P.B. Mukharji, J.
1. This Civil Rule raises a very important and interesting question of law about the jurisdiction of the Small Causes Court, under Section 15(1) of the Provincial Small Cause Courts Act read with Article 35(11) of the 2nd schedule under the said Act.
2. The plaintiffs-petitioners obtained a Rule in this case which was limited only to the added ground No. 7 which reads as follows:
'For that the learned Court below ought to have returned the plaint to the plaintiffs as the suit was not triable by the Small Cause Court Judge, inasmuch as the cause of action reveals a criminal offence.'
The Rule, therefore, is now being heard on this ground as to why the judgment and decree complained of should not be get aside.
3. The plaintiffs brought this suit for the recovery of a sum of Rs. 510/- being the price of certain articles let out on hire and for damages. The plaintiffs who are the petitioners before me are the proprietors of a firm under the name and style of Banga Laxmi Decorators of 132, Raja Subodh Chandra Mallick Road Garia Market. The defendant is the owner of another neighbouring decorating firm under the name and style of Friends Decorators of 144, Raja Subodh Chandra Mallick Road, Garia Market.
4. The plaintiffs' case briefly is that the plaintiffs and the defendant firm being neighbouring firms of the same profession, were at first on good terms and used to send customers to each other with a note on the strength of which articles would be let out on hire. In this case the plaintiffs did so on a note in writing by the defendant to a person alleged to bear the name 'S. Das'. This very S. Das signed an Order Supply Form in the printed, form of the plaintiffs. When he took delivery of the articles on hire he produced before the plaintiffs a written note in the handwriting of the defendant which is marked Ext. 2(a) stating that the bearer of the letter is a person known to the defendant and the goods could be given to him. It is the plaintiffs' case that on receipt of this note the plaintiffs had let out utensils to the said S. Das and another Parimal Das. It is admitted that the defendant wrote that letter of recommendation and introduction. Now these two persons, the Dass, took the articles and disappeared. The address they gave on the receipt is 17, Convent Lane which appears to be a fictitious address. The goods have not been returned and the balance hire also had not been paid. Therefore, the plaintiffs sued the defendant for damages. The suit was filed in the Small Causes Court at Alipore.
5. The Small Causes Court Judge at Alipore tried the case on the basis of the guarantee and came to the conclusion that this Ext. 2(a) was not a guarantee but a mere letter of recommendation and therefore, the defendant was not liable either as a guarantor or a surety for the goods supplied, The Small Causes Court surely has jurisdiction to try a claim for breach of guarantee of this nature. In so far as it did it, there could be no question of exceeding its jurisdiction.
6. Here the plaint is material. Paragraphs 5 and 6 of the plaint contained the pleading that the defendant practised fraud and deception upon the plaintiffs. Paragraph 6 of the plaint in particular, after prefacing some argument on the question that unless the defendant had represented the said S. Das to be known to the defendant and unless the defendant was a kind of surety the plaintiffs would never have given those goods to a stranger, proceeds to say that out of a sense of rivalry in the trade the defendant in order to practise deception cheated the plaintiffs by sending a fictitious person and removing the plaintiffs' goods and converting them. The allegation of conversion and criminal misappropriation with dishonest intention was clearly, expressly and definitely made in paragraph 6 of the plaint. Now, it is this allegation on which the whole question of law about jurisdiction arises in the suit. Before discussing this question of law, it is only necessary here at this stage to say that the learned Small Cause Court Judge dealt with the argument and contention about mala fide intention of the defendant and the charge of misappropriation against him and decided the point in favour of the defendant by saying that there was no evidence regarding mala fide intention.
7. Now, the plaintiffs-petitioners contend that this judgment dismissing their suit is clearly without jurisdiction, void and is a mere nullity. This case is a remarkable one and certainly has extraordinary features about it. The plaintiffs chose their own Court and filed their own plaint. They invited that Court to decide and took a chance of its judgment being in their favour. Now that the judgment of that Court is against them, they come forward under Section 25 of the Provincial Small Cause Courts Act to say that this decree and judgment of the Small Cause Court are without jurisdiction and a nullity and that that Court itself which the plaintiff had chosen had no jurisdiction to decide the case. The first impulse of any Court in such a state of facts is to prevent the petitioner from blowing hot and cold at the same time. The situation becomes more odd when even in the petition before this Court under Section 25 of the Provincial Small Cause Courts Act, the petitioners in ground No. III asserted that the Small Causes Court should have given them a decree on the plaint and should not have dismissed the suit. That only means that even here they came with the case that the Small Causes Court had jurisdiction to try the suit but that the decision which the Court tad given was a wrong decision in law. This added ground No. VII was not the original ground in the petition. Fortunately, however, for the petitioners the Court issuing the Rule did not allow them to raise the other grounds and the only ground to which the Rule was limited was the ground which he was allowed to add and which I have quoted above.
