Patna High Court
Posan Singh And Ors. vs Inderdeo Singh And Ors. on 22 November, 1949
Equivalent citations: AIR1952PAT328, AIR 1952 PATNA 328
Author: B.P. Sinha
Bench: B.P. Sinha
JUDGMENT Reuben, J.
1. This appeal by the defts. is directed against a decision of the Additional Dist. J. of Monghyr. confirming the decree of the Additional Munsif, Third Court, Monghyr, dismissing Title Suit No. 161/822-of 1945/1946.
2. The facts of the suit need not be stated as Mr. Lal Narayan Sinha for the appellants, frankly admits that in second appeal he cannot challenge the decision on the merits. The point he raises is one relating to jurisdiction. The suit was instituted on 7-12-1945 in the court of the Munsif, Second Court, Monghyr. On 16-8-194S by an order of the Dist. J., it was transferred to the Addl. Munsif, Second Court, Monghyr. On 20-9-1946, the record of the case was sent to the Additional Munsif, Third Court, Monghyr, with an endorsement of the Additional Munsif, Second Court, on the order-sheet :
"Transferred to the file of 3rd Additional Munsif in anticipation of Dist. J's order."
The hearing of the suit was taken up by the Additional, Munsif, Third Court that very day, & judgment was delivered on 12-11-1946. The appeal against this decision was disposed of by the Additional Dist. J. on 12-5-1947. In neither Court was the question of jurisdiction raised. It was raised for the first time in second appeal, & on a reference from this Court, the Dist. J. has reported that there is no trace of any order of the Dist. J. as contemplated by the endorsement dated 20-9-1946. No record is found of any reference having been made by either of the two Munsifs to the Dist. J. for such an order. We may, therefore, proceed on the basis that there was no order of the Dist. J. sanctioning the transfer of the suit from the Court of the Second Additional Munsif to that of the third Additional Munsif.
3. Mr. Lal Narayan Sinha admits that, as to place, valuation, subject-matter & person, the third Add'tional Munsif had jurisdiction to entertain the suit. But he contends that, as the suit was in the seisin of the second Additional Munsif, it could not, without an order of transfer Under Section 24 of the Civil P. C., have been dealt with by the Third Additional Munsif. His point is that not more than one Ct. can be in seisin of of a suit at one time.
4. In support of his contention, he cites 'Chokkalinga Pillay v. Velayudha Mudaliar', AIR (12) 1925 Mad 117. In that case after the institution of a mortgage suit in the Kumbakonam Court the local jurisdiction over the subject-matter of the suit was transferred to the Mayavaram Court. Nevertheless, the Kumbakonam Court proceeded with the suit & disposed of it. In a subsequent suit to challenge the validity of the decree, it was held that, once a Court has seisin of a case, it does not lose its jurisdiction to try it by reason of a general order transferring the local iurisdiction to another Court. On the facts, that decision does not help us here, as what we have to consider is the effect of a trial by a Court other than the one which had originally the seisin of the case. 'Jagannath Prasad v. Sheonandan', 5 Pat L J 304. also cited by Mr. Lal Narayan Sinha, is equally distinguishable. It related to the execution of a mortgage decree passed by the Subordinate Judge, First Court, Gaya. Under the orders of the Dist. J. passed subsequent to the decree, the business In the Subordinate Judge's file arising within the area in which the mortgaged property was situate was transferred to the Subordinate Judge, Third Court Gaya. An, application was made to the Subordinate Judge, First Court for executing the decree. Under a misapprehension regarding his jurisdiction, the Subordinate Judge returned the application to the filing pleader to be refiled in the proper Court. Accordingly, the petition was filed before the Subordinate Judge, Third Court who entertained it in spile of an objection by the J. D. regarding his jurisdiction. The execution proceeded to the sale of the J. D's property. In appeal, the order of the Subordinate Judge, Third Court was set aside by the Dist. J. on the ground that, under Section 38, Civil P. C., the jurisdiction to execute the decree was still vested in the Subordinate Judge, First Court. His decision was upheld by this Court. That case is distinguishable on two grounds, firstly, that from the inception the J. D. objected as to jurisdiction, & secondly, that, as the Subordinate Judge, Third Court, had no jurisdiction to entertain the execution, no execution case really came into being & could form the basis of the execution sale held by him. On both grounds, it differs from the case of 'Inderdeo Prasad v. Dernaryan', 25 Pat 50, where a petition for the execution of a decree by the Munsif, Second Court Bhagalpur, was filed in the Court of a Munsif at Monghyr. The irregularity in that case was that the Munsif, Second Court Bhagalpur, sent the decree to the Munsif at Monghyr for execution direct instead of through the Dist. J. as required by Order XXI, Rule 5, Civil P. C. Their Lordships held that, Under Section 39 of the Code, the Munsif, Second Court Bhagalpur, had the power to transfer the decree, & his failure to comply with Order XXI Rule 5, was a mere defect in procedure which was cured by the failure of the J. D. to raise the point on the several previous occasions on which execution petitions had been filed before the Munsif's Court for executing this decree.
