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Ram Iqbal Rai Vs. Telessari Kuari and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Reported inAIR1930All713
AppellantRam Iqbal Rai
RespondentTelessari Kuari and anr.
Excerpt:
- - 9. there is some difference of opinion on the second question as well. the language unfortunately is not very happy to me and this has been the main cause of the conflict of opinion. it seems to me that in a case of this kind the order of the judge amounts both to an assumption of jurisdiction which was not vested in him, namely to compel a court not competent to try a case to hear it, as well as to acting illegally in directing that court to dispose of the suit. the plaintiff was not satisfied with this order and he filed an appeal to the learned district judge. i would like to look at the section in the light of the entire frame of the act of 1926. it is not necessary to repeat what i have said. 53. i would like to notice an argument which appealed to the learned judges who.....niamatullah, j.1. this revision arises in the following circumstances: the plaintiff filed a suit in the court of the munsif of ballia for a declaration of her title to 17 bighas odd of tenancy including two groves, and in the alternative for recovery of possession against the defendants. she of course did not implead the landholder. in paras. 6,7 and 8 it was admitted that defendant 1, although he had no right to the property had got his name entered in the column of remarks as being in possession of a portion of the plot, that the name of defendant 2 was recorded in the revenue papers though merely for her consolation that the zamindar applied for the expungement of the name of the defendant (defendant 1), from the record on which defendant 1 took objections; later on the zamindar in.....
Judgment:

Niamatullah, J.

1. This revision arises in the following circumstances: The plaintiff filed a suit in the Court of the Munsif of Ballia for a declaration of her title to 17 bighas odd of tenancy including two groves, and in the alternative for recovery of possession against the defendants. She of course did not implead the landholder. In paras. 6,7 and 8 it was admitted that defendant 1, although he had no right to the property had got his name entered in the column of remarks as being in possession of a portion of the plot, that the name of defendant 2 was recorded in the revenue papers though merely for her consolation that the zamindar applied for the expungement of the name of the defendant (defendant 1), from the record on which defendant 1 took objections; later on the zamindar in collusion with defendant 1 had his application struck off and although the plaintiff has been in possession of the lands in dispute defendant 1 on the strength of the said order was interfering with the plaintiff's possession. She alleged that although the name of defendant 2 stood recorded in the papers jointly with that of the plaintiff she was really not objecting to the plaintiff's rights. She claimed a declaration of title and in the alternative recovery of possession if by reason of the entry of the name of defendant 1 along with that of the plaintiff it be c7onsidered that the plaintiff has been dispossessed.

2. The defendant denied that the plaintiff was the tenant of the lands in dispute and set up his own tenancy and claimed that he was paying rent to the zamindar. He further pleaded that the suit was not cognizable by the civil Court. The learned Munsif came to the conclusion that the suit ought to have been filed in the revenue Court and returned the plaint for presentation to the proper Court. On an appeal from this order preferred by the plaintiff the lower appellate Court has come to the conclusion that the suit was cognizable by the civil Court and has accordingly set aside the order returning the plaint and remanded the case to the Court of first instance for restoration to its original number and disposal according to law.

3. Defendant 1 has come up in revision before us and challenges the propriety of the order of the lower appellate Court.

4. On a perusal of the plaint the substance of which has been given by us above we are of opinion that the plaintiff was admitting that defendant 1, on the strength of the entry of his name in the revenue papers, was really claiming to be himself the tenant and was interfering with the plaintiff's possession. It was on this account that she claimed recovery of possession in the alternative, The suit therefore was undoubtedly one against a person claiming through the landholder within the meaning of Section 99(1)(b), Agra Tenancy Act, so far as the relief for possession was concerned and within the meaning of Section 121(2) so far as the relief for a declaration went. In view of the pronouncement of the Full Bench in the case of In re Ananti v. Chhannu : AIR1930All193 we are of opinion that on the plaint as it was filed this was a case which was cognizable by the revenue Court and not by the civil Court, and that therefore the conclusion of the Munsif was right.