8. At this stage, some discussion of the case law is inevitable.
9. Biswas, J. in Girish Chandra v. Purna Chandra : AIR1944Cal53 dealing with a very similar question observed at p. 54:
'Whether the law is on the side of his clients or not, it hardly admits of doubt that their conduct has very little of merit in it. Having themselves moved the Court under Section 47 of the Code and invited a decision on their application, it is not for them now to turn round and say, because the decision went against them, that neither were they competent so to have moved the Court, nor was it competent for the Court to have dealt with the matter on being so moved. And yet this is the position which they must take up in order to sustain their present contention. These contentions may now be examined'.
In National Coal Co. Ltd. v. L. P. Dave, reported in : AIR1956Pat294 a Division Bench of the Patna High Court expressed the settled view at p. 297 that consent of parties cannot give jurisdiction to a Court or a Tribunal when there is inherent lack of jurisdiction in the Court or the Tribunal. But where the want of jurisdiction has to depend upon proof of certain facts, then if those facts have not been raised and proved, a party cannot be permitted to raise a plea of want of jurisdiction so as to render its decision void and ineffective, and in that context the Patna decision holds that when a party submits to the jurisdiction of a Court and takes a chance of getting a decision in its favour, it cannot be permitted to challenge the jurisdiction of that Court after the decision has gone against it. But that principle does not apply to the facts of the present case. Here the question of jurisdiction does not depend on proof of any facts.
10. Reliance has also been placed on a decision Makudam Mahommad v. Mahommad Sheik Abdul Kadir, reported in AIR 1936 Mad 856. This is the decision of a single Judge of the Madras High Court laying down the principle that where a party invites the Court to adopt a procedure which is not contemplated by the Civil Procedure Code and is in fact a procedure extra cursum curiae, he cannot afterwards turn round and say that the Court is to be blamed for adopting the very procedure which he invited the Court to follow. The doctrine of estoppel would apply to him. The judgment of the Court is in the nature of an arbiter's award, and as a general rule, no appeal from it would lie. This Madras decision followed the well-known principle laid down by Lord Watson in Burgess v. Morton, 1896 AC 136. This, however, is not a case of extra cursum curiae, Here the Judge did not act as an arbitrator and it cannot be said that the judgment of the Court of Small Causes was a kind of arbitrator's award. Those principles, therefore, in my opinion, have no application to the facts of the present case.
11. For the petitioners reliance has been placed on the decision in Ramprosad v. Sricharan, reported in 27 Cal LJ 594: (AIR 1918 Cal 946), where a Division Bench of this Court came to the conclusion that a suit for compensation for wrongfully cutting a tree grown, and misappropriating crops raised, by the plaintiff on his land, is excepted from the cognisance of a Court of Small Causes by Article 35 Sub-clause (ii) of the second schedule to the Provincial Small Cause Courts Act, a point which is to be decided in this petition. It is laid down by the Division Bench that when there is an entire absence of jurisdiction, no action on the part of the plaintiff, no inaction on the part of the defendant can invest the Court with jurisdiction, for jurisdiction cannot be created by waiver or consent and when a subordinate tribunal has usurped jurisdiction, it is incumbent on the Court of appeal or revision to interfere. That Division Bench decision is binding on me. It lays down the good law that the doctrine of a party inviting the Court cannot apply to invest the Court with any kind of authority or jurisdiction to decide the case. No doubt the Court looks askance to the party who invites first the Court to decide the case and then questions its jurisdiction. But it must be remembered that a Court acts not only at the invitation of a party but also under the command and dictates of law which circumscribes or subscribes to the Court's jurisdiction. Mere invitation of a party, therefore, will not save the Court and its judgment if it is completely without jurisdiction under the law or the statute. The point in that decision was, however, naturally taken by the defendant and not by the plaintiff as in the case before me.