5. The leading case on this subject is 'Ledgard v. Bull', 13 I. A. 134, in which an action for the alleged infringement of certain exclusive rights secured by three Indian patents was in-st'tuted in the Court of the Subordinate Judge of Cawnpore & was subsequently transferred to the Cnurt of the Dist. J. & disposed of by him. The institution of the suit contravened Section 34 of Act XV of 1859, which provides that no action for infr'ngement :
"shall be msintained in any Court other than the principal Court of original jurisdiction in civil cases within the local limits of whose jurisdiction the cause of action shall accrue or the defendant shall reside as a fixed inhabitant."
The defendant contested the jurisdiction of the Dist. J. to proceed with the suit on the ground that the subordinate Judge had no jurisdiction to entertain it in the first instance. His objection was overruled by the Dist. J. & by the H. C. in appeal. This decision was reversed by their Lordships of the P. C. At first sight, the case appears to be distinguishable from that with which we are concerned. It is clear that. the Subordinate Judge being incompetent to entertain such a suit, there was no suit before him, & the order of the Dist. J. purporting to transfer the suit to his own file was equally incompetent. This is the view expressed by their Lordships at p. 144, of the report, but it is not the ground upon which the case was decided.
Their Lordships proceeded to lay down the principle governing such a case in the following words :
"The defendant pleads that there was no jurisdiction in respect that the suit was instituted before a Court incompetent to entertain it, & that the order of transference was also incompetently made. The Dist. J. was perfectly competent to entertain & try the suit, if it were competently brought, & their Lordships do not doubt that, in such a case a defendant may be barred, by his own conduct, from objecting to irregularities in the institution of the suit. When the Judge has no inherent jurisdiction over the subject matter of a suit, the parties cannot toy their mutual consent, convert it into a proper judicial process, although they may constitute the Judge their arbiter, & be bound by his decision on" the merits when these are submitted to him. But there are numerous authorities which establish that when, in a cause which the judge is competent to try, the parties without objection join issue, & go to trial upon the merits, the defendant "cannot subsequently dispute his jurisdiction upon the ground that there were irregularities in the initial procedure, which, if objected to at the time, would have led to the dismissal of the suit."
Having done so, they went on to consider & accept the defendant's plea that he objected as to jurisdiction -- an investigation which in their opinion was necessary. The principle enunciated in this case was re-affirmed by their Lordships of the Judicial Committee in 'Minakshi Naidu v. Subramanya', 11 Mad 26. In that case, however, as also in 'Sevak Jeranchod Bhogilal v. Dakore Temple Committee', AIR (12) 1925 PC 155, as the Court had no inherent jurisdiction to entertain the case, it was held that the acquiescence of the party could not confer jurisdiction upon the Court.
