Bombay High Court
Babaji vs Lakshmibai And Two Ors. on 8 December, 1884
Equivalent citations: (1885)ILR 9BOM266
JUDGMENT West, J.
1. As to the argument that the consent or acquiescence of two of the defendants gave the Subordinate Judge's Court jurisdiction over the case as against them, we observe that consent or appearance does not give jurisdiction to a Court of limited jurisdiction, though the waiver may be sufficient in a Court of superior jurisdiction. This is shown by the judgment of Brett, J., in Oulton Radcliffe L.R. 9 C., at p. 194. There is a dictum of Bowen, L.J., in the recent case of Ex parte Pratt L.R. 12 Q.B.D., at p. 341 which may seem somewhat at variance with what has just been said, but that was a case in which the Court had the requisite jurisdiction; the error consisted in its having been invoked in the wrong way. Such a case is plainly quite different from one in which the authority does not at all subsist. The consent which waives an irregularity or allows the Court to exercise a power Vested in it on a wrong reason instead of the right one on which it might have rested, cannot give the authority itself as an attribute of the Court which must directly or indirectly emanate from the sovereign. Hence the objection taken on this ground cannot, we think, be allowed.
2. But it appears that the Court of the Subordinate Judge had not jurisdiction. The plaint ought then to have been retained in that Court; and as the Subordinate Judge did not find the facts which ousted his jurisdiction, the District Judge, who did ought to have ordered the plaint to be returned. As he did not give this direction, we, on the authority quoted by Mr. Bhandar-kar (Mussamut Edoo v. Sheikh Hejazut Husein 13 Calc. W.R. 358, now order that the plaint be returned, for presentation in the proper Court.
3. The District Court's decision on the question of jurisdiction is affirmed, and the appellant is to bear the costs throughout.