W. Comer Petheram, C.J.
1. The question raised by this reference is whether a District Judge or Subordinate Judge has any jurisdiction to try a suit in which the value of the subject-matter in dispute is less than Rs. 1,000. The question arises on the construction of Sections 19 and 20 of the Bengal Civil Courts Act, and Section 6 of the Civil Procedure Code, 1859, for which Sections 15 and 25 of the present Civil Procedure Code have been substituted. The sections must all be read together. Reading them together, it appears that the jurisdiction of the District Judge or Subordinate Judge extends to all suits cognizable by the Civil Court, whatever the value of the subject-matter in dispute may be. The jurisdiction of the Munsif extends to all like suits the value of the subject-matter in dispute in which does not exceed Rs. 1,000. That is to say, up to Rs. 1,000 the Munsif and the District Judge or Subordinate Judge have concurrent jurisdiction. Then comes Section 6, which must be read in as a proviso. The section which has been substituted is practically the same. The word 'shall' is, in my opinion, imperative on the suitor. The word is used for the purpose of protecting the Courts. The suitor shall be obliged to bring his suit in the Court of the lowest grade competent to try it. The object of the Legislature is that the Court of the higher grade shall not be overcrowded with suits. Whenever an Act confers a benefit, the donee may exercise the same or not at his pleasure. The proviso is for the benefit of the Court of the higher grade, and it is not bound to take advantage of it. If it does not wish to try the suit, it may refuse to entertain it. If it wishes to retain the suit in its Court, it may do so it is not bound to refuse to entertain it. Consequently, VI am of opinion that the Subordinate Judge had jurisdiction in the present case.
2. By Section 19, Act VI of 1871, the jurisdiction of the District Judge and Subordinate Judge extends, subject to the provisions of Section 6, Act VIII of 1859, to all original suits cognizable by the Civil Court. Section 6 provided that every suit shall be instituted in the Court of the lowest grade competent to try it, and this provision is re-enacted in Section 15 of the present Code of Civil Procedure. This last provision is one entirely of procedure as distinct from jurisdiction, and the effect is that the jurisdiction of the Distrust Judge and the Subordinate Judge extends to all original suits cognizable by the Civil Court, subject in its exercise to a certain procedure, namely, that the suits be instituted in the Court of lowest grade competent to try them.
3. Section 15 does not in any sense affect jurisdiction, and in the case before us the Subordinate Judge had jurisdiction, although there may have been a transgression of the rule of procedure laid down in Section 15.
4. I may add that in the case of Gulzari Lal v. Jadaun Rai I.L.R. 2 All. 799 the decision turned on a question of valuation, and the point now before us was not, it would seem, raised or discussed.
5. For the purpose of disposing of this reference, it is desirable, at the outset, to look at Act XVI of 1868, which was repealed by Act VI of 1871, the Bengal Civil Courts Act now in force.
6. By referring to Sections 13, 15 and 16 of the former Act, it will be seen that, whilst Munsifs were empowered to try all original suits cognizable by the Civil Court of which the subject-matter did not exceed in value or amount Rs. 1,000, Subordinate Judges were empowered to try all suits cognizable by the said Courts, of which the subject-matter exceeded in amount or value Rs. 1,000, and they were debarred from trying suits of less value unless they had been invested by the Local Government with the powers of a Munsif under Section 13, or such suits had been transferred to them by the District Judge under the Code of Civil Procedure.
7. The jurisdiction of a Munsif under Section 20, Act VI of 1871, is exactly the same as it was by Section 13, Act XVI of 1868, but the jurisdiction of a Subordinate Judge has been enlarged by the Act in force, for Section 19 declares that his jurisdiction 'extends, subject to the provisions in the Code of Civil Procedure, Section 6, to all original suits cognizable by the Civil Court.'
8. Act VIII of 1859 was the Code of Civil Procedure at the time that Act VI of 1871 came into force, and Sections 15 and 25 of Act XIV of 1882, the Civil Procedure Code now in force, correspond with Section 6, Act VIII of 1859.
