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Annammal, Minor by Guardian Venkatarama Vathiar Vs. M.V. Sambasiva Aiyar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1919)37MLJ349
AppellantAnnammal, Minor by Guardian Venkatarama Vathiar
RespondentM.V. Sambasiva Aiyar
Cases Referred and Alderson v. Pallier
Excerpt:
.....opportunity, and unless there has been a consequent failure of justice. acting on the averments in the plaint, the return on the summons, and the failure of defendants to raise any objection it decided that it had jurisdiction and disposed of the suit......of minor importance and will not be deemed to be a matter destroying jurisdiction unless the objection to jurisdiction is taken at the earliest possible opportunity. in this case plaintiff by receiving summons and raising no objection must be deemed to have submitted to jurisdiction. although such submission would not be effectual, if the court, apart from the question of territorial jurisdiction, had otherwise no jurisdiction, it is held to be effectual on a question of territorial jurisdiction (vide the provisions of section 21 of the code of civil procedure). in the present case therefore plaintiff must be deemed to have submitted to jurisdiction and cannot subsequently raise the question again in another court. the cases in nusservanjee pestonjee v. meer mynodeen khan.....
Judgment:

1. The defendant in this case obtained a decree of the High Court, made in the exercise of its ordinary original civil jurisdiction, against the plaintiff for the return of certain jewels or payment of their value, and the present plaintiff has brought a suit in the court of the Subordinate Judge of Tanjore for a declaration that the decree is null and void and of no effect on the grounds of fraud and want of jurisdiction. The lower appellate Court has found that there was no fraud on the part of the defendant and the question to be decided in this appeal is whether the decree is void for want of jurisdiction.

2. The plaint filed in the High Court by the defendant alleged that the present plaintiff resided with his wife at No. 25 Venkataramier Street, George Town, Madras, that is within the local limits of the jurisdiction of the Court; that the (present) defendant's mother entrusted some jewels to her mother, the defendant's (present plaintiff's sie) wife, and subsequently died at Vizagapatam, where the (present) plaintiff was then employed; and that the (present) plaintiff and his wife had failed to return the jewels after demand. The plaint alleged that the jewels continued in the custody of the (present) plaintiff's wife until the death of the (present) defendant's mother, and there was no averment of a conversion of the jewels within the jurisdiction by the (present) plaintiff or his wife. The plaint therefore contained no averment to support the contention that the cause of action or part thereof arose within the local limits of the jurisdiction of the High Court. The High Court was competent to entertain a suit of this nature and of the value stated, and its jurisdiction depended upon the residence of the persons sued within the prescribed area.

3. The (present) plaintiff and his wife did not appear in answer to the summons issued in the suit, and an ex parte decree was passed against the (present) plaintiff upon evidence that he had been served at the house mentioned in the plaint and that this was his residence.

4. The present plaintiff applied to the High Court to set aside the ex parte decree on the ground that he had not been served with summons. In his affidavit in support of this application he admitted that a bailiff of the court told him that he had a summons against him, and that he wrote to the Assistant Registrar of the High Court requesting him to send the summons through the superior officer, and stated that be was permanently residing at Kumbakonam. The order dismissing the application was confirmed on appeal.

5. Many authorities have been cited before us with reference to judgment of foreign courts, but we are of opinion that they are not relevant to the question to be decided. The courts of this country will not recognise the judgment of a foreign court, unless it complies with the prescribed conditions (Civil Procedure Code, Section 13), and one of the conditions is that the Court had jurisdiction in the particular case.

6. In the present case the plaintiff is a subject of British India and resides within the Presidency of Madras and is there' fore subject to the process of its Courts.

7. For the convenience of parties and for the better despatch of business of the courts the Legislature has prescribed the subject with which the several courts shall deal, and the areas within which they shall respectively exercise their powers, and has determined what person shall be subject to their process; and it has provided that no objection as to the place of suing 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 unless there has been a consequent failure of justice. (C.P.C. Section 21)

8. Upon the averments contained in the plaint presented to the High Court that court had power to enquire into their truth and if it found that the defendant was in fact resident within the local limits of its jurisdiction it had power to pass the decree prayed for. Each decree could not be set aside by the appellate court unless objection had been taken by the defendant in the prescribed manner.

9. If its jurisdiction depends upon the existence of certain facts the court must decide upon the evidence whether they exist or not, and if upon the facts so found a subordinate Court has assumed jurisdiction the superior court will not interfere with its decision except by way of appeal. See Monisha Erad v. Siyali Koya I.L.R. (1887) Mad. 220 Revell v. Blake (1873) L.R. 8 C.P. 533 and Gomatham Alamelu v. Komandur Krishnamacharulu I.L.R. (1903) Mad. 118.

Where an inferior Court has no jurisdiction from the beginning, a party by taking a step in a cause before it does not waive his right to object to the want of jurisdiction. But jurisdiction is sometimes contingent; in such case, if the defendant does not, by objecting at the proper time, exercise his right of destroying the jurisdiction, he cannot do so afterwards.

(In re Jones : Jones v. Jones 19 L.J. (Q.B.) 257 per Erles, J., cited in Moore v. Gramjee (1890) 25 Q.B.D. 244.

10. The plaintiff received a summons from the High Court while he was in Madras, and at the time took no objection to the jurisdiction of this Court but merely asked that another summons should be sent to him. This Court had therefore to determine whether it had jurisdiction. Acting on the averments in the plaint, the return on the summons, and the failure of defendants to raise any objection it decided that it had jurisdiction and disposed of the suit. Although Section 21 of the Code of Civil Procedure is not applicable to the facts of this case, there is no reason why the principle underlying should not be applied. The principle is that no objection to the place of suing shall be entertained unless it is taken at the earliest opportunity. All courts in this Presidency so far as original jurisdiction is concerned, are local courts, and there is no court exercising original jurisdiction over the whole Presidency. If therefore a court has jurisdiction to try a suit of a particular nature, the fact that it has not territorial jurisdiction over the suit is a matter of minor importance and will not be deemed to be a matter destroying jurisdiction unless the objection to jurisdiction is taken at the earliest possible opportunity. In this case plaintiff by receiving summons and raising no objection must be deemed to have submitted to jurisdiction. Although such submission would not be effectual, if the Court, apart from the question of territorial jurisdiction, had otherwise no jurisdiction, it is held to be effectual on a question of territorial jurisdiction (Vide the provisions of Section 21 of the Code of Civil Procedure). In the present case therefore plaintiff must be deemed to have submitted to jurisdiction and cannot subsequently raise the question again in another court. The cases in Nusservanjee Pestonjee v. Meer Mynodeen Khan Wulluddeen Sudrsodeen Khan Bahadur (1855) 6 M.I.A. 134 and Alderson v. Pallier (1901) 2 K.B. 633 are no authority to the contrary, for there the jurisdiction depended on the questions other than territorial.

11. We are of opinion that the remedy open to the plaintiff was that provided by Section 21 of the Code and that he has no other remedy.

12. The decree of the lower Courts are set aside and the plaintiff's suit is dismissed with costs throughout.

13. The memorandum of objections is also dismissed with costs.


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