12. On behalf of the opposite party, reference has been made to the decision in Suresh Chunder Maitra v. Kristo Rangini Dasi, reported in ILR 21 Cal 249, a decision by a Division Bench of this Court, where it is said that notwithstanding Section 16 of the Provincial Small Cause Courts Act, the High Court has, on a case being submitted to it under Section 646-B, Civil Procedure Code, full power to consider the matter of jurisdiction or to deal with it on the merits, so as to do substantial justice without putting the parties to the expense of a fresh trial. It proceeds to lay down however, that where a suit, cognizable by a Small Cause Court, was tried both in the Munsif's and District Judge's Courts without objection to the jurisdiction, and where the parties in both the lower Courts submitted to the jurisdiction of the ordinary Courts, it was not competent to either of them on second appeal to plead the want of jurisdiction in those Courts so as to render all proceedings taken in the suit void. This, however, was a case where the suit was tried by the Court of general competence and jurisdiction and not by the Small Cause Court with limited and specified jurisdiction with exceptions engrafted by the statute as in the present case before me.
13. In these circumstances, it is therefore essential to examine the merits of the present case in order to come to a decision on the point. The allegations in the plaint, and especially in paragraphs 5 and 6 thereof, clearly make out a case of dishonest and criminal misappropriation of property which comes under Section 403 of the Indian Penal Code. The allegations in the plaint suggest that offence. Now, Section 15(1) of the Provincial Small Cause Counts Act provides that a Court of Small Causes shall not take cognizance of the suits specified in the second schedule as suits excepted from the cognizance of a Court of Small Causes. In order to see what that bar is, reference is necessary to Article 35 of the second schedule of the Act under the heading 'Suits excepted from the cognizance of a Court of Small Causes' where it is provided in Sub-clause (ii) as follows;
'for an act which is, or, save for the provisions of Chapter IV of the Indian Penal Code, would be an offence punishable under Chapter XVII of the said Code''.
14. This exception in the jurisdiction of the Court of Small Causes was added by the Act VI of 1914. The justification for introducing this exception is stated in the objects and reasons to be as follows:
'Under the existing law, certain suits which practically involve a criminal charge against the defendants are cognizable by Provincial Small Cause Courts, if their value is within the pecuniary jurisdiction of such tribunals. At the same time they are triable by a summary procedure which allows no right of appeal upon the facts and requires no full record of the evidence. This position is unsatisfactory, in that it deprives the defendant of the possibility of clearing his character by an appeal from adverse decree'.
15. Now the pleadings in paragraphs 5 and 6 of the plaint in this case disclose an offence of criminal misappropriation under Section 403 of the Indian Penal Code, which is an offence punishable under Chapter XVII of the Indian Penal Code within the meaning of Article 35 (ii) of Schedule II of the Provincial Small Cause Courts Act. The petitioners' whole case, therefore, now is that the Small Cause Court had no jurisdiction to try this case as this was specially excluded. The petitioners being the plaintiffs admit the oddity of their conduct by saying that it is true that they themselves filed that suit in the Small Cause Court. But they contend that their action cannot invest the Court with jurisdiction and the Court should have returned the plaint to them for being filed in the proper Court which is the ordinary civil Court with general jurisdiction, a case just the reverse of the case in ILR 21 Cal 249.
16. In support of the petitioners' case that the judgment and decree of the Small Cause Court are a nullity and completely without jurisdiction, the learned Advocate for the petitioners relies on certain authorities. They may now be examined. The first authority is Deoki Rai v. Harakh Narayar Lal, reported in : AIR1926All760 a decision of the Division Bench of the Allahabad High Court. It lays down that in order to decide whether a suit is one of a Small Cause Court nature or not one should refer to the allegations of the plaintiff contained in the plaint. If those allegations make but a case, which is exempted from cognizance of the Small Cause Court, it is immaterial what the defence raised is and what the actual findings arrived at by the Court are. It points out that if the defendant were held to be estopped from contending that the suit was exempted from the cognizance of the Small Cause Court, merely because he had not admitted the commission of any offence, the result would, be that the plaintiff would always be entitled to prefer a second appeal if the decision went against him, but the defendant would be estopped from doing so. Lastly, this decision lays down that Article 35(ii) is intended to cover all suits for compensation for loss occasioned by an offence under Chapter XVII of the Indian Penal Code. The object seems to be to take away cases, where serious allegations amounting to the commission of an offence are made, from the cognisance of the Courts of Small Causes. In that case, the allegations in the plaint were that the defendants unlawfully colluded with each other and forcibly cut and appropriated a tree without any light in spite of the remonstrances of the plaintiff's servant. On those facts, it was held that those allegations undoubtedly made out an offence of theft and mischief and, therefore, the suit was excluded from the