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Abdul Rahim Sahib Vs. P. Gangathara Aiyar - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in37Ind.Cas.436
AppellantAbdul Rahim Sahib
RespondentP. Gangathara Aiyar
Excerpt:
presidency small cause courts act (xv of 1582), sections 41, 46 to 49 - city civil court act (mad. act vii of 1892), section 12--'suit j or trying title,' meaning of--order in ejectment by presidency small cause court--subsequent suit in city civil court for declaration of permanent occupancy light jurisdiction--practice. - .....suit the ejectment order had not been executed and as he obtained a temporary injunction from the city civil court, the execution of that order was stopped. as the learned city civil judge has observed, the suit was evidently intended to have the order of the small cause court superseded by the decree prayed for.2. when a court is given jurisdiction by legislature to do certain acts or pass decrees or orders in certain matters, its action cannot be sat aside by any other court unless the legislature itself authorises it. orders and decrees of courts are usually liable to be set aside by superior courts in appeal or in revision, where powers to do so are conferred on those courts by the legislature. in some cases certain orders are declared to be subject to a right of suit. of section 73.....
Judgment:

Krishnan, J.

1. This is an appeal against an order of the City Civil Court, Madras, returning for presentation to the proper Court the plaint in Original Suit No. 262 of 1915, filed in that Court by the plaintiff-appellant. The defendant had applied under Section 41 of the Presidency Small Cause Courts Act for an order of ejectment against the plaintiff and had obtained an order under Section 43 of that Act The plaintiff in his plaint alleges that he has a permanent right of occupancy on the land and is not liable to be ejected under the order of the Small Cause Court, and prays for a declaration of that right and for an injunction restraining defendant from executing the order of ejectment or in the alternative for a decree directing defendant to eject plaintiff only on payment of Rs. 1,500, the value of the superstructures erected by him on the land. At the time he filed his suit the ejectment order had not been executed and as he obtained a temporary injunction from the City Civil Court, the execution of that order was stopped. As the learned City Civil Judge has observed, the suit was evidently intended to have the order of the Small Cause Court superseded by the decree prayed for.

2. When a Court is given jurisdiction by Legislature to do certain acts or pass decrees or orders in certain matters, its action cannot be sat aside by any other Court unless the Legislature itself authorises it. Orders and decrees of Courts are usually liable to be set aside by superior Courts in appeal or in revision, where powers to do so are conferred on those Courts by the Legislature. In some cases certain orders are declared to be subject to a right of suit. Of Section 73 and Order XXI, Rule 103, of the Civil Procedure Code, 1908. The order of a competent Court passed with jurisdiction cannot be interfered with except in the manner provided therefor by Legislature, unless, of course, such order is vitiated by fraud.

3. In the case of an order passed under Chapter VII of the Presidency Small Cause Courts Act the Legislature has provided the remedy by suit under Sections 46 to 49 of the Act : and except in the manner therein provided no suit will lie in any Court to supersede such an order. Section 46 declares in clause 1 that a person obtaining possession of any property under the chapter, when he was not entitled to such possession at the time he applied for it, shall not be protected from a suit by any person aggrieved thereby and in clause 2 that the application for an order for possession by such a person even though he had not obtained possession is itself an act of trespass. Section 47 shows that a suit for compensation for such trespass is to be filed in the High Court; it also provides how proceedings in the Small Cause Court may be stayed pending such suit, whether the ejectment order had been passed or not, provided it had not been executed and possession given. If possession had been delivered, Section 48, clause (1), will apply and the resulting suit which would necessarily be one for trying the title' must be filed in the High Court under Section 49. The expression 'suit for trying the title to the property' includes, as I understand it, a suit in which any title which the party aggrieved by the ejectment order alleges, whether as a full owner or as a holder of a limited right, has to be tried and decided.

4. In both the classes of suits provided for under Sections 47 and 49, the High Court is the forum prescribed and no other Court including the City Civil Court has, therefore, jurisdiction to entertain or try such suits. The City Civil Court is substituted for the High Court by Section 12 of the City Civil Court Act only under Section 31 (a) of the Presidency Small Cause Courts Act dealing with execution against immoveables, but not under any other Section.

5. From the allegations in the plaint it is clear that plaintiff's case was one falling under clause (2) of Section 46 and his remedy was a suit in the High Court, The application for a temporary injunction made to the City Civil Court and the suit in that Court were both not maintainable.

6. It was suggested that the present plaint might be treated as one for a bare declaration of permanent occupancy right having no reference to the ejectment order and thus cognisable by the City Civil Court. It is sufficient to say that that is not the nature of the plaint; nor will a suit for such a declaration lie under Section 42 of the Specific Relief Act in the circumstances, as the plaintiff was a party to the ejectment order.

5. It is urged that suits of the kind filed by the plaintiff have, as a matter of long practice, been in the City Civil Court and tried and decided by it. It is to be regretted that this question of jurisdiction was not raised before or considered by the City Civil Judge; but practice cannot confer jurisdiction, however long-continued it may be. I, therefore, dismiss the appeal against order with costs.

Oldfield, J.

6. I concur.


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