6. Another instructive case is 'Jang Bahadur v. Bank of Upper India Ltd.', 55 I A 227. That case related to the execution of a mortgage decree obtained against the father of the appellant in the subordinate Court at Lucknow. The decree had been transferred to the Court at Hardoi for execution, &, upon the death of the J. D., the Hardoi Court after notice to the Appellant ordered that execution should proceed against him. The validity of the proceedings was challenged on the ground that, Under Section 50, Sub-section (1) of the Civ. P. C., the jurisdiction to direct execution to proceed against the legal representatives of the J. D. is vested in the Court which passed the decree. The order substituting the appellant in place of his father was clearly in contravention of an express provision of the statute. Nevertheless, as the jurisdiction to execute the decree was vested in the Hardoi Court by reason of the order transferring the decree to it for execution, & as their Lordships considered that the obtaining of an order of substitution was merely a matter of procedure, they held that the defect was curable by waiver.
7. Irregularity in the institution of a suit formed the subject-matter of consideration in 'Henry Peter Pisani v. Her Majesty's Attorney-General for Gibraltar', (1874) LR 5 PC 516. The suit was initiated on an information by the Attorney-General claiming for the Crown lands which had belonged to Miss Manuela Perro as escheated for want of heirs. He made defts. to the information the appellant Pisani & several other persons, who had opposing claims to the property as among themselves. The Attorney-General failed to establish the title of the Crown by escheat &, thereupon, the suit, as originally framed, ought to have been dismissed. But, as the opposing claims of the defts. among themselves became clear in the course of the cause, it was proposed that the information should be amended so as to enable the Court to determine & declare what those rights were. This was accordingly done with the consent of the Counsel present on behalf of the defts. The Court proceeded with the suit & gave a decree, in appeal by Pisani to Her Majesty in Council, the Judicial Committee conceded that the procedure followed was a wide departure from the ordinary procedure of the Court which clearly could not have been done without the consent of the parties, & that, with regard to two of the defts. who were infants, no consent could be given. Nevertheless, as the Court had jurisdiction over the subject, & as Pisani had acquiesced in its departure from the ordinary procedure & had done so with knowledge of the fact that these defts. were infants, he could not be heard to object that his consent did not bind him. In the result, they came to the conclusion that the proceedings were a valid proceeding 'in curia' against which an appeal lay to Her Majesty in Council in the ordinary course.
7a. A similar view as to the effect of waiver on irregularity in the institution of proceedings in Court was expressed by the Court of Appeal in England in 'Ex Parte Pratt', (1884) 12 QBD 334, & 'Ex Parte May', (1884) 12 QBD 497. In the former case, the Judge made a receiving order under the Bankruptcy Act, 1883, although, the act of bankruptcy was not strictly proved, the debtor, who was present, taking no objection on this ground. The debtor then appealed. It was found that on the flies of the Court there was evidence which in the circumstances was amply sufficient to justify the Judge in making the order. The appeal was dismissed, Bowen, L. J. pertinently observing :
"There is a good old-fashioned rule that no one has a right so to conduct himself before a tribunal as if he accepted its jurisdiction, & then afterwards, when he finds that it has decided against him, to turn round & say, 'You have no jurisdiction', You ought, not to lead a tribunal to exercise jurisdiction wrongfully."