jurisdiction of the Small Cause Court. This case certainly helps the contention of the petitioners in the present case before me. The second case in support of the petitioners is a decision of Tek Chand, J. in Kashi Ram v. Des Raj of the Lahore High Court, reported in 165 Ind Cas 207: (AIR 1936 Lah 798). It came to the conclusion that Article 35(ii) applies even though the claim is restricted to the value of the property mis-appropriated or stolen and does not in so many words include a claim for compensation and a suit for recovery of the money in respect of which an offence under Section 379, I. P. C. had been committed, was held to be excepted from the jurisdiction of the Small Cause Court. Reference in this case was made to the Allahabad decision just mentioned. The third case on which the petitioners relied was the decision of a single Judge Biswas, J. in Commrs. of Patna Municipality v. Nirode Sundari Dasya, reported in : AIR1942Cal544 where Biswas, J. observed as follows at pp. 544-545 of that report:
'......in my view the suit would come within Clause (ii) of Article 35 of Schedule 2, Provincial Small Cause Courts Act, as being a suit for compensation for an act which would be an offence punishable under Chap. 17, Penal Code. The cutting down of the trees in respect of which damages were claimed was undoubtedly an act of mischief or criminal trespass as defined in the Penal Code, and I see no reason why the suit should not accordingly be regarded as falling strictly within the terms of Clause (ii) of the said Article. The appeal to the learned Subordinate Judge would in that view be quite competent, and a second appeal would also He to this Court.'
There the fact was that the plaintiff filed a suit for damages for cutting of trees by the defendant standing on plaintiff's land without any legal justification. This was held to be outside the jurisdiction of the Small Cause Court on the ground mentioned above. The fourth case on which the petitioners relied is Shiv Gir v. Khazan Gir, reported in AIR 1922 Lah 451, a decision of the Division Bench of the Lahore High Court of Shadi Lal, C.J. and Brasher, J. There the objection about the jurisdiction on the ground that the acts which the defendants alleged to have been committed were punishable under Section 403 of the Indian Penal Code was repelled on the ground:
'It is, however, an essential element of this offence that the accused person should act dishonestly, and we are unable to find in the plaint any definite allegation that the defendants had the intention requisite for the commission of an offence under this section.
It is obvious that in many cases of this type a defendant might be civilly liable while he would incur no criminal liability at all, and unless alt the necessary ingredients of a criminal offence are stated in the plaint the case cannot be excepted under Article 35(ii)'.
The petitioners in relying on those observations point out to the clear allegation of dishonest and mala fide intention and cheating pleaded in paragraphs 5 and 6 of the plaint in the present case before me. The fifth case on which the petitioners relied is a recent decision of Chockiah Thevar v. Shanmugasundaram Chettiar, reported in AIR 1956 Mad 610, where Ramaswami J. observes that the jurisdiction of a Court with reference to the subject-matter of the litigation depends upon the nature of the claim brought before it, and it is the nature of the claim and not the merits of the claim that is to be seen. It also lays down the principle that an objection as to jurisdiction cannot be given up by consent, nor can it be waived and where there is an entire absence of jurisdiction, no action on the part of the plaintiff or consent on the part of the defendant can invest the Court with jurisdiction. This decision proceeds to lay down that if a suit of a Small Cause nature is brought before and tried by an ordinary Court, or vice versa, the trial is without jurisdiction, even though no objection is raised by the defendant as to competency of the Court to entertain the suit. The facts of this case are interesting and relevant for the purpose of the present facts in this petition. There the plaintiff sued the defendants for recovery of a sum of Rs. 570/- paid by him as advance to the defendants with interest thereon in pursuance of the agreement for sale according to which the defendants agreed to sell the suit property to the plaintiff for Rs. 2250/-. The plaintiff agreed to purchase the property on the representations of the defendants that they had absolute title to the said property. The plaintiff then discovered that the defendants had only a limited right in the suit property and there were two other encumbrances also on the said property, and these facts had deliberately been suppressed and that false representations of absolute title had been made thereby inducing the plaintiff to part with the sum of Rs. 570/- and which he would not have otherwise done. In the Madras case, therefore, the plaintiff asked the defendant to return the advance. It was held there on those facts that this was an offence under Section 415, I. P. C. and therefore exempted under Article 35(ii) of Schedule II of the Provincial Small Cause Courts Act. On a parity of reasoning the petitioners here argue that no doubt they pleaded in the plaint that they would not have delivered the goods to strangers unless such strangers came with the recommendation of the defendants and with come kind of guarantee from them, but then it was not a case really of guarantee as the pleading goes on to say that the stranger was a fictitious person sent out by the defendants with a view to cheat the plaintiffs and induce the plaintiffs to part with the goods and which are alleged to have been misappropriated by the defendants themselves.
