1. This Rule is directed against a decree of a Court of Small Causes in a suit for compensation for a tree wrongfully cut and for crops misappropriated by the defendant. The case for the plaintiff was that the land in dispute was his property and was in his possession, that the tree had been grown and crops of mustard raised by him and that the defendant had unlawfully cut and removed the tree and the crops.
2. It is plain that a suit of this description is excepted from the cognizance of a Court of Small Cannes by Article 35, Sub-Clause (ii), of the Second Schedule to the Provincial Small Cause Courts Act, which has been inserted therein by the Provincial Small Cause Courts Amendment Act (1914). This provision excludes from the jurisdiction of Courts of Small Causes suits for compensation for acts which are, or save for the provisions of Chapter IV of the Indian Penal Code would be, offences punishable under Chapter XVII of the said Code. It is clear that if the acts attributed to the defendants are true, they have been guilty of mischief, if not of theft. Consequently, the suit could not be tried by the Court of Small Causes. No objection, however, appears to have been raised to the trial of the suit. But, after the suit had been decreed, the defendants applied for review of judgment. The Court refused the application for review on the ground that the objection as to jurisdiction was not raised at the trial. In our opinion, the review should have been granted. The objection as to jurisdiction was apparent on the face of the record. The plaintiff could succeed only if his allegations as to possession were established. Indeed, on the evidence the Court ultimately found that the allegations were true and proceeded to grant relief to the plaintiff on that basis. It is clear that under such circumstances omission on the part of the defendants to take exception to the jurisdiction of the Court could not legalise the acts of the Court. Where 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 Golab Sao v. Chowdhury Madho Lal 2 C. L. J. 384 : 9 C. W. N. 956. and when a subordinate Tribunal has usu(sic)rped jurisdiction it is incumbent on this Court to interfere Surendra Nath v. Bansi B(sic)adan 36 Ind. Cas. 457 : 24 C. L. J. 533 at p. 536.
3. The result is that this Rule must be made absolute and the decree of the Small Cause Court Judge set aside. We direct that under Order VII, Rule 10, Code of Civil Procedure, the plaint be returned to the plaintiff for presentation to the proper Court. As the objection to jurisdiction was not raised at the earliest possible stage, the plaintiff is entitled to the costs which have been thrown away, that is, the costs of the hearing in this Court as also in the Court below. We assess the costs in this Court at Rs. 16 and the costs in the Court below at Rs. 10. The defendants must pay the plaintiff this sum (Rs. 26), irrespective of the ultimate result of the suit.