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Appeal from Appellate Order No. 15 of 1952, decided oil 2nd February 1954, against the Order of Mr. M. H Ali, Subordinate Judge, 1st Court, Dacca dated the 30th November 1951, in Miscellaneous Appeal No. 220 of 1951, reversing the Order of A. F. M. Ahsanullah, Munsif, 2nd Court, Naravan ganj, dated the 10th August 1951.
S. 9‑Civil Court has jurisdiction to try all suits of civil nature‑Provincial Small Causes Courts Act, (1887), S. 16‑Ordinary Court by error trying suit cognizable by Small Causes Court having Juris diction within same limit‑Proceedings not a nullity‑Civil Procedure Code (V of 1908), O. XLVI, r. 7.
Section 9 of the Civil Procedure Code invests the Civil Court with jurisdiction to try all suits of a civil nature and so if an ordinary Court by error tries a suit which is of a nature cognizable by a Small Causes Court exercising jurisdiction within the same limits, then the proceedings of the Court are not entirely without jurisdiction and therefore not a nullity.
Section 16 of the Small Causes Courts Act, does not extinguish the jurisdiction of an ordinary Court but only prevents the exercise of it, if the suit is cognizable by a Small Causes Court.
Where the parties submitted to the jurisdiction of the ordinary Court, it is not competent to either of them to plead want of jurisdiction in second appeal so as to render all proceedings taken in the suit void.
Suresh Chunder Maitra, Chairman and Commissioners, Rampur Boaliah Municipality v. Kristo Rangini Dasi I L R 21 Cal. 249 rel.
U. K. Seal v. A. R. A. Arangam Chettyat A I R 1938 Rang. 35 followed.
N. C. Choudhury for Appellant.
Jogesh Chandra Mukherjee for Respondents.
‑In this case the learned Munsif of the Second Court at Narayanganj passed a decree in favour of the appellant for a sum of Rs. 600 plus Rs. 124‑4 as costs in a suit triable by the Small Causes Court. The defendants did not contest but prayed for instalments which were granted. The first instalment having been defaulted, the decree was put into execution, when the defendants put in an objection that the decree was a nullity inasmuch as the suit was triable by the Small Causes Court. The learned Munsif overruled this objection, holding that he had no jurisdiction to go behind the decree. The learned Subordinate judge has allowed the objection on the view that the decree was a nullity for want of jurisdiction.
In Suresh Chunder Maitra, Chairman and Commissioners, Rampur Boaliah Municipality v. Kristo Rangini Dasi (I L R 21 Cal. 249), it has been held that, where the parties submitted to the juris diction of the ordinary Court, it is not competent to either of them to plead want of jurisdiction in second appeal so as to render all proceedings taken in the suit void. Under section 9 of the Code of Civil Procedure, the Civil Court is invested with jurisdiction to try all suits of a civil nature. The Small Causes Courts Act makes provision for trial of some of the cases cognizable by the ordinary Courts of law according to the procedure prescribed by it. Section 16 of the Act provides that a suit cognizable by a Court of Small Causes shall not he tried by any other Court having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable. It is clear, on the language of this section itself, that it does not extinguish the jurisdic tion but only prevents the exercise of it, if the suit is cogniz able by a Small Causes Court; and as held in U. K. Seal v. A. R. A. Arangam Chettya,' (A I R 1938 Rang. 35), with which I agree, if a Court by error tries a suit which is of a nature cognizable by a Small Causes Court exercising jurisdiction within the same limits, then the proceedings of the Court are not entirely without jurisdiction and, therefore, are not a nullity. That such proceedings are not a nullity, is indicated by Order XLVI, rule 7 of the Code. This rule authorises the District judge to submit to the High Court the record of any case tried by a Court subordinate to him, erroneously holding that the suit was not cognizable by a Court of Small Causes, and the High Court may, on the record being so submitted, pass any order in the case as it thinks fit. The High Court has full power under this rule to consider the matter of jurisdiction, or to deal with the case on merits so as to do substantial justice without putting the parties to the expense of a fresh trial, Suresh Chunder Maitra Chairman and Commissioners, Rampur Boaliah Municipality v. Kirsto Rangini Dasi. In my opinion, this is not a case of want of jurisdiction, it is a case of exercise of jurisdiction in violation of the prohibition imposed by section 16 of the Provincial Small Causes Courts Act. The executing Court is not competent to treat the decree as nullity, nor is it open to the defendant to impeach it, he having raised no objection at the trial.
The appeal therefore succeeds and is allowed with costs ; the judgment and order of the learned Subordinate judge are set aside and those of the trial Court are restored.
Leave to appeal under clause 15 of the Letters Patent is asked for but refused.
R. B. A. Appeal allowed.
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