5. The next question for consideration is whether Section 269, Tenancy Act, applied to the case in which event the District Judge would have jurisdiction to remand the case either to the subordinate civil or revenue Court and his order would be final and no objection can be taken or raised in appeal or otherwise to his order. If however Section 269 were wholly inapplicable to this case then the second question would be whether the case falls under Section 115, Civil P.C. and a revision lies from that order.

6. On the first point there appears to be a considerable conflict of opinion in this Court. The language of Section 269 is similar to that of Section 197, Agra Tenancy Act (Act 2, 1901), which was interpreted differently in several cases while that Act was in force. On the one hand we have Badam Singh v. Mt. Sabta Kuar [1905] 2 A.L.J. 119, Bam Narain v. Rampat [1912] 16 I.C. 1007 and Naubat Singh v. Baldeo Singh [1911] 33 All. 479 which seem to lay down that old Section 197 would apply where an appeal has been preferred to the District Judge. As against these there are the cases of Ram Charan Ram v. Sheoraj [1906] 3 A.L.J. 226, Bechu Sahu v. Nandram Das [1914] 24 I.C. 700 and Jagannath v. Balwant Singh A.I.R. 1922 All. 372 which suggest the contrary view.

7. The former view is based on a liberal interpretation of the section and lays down that so long as the decision of the Court in which a suit has been instituted, whether made rightly or wrongly, is a decision from which an appeal lies to the District Judge, the section is applicable.

8. The view accepted in the latter set of cases is that the provisions of the section apply only to suits in which an appeal lies in any event to the District Judge or the High Court, whether that suit was instituted in the first instance in the civil Court or revenue Court, and that if the suit were instituted in the revenue Court and no appeal would lie in the District Judge, this section is not applicable. A further difference of opinion has arisen on the question whether if on a plea of proprietary title or jurisdiction raised by the defendant an appeal would lie to the District Judge under Section 242, the applicability of Section 269 would or would not follow as a matter of course. The point has not been so far considered by any Full Bench and we have therefore no final authoritative pronouncement on this question. It seems advisable that this conflict of opinion should be set at rest, particularly as the question is one which arises frequently.

9. There is some difference of opinion on the second question as well. The argument on behalf of the applicant is that the District Judge, by ordering the Munsif who had no jurisdiction to hear the suit to try it, has acted without jurisdiction or acted illegally in the exercise of his jurisdiction by compelling that Court to try that case. It is contended that the order of the Judge by which he sends a case to be tried by a Court not competent to try it can be revised. The learned advocate for the respondent however contends that an appeal from the order returning the plaint was provided under the law and the District Judge had jurisdiction to hear the appeal and dispose of it, that he has heard the appeal, expressed his opinion as regards the interpretation of the plaint and remanded the case. He has therefore acted within his jurisdiction and even though his judgment on the question of law may be erroneous, he has neither acted without jurisdiction nor acted illegally in the exercise of his jurisdiction and therefore the case does not fall within the purview of Section 115, Civil P.C. The cases which show some conflict even on this point are as follow s: Jwala Prasad v. E.I. Ry. Co. [1918] 46 I.C. 99 and Chandu Lal v. Koka Mal A.I.R. 1921 All. 226, where it was held that no revision would lie from an order of the District Judge passed in appeal deciding which Court had jurisdiction. On the other hand we have Bisheshar Prasad Panday v. Raghubir : AIR1926All58 and Abdul Hakim v. Mukarram Ali : AIR1930All158 It is unnecessary to mention other cases on this point.

10. We are therefore of opinion that it is necessary to refer the following two points for the consideration of a higher Bench:

(1) Whether Section 269 is applicable to a case if the appellate Court on a wrong view of the admissions contained in the plaint sets aside an order returning the plaint and remands the case to the Munsif's Court for disposal although the suit was really not cognizable by that Court.

(2) If Section 269 is inapplicable to such a case whether the High Court can interfere with the order in revision.

11. We accordingly direct that this case be laid before the Honourable Chief Justice for the constitution of a Full Bench.