17. On the merits, as well on the authorities discussed above it is clear therefore that the present plaint with its allegations does disclose an act which is or would be an offence punishable under Chapter XVII of the Indian Penal Code within the meaning of Article 35 (ii) of the Provincial Small Cause Courts Act.
18. The learned Advocate for the respondents, however, has relied on certain other decisions to contend that this Small Cause Court plaint was treated as a breach of guarantee or a breach of surety, civil in nature and within the jurisdiction of the Small Causes Court to try having regard to the pecuniary claim. He relied on a recent decision of this Court in Banamali Saha v. Subala Dasi, reported in 64 Cal WN 172, where it appears to have been held by Banerjee, J. relying on Gadadhar Dey v. Ranibala Dasi, : AIR1950Cal109 , that a suit for damages on account of felling of trees by a tenant was cognizable by the Court of Small Causes and was not exempted therefrom on account of the provisions of Clause (ii) of Article 35 of Schedule II of the Provincial Small Cause Courts Act. That case, however, is distinguishable from the present facts on many grounds and particularly on the ground that this was not a case by landlord against a tenant for wrongful felling of trees. In this decision, however, there was no reference to the previous decision of this Court reported in : AIR1942Cal544 . Lastly, it is clearly distinguishable on the ground that the question there arose on the breach of a term in the kabuliyat itself which was in the nature of a civil claim within the competence of the Small Causes Court.
19. The next case on which the opposite party relied is Mirza Dilbar Hossain v. Sadaruddin Chowdhury, reported in 27 Cal WN 469: (AIR 1923 Cal 568), a decision of the Division Bench of this Court of Cuming and Panton, JJ. That, however, was a case of ordinary rights. There the plaintiffs sued the defendants in the Civil Court for recovery of money on account of the price of trees alleged to have been wrongfully cut and misappropriated by the defendants from land claimed to be plaintiffs' property and in their possession, and it was found that the defendants had right to some portion of the trees and the suit was partly decreed, and the defendants preferred a second appeal. There it was held that the suit did not come within Article 35(ii) of the Second Schedule of the Small Cause Courts Act. That case is distinguishable from the present one. That was not a case of complete and total lack of jurisdiction. The next case to which reference was made on behalf of the opposite party is Kedar Sheikh v. Najumaddi Sheikh, reported in AIR 1926 Cal 1230, a Division Bench decision of this Court. The report is short and the facts are not sufficiently clear, but it was held in that case by Cuming, J. at p. 1231 that 'the plaint itself does not make out any criminal offence.' That distinguishes that case from the facts of the present petition before me where the plaint itself disclosed clearly a criminal offence under Section 403, I. P. C. Reference was also made by the learned Advocate for the opposite party to the decision of a Single Judge in Radha Ballabh Guha v. Panchkari Sil : AIR1928Cal153 where Mitter, J: found at p. 554 (of Cal LJ):, (at p. 154 of AIR) as follows:
'It appears to me from the allegations in the plaint that the allegations do not constitute mischief within the meaning of Section 426 which falls under Chapter XVII of the Indian Penal Code. The dispute is between the landlord and a tenant and the question as to whom the right to the trees or the right to the timber when the trees are felled belongs is often a question of considerable difficulty.'
That fact distinguishes the present case. Here it is not a question of debatable civil rights between landlord and tenant and here the pleadings disclose facts expressly and clearly denoting criminal misappropriation. Similarly the case of Damodar Jha v. Baldeo Prasad, reported in ILR 9 Pat 569: (AIR 1930 Pat 575) cited by Mr. Bakshi for the opposite party can be distinguished on the ground that that was a suit by landlord against tenant for the price of bamboos unlawfully cut and mis-appropriated and the case turned on the question of the respective rights of landlord and tenant.