9. The provision of the latter section was, as held by Ainslie and McDonell, JJ., in their judgment in Russick Chunder Mohunt v. Ram Lal Shaha 22 W.R. 301 to be, 'a provision intended to regulate the practice of the Courts,' and 'not intended to take away jurisdiction from any Court which has general jurisdiction;' and Garth, C.J., and Birch, J., in their judgment in Sufee-ool-lah Sircar v. Begum Bibi 25 W.R. 219 observed: 'The Subordinate Judge is empowered by Section 19 of Act VI of 1871 to try causes of any value, although he might very properly, if he had found the subject-matter of the suit to be under Rs. 1,000, have sent it to the Munsif's Court to be tried there; he had clearly jurisdiction to try it himself, and the fact that he did so try it is no ground of error in special appeal.'
10. Concurring in those rulings, I consider that Sections 15 and 25, as also Clause (a), Section 57 of Act XIV of 1882, refer to procedure only, and regulate the practice of the Courts, but do not deprive them of jurisdiction which they may otherwise possess.
11. The suit which has occasioned this reference was originally instituted in the Munsif's Court, but the Munsif, being of opinion that it was beyond his jurisdiction, returned the plaint to be filed in the Court of the Subordinate Judge; it accordingly was filed in that Court; no objection was then taken; the Subordinate Judge had jurisdiction to try the suit, and he did try it. The appeal came before the same Judge that would have tried it had the original suit been decided by the Munsif, and neither party appears to have been prejudiced by the case having, under a misapprehension, been decided by the Subordinate Judge, who had more experience, and was holding a higher position in the judicial service than the Munsif, and the District Judge was, I think, right in declining to set aside the Subordinate Judge's proceedings on the ground of their being without jurisdiction.
12. I am of the same opinion, but I wish to explain briefly the manner in which ay own mind has arrived at this conclusion. My brother Brodhuhst has explained the circumstances of the suit. It was originally instituted in the Court of the Munsif, who returned the plaint under Section 57, Clause (a) of the Civil Procedure Code, because he held that the value of the subject-matter of the suit was more than Rs. 1,000, and, therefore, beyond his jurisdiction. No appeal was preferred from the Munsif's order, although it was appealable under Section 588 of the Civil Procedure Code, and the plaint was taken back by the plaintiff and filed in the Court of the Subordinate Judge. That officer accepted it, tried the case, and passed a decree. The decree was appealed to the District Judge, in whose Court the question was raised, practically for the first time, whether the Subordinate Judge had jurisdiction to try the suit, and this plea rested on the contention that the value of the subject-matter was less than Rs. 1,000. Such being the facts, the question referred to us is as follows: 'If by bond fide mistake of the parties, or under mistaken action of the Courts, a suit cognizable by a Munsif has been heard and determined by a Subordinate Judge, and the District Judge in appeal has refused to entertain the plea of defect in jurisdiction, is such refusal erroneous; and, if it be, can it be made ground of second appeal in this Court? 'I understand this question to raise two distinct points. The first, which I regard as most important, relates to the jurisdiction of the Subordinate Judge. In dealing with this point, it is necessary to refer to Act XVI of 1868, and in particular to Sections 13, 15, and 16. Section 13 says: 'Munsifs are empowered to try all original suits cognizable by the Civil Courts, of which the subject-matter does not exceed in amount or value Rs. 1,000.' Section 15 says: 'Subordinate Judges are empowered to try all original suits cognizable by the Civil Courts, of which the subject-matter exceeds in amount or value Rs. 1,000, and (if the District Judge shall have referred them under the Code of Civil Procedure) suits of which the subject-matter is of any less amount or value.' These two sections leave no doubt that at the time when Act XVI of 1868 was passed, the Legislature intended that the jurisdiction of the Subordinate Judge should begin where that of the Munsif ceased: in other words, that the Munsif should have jurisdiction to try cases in which the value of the subject-matter did not exceed Rs. 1,000, and that where the subject-matter