Subrahmanya Aiyar, J.
1. The suits out of which these Civil Miscellaneous Appeals arise were instituted before the Deputy Collector of Trivellore by the Regulation Collector in charge of the Kalahasty Estate for compelling the acceptance by, the respective defendants of pattas for Fasli 1312. The main contest before the Deputy Collector was whether with reference to the lands constituting the holdings, rent was payable in kind as contended on behalf of the plaintiff, or as contended. for the defendants, in money under express contracts alleged to have been entered into in Fasli 1305. This and certain minor questions were tried by the Deputy Collector who held that the contracts alleged were not made out and he directed that waram putta should be accepted. The defendants appealed and the District Judge on appeal disagreed with the Deputy Collector on the main question and after discussing the evidence on the point found that the contracts set up were proved. This conclusion rendered a revision of practically all the other terms of the puttas necessary and the District Judge reversed the decision of the Deputy Collector and remanded the suits for disposal on the basis that rent was payable in money in accordance with the contracts found, Against the orders of such remand these appeals have been preferred.
2. Mr. Krishnaswamy Aiyar on behalf of the plaintiff argued the case on the merits stating that the plaintiff was desirous of obtaining the decision of the Court on the question as to whether the finding of the District Judge that the contracts alleged by the defendants were established was correct and if the decision should be against him it was not intended to object to the order of remand. At the conclusion of the argument I expressed my opinion that the District Judge was right in his finding on the question of the contract and that we ought to dismiss the appeals. But my learned colleague, if I am not mistaken, was inclined to hold that the orders of remand having been passed contrary to Section 564 of the Civil Procedure Code the proper course was to set aside the whole proceedings of the District Judge inclusive of his decision on the question of the contract and to direct him to restore the appeals to his file, rehear the case and pass decrees settling the terms of the puttas, taking fresh evidence or calling for findings as he may deem fit. 'Thereupon the vakils for the defendants one of whom had appeared before the District Judge when the cases were disposed of by him urged that the remand of the suits was at the express request of both the parties made to the District Judge that subsequent to the remand the matter had been tried by the Deputy Collector and fresh decrees given, and that consequently the plaintiff was precluded from taking exception to the order of remand and that at all events the decision of the District Judge as to the contracts being true and valid could not be set aside in the absence of any reason warranting such a course on second appeal. Judgment was reserved for further consideration of the contentions thus raised on behalf of the defendants. Now as to the first of these contentions there can be no doubt that when a suit is remanded contrary to the provisions of Section 564, proceedings taken in pursuance of such remand cannot be said to be absolutely null and void so as to render any consent given by the parties of no avail whatever. Nor on the other hand, is such remand a mere irregularity which in spite of objection duly taken by a party might in the discretion of the Court be treated as not necessarily affecting the validity of the proceeding. The true view is that a remand in contravention of Section 564 is a violation of a mandatory provision of the law which makes the order of remand illegal and one that ought to be set aside at the instance of a party entitled to object to such a procedure, but which nevertheless is of such a character that the defect can be cured by consent. That no question of want of jurisdiction in any real sense of the term is involved in the case of a remand such as that under consideration is to my mind obvious inasmuch as the lower court to which the proceeding is so erroneously remanded could not only properly try the matter if instead of such remand issues had been referred in connection therewith, but could also have dealt with it in the first instance save for the error set right in the Appellate Court. And Mohesh Chandra Dass v. Jamiruddin Mollah I.L.R. 28 C. 324 clearly and directly supports the view. No doubt that case as well as Mallikarjuna v. Pathaneni I.L.R. 19 M. 479 speaks of an improper remand as an 'irregularity' but such a description of the deviation in procedure in question is inconsistent with the subsecquent ruling of the Judicial Committee in Subrahmanya Ayyar v. King Emperor I.L.R. 25 M. 97 where it is observed that their Lordships are unable ' to regard the disobedience to an express provision as to a mode of trial as a mere irregularity.' Such disobedience must, therefore, I think, be held to be null and void as against the party entitled to object thereto provided he has not waived his right so to object. Perumbra Nayar v. Subramanaya Pattar, I.L.R. 23 M. 445 is not in conflict with what 1 have just stated, for, the remand there was one which while being outside the scope of Section 564 was warranted by an ealier provision of the Code in the manner explained by Strachey, C.J. in Habib Bahsh v. Baldeo Prasad L.R. 23 A. 167. The doctrine that consent does not give jurisdiction of coarse applies where the Court has ' no inherent jurisdiction over the subject matter.' Ledgard v. Bull L.R. 13. I.A. 134 at p. 145. It would not, however, apply to violation of rules of procedure though they are more than irregularities. For the doctrine of waiver has been applied even where there has been what may be correctly described as jurisdictional defect in a general sense. Moore v. Gamgee L.R. 