20. On Article 35 (ii) of Schedule II of the Provincial Small Cause Courts Act and its interpretation there have been many controversies and the judicial opinions, as will be seen from the discussion above, are not always consistent. A very wholesome guidance in this legal wilderness is laid down in Hukum Kandoo v. Babu Jaintri Govind Rai, reported in : AIR1931All595 a decision by a Division Bench. It emphasises the importance of the facts and circumstances in each case. Boys, J. at p. 595 of that report observes as follows:
'......the decision must vary according to the particular circumstances set out, and the various allegations made, in the plaint. It is manifest that in some instances there would be a plain unambiguous accusation of an offence, and in some cases there will be nothing whatever to suggest that a civil wrong had been committed. Between the two there must be an infinite variety of cases until those two which are one on each side of the border line are very very approximate in their facts. Each case must be considered on its own allegations in the plaint. There may also be circumstances, of course, in the past history which may help the interpretation of the plaint.'
In that case there was an allegation that one tree had been cut three years ago, followed by criminal proceedings in which the defendants were acquitted. Within two or three years further trees were cut, and the plaintiff had made no effort whatever in the meantime to establish his title. In that set of facts it was held that the suit was of the Small Cause Court nature.
21. It is necessary also to notice the decision of Kamal Krishna v. Madhusudan, AIR 1930 Cal 240 a decision of Division Bench of this Court of Rankin, C. J. and C. C. Ghose, J. There it was held that a suit even by a tenant against landlord for recovering damages by way of compensation for acts of trespass and mischief were exempt from the jurisdiction of the Court of Small Causes.
22. On this point it will not be necessary to multiply references to other authorities. A broad look at Article 35(ii) of the Second Schedule of the Provincial Small Cause Courts Act, which has already been quoted above, will now be appropriate for an appreciation of this point. Article 35 begins with the words 'A suit for compensation;' then follows different sub-paragraphs '(a), (b), (c), (d), (e)' etc. until one comes to Clause (ii). Therefore reading Article 35(11) the exempted suit is 'a suit for compensation for an act which is or ** * * would be an offence punishable under Chapter XVII of the said Code (Indian Penal Code).' Plainly therefore, a suit which seeks for compensation of an act which is or would be an offence under Chapter XVII of the Indian Penal Code is excluded from, the Small Causes Court. The question, therefore, in every case on the facts would be whether the plaint discloses a suit to be of this particular nature. The word used is both 'is' or 'would be'. In a case of this nature no defendant would conceivably take the point of jurisdiction for the simple reason that it will incriminate himself by saying that the act disclosed in the plaint is or would be a crime punishable under Chapter XVII of the Indian Penal Code. This duty really is cast upon the Small Causes Court to see on an analysis of the plaint the nature of the claim. The two words 'is' or 'would be' seem to indicate a general view of the act pleaded. It is not necessary in that context that the suit for compensation for the act may not (sic) have been found by criminal Court to be an actual crime at the time when the Small Causes Court is deciding upon its jurisdiction under Article 35(ii). But if the criminal Court has already found the act pleaded in the plaint to be a crime then perhaps the task of the Small Causes Court is easier although it may not be bound by the finding of the criminal Court. This much is clear that Article 35(ii) does not say that the act for whose compensation the suit has been filed must already be determined by a criminal Court to be a crime and a conviction has followed. There again the words are 'an offence--punishable under Chapter XVII of the Indian Penal Code'. The word 'punishable' does not mean already punished. The reason for its introduction has already been noticed. The Small Causes Court is a Court of very limited jurisdiction. It is a Court of Small Causes with a very summary procedure and as the name implies it was intended to decide small causes. Where, therefore complicated cases where dishonest intention and commission of an offence punishable under Chapter XVII were involved, the legislature wanted to exclude them from the jurisdiction of the Small Causes Court. What was thought to be a good reason has now been cursed. In fact the Civil Justice Committee recommended that Article 35 (ii) should be deleted and expressed the reason for deleting in these words:
'Many trumpery suits such as those for palm leaves cut and carried away by a trespasser or for conversion of a law measures of paddy are now tried on the ordinary side, because technically the act charged amounts to an offence under the Indian Penal Code. * * * It could not have been in the contemplation of the framers of these provisions that petty suits of the kind indicated above were to be filed on the ordinary side.'
But in spite of Civil Justice Committee's recommendations the Article still remains unchanged by any legislative amendment and the Courts have to give effect to Article 35 (ii) as it stands, to-day.