exceeded that amount in value, the case should be tried by the Subordinate Judge. This conclusion is supported by the terms of Section 16, which says: 'The Local Government may invest any Subordinate Judge with the powers of a Munsif under Section 13, and may define and from time to time vary the local limits within which such powers are to be exercised.' I understand from this that unless the Subordinate Judge was invested by the Local Government, under Section 16, with the powers of a Munsif, he would have no jurisdiction in any case in which the subject-matter did not exceed in amount or value Rs. 1,000. Such was the law in 1868, and I have now to consider how it was affected by Act VI of 1871. The important sections in that Act, for the purposes of this reference, are Sections 19 and 20. Section 19 says: 'The jurisdiction of a District Judge or Subordinate Judge extends, subject to the provisions in the Code of Civil Procedure, Section 6 to all original suits cognizable by the Civil Court.' Section 20 says: 'The jurisdiction of a Munsif extends to all like suits in which the amount or value of the subject-matter in dispute does not exceed Rs. 1,000.' Now it seems to me that in Section 19 the most important word is 'all' in the phrase 'all original suits;' and reading that section with Section 20, it is perfectly clear that the object of the two sections was to create a jurisdiction in a Subordinate Judge concurrent with a Munsif in suits up to Rs. 1,000 in value, but not concurrent in suits of value beyond Rs. 1,000. This was a distinct alteration of the law, and it is important to notice that the rule contained in Section 16 of Act XVI of 1868 has not been reproduced in Act VI of 1871. An important part of the argument of the learned pleader for the appellant related to the effect of the words in Section 19 of the present Act--'subject to the provisions in the Code of Civil procedure, Section 6.' The Code there referred to is the Code of 1859, and we need not consider Section 6 of that Code, because it has been reproduced, almost verbatim, in the present Code, in Sections 15 and 25. By Clause (2), Section 3 of the present Code it is provided that when in any Act passed prior to the day on which the Code came into force, reference is made to the 'Code of Civil Procedure,' such reference shall be read, as far as may be practicable, as applying to the present Code, or the corresponding part thereof. The question then is: Reading Section 19 of the Bengal Civil Courts Act with Sections 15 and 25 of the present Civil Procedure Code, is there any reason to hold that in suits of less value than Rs. 1,000 the jurisdiction of the Subordinate Judge is ousted, notwithstanding the general terms of Section 19 of the Bengal Civil Courts Act? In other words, does the reference made by Section 19 to Section 6 of Act VIII of 1859, and therefore to Sections 15 and 25 of the present Code, make the rule contained in Sections 15 and 25 a rule of jurisdiction? Now, Section 15 says: 'Every suit shall be instituted in the Court of the lowest grade competent to try it,' and the important word here is 'competent.' Section 25 says: 'The High Court or District Court may. withdraw any suit whether pending in a Court of First Instance or in a Court of Appeal subordinate to such High Court or District Court, as the case may be, and try the case itself, or transfer it for trial to any other such subordinate Court competent to try the same in respect of its nature and the amount or value of its subject-matter.' In this section again the word 'competent' occurs. I am of opinion that 'competent' means 'having jurisdiction'--that is, with reference to the pecuniary value and nature of the suits which the Court has power to try. It seems to me impossible to put any other interpretation upon the word, in either of the two sections which I have quoted. The language of Section 15 seems to me to contemplate that the Court 'competent'--that is having jurisdiction--to try the suit may be of more than one grade, because the whole object of the section is to provide that the suit should be instituted in the Court 'of the lowest grade'--a phrase which would not have been employed if there were not a higher Court possessing jurisdiction to try the suit; in other words, if the jurisdiction were possessed by only one Court. Now, as to Section 25. The section undoubtedly enables the High Court or the District Court to transfer a case of less value than Rs. 1,000 from the Court of a Munsif to that of a Subordinate