1. This is an application under Section 25 of the Provincial Small Cause Courts Act. It arises out of a suit filed by the plaintiff to recover the amount of damages done by the defendants to the plaintiff's trees by illegally cutting them. The defendants put forward their contention on the merits alleging that they had not cut the plaintiff's trees, but that the trees cut by them were their own trees.
2. The First Class Subordinate Judge with Small Cause Court powers tried it as a Small Cause suit, and decided in favour of the plaintiff and passed a decree in his favour.
3. Defendants Nos. 2 and 3 have applied to this Court under Section 25 of the Provincial Small Cause Courts Act. It is urged in support of the application that the Small Cause Court had no jurisdiction to try the suit, as it is excluded from the jurisdiction of the Small Cause Court having regard to the provision of Art. 35 (ii) in the Second Schedule of the Provincial Small Cause Courts Act IX of 1887. This point was not raised in the lower Court, but it seems to us that the contention is correct. A similar point was recently allowed by Sir Norman Macleod C.J. in Ayub Haji v. Jainuddin. : (1926)28BOMLR540 We agree with the view taken in that case, and we think that the point should be allowed. The plaintiff has really no answer to it on the merits.
4. It has been urged, however, on his behalf that this point not having been raised, the Court should not interfere under Section 25 of the Provincial Small Cause Courts Act; and reliance has been placed upon several cases like Ram Lal v. Kabul Singh(1), Suresh Chunder Maitra v. Kristo Rangini Dasi(2), and Parameshwaran Nambudiri v, Vishnu. Embrandri.(3) On the other hand, reliance is placed by the learned pleader for the applicants upon Kollipara Seetapathy v. Kankipati Subbayya(4), Abdul Majid v. Bedyadhar Saran Das(5), and Shankarbhai v. Somabhai.(6) It may be mentioned that some of the cases which have been relied upon by Mr. Sathaye for the opponent were considered by this Court in Maharana Shri Davlatsinhji v. Khachar Hamir Mon.(7)The principle recognized there is that where the Court has no jurisdiction to entertain a suit of a particular nature, the consent of parties or failure of parties to raise the point cannot give jurisdiction to that Court. That is the principle which has been followed in the case of Ayub Haji v. Jainuddin ; and that is the principle which we think should be followed in this case.
5. We, therefore, make the rule absolute, set aside the decree of the lower Court and direct the plaint to be returned to the plaintiff to be presented to the proper Court. As this point was not raised in the lower Court, we make no order as to costs of this application, or in the lower Court.