JUDGMENT V.K. Mehrotra, J. - Haveli Ram (since deceased and now represented by his legal representatives) instituted this second appeal against the judgment and decree of the VIIth Addl. District Judge, Kanpur dated 26th April, 1976 confirming a decree dated 22nd June, 1975 of the IIIrd Munsif, Kanpur in a suit seeking his ejectment from the house in question and also recovery of some amount by way of arrears of rent and damages. The suit had been filed in the year 1982. It had once been deemed on December 9, 1965, but that decree was set aside in appeal and the suit had been remanded for trial again. 2. At some stage of the proceedings before the courts below the plaintiff respondent raised the plea that Haveli Ram was liable to ejectment also on the ground that he had put the demised' premises to a user which was inconsistent with the purpose for which he was let in. The case, in reply, set up by Haveli Ram was that he had done so under an agreement between himself and the plaintiff, which had been arrived at orally in the presence of two persons Kripa Ram and Madan Lal. 3. While the trial was pending, Haveli Ram wanted to get these two persons examined on commission. This prayer was rejected by the trial Judge. The matter was agitated in revision by Haveli Ram, where again he was unsuccessful. Then, after a few months, he moved a fresh application with that prayer, which was rejected on April 25, 1975. The ground which the learned Judge gave for rejecting this prayer, was that the application had been made with considerable delay and was malafide. 4. When the suit was decreed against him, a second time, Haveliram assailed the decree in an appeal. In the Memo of Appeal he took a specific ground (being ground no. 3) to the effect that he had been prejudiced on account of the failure of the trial court to examine the two persons aforesaid on commission and there after to have said while passing the decree, that the fact that there was an agreement between him and the plaintiff, permitting him to use the premises according to the alleged inconsistent user was not established by Haveli Ram by any cogent evidence. The judgment of the lower appellate court does not mention any such plea having been raised by Haveli Ram. The decree of the trial court was affirmed by the lower appellate court and in the present second appeal, in the memorandum, it has been urged in ground Nos. 7 and 8 that Haveli Ram had been prejudiced because of the failure of the court to give him opportunity to examine the two persons on commission and that this plea, though specifically raised, was not dealt with by the lower appellate court. 5. When this second appeal came up for hearing, a preliminary objection was raised on behalf of plaintiff-respondent by Sri RRK Trivedi, appearing for him, that the appeal was not maintainable on account of the provision in that regard in section 102 C.P.C. It was submitted that with the enforcement of the U.P. Civil Laws Amendment Act (U.P. Act no. 37 of 1972) with effect from September 20, 1972 the suit became one cognizable by the court of Small Causes, so that no second appeal would lie against the decree in such a case. Reliance was placed by him upon a Full Bench decision of this Court in Bisheshwar Pd. Gautam v. Dr R.K. Agrawal, AIR 1977 Allahabad 103. 6. U.P. Act no. 37 of 1972 affected a number of changes in several Acts including the Bengal, Agra and Assam Civil Courts Act, 1887 and the Provincial Small Causes Courts Act, 1887. The effect of the amendments upon suits instituted by a lessor for ejectment of the lessee after termination of tenancy and recovery of arrears was considered by this court at some length in Kailash Chand & others v. Lalita Prasad, 1976 A.L.J. 701. GC Mathur. J. who decided that case, noticed various amendments and several notifications which had been issued from time to time by the State Government, as well as by this court, in pursuance thereof. It is not necessary for me to traverse those facts in this judgment. It may suffice to notice, in brief, the decision given by Mathur J. and the circumstances of the case which was dealt with by him. 7. Lalta Prasad had tiled a suit on April 25, 1975 against Kailash Chand for eviction from certain building and for recovery of arrears of rent and compensation for use and occupation. It may suffice to notice, in brief, the decision given by Mathur J. and the circumstances of the case which was dealt with by him. 7. Lalta Prasad had tiled a suit on April 25, 1975 against Kailash Chand for eviction from certain building and for recovery of arrears of rent and compensation for use and occupation. The suit was filed in the Court of Munsif at Fatehpur. After the enforcement of U.P. Act no. 37 of 1972, the suit was transferred by the Addl. Munsif, Fatehpur, to whose court in the meantime it had been sent for disposal, to the court of the district Judge on the ground that there was no Munsif having the power of Judge, Small Cause to try it. The District Judge took the view that the suit was still cognizable by Munsif, Fatehpur and directed the case to be sent back to the court of Munsif, Fatehpur by an order dated January, 4, 1975. This order was challenged in a revision by the defendant in this Court, which was eventually decided by G.C. Mathur J. The ultimate conclusion, to which this Court arrived, was that since recording of oral evidence has not commenced in the case on the date on which U.P. Act no. 37 of 1972 came into operation, the suit stood transferred to the court having pecuniary Small Cause jurisdiction to try it, and inasmuch as, there was no court of Civil Judge at Fatehpur at that time, the suit was cognizable by the District Judge, while considering, however, the effect of the amendments made by U.P. Act no. 37 of 1972 and the notification issued thereunder, the learned Judge observed (in paragraph 7 of his judgment) that- "The combined effect of these notifications was that suits by lessors for the eviction of lessee from buildings after the determination of the leases or for the recovery from them of rent in respect of the period of occupation thereof during the continuance of the leases or for compensation for the use and occupation thereof after such determination of the lease which, by virtue of the amendments, had become suits of small cause nature, were not to be cognizable by the following courts : (i) Suits of the value not exceeding Rs. 1000/- by Munsifs; (ii) Suits of the value not exceeding Rs. 1000/- by Munsifs; (ii) Suits of the value not exceeding Rs. 5000/- by Civil Judge; and (iii) Suits of any value by District Judge and Addl. District Judges. After the amendments and the notifications such suits could be filed only in the above mentioned courts according to the valuation of the suits. These amendments and notifications are prospective. They do not, by themselves, affect suits that were pending on September 20, 1972, when the Amending Act came into force. For pending suits Act 37 of 1972 made specific provision in section 9." 