Judge who would be 'competent'--that is, would have jurisdiction--to try the suit. It is not that the act of transferring a suit confers jurisdiction; but the existence of jurisdiction with reference to the nature and value of the suit is a condition precedent to the exercise of the power of transfer. If any other view were to be taken of the section, it would follow that the High Court or the District Court could transfer a suit of higher value than Rs. 1,000, from the Court of a Subordinate Judge to that of a Munsif. This of course cannot be done, and the reason is that the Munsif's Court is not 'competent'--that is, has no jurisdiction--to try suits of higher value than Rs. 1,000. From this reasoning it follows that on the one hand Section 15 of the Civil Procedure Code itself contemplates no disturbance of jurisdiction as provided by the Civil Courts Act; and on the other hand, its provisions, both in Section 15 and Section 25, proceed upon the implied ground that, whilst the Munsif's Court has no jurisdiction in suits of higher value than Rs. 1,003, 'the jurisdiction of a District Judge extends...to all original suits cognizable by the Civil Courts.' These are the words of Section 19 of the Civil Courts Act itself; but the section says that the rule as to jurisdiction therein contained is subject to the provisions of the Civil Procedure Code, and on this ground it is contended by the learned pleader for the appellant that Sections 15 and 25 of the Code must be considered as part and parcel of Act VI of 1871, and therefore form a rule of jurisdiction, and that the effect is to limit the jurisdiction of the Subordinate Judge to suits of which the subject-matter exceeds Rs. 1,000 in value. But, in my opinion, this contention has no force. I have already explained that the two sections of the Civil Procedure Code cannot be understood to disturb the rule as to jurisdiction contained in the Civil Courts Act, so that the circumstance that they are referred to in the latter Act falls far short of substantiating the argument for the appellant. Any other view of the matter would go to show that Act VI of 1871 made absolutely no alteration in the law as it was contained in Act XVI of 1868. This indeed is what the learned Pandit has contended for, but I have already said enough to show that it is impossible, after comparing the two statutes, which are in pari materia, to arrive at any such conclusion. My own view is that Section 19 of Act VI of 1871 refers to the Civil Procedure Code merely as a matter of convenience. Section 15 of the Civil Procedure Code is a rule of procedure, not of jurisdiction; and whilst it lays down that a suit shall be instituted in the Court of the lowest grade, it does not oust the jurisdiction of any Court of a higher grade. In order to fortify his argument the learned Pandit called our attention to Section 57, Clause (a) of the Civil Procedure Code, which lays down that the plaint shall be returned to be presented to the proper Court, 'if a suit has been instituted in a Court whose grade is lower or higher than that of the Court competent to try it, where such Court exists, or where no option as to the selection of a Court is allowed by law.' The word 'competent' occurs in this section also, and I interpret it in the same manner as in Sections 15 and 25. The provision is no doubt imperative, but it is merely a matter of procedure, and does not affect the question of jurisdiction. It simply repeats in another form the rule contained in Section 15 of the Code. The learned Pandit, however, contends that the language of the clause goes to show that there is only one Court 'competent'--that is, which has jurisdiction--to try the suit. The contention, though plausible, has no real force, because, in the first place, the section is not referred to in Section 19 of the Civil Courts Act; in the second place, it cannot be read irrespective of Section 15 of the Civil Procedure Code, and bearing this in mind, there can be no doubt that the clause is only a rule of procedure and does not affect the question of jurisdiction.
13. This conclusion is the same as that of the learned Judges who tried the cases in the Calcutta High Court which have been cited by my learned brother Brodhurst, and I entirely agree with the opinions which those learned Judges expressed. My answer to the reference upon the first point, therefore, is that the Subordinate Judge had jurisdiction to try the case, although the subject-matter of it may be less than Rs. 1,000 in value.
