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Mohamed Haji Vs. Saithu Mohamed and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 869 from O.P. No. 15 of 1959
Judge
Reported inAIR1962Ker28
ActsCode of Civil Procedure (CPC) , 1908 - Sections 24, 92 and 92(2)
AppellantMohamed Haji
RespondentSaithu Mohamed and ors.
Appellant Advocate B. Moosakutty, Adv.
Respondent Advocate K.A. Mohamed,; P.U. Usuff,; A. Rajappan and;
DispositionPetition allowed
Cases Referred and Amir Chand v. Buti Shah
Excerpt:
- - 2. i allow the petition and set aside the order of transfer made by the district court with costs there as well as here......the many cases cited at the bar, seem to be sufficient authority for the proposition that where a suit is instituted in a court lacking inherent jurisdiction, an order of transfer by a superior court under section 24 of the code would be void and without jurisdiction. to the extent that air 1934 alt 589 and (s) air 1955 nag 44 (which were cases where the want of jurisdiction was territorial and not inherent) imply the contrary, 1 respectfully dissent; but whether a valid distinction may not be drawn in the case of want of territorial jurisdiction (a defect which is generally regarded as curable and, in any case, does not render the proceedings void) is a matter on which i am not, in this case, called upon to express any opinion.2. i allow the petition and set aside the order of transfer.....
Judgment:
ORDER

P.T. Raman Nayar, J.

1. It is the common case that the suit is one coming under Section 92, Civil Procedure Code and ought to have been instituted in the Principal civil court of original jurisdiction, namely, the District Court, Alleppey. But it was in fact instituted in the Sub-Court, Alleppey, a court lacking in inherent jurisdiction. The withdrawal now ordered by the District Court under Section 24 of the Code cannot cure the initial defect of institution in a court incompetent to entertain the suit, and, any proceeding hereafter, albeit by the District Court, would be void (see the Privy Council decision in Ledgard v. Bull, ILR 9 All 191 at p. 202); especially so in the face of the express bar in subsection (2) of Section 92 of the Code.

Granting for the purposes of argument that this circumstance does not affect the jurisdiction of the District Court to make a withdrawal under Section 24 of the Code, and that as laid down in Narain Das Gopal Das v. Khunni Lal Lachmi Narain, ATR 1934 All 569 and K. L. Daftary v. K. L. Dube, (S) AIR 1955 Nag 44, the decisions relied upon by the learned District Judge, there is no warrant for reading into the wide language of the opening words of Section 24(1)(b) the qualification expressly stated in clause (a), and sub-clause (ii) of clause (b) of the sub-section, that the Subordinate Court from which the suit is withdrawn must be a court competent to try and dispose of the same, I should think that this is a case where the District Court has exercised its jurisdiction with material irregularity if, as is apparent, the only result of its order will be a sheer waste if its own time and the time and substance of the parties by the prosecution of an ineffectual trial.

But ILR 9 All 191 (PC), Singara Mudaliar v. Govindaswami Chetty, AIR 1928 Mad 400 and Amir Chand v. Buti Shah, AIR 1930 Lah 195, to mention only a few of the many cases cited at the Bar, seem to be sufficient authority for the proposition that where a suit is instituted in a court lacking inherent jurisdiction, an order of transfer by a superior court under Section 24 of the Code would be void and without jurisdiction. To the extent that AIR 1934 Alt 589 and (S) AIR 1955 Nag 44 (which were cases where the want of jurisdiction was territorial and not inherent) imply the contrary, 1 respectfully dissent; but whether a valid distinction may not be drawn in the case of want of territorial jurisdiction (a defect which is generally regarded as Curable and, in any case, does not render the proceedings void) is a matter on which I am not, in this case, called upon to express any opinion.

2. I allow the petition and set aside the order of transfer made by the District Court with costs there as well as here.


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