1. On the first point dealt with by the learned Judge, this Court's power to revise the decisions oil the Presidency Small Cause Court, I follow the Calcutta cases, Haladhar Maiti v. Choytonna Maiti 7 W.N. 547, Sarat Chandra Singh v. Brojolal Mukerjee 30 C.k 986; Ramdin Bania v. Sew Baksh Singh 14 C.W.N. 806 in preference to Ismailji Ibrahimji Nagree v. Macleod 8 Bom. L.R. 969 decided in Bombay, the former moreover being in accordance with the practice in this Presidency. The learned Judge's decision in favour of the existence of this Court's powers of revision must be sustained.
2. The question is then whether their exercise was justified in the case before him, one of a decree for ejectment under Section 41, Presidency Small Cause Courts Act, obtained on a finding as to the validity of the notice given, which the learned Judge held to be and which may For the present purpose be treated as being mistaken in law. It is contended that this decree can be revised because it was passed in the exercise [to follow the wording of Section 115(a) of the Civil Procedure Code] 'of a jurisdiction not vested in the Small Cause Court by law,' inasmuch as the determination of the tenancy by a vaild notice was a condition precedent to the exercise of jurisdiction under Section 41 and was not fulfilled.
3. This seems to me unsound, because the validity of the notice in question was no more a condition precedent to the exercise of jurisdiction than any other fact the establishment of which might be necessary before a decree could be given, if other facts bad been put in issue. And in fact the principle involved in the contention would, if accepted, entail that the Court's powers under Section 115(a) and (b) are co-extensive with its powers in appeal. So broad a principle requires strong authority to support it. But none has been adduced and there is the clear language of the Privy Council in Amir Hassan Khan v. Sheo Baksh Singh 11 I.A. 237 : Rafique and Jackson's P.C. No. 83 to show that the wrong decision of a question, 'with which the Court is competent to deal, cannot affect its jurisdiction to pass a decree based on that decision. It is no doubt true that a Court cannot confer jurisdiction on itself by the wrong determination of a question; and in order to reconcile this principle with that enunciated by the Privy Council it may be necessary to adopt some definition of the term jurisdiction' such as that proposed by Woodroffe, J., in Shew Prosad v. Ram Chunder 23 Ind. Cas. 977. If the definition which he prefers, that based on the presence of local, personal or pecuniary consideration or the nature of the subject-matter of the suit, be adopted, the result would be in accordance with the form of Section 115, since objections to the Court's competence to entertain the proceedings or to its refusal to entertain them would then be covered by Section 115(a) and (b), whilst Section 115(c) would deal with all action and refusal to take action after the beginning of the trial, which otherwise complied with its requirements. It is, however, unnecessary to elaborate the discussion further in this direction, since there is, in my opinion, no ground for treating the establishment of the validity of the notice in the case before us as having any more special character than the other facts essential to a decision on the merits or as a condition precedent to the exercise of jurisdiction. I, therefore, cannot uphold the learned Judge's interference with reference to Section 115(a). We have also considered it with reference to Section 115(c). But it is clear from the Privy Council decision already referred to that we cannot interfere on the ground of mere mistake in fact or law, and we have been shown nothing also. For it is not suggested that the conduct of the trial in the Small Cause Court was in any respect irregular or illegal.
4. In these circumstances, the Letters Patent Appeal must be allowed, the decision of the learned Judge being set aside and that of the Small Cause Court Judge restored. The defendant will pay the plaintiffs' costs throughout.
Sadasiva Aiyar, J.
5. There are absolutely no merits in the defendant's case. Taking it that on the construction of the rental agreement the defendant is entitled to be in possession for a term of not less than 15 years and 6 months, that is, till the 29th December 1912, the present suit was brought in ejectment in 1913 and the defendant had notice in October 1911, more than 15 months before the suit was brought, that the plaintiffs were determined not to allow him to occupy the premises for a day more than the defendant was entitled to do. Even in the case of revision under Section 25 of the Provincial Small Cause Courts Act, the High Court has discretion to interfere or not and where substantial justice has been done in the lower Court, it is not advisable to use revisional powers on purely technical grounds, See Gopala Iyengar v. Venkatakrishna Iyengar (1912) M.W.N. 1227. Much less is it advisable to interfere when this Court's powers of revision are invoked under Section 115 of the Civil Procedure Code.
6. On the point whether a question of jurisdiction is involved, in this case so as to allow of interference under Section 115, it has, no doubt, been held in Vuppuluri Atchayya v. Sir Kanchumarti Venkata Seetarama Chandra Rao 18 Ind. Cas. 555 that where an Appellate Court by reason of error of law decides that the Court of first instance has or has not jurisdiction to entertain a suit taking tins facts alleged in the plaint as proved, the High Court can interfere under Section 115 with the wrong decision of the Appellate Court. I was the dissenting Judge in that Pull Bench case. That decision (I fully admit) is binding upon me notwithstanding that two very learned Judges of the Calcutta High Court in Shew Prosad v. Ram Chunder 11 I.A. 237 have taken the view which is almost identical with mine. But all those observations of that very learned Judge (Sundara Aiyar, J.) in his judgment in the above Full Bench case which went beyond the actual conclusion of the Full Bench are obiter and not binding. The judgment of the Chief Justice (then Mr. Justice Wallis) in that case confined itself to the point which arose for actual decision.
7. In the present case, the allegation in the plaint being that proper notice to quit had been given to the defendant, the jurisdiction of the Presidency Small Cause Court over the suit was clearly not taken away by any provision of the Common or the Statute Law and the Small Cause Judge did not clutch at jurisdiction through any error of law committed by him. The decision in Vuppuluri Atchayya v. Sir Kanchumarti Venkata Seetarama Chandra Mao 18 Ind. Cas. 555 : 13 M.L.T. 60 does not apply, therefore, to this case and the learned Judge of this Court whose decision is appealed against bad, therefore, no jurisdiction to interfere under Section 115 with the judgment of the Small Cause Court. I agree, therefore, that this appeal should be allowed.