Bombay High Court
Shri Sidheshwar Pandit vs Shri Harihar Pandit on 20 July, 1887
Equivalent citations: (1888)ILR 12BOM155
JUDGMENT Charles Sargent, C.J.
1. The plaintiff who presented his darkhast in the Court of the First Class Subordinate Judge, has taken the objection, that the Subordinate Judge of the Second Class had no jurisdiction to adjudicate on the darkhast, the subject-matter both of the suit and of the darkhast being above 5,000 Rs. The Subordinate Judge, it appears; had been appointed, under Section 23 of Act XIV of 1869, to assist the First Class Subordinate Judge in the disposal of the suits on his file, and was directed by the latter to dispose of the darkhast in question. The assistance, however, contemplated by that section could only be afforded within the limits of a Second Class Subordinate Judge's jurisdiction as fixed by Section 24 of Act XIV of 1869, and could not, therefore, be invoked by the Subordinate Judge of the First Class, except in matters within his competence. The execution of the decree by Section 223 of the Civil Procedure Code belongs to the Court which has pronounced it, and as the Second Class Subordinate Judge could not have entertained the suit, so neither could he deal with it in execution. We, therefore, think that the plaintiff is right in his contention that the Subordinate Judge of the Second Class had not jurisdiction to entertain the darkhast.
2. But it has been urged for the defendant that this objection cannot be taken by the plaintiff, or, at any rate, not on second appeal for the first time. As a general rule, an objection to the jurisdiction, the validity of which is patent on the face of the proceedings, can be taken at any stage of the proceedings-see Gecasoodin v. Ramchandra Hanmant Risbood S.A. 323 of 1872, No. 17 of 1872 and the remarks of Mahmood, J., in Nidhi Lal v. Mazhar Husain I.L.R., 7 All., at p. 243; and as the plaintiff presented his plaint in the proper Court, there seems no sufficient reason why he should not have the same right to object to the jurisdiction of the Judge who tried the case as the defendant would have had the decision been against him.
3. We must, therefore, discharge the orders of both the Courts below, and direct that the plaintiffs darkhast be disposed of by the First Class Subordinate Judge. As the plaintiff presented his darkhast in the right Court, the parties must pay their own costs throughout up to the present time.