14. I wish to refer for a moment to another part of the argument of the learned Pandit. He referred to b. 6 of Act XI of 1865 (the Mufassal Small Cause Courts Act), and asked us whether a Suhordinate Judge could dispose of a suit which was cognizable in Courts of Small Causes. Now, the section describes the nature of suits which are cognizable by such Courts, and then there is a most important section which goes far to furnish an answer to the question put by the learned Pandit. Section 12, which is imperative, says: 'Whenever a Court of Small Causes is constituted under this Act, no suit cognizable By such Court shall be heard or determined in any other Court having jurisdiction within the local limits of the jurisdiction of such Court of Small Causes.' We are not directly concerned with the effect of this section. I have quoted it in order to show that the analogy upon which the argument of the learned Pandit proceeds has no weight in connection with the matter now before us. The language of the section is different to that of Section 15 of the Civil Procedure Code, and I should be disposed to say that whilst the latter section is mount to be imperative upon the parties, the terms of the former section would go to show that the rule therein contained is imperative upon the Courts and affects their jurisdiction. Indeed, reading Section 12 of the Small Cause Courts Act with Section 26 of the Civil Courts Act itself, it seems to me that the ordinary Civil Courts do not possess the jurisdiction of a Court of Small Causes unless they are especially invested with such jurisdiction by the Local Government. Section 11 of the Civil Procedure Code is the general section conferring jurisdiction upon the ordinary Civil Courts, and the jurisdiction so conferred is subject to the last part of the section, and in the case of the Small Cause Courts the limitation upon the general rule is contained in Section 12 of Act XI of 1865. It is true that under Section 25 of the Civil Procedure Code a suit may be transferred from a Court of Small Causes to one of the ordinary Civil Courts, provided that the latter Court is 'competent to try the same in respect of its nature and the amount or value of its subject-matter;' but this can be done not because the mere act of transferring would confer jurisdiction, but because the language of the statute in the last paragraph of the section expressly provides that 'the Court trying any suit withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.' But for this express provision of the law I should have been disposed to hold that because Section 12 of Act XI of 1865 ousts the jurisdiction of the ordinary Civil Courts in certain cases, no such case could be transferred under Section 25 of the Civil Procedure Code from a Small Cause Court to an ordinary Civil Court. These observations satisfy me that there is no real analogy between Section 12 of the Small Cause Courts Act and Section 15 of the Civil Procedure Code, and it does not follow that if the one is a matter of jurisdiction, the other should be a matter of jurisdiction also.
15. The second point is: Assuming that the Subordinate Judge had no jurisdiction to try the present suit, could the plea of want of jurisdiction be taken for the first time in first appeal, or in second appeal
16. What I have already said upon the first point disposes of the second, The trial by a Subordinate Judge of a suit of which the subject-matter is less than Rs. 1,000 in value, is not an assumption by him of a jurisdiction which he does not possess, but is, at the most, an irregularity of procedure on his part. I would not willingly say anything which encouraged people to think that they were at liberty to choose whether they would enforce their remedies in the Munsif's or in the Subordinate Judge's Court. But at the same time I must say that the institution of a suit in a Court of higher grade than the Court which is competent to try it, is not a question either as to the jurisdiction or affecting the merits of the case. It is a question of the kind provided for by Section 578 of the Civil Procedure Code, and the irregularity is not one which affects 'the merits of the case or the jurisdiction of the Court,' within the meaning of that section. It only remains for me to add that if the irregularity did affect the jurisdiction of the Court, the plea could, I think, be entertained for the first time at any stage, provided that there were on the record sufficient material to substantiate it.
17. The questions raised by this reference have been argued in the following order:
(a) Has a Subordinate Judge, or has he not, jurisdiction to hear and determine a 'Munsif's case' not referred to him for trial by a superior Court?
(b) If (a) be answered in the negative, then is a District Judge or is he not, bound to entertain in first appeal the plea of defect of jurisdiction?
