S. 15 the jurisdiction of the Court, or waived the objection as to jurisdiction, or even consented to the jurisdiction of the Court (i). The plea of want of jurisdiction may be taken at any stage of a suit (j). Thus it may be taken for the first time in appeal (k), or second appeal (1), or revision (m), and even after remand by the High Court in second appeal (n). It has been stated above that a decree of a Court having no jurisdiction to entertain a suit or other proceeding is not binding upon the parties. The fact is that the decision of such a Court is not a decree at all. But when a Court having no jurisdiction to try a suit, hears the suit by the consent of parties, its decision may operate as an award, as distinguished from a decree, and a decree may be obtained upon that decision as an award under the provisions of chapter 37 of the Code. The reason is that the proceedings before such a Court are not judicial proceedings; they are proceedings coram non judice, and they stand upon the same footing as proceedings before an arbitrator. "When the Judge has no inherent jurisdiction over the subject-matter of a suit, the parties cannot, by their mutual consent, convert it into a proper judicial process, although they may constitute the Judge their arbiter, and be bound by his decision on the merits when these are submitted to him" (o). But when the Legislature has prescribed the pecuniary jurisdiction of a Court, and provided that suits of a value exceeding the limit of its pecuniary jurisdiction may be instituted in that Court by the mutual consent of parties, the decision of the Court will operate as a decree. Thus a Presidency Small Cause Court has no jurisdiction to try cases of a value exceeding Rs. 2,000, but suits of a value exceeding Rs. 2,000 which are otherwise cognizable by that Court may be brought in that Court, and the decision will be binding upon the parties, if, prior to the institution of the suit, the parties enter into an agreement in writing that the Small Cause Court shall have jurisdiction to try the suit, and the agreement is filed in Court (Presidency Small Cause Court Act, 1882, s. 20). It has been stated above that the plea of want of jurisdiction may be taken at any stage of the proceedings. Thus if the plea is taken in appeal, and it is found that the lower Court had no jurisdiction to try the suit, the appellate Court will set aside all proceedings in the suit. There is one case in which the proceedings will not be set aside. That is the case in which the plaintiff has undervalued his claim, and brought the suit in a Court which would have had no jurisdiction to try the suit had the suit been properly valued. In such a case, it is provided by the Suits Valuation Act, s. 11, that the objection as to jurisdiction will not be entertained in appeal (1) unless the objection was taken before the Court of first instance at or before the settlement of issues, and (2) unless the undervaluation has prejudicially affected the disposal of the suit on its merits (Þ). When a decision given by a Court having no inherent jurisdiction to try a case is sought to be set aside in revision (s. 622), the High Court may in the exercise of its discretion refuse to set aside the order, if greater evil will result from setting aside the order than from allowing the order to stand (q). Rule II-Where, in a case which a Court has jurisdiction to try, the parties without objection join issue and go to trial upon the merits, the defendant cannot subsequently dispute the jurisdiction of the Court upon the ground that (i) Ledgard v. Bull, 9 All. 191, 13 I. A. 134: Mi nakshi v. Subramanya, 11 Mad. 26, 14 I. A. (j) Motilal v. Jamnadas, 2 B. H. C. 40. Sideshwar v. Harihar, 12 Bom. 155; Sayad v. Nana, 13 Bom. 424; Velayudam v. Arunachala, 13 Mad. 273. (m) Bibi Ladli v. Bibi Raje, 13 Bom. 650. (n) Keshav v. Vinayak, 23 Bom. 22. (0) Ledgard v. Bull. 9 All. 191, 13 I. A. 134see also cases cited in note ( i ) above. (p) Hamidunnissa v. Gopal, 24 Cal. 661. (q) Dayaram v. Govardhandas, 28 Bom. 458. there were irregularities in the initial procedure which, if objected to at the time, would have led to the dismissal of the suit (r). A sues B for infringement of a patent in the Court of a Subordinate Judge. The Subordinate Judge has no jurisdiction to try such a suit under Act XV of 