Sulaiman, J.

12. This is a reference to a Pull Bench on two questions of law on which there has been conflict of opinion. The suit was filed in the Court of the Munsif, who held that it was not cognizable by a civil Court and returned the plaint for presentation to the revenue Court. On appeal to the District Judge, the latter came to the conclusion that the suit was triable by the Munsif and set aside the order returning the plaint, and remanded the case to that Court for being restored to its original number on the file and disposed of according to law.

13. The defendant has come up in revision to the High Court and challenges the order of the District Judge on the ground that he had no jurisdiction to send the case to the Munsif's Court which was incompetent to try the case. A preliminary objection is taken on behalf of the respondent that no revision at all lies from this order.

14. The Bench which first heard the case came to the conclusion that having regard to the allegations contained in the plaint, the plaintiff must be deemed to have admitted that the defendant was claiming title to the agricultural lands in dispute through the landholder, and that therefore the suit was one which fell within the scope of Section 99(1)(b) of the new Agra Tenancy Act and was cognizable by the revenue Court only, and that even as a suit for declaration of title as to the tenancy it was of the nature of a declaratory suit within the mean-of 8. 121, Sub-clause (2) of that Act. The Bench accordingly came to the conclusion that the Munsif had no jurisdiction to entertain the suit and that the order of the Judge holding that he had jurisdiction was quite wrong.

15. The two points which have been referred to us are as follows:

(1) Whether Section 269 is applicable to a case if the appellate Court on a wrong view of the admission contained in the plaint sets aside an order returning the plaint and remands the case to the Munsif's Court for disposal although the suit was really not cognizable by that Court?

(2) If Section 269 is inapplicable to such a case, whether the High Court can interfere with the order in revision?

16. On the question of the applicability of Section 269, which corresponds to the old Section 197, there has undoubtedly been a conflict of opinion. It is not necessary to review all the authorities, but it may simply be pointed out that in the case of Badam Singh v. Mt. Sabta Kuar [1905] 2 A.L.J. 119 followed in the case of Naubat Singh v. Baldeo Singh [1911] 33 All. 479 it was laid down that where an appeal lies to the District Judge in a suit filed in the civil Court the Judge has authority to proceed under Section 197 and remand the case either to the civil or to the revenue Court. On the other hand, in the case of Bam Charan Ram v. Sheoraj [1906] 3 A.L.J. 226, followed in the case of Bechu Sahu v. Nandram Das [1914] 24 I.C. 700 and in the case of Jagannath v. Balwant Singh A.I.R. 1922 All. 372 it was specifically laid down that Section 197 would be applicable only to those cases in which an appeal would have lain to the District Judge if the suit had been instituted in the revenue Court.

17. The language of the corresponding section in the new Act has not been in any way materially altered. Section 268 provides that

when a suit is instituted in a civil or revenue Court an appeal lies to the District Judge or High Court,

an objection that the suit was in the wrong Court should not be entertained by the appellate Court unless it had been taken in the Court of first instance. Section 269 lays down that if in any such suit such objection was taken in the Court of first instance but the appellate Court has before it all the materials necessary for the determination of the suit, it shall dispose of the appeal as if the suit had been instituted in the right Court. But if the appellate Court has not be-before it all such materials and remands the case, or remands and refers issues for trial, it may direct its order either to the Court in which the suit was instituted or to such Court as it may declare to be competent to try the same.

18. There can be no doubt that Section 269 refers to the same class of suits as are referred to in Section 268, and such suits are those which may be instituted in a civil or revenue Court and from which an appeal lies to the District Judge or the High Court. The language unfortunately is not very happy to me and this has been the main cause of the conflict of opinion. But it seems to me that section refers to a suit which is of such a nature that an appeal is provided to the civil Court and not to the revenue Court. Ordinarily, in every suit filed in the Court of a Munsif an appeal would lie from his decree to the District Judge.

