appellate Court had jurisdiction to hear the appeal. It may be argued that even if in deciding the appeal the Additional Civil Judge took, an erroneous view of the law he cannot be considered to have acted without jurisdiction or to have failed to have exercised a jurisdiction vested in him, or to have acted illegally or with material irregularity in the exercise of his jurisdiction.

3. The question whether an application in revision would lie in these circumstances was considered by the Allahabad High Court in Badami Kuar v. Dinu Rai, (86) 8 All. 111 and Deokinandan Pendey v. Ram Chandra, AIR1938All17 and was answered in the affirmative. I am not therefore prepared to hold that an application in revision does not lie. It has however further to be considered whether the Courts below were guilty of any illegality or material irregularity in the exercise of their jurisdiction. The suit was brought by a firm doing business in Colonelganj in the Gonda district. This firm sued another firm doing business at Cawnpore. The plaintiff firm had sent goods for sale to the defendant firm at Cawnpore and the defendant firm had ordered gur from the plaintiff firm. The parties were not in agreement where payments were to be made. The trial Court found very definitely that the defendant firm had established by evidence that the agreement between the parties was that all accounting and payments, including those of the gur transactions, were to be made at Cawnpore.

4. The appellate Court did not dissent from these findings though it did not expressly confirm them. The Additional Civil Judge said that he agreed with the Munsif in holding that the contract of payment at Colonelganj as alleged by the plaintiff firm was not