(c) Supposing (b) to be answered in the affirmative, and (a) in the negative, then, if a District Judge refuses to entertain the plea of want of jurisdiction, is his refusal, or is it not, a valid ground of second appeal to this Court?
18. As regards the first of the questions thus stated, it has been contended on the one hand, that jurisdiction to hear a 'Munsif's case' is given to a Subordinate Judge by the terms of Section 19 of the Bengal Civil Courts Act (VI of 1871); that jurisdiction can be ousted only by express provision of law, which in this case does not exist; that in the analogous case of Mufassal Small Cause Court jurisdiction, this principle has been recognized (Section 12, Act XI of 1865); that in the case of the Presidency Small Cause Courts not only has the principle been recognized as regards suits, the value of the subject-matter of which does not exceed Rs. 1,000, but in Small Cause Court suits of greater value the High Courts have concurrent jurisdiction (cf. Section 12 of the Letters Patent, Calcutta High Court, and Act XV of 1882); and that the intention of the Legislature appears to have been to allow to District and Subordinate Judges a concurrent jurisdiction with Munsifs in 'Munsif's cases,' and to District and Subordinate Judges a concurrent jurisdiction in Subordinate Judge's cases, but at the same time to protect defendants from being needlessly harassed, by providing District and Subordinate Judges (by Section 15 of the Civil Procedure Code) with the means of exercising a discretion as to what suits, cognizable by an inferior Court, they should, and what they should not, accept for trial in their own Courts.
19. On the other hand, it is contended that the jurisdiction conferred by Section 19 of Act VI of 1871 is not conferred absolutely, but is made subject to the restrictions imposed on it by the Code of Civil Procedure; that the terms of Section 57(a) of Act XIV of 1882 constitute an express provision of the law, ousting (except under the provision of Section 25) the jurisdiction of Subordinate Judges in 'Munsif's cases,'. wherever a Munsif's jurisdiction exists; that the case of the Presidency Small Cause Courts is not truly analogous, because (Section 638, Act XIV of 1882) Section 57 of the Code of Civil Procedure does not apply to High Courts; and that the intention of the Legislature was, while preventing Subordinate Judges from throwing open their Courts to suitors who might prefer to use them to using those of Munsifs, to allow at the same time to the superior Courts, for reasons which they might think satisfactory, power to refer for trial any cause to a Court of higher grade than that primarily competent to try it.
20. Neither of these arguments appears to me to be correct as a whole. The truth appears to me to lie between them. Taking it together (of Section 3, Act XIV of 1882), I read the law thus:
21. The jurisdiction of a District or Subordinate Judge extends to all original suits cognizable by the Civil Court. The jurisdiction of a Munsif extends to all like suits in which the amount or value of the subject-matter does not exceed Rs. 1,000 (as. 19 and 20, Act VI of 1871). Every suit shall be instituted in the Court of lowest grade competent to try it (Section 15, Act XIV of 1882). If a suit has been instituted in a Court whose grade is higher than that of the Court competent to try it, the plaint shall, where such Court exists, be returned to be presented to the proper Court (Section 57, Act XIV of 1882). The High Court or District Court may withdraw any suit, and try the suit itself, or transfer it for trial to any subordinate Court competent to try the same in respect of its nature and the amount or value of its subject-matter (Section 25, Act XIV of 1882).