19. If Sections 268 and 269 were to be given a wide scope, the result would be that all suits which are expressly laid down to be cognizable by revenue Courts could be filed in a civil Court, with a power in the District Judge to direct that they should be disposed of by the subordinate civil Court. This would be tantamount to ousting the jurisdiction of the revenue Courts in most cases. In the Tenancy Act a large number of suits are expressly made triable by revenue Courts with appeals to the Collector or the Commissioner, in which the District Judge or the High Court has been given no power of interference. It could not have been the object of the legislature to take these cases out of the cognizance of the revenue Court.

20. Section 230, Tenancy Act, in particular provides that subject to the provisions of Section 271, all suits and applications of the nature specified in Sch. 4 shall be heard and determined by the revenue Courts, and no Courts other than a revenue Court shall, except by way of appeal or revision as provided in this Act, take cognizance of any such suit or application. It therefore appears to be contrary to the purposes of Section 230 that the District Judge should have power to direct cases cognizable only by the revenue Court to be tried by the civil Court, merely by reason of the fact that the plaintiff has chosen to file a suit in such Court.

21. From the mere fact that the defendant has objected to the jurisdiction of the civil Court, it does not follow that he would have equally objected to the jurisdiction of the revenue Court, if the suit had been filed there. So it is impossible to treat the suit as one in which an appeal lies to the District Judge under Section 242(3).

22. I am therefore in full agreement with the view expressed by Richards and Piggot, JJ., in the cases of Ram Charan Ram v. Sheoraj [1906] 3 A.L.J. 226 and Bechu Sahu v. Nandram Das [1914] 24 I.C. 700 which has been accepted in the most recent case of Jagannath v. Balwant Singh A.I.R. 1922 All. 372, that Section 269 would be applicable to only those classes of cases where, if the suit were filed in the revenue Court an appeal would still lie to the civil Court.

23. The same view was accepted to some extent in the case of Bisheshar Prasad Pandey v. Raghubir : AIR1926All58 . There is however a passage on p. 86(of 24 A.L.J.) of the report, which passage does not appear in the authorized reports (48 All. 168) to the effect that

both (Ss. 196 and 197) assume that the trial Court has entertained the suit and disposed of it on the merits.

24. I regret that I did not appreciate the full significance of this passage in the judgment of my learned colleague Daniels, J., at the time when the judgment was delivered or I overlooked it. On a reconsideration I am of opinion that there is no justification for confining the operation of Section 269 to only such a class of cases. It therefore follows that the view taken by the learned Judge that the Munsif had jurisdiction to entertain the suit was quite wrong and the result of the order passed by him is to compel the Munsif, who is not competent to try the suit, to hear it and dispose of it.

25. Section 269 not being applicable it is clear that its sub-S. (3) does not stand in the way of our interfering in revision in case we can do so under Section 115, Civil P.C.

26. The next question is whether under such circumstances we have power to interfere on the revisional side and can set aside the order. The learned advocate for the respondent contends strongly that the learned Judge had jurisdiction to entertain the appeal and to hear it and to dispose of it. He might have come to an erroneous conclusion of law but he had power to remand the case, and accordingly he has neither acted without jurisdiction nor has acted illegally or with material irregularity in the exercise of his jurisdiction, and that therefore the High Court has no power to interfere under Section 115, Civil P.C.

27. As to the scope of this section also the authorities are not all one way. Their Lordships of the Privy Council have recently laid down that Section 115, Civil P.C., has application to cases of absence of jurisdiction, refusal to exercise jurisdiction and illegality or irregularity in the exercise of jurisdiction. That section would not be applicable where no question of jurisdiction is at all involved: vide Umed Mal v. Chand Mal A.I.R. 1926 P.C. 142.