23. On behalf of the petitioners it has been argued that mistake of law creates no. estoppel and reliance was placed on the decision of the Supreme Court in the Sales Tax Officer, Eanaras v. Kanhaiya Lal Makund Lal Saraf, reported in : 1SCR1350 where it was observed at p. 143 as follows:
'Whether the principle of estoppel applies or there are circumstances attendant upon the transaction which disentitle the respondent to recover back the monies, depends upon the facts and circumstances of each case. No question of estoppel can ever arise where both the parties, as in the present case, are labouring under the mistake of law and one party is not more to blame than the other. Estoppel arises only when the plaintiff by his acts or conduct makes a representation to the defendant or a certain state of facts which is acted upon by the defendant to his detriment; it is only then that the plaintiff is estopped from setting up a different state of facts. Even if this position can be availed of where the representation is in regard to a position in law, no such occasion arises when the mistake of law is common to both the parties. The other circumstances would be such as would entitle a Court of, equity to refuse the relief claimed by the plaintiff because on the facts and circumstances of the case it would be inequitable for the Court to award the relief to the plaintiff. These are, however, equitable considerations and could scarcely be imported when there is a clear and unambigous provision of law which entitles the plaintiff to the relief claimed by him.'
24. Now the principle laid down by the Supreme Court is the well-known principle that therecan be no estoppel against law or a statute. Therule of estoppel is applied specially on the groundthat the party on the faith of the representationhas changed his position and suffered thereby. Butthen what can possibly be the prejudice in a casewhere the plaintiff says that he filed the suit inthe wrong Court? It is true that the defendanthad to defend himself but then he succeeded inhaving the suit dismissed on the merits. Prejudice, therefore, if any, so far as the defendantis concerned is not the change in position by reason of the representation of the plaintiff but atbest prejudice in the shape of having to defend thecase and that prejudice can always be compensatedby payment of costs.
25. Reviewing the decisions and the authorities and the law on the subject the following propositions seem to me to be established beyond doubt. The parties cannot by consent or by course of conduct or by action or inaction create jurisdiction in Court where there is none under the law. A decree, order or judgment by a Court in such set of circumstances would be one completely without jurisdiction and void. It will be in fact a nullity Usually it is true that this point arises only on an objection by the defendant and not by the plaintiff who chooses his own Court. When the plaintiff takes this point the question is--Can he be allowed to blow hot and cold when he himself invited the Court to decide the issue and whether he should be allowed, if the judgment goes against him to contest that the Court was without jurisdiction in entertaining and deciding his plaint. I do not think that the doctrine of blowing hot and cold can cover a case where a Court is asked to decide a point over which it has no jurisdiction. No doubt Court acts on the invitation of the plaintiff but it has also to act, as I have already said, according to the dictates and commands of the law governing the Court's jurisdiction. The plaintiff's invitation will not invest the Court without jurisdiction with a competence to decide the point. I, therefore, hold that it is open to the plaintiff to take this point. No doubt if the plaintiff had won his decree for money he would not have questioned the jurisdiction. But that point would then be open to the defendant to question. Besides where there is no prejudice except that of costs, a null and void. decree because of want of jurisdiction cannot be allowed by this Court to stand and pass as correct.
26. On these findings I come to the conclusion that the judgment and order complained against are void and without jurisdiction, on the ground that the plaint disclosed an offence punishable under Chapter XVII of the Indian Penal Code as provided under Article 35(ii) of the Second Schedule of the Provincial Small Cause Courts Act.
27. The question now is what relief should be granted. The plaintiff petitioner seeks for a return of the plaint. Mr. Bakshi, learned Advocate for the opposite party argues that where there has been a trial and a judgment on a plaint, plaint can no longer be returned. For this purpose he relies on the decision of Ratikanta Moyra v. Sanatan Baidya, reported in AIR 1930 Cal 147, a decision of the Division Bench of this Court and specially the observations of B.B. Ghose, J. who delivered the leading judgment at page 147 which read as follows:
'The plaint had already merged in a decree and it is inconceivable how it struck the learned Munsif that the plaint could be returned at that stage.'
In that case it was a suit for partition valued at certain figure, and a preliminary decree was passed and thereafter it was found at the time of final decree that the suit was undervalued. On those facts it was held that it was not open to the Court if the value of the property exceeded the pecuniary limits of the Court, to declare the preliminary decree a nullity and return the plaint for presentation to competent Court. This decision, however, cites no authority. As against this decision the learned Advocate for the petitioner has relied on three decisions reported in Sital Prasad Nigam v. United Provinces, Abdulla Sarkar v. Asraf AH Mandal, 7 Cal LJ 152 at p. 164 and, Babaji v. Lakshmibai, ILR 9 Bom 266. The Oudh case lays down that the power of the High Court under Section 25, Small Cause Courts Act, is very wide and it can make an order under Order 7, Rule 10, Civil Procedure Code, directing the plaintiff to file the plaint in the proper Court to have his suit properly decided by a competent Court. The learned Advocate for the petitioners relies of the observation of Sir Asutosh Mookerjee, J. at p. 164 of 7 Cal LJ 152 where it is laid down as follows:
'Now there can be no doubt, as laid down in the cases of Edoo v. Hefazut, 13 Suth WR 358, Bai Mahkor v. Bulakhi, ILR I Bom 538 that if a Court of appeal decides that the original Court had no jurisdiction to entertain the suit, the right course to adopt is to return the plaint for presentation to the proper Court.'