25 Q.B. D. 244 may be referred to as an instance in point. There Cave J., in accordance with a previous similar decision of Erle, J. in Jones v. James 19 L.J. (Q.B.) 257 held notwithstanding that leave of the Court had not been obtained for the institution of the suit as it should have been, the objection to the jurisdiction of the Court had been waived by the defendant appearing and contesting the action. Another instance in point is Revell v. Blake L.R. 8 C.P. 533 followed in Gomatham Alamelu v. Komandur Krishnama Charlu I.L.R. 27 M. 118 and in Sardarmal v. Aranvayal Sabhapathy I.L.R. 21 B. 205. In that case it was held by the Court of Common Pleas that when a tribunal competent to adjudidate a person a bankrupt if he resided within its territorial limits had proceeded to make the adjudication when that was not the case but without objection having been made to its so acting, the adjudication was held to be not void. On substantially the same ground Kay, L.J. in Warwick and Birmingham Canal Navigation Company v. Burman 63 L.T.N. Section 670 held the objection to the jurisdiction of a Court to proceed by way of injunction supposing the only remedy was by way of mandamus was waived by the conduct of the defendant in the course of the litigation. These are instances of waiver where the jurisdiction was, in the language of Erle, J. in Jones v. James, 19 L.J. (Q.B.) 257 contingent. Kandoth Mammi v. Neelancherayil Abdu Kalandan 8 M.H.C.R. 14, Nallutambi Mudaliar v. Ponnusami Pillai I.L.R. 2 M. 400 Fazal Shau Khan v. Gafar Khan I.L.R. 15. M. 82 are authorities where, though the jurisdition was not contingent yet parties voluntarily submitting to it and taking the chance of a decision in their favor were held to be equitably estopped from falling back on the objection of want of jurisdiction. Further, it seems to me that the reason which I conceive underlies the prohibition against remand contained in Section 564 favours the application of the doctrine of waiver here. That reason I take to be that once a lower court has decided a case on the merits, and the cause is removed on appeal to a higher court, the latter should dispose of the cause finally adopting whatever intermediate steps that may be necessary and not by a remand of the whole cause to the Lower Court drive the party affected to incur the delay, trouble and expense of afresh appeal to the same tribunal in respect of the eventual decision of the case. If this is right, the provision is one introduced for the benefit of litigants who may consequently waive it if they find that the more advantageous course to take.
3. Passing to the other contention on behalf of the defendant referred to above, it is to be observed that in the circumstances of the cases, the question whether the express contracts set up are true and valid was the crucial question between the parties, and it was essential that the Judge should come to a decision on it before any further order could be passed or step taken by him in the litigation, whether such further step was to be the sending down of issues to the lower court or the trial thereof by himself.
4. Consequently the finding of the Judge in the matter was an adjudication rightly made at the stage in which it was made and binding on the Court unless duly set aside on appeal or otherwise. The fact that an illegal remand followed cannot of course affect what had already been properly done. It is clear, therefore, that if the finding is to be interfered with by us that must only be for reasons warranting such interference on second appeal. But no such reason having been shown and the decision of the judge being in accordance with the effect of the undisputed documents with reference to which it was sought to be impeached, it seems to me that the same must be upheld.
5. I should also add supposing the order of remand was illegal and that that could possibly have affected the validity of the District Judge's decision as to the contracts relied on by the defendants or that there was no consent in the lower appellate court for the remand, nevertheless having regard to the course adopted on behalf of the plaintiff in the conduct of the case before us as already stated, we must on the principle of equitable estoppel laid down in the cases cited above hold that the plaintiff can no longer rely on the impropriety of the remand and its supposed effect on the finding under consideration and that we should proceed to determine the question on the merits, deliberately submitted for our decision and dispose of the cases with reference to the determination so arrived at. (Cf. Emparte Butters, In re Harrison. 14 Ch. Div. 265)
6. I should, therefore, dismiss the appeals with costs in C.M.A. 9 of 1904 and without costs in the other cases.
7. The order of remand by the District Judge is, in my opinion clearly illegal. The Deputy Collector had not disposed of the suit on a preliminary point. On the contrary he had framed six issues and had decided them all. It is alleged that the order was passed by consent. There is nothing on the record to show that such is the case, and even if it were proved that both the appellant and respondent consented to the suit being remanded that would be immaterial. The order of remand being illegal (vide Section 564 Civil Procedure Code) consent of parties would not make it legal. This appeal should in my opinion, be allowed, the order of remand should be set aside, and the District Judge directed to retake the appeal on his file and dispose of it according to law. I, of course, at the present stage give no opinion as to the matters treated of by the District Judge in his Judgment.
8. The costs of this appeal against order should be provided for in the District Judge's final appellate decree.
9. The other cases would follow.
10. Under Section 575 Civil Procedure Code, it is directed that appeals be dismissed with costs in C.M. A. 9 of 1904 and without costs in the other cases.