28. It seems to me that an appellate Court has no jurisdiction to order a subordinate Court which is legally not competent to try a suit, to hear it and dispose of it and that if it does actually order the subordinate Court to dispose of the case, it acts without jurisdiction and also acts illegally in the exercise of its jurisdiction. If therefore an order of this kind is passed it is open to be revised both under Clause (a) and Clause (c), Section 115, Civil P.C. Section 115 was applied by a Bench, of which I was a member, in a case which was somewhat similar in facts, namely, Khelari v. Har Prasad : AIR1930All434 , in which also the plaint had been returned by the Munsif for presentation to the revenue Court and the District Judge had set aside that order. We interfered in revision. In a somewhat similar case, Vuppuluri Atchayya v. Sir Kanchumarli Chandra Rao [1916] 39 Mad. 195 Wallis, C.J., came to the conclusion that the High Court could interfere under the third part of Section 115, whereas Sundara Ayyar, J., came to the conclusion that he could interfere under the first part, but a third Judge thought that none of the two parts of the section was applicable. It seems to me that in a case of this kind the order of the Judge amounts both to an assumption of jurisdiction which was not vested in him, namely to compel a Court not competent to try a case to hear it, as well as to acting illegally in directing that Court to dispose of the suit. The High Court therefore has power to interfere. It is not necessary to rely on the case of C. Ross Alston v. Pitamber Das [1903] 25 All. 509, in which Banerji, J., delivered a dissenting judgment. That case, to my mind, is of doubtful authority inasmuch as there is a clear distinction between a civil Court having no jurisdiction to try a suit and the plaintiff not having a cause of action or locus standi to maintain it. If in that case the Munsif had come to the conclusion that the plaintiff had no right to sue, the suit would have been dismissed on the merits and the plaint would not have been returned for presentation to another Court.

29. The result therefore is that the mere fact that there was an appeal preferred to the District Judge did not cure the initial defect that the Munsif had no jurisdiction to entertain the suit and did not confer upon the Judge power to direct the Munsif to dispose of it; and therefore the High Court has power to set aside the order of the District Judge.

30. I would accordingly answer the first question in the negative and the second question in the affirmative.

Mukerji, J.

31. This is a reference to a Full Bench to decide two questions of law, namely:

(1) Whether Section 269, Tenancy Act, 1926, is applicable to a case if the appellate Court on a wrong view of the admissions contained in the plaint, sets aside an order returning the plaint and remands the case to the Munsif's Court for disposal although the suit was really not cognizable by that Court? (2) if Section 269 is inapplicable to such a case, whether the High Court can interfere with the order in revision

32. To answer this reference, we have to assume that the suit instituted in the Court of the Munsif was one not cognizable by a civil Court, according to the provisions of the Tenancy Act of 1926, and further that, in it, no appeal, if the case had been tried by a revenue Court, lay to the civil Court. The Munsif being of opinion that the suit was not cognizable by him directed that the plaint be returned to the plaintiff for presentation to the proper Court. The plaintiff was not satisfied with this order and he filed an appeal to the learned District Judge. The learned District Judge came to the conclusion that the suit was cognizable by the Munsif. Thereupon he set aside the order of the return of the plaint and directed the Munsif to take cognizance of the suit.

33. The defendant has come up in revision and the two questions that have been set forth for our decision have arisen.

34. First, it is urged that the fact that the District Judge took cognizance of the appeal cured the defect of jurisdiction, if there was any Secondly, the District Judge having taken cognizance of the case, no application in revision lay and this Court has no power to revise the order of the District Judge: see sub-S. (3), Section 269, Tenancy Act.

35. On both the points there is mass of conflicting case law and in view of the fact that my learned brother has noticed some of the cases, I do not propose to go into the case law a all. The object of this Bench is to settle the law once for all for this Court, and no useful purpose will be served by examining the conflict of opinion. It is clear that on both the points much can be said.

36. As regards the first question that has been referred to us we have to see, to start with, what is the meaning of Section 268, Tenancy Act of 1926; for the interpretation to be put on Section 268 would determine the interpretation to be put on 8. 269. Section 269 reads as follows:

When in a suit instituted in a civil Court or revenue Court, an appeal lies to the District Judge or High Court, an objection that the suit was instituted in the wrong Court shall not be entertained by the appellate Court unless such objection was taken in the Court of first instance; but the appellate Court shall dispose of the appeal as if the suit has been instituted in the right Court.