8. These observations will suggest that suits by lessors for eviction of the lessees after termination of tenancy and for recovery of arrears would become suits of the nature of small cause on account of the amendments brought in by U.P. Act no. 37 of 1972 in the Provincial Small Cause Courts Act and Bengal, Agra and Assam Civil Courts Act. As far as suits which were pending on September 20, 1972 were concerned, their trial on that date was to be governed by section 9 of the U.P.Act no. 37 of 1972. In other words, if the recording of oral evidence had not yet commenced, they would stand transferred to the Court of Small Causes, else their trial was to be completed by the regular civil court where they were pending. 9. Counsel for the appellant was at pains to urge that the effect of section 9 of U.P. Act no. 37 of 1972 would be that in cases where the recording of oral evidence had commenced prior to September 20, 1972 or had been completed, the nature of the suit would not become one of small cause, but would continue to be that of a regular civil suit. One of the decisions in support of this submission, upon which reliance was placed on behalf of the appellant, was rendered by a Full Bench in Har Prasad Singh and others v. Ram Swarup and others, AIR 1973 Allahabad 390. Reference in particular was made to paragraph 9 of this decision. The Full Bench was dealing with the question whether the amendment made in section 115 C.P.C. by U.P.Act no. 37 of 1972 would have retrospective operation in the sense that revisions which were pending on the dates on which the amendments became effective, were to be dealt with by this court or not. The Full Bench was dealing with the question whether the amendment made in section 115 C.P.C. by U.P.Act no. 37 of 1972 would have retrospective operation in the sense that revisions which were pending on the dates on which the amendments became effective, were to be dealt with by this court or not. The answer, which was given by the Full Bench, was that all revisions which had been filed in this court prior to September 20, 1972 would continue to lie and be dealt with by the High Court in the same manner. 10. The amendments made by U.P. Act no. 37 of 1972 being prospective in nature, the provisions of the Amending Act do not, in any manner, take away the right of appeal in a case which does not stand transferred to a court of Small Cause in view of section 9 of the Amending Act. So far as the suit, out of which the present second appeal arises, is concerned, the right of Haveli Ram to challenge the decree passed against him, in a Second Appeal before this Court. cannot be held to be pre-judicially affected by any provision of the Amending Act. The observations of the Full Bench in Bisheshwar Prasad Gautam's case have to be confined only to that suit by a lessor, for eviction of his lessee after terminating the tenancy and for recovery of arrears etc, which would be deemed to have been transferred of the court of Small causes from the regular side by virtue of section 9 of the Amending Act. They would not apply to a suit, like the present, in which recording of evidence had been concluded prior to September 20, 1972. The preliminary objection of Sri Trivedi can, therefore, not be accepted. 11. Coming to the merits of the case, it is noticeable that the ground the appellant did not have a fair trial on account of the refusal of the trial court to examine Kripa Ram and Madan Lal on commission cannot, in the circumstances of the case, be upheld. The plea that was set up by the appellant, after the amendment of the plaint, was that he had been permitted by the plaintiff orally to use premises for carrying on dairy business and in that connection, for tethering cattle. It is obvious that the burden of establishing this plea was upon him. The plea that was set up by the appellant, after the amendment of the plaint, was that he had been permitted by the plaintiff orally to use premises for carrying on dairy business and in that connection, for tethering cattle. It is obvious that the burden of establishing this plea was upon him. The trial court, while dealing with this aspect of the case under issue no. 13, concluded that the appellant had failed to do so. The finding has, in effect, been upheld by the lower appellate court. Such a finding, on a question of fact, is usually binding in a second appeal. 12. The legal plea that has been raised by the appellant is that he had a right to get the person, in whose presence the plaintiff had agreed to permit him to carry on this business, examined on commission as they were beyond the territorial jurisdiction of the trial court and lived at a distance of more than 200 miles from Kanpur. From the evidence on record, it transpires, that these two persons were regularly visiting Kanpur in connection with their business of selling cattle. This is what has been stated by appellant Haveli Ram himself on oath as DW 1. In this view of the matter, it cannot be said that the appellant could claim, as a matter of right, that the evidence of these two persons be recorded on commission. 13. The fact that the lower appellate court has not adverted to the grievance of the appellant about the failure of the trial court to examine these two persons on commission would not be of much consequence for the submission in this respect, when tested with reference to the evidence on record, cannot be upheld. Counsel for the appellant has taken me through the evidence in this case and, noticed earlier, the statement made by appellant Haveli Ram himself shows that the plea that he had been prejudiced on account of the failure of the Trial court to examine these persons commission, is not borne out. These persons could, if Haveli Ram desired, have been produced as witnesses in court during trial by Haveli Ram as these persons were regularly visiting Kanpur in connection with their business. 14. These persons could, if Haveli Ram desired, have been produced as witnesses in court during trial by Haveli Ram as these persons were regularly visiting Kanpur in connection with their business. 14. The trial Munsif cannot be said to be in error in refusing to direct examining of Kripa Ram and Madan Lal on commission when a second request to that effect was made by Haveli Ram because he was plainly right that the request was being made with delay and was not bona fide. This inference was justifiably drawn by the trial court from the circumstances of the case. 15. In sum, it must be held that the appeal is bereft of merit and deserves to fail. It is dismissed, though the parties are left to bear their own costs in this Court.