Charles Arnold White, C.J.
1. In this case the defendants are the 'tenants of the plaintiffs under an agreement, dated 10th April 1889, Exhibit A in this case. The first paragraph of the agreement recites that the plaintiffs had leased to the defendants certain villages at a certain rent. The third paragraph of the agreement states that' you (meaning the plaintiffs) have authorised us (the defendants) to enjoy all your rights in the said villages for the said period of 19 years including certain rights to which you (the plaintiffs) are entitled in the Zemindttri.' The lease agreement contains this covenant' we (the defendants) shall not cut nor shall permit any one to cut the trees which have been already taxed or which are liable to be taxed or which are growing in the Zenrindari forests. The rights of the plaintiffs referred to in paragraph 3 of the agreement have to be ascertained by reference to the agreement between the plaintiffs and the Zemindar. By a supplemental agreement between the plaintiffs and the Zemindar which is Exhibit II in the case, the parties covenanted in the following terms: - 'The lessees (plaintiffs) may cut green trees standing in beds of tanks for their own use and may also cut green trees in other places for agricultural purposes as well as cut at their option all trees planted by themselves and are further entitled to take for their own use all decayed and fallen trees, but the lessor may cut firewood for the use of his own personal household.' The present suit was brought by the plaintiffs against the defendants to recover a sum of Rs. 20 which was alleged to be the value of 9 trees which the defendants were alleged to have cut and carried away. The prayer in the plaint is a prayer for a decree for the value of the trees cut and carried away. The suit was instituted on the ordinary side of the Court of First Instance, and no objection was taken that it was not competent for the court on its ordinary side to entertain the suit. There was an appeal, and no objection was taken by the defendants to the jurisdiction of the court. The point is now raised by the defendants that this is a suit which is cognizable by a Court of Small Causes. Section 16 of the Provincial Small Cause Courts Act is in those terms:--'Save as expressly provided by this Act or by any other enactment for the time being in force, a suit cognizable by a Court of Small Causes shall not be tried by any other court having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable.' It has been argued by Mr. Sivaswami Aiyar on behalf of the plaintiffs that this suit is not a suit which is cognizable by a Court of Small Causes. He says that the suit falls within the words of Article 31 of the schedule to the Provincial Small Cause Courts Act. These words are 'any other suit for an account including a suit by a mortgagor, after the mortgage has been satisfied, to recover surplus collections received by the mortgagee, and a suit for the profits of immoveable property belonging to the plaintiffs which have been wrongfully received by the defendants.' I find it impossible to construe the words of that article as applying to a suit of the kind now before me. It seems to me to be perfectly clear, I should have said beyond argument, if it had not been for the ingenious argument addressed to me by Mr. Sivaswami Aiyar, that this is a suit for damages for breach, of covenant, and it is impossible to regard the suit as a suit for profits of immoveable property, which have been wrongfully received by the defendants. That being so, I am bound to hold that the Court before which this suit was instituted had no jurisdiction to entertain the suit. It is perfectly clear that the objection as to jurisdiction cannot be given up by consent, nor can it be waived. This is well settled law, and it was so laid down in express terms by the Privy Council in Minakshi Naidu v. Subramanya I.L.R. 11 M. 26.
2. Then, the further question arises, am I bound to interfere and exercise the powers which arte conferred on the High Court by Section 622 of the Code of Civil Procedure. Mr. Sivaswami Aiyar has argued that I am not bound to exercise those powers and that I ought not to interfere in the special circumstances of this case. He referred to two authorities in support of the proposition that I ought not to interfere unless I am satisfied that injustice has been done. The two cases to which he referred are Nathekha Valad Bhekhankha v. Abdul Alli I.L.R. 18 B 449 and Ghasiti v. Umrao Jau I.L.R. 21 C 152. These cases have really no bearing upon the point I have to consider. It seems to me that if I am satisfied that the Court of First Instance or the Court of Appeal exercised a jurisdiction not vested in it by law, I am bound to interfere and exercise the powers conferred by the section. I am driven to hold that the courts in this case have exercised a jurisdiction not vested in them by law. I confess I would be glad to find some mode of escape; but, in my opinion, I have no alternative but to set aside all the proceedings in this suit and to direct that the plaint be returned for presentation to the proper court. I make no order as to costs of these petitions.