37. The words that require special consideration are:

In a suit instituted in a civil or revenue Court an appeal lies to the District Judge of High Court.

38. The question is whether the words 'civil or revenue Court' have any material bearing on the interpretation of this section or whether they are more or less redundant. It will be noticed that the section is talking of appealable suits. Therefore, so far as the civil Courts are concerned, the Small Cause Court is out of contemplation. That being so a suit can be instituted either in a civil Court or in a revenue Court and there is no third Court which can take cognizance of it. No 'suit' can be instituted in a criminal Court, which is the only kind of Court that is not mentioned in Section 268. In my opinion therefore the words 'instituted in a civil or revenue Court' have no bearing on the interpretation of the section. The important words are in my opinion:

when in a suit an appeal lies to the District Judge or High Court.

39. That this interpretation is correct would appear from the fact that Section 230, Tenancy Act, lays down that except by way of an appeal or revision, in respect of suits and applications described in the several schedules, furnished at the close of the Act, a civil Court is prohibited from taking cognizance. Apparently on the provisions of Section 230 a conflict of jurisdiction was likely to arise. It was to settle the difficulties that might arise owing to this conflict of jurisdiction that Sections 268 and 269 were enacted. What the legislature contemplates by Sections 268 and 269 is this: Here is a suit, and it may be filed, according as the plaintiff is advised, in the civil Court or in the revenue Court. A dispute about jurisdiction may arise. What then is to be done? The legislature provides by Section 268 that in the case of a suit in which, from its nature, an appeal would lie according to the provisions of the Tenancy Act to the District Judge or to the High Court, no objection as to jurisdiction shall be taken in appeal, unless that objection has been taken in the Court of first instance. The reason for this rule would be that in certain cases the civil Court has jurisdiction to hear the appeal. Where the civil Court (either the District Judge or the High Court) rightly hears the appeal the initial mistake in the institution of the suit may be cured, because the appellate Court being the Court which would hear an appeal from civil and revenue Courts, sets the matter right. On the other hand there may be suits in which no appeal lies under the Tenancy Act to the District Judge or to the High Court at all. It is not likely that in such cases it was contemplated that a decision of an appellate Court, which has no jurisdiction to hear the appeal, would cure the defect in the initial institution of the suit.

40. If the contention to the contrary is accepted, the result would be as has been pointed out by my learned brother Sulaiman, J., that the safest course for a plaintiff would be to institute his suit in the civil Court. When he files a suit either before a Munsif or a Subordinate Judge an appeal would go as a matter of course to the District Judge or to the High Court and then no question of jurisdiction would be allowed to be urged, and even if it be heard, the suit can never be thrown out on the ground of want of jurisdiction. I would not lay much stress on the argument of expediency. I would like to look at the section in the light of the entire frame of the Act of 1926. It is not necessary to repeat what I have said. I however lay emphasis on the point that the Act itself divides the suits, with which it deals, into several classes and for some cases it provides the civil Court as the appellate Court. In other cases the appellate Courts are the Collector or the Commissioner. It was therefore necessary to mention in Section 230 that of the suits of which cognizance had to be taken by the revenue Court, no other Court should take cognizance, except by way of appeal or revision. In Section 268 it follows that the reference to the suit is to the nature of the suit and to its character and not to the fact where it has been instituted.

41. If I am right in this view it follows with regard to Section 269 that the District Judge or High Court would properly exercise jurisdiction only where, having regard to the nature of the suit and to its character an appeal is provided for in the Tenancy Act itself, as lying in their Court.

42. We have assumed for the purposes of the reference that from the nature of the suit no appeal would lie to the civil Court from the decision of the revenue Court. That being the case the District Judge would not be in a position to pass an order contemplated by Section 269, Tenancy Act. In this view the order of the District Judge as to what Court should try the case is open to question in appeal or in revision.