In the other case, the petition was presented under the Bankruptcy Act, 1869, in accordance with a decision in 'In re Carr' (not reported), that bankruptcy petitions under the Act of 1869, founded on acts of bankruptcy committed under that Act, might be received after the commencement of the Bankruptcy Act of 1883. May appeared, but took no objection to the jurisdiction of the Court to make an adjudication on a petition presented in this way. The registrar adjudicated him a bankrupt, & he did not appeal from the order within the time limited for the purpose. A few d_ays after the expiry of this period, being advised that the effect of the decision in 'Ex parte Pratt' (ante) was to show that there was no jurisdiction to make an adjudication against him under the Act of 1869, he applied to the registrar to appoint a day on which he might apply to the Court for an order that the bankruptcy petition might be re-heard. The registrar refused the application & the bankrupt appealed. It was clear that the effect of Section 169, Bankruptcy Act of 1883 was to repeal the creditor's right to present a bankruptcy petition under the Act of 1869. But there were certain saving clauses in Section 169 preserving rights & privileges acquired under the previous legislation & proceedings under the Act of 1869 pending at the commencement of the Act of 1883. In the case before the Court of Appeal, liquidation proceedings were pending under the Act of 1869 on 1-1-1884, but became inoperative by reason of the creditors separating without passing any resolution, thus putting an end to the liquidation proceedings. But the receiver who had been appointed had not been discharged, thus keeping the proceedings alive even for the purpose of enabling the Court to order a fresh first meeting of the creditors to be held. By means of an appropriate order, therefore, it was possible for the Court to proceed to make an order of adjudication under the Act of 1869, The Court of appeal held that in the circumstances the failure of the debtor to object to the form of the proceedings disentitled him to a re-hearing on the ground of this error in form. Bowen L. J. observed :
"It is quite true that the Court, being misled by the previous decision in 'In re Carr', did make the adjudication on a wrong ground. But the Court would have had power, if it had chosen to exercise it (& it would no doubt have done so if its attention had been directed to the point), to make the very same adjudication under Sub-s. 12 of Section 125, on the ground that liquidation proceedings were pending in which justice could not be obtained by the creditors unless they were converted into bankruptcy proceedings. If the point had been taken the Court could have clothed itself with jurisdiction to make the adjudication under Sub-section 12 of Section 125. I think the true ground of our present decision is this, that the debtor had no right to allow the Court which could have exercised jurisdiction rightly, to exercise jurisdiction on a wrong ground, & then to come to the Court of Appeal & say. The Court below had no jurisdiction to make the adjudication against me. The answer to his appeal is : the Court had jurisdiction to make the adjudication if it had exercised it in the right form."
8. Finally, I would refer to 'Girwar Narayan Mahton v. Kamla Prasad', 12 Pat 117, which shows the extent to which this doctrine has been carried by this Court. There, a suit had been entertained by a civil Court in contravention of the statutory bar of Section 109, Bihar Tenancy Act that a civil Court shall not entertain any application or suit concerning any matter which is or has already been the subject of an application made, suit instituted, or proceedings taken Under Sections 105 to 108 of the Act. Subsequently, the validity of the compromise arrived at between the parties to this suit was challenged. The objection succeeded in the Court below. But the decision was reversed by a Bench of this Court which pointed out that the Civil Court had jurisdiction as regards place, valuation, subject-matter & person, & that the prohibition contained in Section 109 was not an inherent want of jurisdiction. In the case before their Lordships, the jurisdiction of the Civil Court had not been challenged before the Civil Court which passed the impugned decree. It was, therefore, covered by the decisions to which I have referred above. Their Lordships went further & observed :
"The criterion is that if the constitution of the Court gives it jurisdiction to entertain a suit, but the jurisdiction may be barred by the existence of some extraneous facts, or the bar depends on an interpretation of the law, there is no inherent want of jurisdiction as the existence of those facts, or the interpretation of the law, is a matter for the Court itself to decide."
It is unnecessary to decide in this case how far the above observation is consistent with the decision in 'Ledgard v. Bull', (ante). It will suffice to point out that their Lordships were concerned with a statutory & absolute bar to the entertainment of the suit by the Civil Court & held that it did not affect the inherent jurisdiction of the Court. We are concerned here merely with a bar which was removable by an order of transfer Under Section 25 (sic.) of the Civ. P. C. Had an objection to jurisdiction been raised at the proper stage, the necessary order could have been obtained.
9. To sum up, the Additional Munsif, Third Court, had inherent jurisdiction to try the suit. All that was necessary was that certain procedure should have been followed in order to remove the case from the file of the Additional Munsif, Second Court, to his file. The failure to obtain this order was a defect of procedure which has been cured by waiver.
10. In the result, I would dismiss this appeal with costs.
Sinha, J.
11. I agree.