On the strength of that observation it was urged that even where the plaint or rather the cause of action has merged in a judgment or decree the appeal Court or the revisional Court can always make an order setting aside that judgment and asking the plaint to be presented in the proper Court. In the Bombay decision of ILR 9 Bom 266, relied on for the petitioners a Division Bench of the Bombay High Court decided that the lower Appellate Court ought to have ordered the plaint to be returned and not having done so, the High Court on second appeal ordered the plaint to be returned, in order that it might be presented to the proper Court.
28. The language of Order 7, Rule 10 makes it clear that the plaint shall 'at any stage of the suit' be returned to be presented to the Court in which the suit should have been instituted. The relevant words are 'at any stage of the suit'. The question is where the suit has been tried and a judgment delivered can it be said thereafter that 'any stage of the suit' still continues when it is found either in appeal or revision that the decree has been without jurisdiction, on the theory that an appeal or a revision is a kind of continuation of the suit. As indicated above the authorities are conflicting. Normally having regard to the context and juxtaposition of Order 7, Rule 10 in the scheme of the Civil Procedure Code it would appear that the question of return of plaint under Order 7, Rule 10, C. P. C. is considered at a stage where the judgment has not been delivered. It is at the stage where the plaint is filed and before the summons in the suit had issued. In fact Order 7 deals with the plaint and contextually comes before Order 8 which deals with the written statement. Sub-rule (2) of Rule 10 of Order 7, C. P. C., would also seem to indicate that it is the initial stage that is being considered under this provision and not the stage where the plaint has proceeded to a trial and the judgment already delivered. Order 7, Rule 10(2) of the C. P. C. provides the procedure on returning the plaint and says that on returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it, but this endorsement does not mention the date of judgment on the plaint. The words, presentation, return and endorsement of the reasons seem to indicate that the legislature is contemplating the stage of such return long before the trial of the plaint and before the delivery of judgment on such a plaint. No doubt the Small Causes Court Judge should have acted under Order 7 on this plaint when it was presented to him and he should have returned it for presentation to the proper Court. That was certainly his obligation under Order 7, Rule 10, C. P. C. The question now is that under Section 25 of the Provincial Small Cause Courts Act what course this Court in revision should take.
29. I am inclined on the facts of this case to take the view that the appropriate course for this Court under Section 25 of the Provincial Small Cause Courts Act where no doubt the powers of this Court are wide as quoted, should be to set aside the judgment and dismiss the suit for want of jurisdiction and not to order return of the plaint for presentation to the proper Court, after all that has happened. The Small Cause Court could have dismissed the suit on the ground that it had no jurisdiction to entertain under Section 35(11) of the Second Schedule read with Section 15(1) of the Provincial Small Cause Courts Act. In the particular facts and circumstances of this case, that course appears to me as best suited for the ends of justice.
30. I, therefore, order and direct that the judgment and order of the Small Cause Court be set aside and that the petitioner's suit be dismissed on the ground that the Small Cause Court could not take cognizance of the suit under Section 15(1) of the Provincial Small Cause Courts Act read with Article 35(11) of the Second Schedule thereof.
31. The question now is about costs. The petitioner plaintiffs are responsible for all the costs not only of the trial before the Small Cause Court but also for the costs of this Civil Revision herein this Court under Section 25 of the Provincial Small Cause Courts Act. It is only fair, just and proper, in my view that the petitioners must bear all these costs which are thrown away because he chose the wrong Court. The Small Cause Court dismissed the suit without costs. I assess such Small Cause Court costs to be two gold mohurs. I further assess the hearing cost of this application in this Court at five gold mohurs.
32. For the reasons stated above I make the Rule absolute on the terms stated in this judgment and the petitioners must pay to the opposite parties the costs assessed altogether at seven gold mohurs.