43. My answer therefore to the question No. 1 is that Section 269 is not applicable to a case where the suit is initially cognizable by a revenue Court and in which under the provisions of the Tenancy Act no appeal is provided for to the civil Court.

44. I now come to the second question which relates to the jurisdiction of the High Court to interfere.

45. The Munsif having held that he had no jurisdiction an appeal was filed to the District Judge by the plaintiff and the learned Judge held that the Munsif had jurisdiction. It is contended before us that the District Judge in hearing the appeal acted within his jurisdiction and therefore Section 115; Civil P.C., has no application. Clause (a), Section 115, states as one of the cases in which the High Court can exercise revisional jurisdiction:

Where a Subordinate Court appears to have exercised a jurisdiction not vested in it by law.

46. There can be no doubt that in this particular case, the District Judge, if the suit had been filed before him, would not have been competent to exercise jurisdiction and could not try the suit. The argument that has been advanced on behalf of the plaintiff, the respondent before us, is that although the District Judge himself could not exercise the jurisdiction and hear the suit, if it had been instituted in his Court, he having directed the Munsif to go on with the suit and to try it, the High Court is powerless to interfere. In other words, if the District Judge who is the principal Court of original civil jurisdiction, if he himself had taken cognizance of the suit, we could interfere on the ground that he was exercising a jurisdiction not vested in him. Yet, if he directs a subordinate Court to do what he himself could not do, we have no power to interfere. This is a very anomalous position and certainly is a position which could not have been allowed by the legislature. When we interpret an Act we are entitled to see what was the mischief contemplated of the correction of which the rule to law was directed. This was held in the case of Davies v. Kennedy [1869] 3 Ir. Eq. Rule 31 by Christian, L.J. Although the actual decision in the case was upset by the House of Lords later on this dictum of Christian, L.J., was never taken exception to. We find that Section 115, Civil P.C., is a remedy given to the High Court to apply in order to rectify mistakes as to jurisdiction. When a Court trying a suit has no jurisdiction it is necessary that the mistake should be corrected as speedily as possible. We must, therefore, take it that we have jurisdiction to correct a District Judge, if he sat as the principal Court of original civil jurisdiction. We have also an authority within Section 115, Civil P.C., to correct him, when he, the District Judge, sitting as an appellate Court, directs his subordinate Court to do what he himself could not do. I take it that in thus reading Clause (a), Section 115, Civil P.C., I am interpreting it in its true spirit.

47. Coming to authorities, I find that except in a few cases which are comparatively small, this jurisdiction has been exercised by the High Court in a large number of cases. The Allahabad High Court, in a Full Bench case, decided by five Judges, Badami Kuer v. Dinu Rai [1886] 8 All. 111 interfered where there had been an appeal to the District Judge. The same view was taken in Vuppuluri v. Sir Kanchumarli [1916] 39 Mad. 195, Visvanath v. Rambhat [1891] 15 Bom. 148 and Zamiran v. Fateh Ali [1905] 32 Cal. 146, and lastly in this Court in Abdul Hakim v. Mukarram Ali : AIR1930All158 .

48. I have no doubt as to the jurisdiction of this Court and I would therefore answer the second question in the affirmative.

Niamatullah, J.

49. I agree with my learned colleagues in answering the first question in the negative and the second in the affirmative, and would make a few observations of my own in support of the conclusions they have arrived at.

50. Sections 268 and 269, Agra Tenancy Act 3, 1926 should, in my opinion, be read with other sections of that Act, specially Section 242, which provides for appeals in certain cases lying to the District Judge and not on the revenue side. Those cases are specified in Group A, Sch. 4, appended to it. Beading Sections 268 and 269 with Section 242 and the particulars of suits in Group A, Sch. 4, the language employed in Section 269 should present no difficulty. To bring out the substance of the material part it may be paraphrased as follows:

51. If in a suit whether instituted in a civil or revenue Court the form of appeal is necessarily the Court of the District. Judge or the High Court and an objection that the suit was instituted in the wrong Court was taken before the Court of first instance, the appellate Court may direct the trial of the suit either by the civil Court or the revenue Court subordinate to it.

