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Bibi Ladli Begam Vs. Bibi Raje Rabia - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom650
AppellantBibi Ladli Begam
RespondentBibi Raje Rabia
Excerpt:
jurisdiction - plea of--waiver--consent cannot give jurisdiction where none is given by law. - .....claim on the merits. the plaintiff appealed to the district court, which reversed the subordinate judge's decision and awarded the claim. in the district court, the defendant did not renew the objection to the court's jurisdiction which she had taken in the subordinate court; but she now takes that objection in her present application under section 622 of the code of civil procedure. for the plaintiff, it is here contended that, as the defendant was silent in the district court, she is estopped from raising the objection, and that, moreover, the suit is practically one for maintenance, and, therefore, within the cognizance of the ordinary courts. we think that the district judge has rightly described the suit as one for money payable by the defendant to plaintiff for money received by.....
Judgment:

Birdwood, J.

1. The plaintiff sued to recover the sum of Rs. 66-10-8, due to her by way of maintenance, and payable out of a sum of Rs. 200 in the defendant's hands, which the defendant had received from the Talukdari Settlement Officer for distribution to the persons entitled to maintenance from a talukdari estate under the management of the Settlement Officer. The suit was heard in the Joint Subordinate Judge's Court at Ahmedabad, arid the defendant pleaded that the Subordinate Judge had no jurisdiction to hear the suit, as it was cognizable by the Court of Small Causes alone. The Subordinate Judge overruled this plea, but rejected the claim on the merits. The plaintiff appealed to the District Court, which reversed the Subordinate Judge's decision and awarded the claim. In the District Court, the defendant did not renew the objection to the Court's jurisdiction which she had taken in the Subordinate Court; but she now takes that objection in her present application under Section 622 of the Code of Civil Procedure. For the plaintiff, it is here contended that, as the defendant was silent in the District Court, she is estopped from raising the objection, and that, moreover, the suit Is practically one for maintenance, and, therefore, within the cognizance of the ordinary Courts. We think that the District Judge has rightly described the suit as one for money payable by the defendant to plaintiff for money received by the defendant for the plaintiff's, use. The suit is, therefore, one on an implied contract; and, as such, it was cognizable only by the Court of Small Causes at Ahmedabad, under Act XI of 1865--Ratamhankar Revashankar v. Gulabshankar Lalshankar 10 Bom. H.C. R 21; Gulam Nabi Kutbudin v. Shahabudin Martuja Printed Judgments for 1885 p. 14. The decree in the Subordinate Judge's Court having been in the defendant's favour, she could not have appealed against the finding unfavourable to her on the issue as to jurisdiction--Muttukumarappa v. Arumuga I.L.R. Mad. 145. But though she could have taken an objection to that finding in the Appellate Courts see Rajai v. Appaji Printed Judgments for 1888 p. 220, still the circumstance that she did not do so would not clothe the District Court with a jurisdiction not given it by law. In a somewhat similar case, the Calcutta High Court refused to interfere in the exercise of its general powers of superintendence under Section 35 of Act XXIII of 1861 and Section 15 of 24 and 25 Vic., cap. 104--see Drobo Moyee Dabee v. Bipin Mundul 10 Cal. W.R. Civ. Rul. 6 . But we prefer to follow the decision of the Allahabad High Court in Debi Singh v. Hanuman Upadhya I.L.R. All. 747 in which Straight, J. observed that the objection to the jurisdiction was directly based upon the provisions of Section 622 of the Civil Procedure Code, and that the Court could not refuse to take notice of it. See also Aukhil Chunder Sen Ray v. Baboo Moheene Mohun Das I L.R Calc.. 491 . In the recent case of Meenakshi v. Subramaniya I L.R. .A. 160 the Privy Council decided that 'a right of appeal from the decision of a Judge must be given by statute, or an equivalent authority,' and that, where there was an inherent incompetence in the High Court of Madras to deal with the question before it, the omission to raise before that Court the question of its jurisdiction did not operate as a waiver of the right to raise it before the Privy Council, and that consent could not confer on the High Court a jurisdiction which it never possessed. Their Lordships followed the decision in the case of Ledgard v. Bull 8 Bom. H.C. R A.C.J. 245 in which it was said: 'When the Judge has no inherent jurisdiction over the subject-matter of a suit, the 'parties cannot, by their mutual consent, convert it into a proper judicial process, although they may constitute the Judge their arbiter, and be bound by his decision on the merits when these are submitted to him. ' In the present case there was no such submission to the arbitration of the District Judge. As there was an inherent in competency in both the Courts below to deal with the suit, we reverse the decrees made by them, and direct that the plaint be returned to the plaintiff, in order that she may, if so advised, present it in the Court of Small Causes. Plaintiff to pay costs throughout.


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