22. High Courts, in the exercise of their original jurisdiction, are not subject to the provisions of Section 57 of the Code of Civil Procedure, but District and Subordinate Judges are bound by them; and I fail, with reference to those provisions of the law, to understand how a Subordinate Judge, in whose Court a suit cognizable by a Munsif (where a Munsif's Court exists) has been filed, can have any option as to returning the plaint, as soon as the fact that the suit is a 'Munsif's case' has been ascertained. There is a marked distinction between the terms of Section 53 of the Code of Civil Procedure and those of Section 57. The words 'at or before the first hearing' are absent from Section 57, and instead of 'may be' rejected, etc., we have in Section 57, as in Section 54, the words 'shall be.' I can only understand those words as an instruction which the Court is bound to follow. And if this be so, they are a restraint upon jurisdiction, and it is no more open to a Subordinate Judge to proceed with the hearing of a suit which he has ascertained to be a 'Munsif's case' (there being a Munsif with jurisdiction to try it), than he would be if the plaint were written upon paper insufficiently stamped, and the plaintiff, within a time fixed by the Court, failed to supply the deficiency; or if it was ascertained that the cause of action did not arise, etc., within the limits of his local jurisdiction. In the case of the insufficiently stamped plaint, the Subordinate Judge would be bound to reject it; in the other two cases, he would, as it seems to me, be bound to return it. I am unable therefore to agree with the view taken by the learned Chief Justice, that the effect of the concurrent jurisdiction of Subordinate Judges and Munsifa is to allow to a Subordinate Judge discretion as to accepting or not accepting for trial by himself suits cognizable by the inferior tribunal. And I find it impossible to believe that it can have been the intention of the Legislature to allow such a discretion. The institution fee and the pleader's fees are the same, whether the suit be heard and determined in a Munsif's or in a Subordinate Judge's Court, and the difference between the process fees payable in the one Court and in the other is so trivial that a plaintiff would not be deterred, by a refusal of the Court to allow as costs on this account more than the fees payable in the Court of lower grade, from bringing his suit in the superior Court. No one who is conversant with the administration of civil justice in the interior of this part of India would find it difficult to imagine the case of a Subordinate Judge readily admitting into his own Court, if he were allowed to do so, munsifi litigation. It is obvious that such an event would materially detract from the usefulness of the Munsif, and it seems to me that it was to prevent the possibility of such a state of things that Section 57(a) of Act XIV of 1882 was enacted.
23. When, however, I reach the point of the effect of the neglect by a Subordinate Judge to return the plaint in a 'Munaif's case,' I am practically of the same opinion as the learned Chief Justice.
24. A Subordinate Judge who failed to reject or to return the plaint in the cases set out above would, I consider, be guilty of misconduct, and, on failure to furnish satisfactory explanation, would be liable to censure and to departmental punishment. But then the analogy between the three analogous cases which I have noticed above would, I think, cease, and each of the three cases would be governed by distinct provisions of the law. The suit for the institution of which the proper fees had not been paid would have to be dismissed in the terms of Section 10, and, if decreed, would probably have to be disposed of in appeal in the terms of Section 12 of the Court Fees Act, 1870. The suit in which the cause of action did not arise within the local limits of the jurisdiction of the Subordinate Judge would have to be dismissed, and, if decreed, would have to be dismissed in appeal, with reference to the terms of Section 578 of the Code of Civil Procedure and to those of Section 18 of Act VI of 1871. But the decree in a suit cognizable by a Munsif would not, in my judgment, be liable to be reversed in appeal for want of jurisdiction in the Subordinate Judge: for the jurisdiction was there, though it ought not to have been exercised. And this view of the matter is, I think, consistent with the received canon of construction, that unless the Legislature uses negative words, or words showing an intention to treat the observance of a rule of procedure as essential, the rule will ordinarily be treated as a direction only. 'Where,' writes Sir P.B. Maxwell (Maxwell on the Interpretation of Statutes, 2nd Edition, p. 459), 'the prescriptions of a statute relate to the performance of a public duty, and to affect with invalidity acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, without promoting the essential aims of the Legislature, they seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only. The neglect of them may be penal indeed, but it does not affect the validity of the act done in disregard of them.' In this instance the plaint was originally filed in the Court of the Munsif, but it was returned by the Munsif to be presented in the Court of the Subordinate Judge. To send the plaintiff back at this stage of the proceedings to the Munsif's Court would surely be most inequitable.
25. My answer then to the question put to the Pull Bench must be that the refusal of the District Judge to entertain the plea of defect in jurisdiction, in the circumstances stated, is not, in my opinion, erroneous, but correct.