52. Section 269 applies only to cases in which, if rightly instituted in civil or revenue Court, an appeal lies to the District Judge according to law and cannot, consistently with the other provisions of the Act, apply to suits wrongly instituted in a civil Court in which if rightly instituted in the revenue Court an appeal would have lain on the revenue side. I base the above view on the context in which the words 'instituted in civil or revenue Court' occur in Section 268,. some such word as 'whether' being understood before 'instituted.' I also base it on the expression 'appeal to the District Judge' which implies that the law provides for an appeal to the District Judge in either case.

53. I would like to notice an argument which appealed to the learned Judges who decided Naubat Singh v. Baldeo Singh [1911] 33 All. 479. Referring to Section 177(1), Tenancy Act 2, 1901, which corresponds to Section 242, sub-S. (3)(b), Act 3, 1926 and which provides for an appeal to the District Judge from the decree of an Assistant Collector of the First Class or of a Collector in all suits except suits under Chap. 11, in which a question of jurisdiction has been decided and is in issue in appeal, the learned Judges expressed the opinion that in a suit instituted in a civil Court in which a question of jurisdiction was raised in the first Court and in the Court of the District Judge, he is empowered to act under Section 269(S. 197, Act 2, 1901), the argument being that a question of jurisdiction having been raised the suit becomes one in which an appeal necessarily lies to the District Judge. With the utmost respect I would point out that the view so widely expressed in that case is not borne out by the provisions of Sections 242 and 269. If a suit is instituted in a revenue Court and the question of jurisdiction is raised it is perfectly correct to say that an appeal lies to the District Judge, if such question is decided by the revenue Court. But where a Suit is instituted in a civil Court and the defendant raises a question of jurisdiction to the effect that the suit lies not in the civil Court but in the revenue Court, I do not think the provisions of Section 242, sub-S. (3), already, referred to, can be invoked so as to make Section 269 applicable, because if the suit had been instituted in the revenue Court, an objection raised by the defendant in the civil Court would in the very nature of things not exist. We are not justified in assuming that if the suit had been instituted in the revenue Court the defendant would have maintained the contrary of what he did in the civil Court.

54. Sections 268 and 269 are intended to apply to a class of suits which lie on the border line between those clearly cognizable by revenue Court and those cognizable by a civil Court. For such suits a common Court of appeal has been provided for and its order as regards the Court which should try it on remand is made final.

55. On the second question, while I do not differ from the view expressed by my brother Mukerji, J., that Section 115(a), Civil P.C., applies to the circumstances of this case, I am of opinion that Clause (c) of that section is more appropriate. It cannot be disputed that the District Judge had a perfectly good jurisdiction to hear the, appeal preferred in his Courts It is equally undeniable that one of the ways in which he could decide the appeal before him was by remanding the case. So far no illegality or irregularity can be attributed to his decision. It is only in the view that he took of the question of jurisdiction that he should be considered to have been in error he held wrongly that the suit was maintainable in the civil court. Acting on that erroneous view as to jurisdiction he passed his order of remand in deciding the appeal. I think that the learned District Judge exercised a jurisdiction vested in him illegally-illegally because he directed the civil Court to hear a case which it had no jurisdiction to hear.

56. As I have already said I am not prepared to controvert the view that his order, looked at from another standpoint, can be considered to be one without jurisdiction. He had no jurisdiction to direct the Munsif to try a suit which is within the exclusive jurisdiction of the revenue Court. It appears to me that Clauses (a) and (c), Section 115, Civil P.C., overlap each other in a number of cases, so that the circumstances of a particular case may make both of them applicable.

57. Our answer to the first question is in the negative and the second question in the affirmative. Let this case accordingly be sent to the referring Bench.

Sulaiman and Niamatullah, JJ.

58. In view of the pronouncement by the Full Bench, we allow this revision, set aside the order of the District Judge and restore that of the Court of first instance. The defendant will have his costs throughout.


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