1. In a suit triable by a Subordinate Judge Ist Class, is evidence recorded therein by a Subordinate Judge II Class to be treated as a nullity necessitating de novo recording thereof? Herein lies the controversy raised.
2. The suit here was instituted in the competent Court, that is, the Court of Subordinate Judge 1st Class on August 19, 1981 and issues were framed on December 12, 1981, but in June, 1982, before any evidence had been recorded, the case was transferred to the Court of Subordinate Judge II Class. All the evidence in the suit was thereafter recorded in this Court. Evidence concluded on January 31, 1984. It was then discovered that having regard to its pecuniary value, the suit was triable by Subordinate Judge 1st Class. The file was consequently sent to the District Judge, who transferred it to the Court of the Subordinate Judge 1st Class.
3. Before the Subordinate Judge Ist Class de novo recording of evidence was sought on the ground that the evidence on record had been so taken by a Court having no jurisdiction and it could not, therefore, be looked into. This was declined by the trial Court and it is this order which is now challenged:
4. In dealing with the objection to the pecuniary jurisdiction of the Court, the provisions of sub-s. (2) of S. 21, Civil P. C. must be taken note of, which read as under:--
'Section 21(2). No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.'
5. In Koopilan Uneen's daughter Pathumma v. Koopilan Uneen's son Kuntalan Kutty dead by LRs. AIR 1981 SC 1683 the Court had occasion to consider similar provisions as contained in S. 21(2), Civil P. C. relating to objections to the territorial jurisdiction of the Court. It was observed, 'in order that an objection to the place of suring may he entertained by an appellate or revisional court, the fulfilment of the following three conditions is essential:--
(1) The objection was taken in the Court of first instance.
(2) It was taken at the earliest possible opportunity and in cases where issues are settled at or before such settlement.
(3) There has been a consequent failure of justice.
All these three conditions must co-exist.'
6. Mr. D. S. Bali, counsel for the petitioner sought to draw a distinction here between lack of territorial jurisdiction and lack of pecuniary jurisdiction. The argument being that while objections to the former can be waived, in the case of the latter it goes to the very root, that is, the competence of the Court and cannot, therefore, be defeated by any act or omission of any party to the suit. Support here was sought from the judgment of the Supreme Court in Hira Lal Patni v. Kali Nath, AIR 1962 SC 199, wherein dealing with an objection to the territorial jurisdiction of the Court, it was observed, 'it is well settled that the objection as to local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a court to try a case. Competence of a Court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand an objection as to the local jurisdiction of a court can be waived and this principle has been given a statutory recognition by enactments like S. 21, Civil P. C.'
7. In reading this passage it would be pertinent to note that 'inherent lack of jurisdiction' was spelt out to mean that 'the Court could not have seizin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the Court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it.'
8. Considered in this light, in the context also of the provisions of S. 21(2), Civi1 P. C., no occasion for imputing any inherent lack of jurisdiction arises here.
9. It will be seen that the case remained pending in the Court of Subordinate Judge II Class for over a year and a half. Both the parties examined witnesses and adduced evidence without any reservation. It was only on the conclusion of the evidence, that objection to the evidence already recorded was sought to be taken. This was by no means the earliest opportunity that the petitioner had of raising it arid what is more, counsel for the petitioner could point to no failure of justice caused by the recording of evidence by the Subordinate Judge II Class.
10. The impugned order thus warrants no interference in revision which is consequently hereby dismissed with costs. Counsel's fee Rs. 300/-.
11. Revision dismissed.