Brodhurst and Mahmood, JJ.
1. In our opinion this case cannot be finally disposed of here, because the learned Judge of the Lower Appellate Court has not disposed of it upon the merits. The original suit was of a declaratory character, falling under the purview of Section 42 of the Specific Belief Act (I of 1887), and the Court of First Instance, having admitted the suit and heard the pleadings of the parties upon the merits of the issues raised in the cause, decreed the claim, holding that the plaintiff's were entitled to the relief for which they prayed. The case then came up in first appeal to this Court upon a question of jurisdiction, and this Court, by its order of the 11th May 1885, directed the learned Judge of the Lower Appellate Court to restore the appeal to his file and to dispose of it. In dealing with the case the learned Judge has simply held that the suit in its declaratory form was not maintainable under Section 42 of the Specific Relief Act, and upon that ground alone has decreed the appeal before him and dismissed the suit.
2. From that decree this second appeal has been preferred, and we are of opinion that the view adopted by the learned Judge in this case was erroneous, and that the litigation should have been tried upon the merits. In the case of Sant Kumar v. Deo Saran I. L. R., 8 All., 365, it was held by one of us in a judgment which referred to older cases that an improper exercise of the discretionary power conferred by Section 42 of the Specific Relief Act by a Court of First Instance does not in itself constitute a sufficient ground for the reversal of a decree which is not open to any objection upon the ground of jurisdiction or of the merits of the rights of the parties. In that ruling no rule was laid down as to cases which might fall under the proviso of Section 42 of Act I of 1877. This is not one of those cases which fall under the proviso to that section, and, indeed, Mr. Kashi Prasad, in arguing the case on behalf of the respondent, has conceded that the case is not governed by that proviso, no further relief being capable of being claimed by the plaintiffs within the meaning of that proviso. The ruling, therefore, fully applies to this case; and even if the Court of First Instance exercised its discretion irregularly in entertaining the suit and trying it upon the merits, we think that it was the duty of the Lower Appellate Court not to have set aside the decree upon that ground alone, but to have decided it upon the merits, there being no question as to the want of jurisdiction: the error of the first Court, if indeed there was any error, being covered by Section 578 of the Civil Procedure Code, as seated in the ruling to which we have referred.
3. We, therefore, decree the appeal and set aside the decree of the Lower Appellate Court, and remand the case to that Court for disposal upon the merits, with reference to the observations we have made. The costs to abide the result.