1859, and the suit ought to have been brought in the District Court. A then applies to the District Court under s. 25 for a transfer of the suit to its file. B may object to the transfer, for an order of transfer under s. 25 could not be made, unless the suit was in the first instance brought in a Court having jurisdiction. If B does not object, and the order of transfer is made, B may even then object that the order of transfer was not valid, in which case the suit must be dismissed. But if he waives his objection to the trial of the suit by the District Court, and agrees that the case should he tried on its merits by that Court, he will be `precluded by reason of his consent from subsequently disputing the jurisdiction of the Court. Note that in the case put above, the District Court has jurisdiction to try the suit. But the suit having been first brought in the Court of a Subordinate Judge which had no jurisdiction to try the suit, the District Court could not transfer the suit to its file. If the order of transfer is made, it is an “irregularity in the initial procedure," and if no objection is made thereto, the decree will be binding on the parties (s). Objection to jurisdiction: procedure to be followed. When an objection to jurisdiction is raised and allowed, three courses seem open, namely, (1) to return the plaint to be presented to the proper Court; (2) to dismiss the suit; or (3) to allow the plaintiff to withdraw the suit with leave to bring a fresh suit (s). The first of these courses is followed by the High Courts of Bombay and Madras (t). The practice in Calcutta is not uniform (u). Suits to be instituted where subject matter situate. 16. Subject to the pecuniary or other (a) for the recovery of immoveable property, (c) for the foreclosure or redemption of a mortgage of (d) for the determination of any other right to or in- (e) for compensation for wrong to immoveable to immoveable property, (f) for the recovery of moveable property actually un- shall be instituted in the Court within the local limits of whose jurisdiction the property is situate: S8. 15-16 (r) Ledgard v. Bull, 9 All. 191, 13 I.A. 134; Naro v. Anpurnabai, 11 Bom. 160, 170171; Sankumani v. Ikoran, 13 Mad. 211; Rewa v. Ram Kishen, 14 Cal. 18, 25, 13 I.A. 106; Kondaji v. Anau, 7 Bom. 448; Fakharuddin v, Off. Trustee of Bengal, 8 Cal. 178, 191-192, 8 I.A. 197; Khema v. v. Budoloo, 6 Cal. 251; Sadasiva v. Rama S. 16 Provided that suits to obtain relief respecting, or compensation for wrong to, immoveable property held by or on behalf of the defendant may, when the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction he actually and voluntarily resides, or carries on business or personally works for gain. Explanation. In this section "property means pro perty situate in British India. Chartered High Courts.-This section does not apply to Chartered High Courts in the exercise of their ordinary original civil jurisdiction (s. 638). The High Courts of Calcutta, Madras, Bombay and Allahabad are Chartered High Courts, having been each established by a royal charter. The nature and extent of the jurisdiction of these Courts are defined by the charter for each of these Courts. As to the nature and extent of the ordinary original civil jurisdiction of the High Courts of Calcutta, Madras and Bombay, see clause 12 of the charter for each of these Courts set forth in the Appendix. The High Court of Allahabad has no original jurisdiction. As to the meaning of "original " jurisdiction, see notes to section 15, under the head "Jurisdiction" at p. 48 ante. Scope of the section. This section indicates the Court in which suits relating to immoveable property and suits for the recovery of moveable property actually under distraint or attachment are to be instituted. S. 18 indicates the Courts in which suits for compensation for wrong done to person or moveable property are to be instituted. All other suits may be instituted in the Courts mentioned in s. 17. S. 18 ought to precede s. 17 in order. Clause (a): suits for recovery of immoveable property.-A suit for the recovery of immoveable property situate in Bombay must be instituted in a Court in Bombay having jurisdiction to entertain the suit. The Small Cause Court in Bombay has no jurisdiction to try such a suit (v). The suit must therefore be brought in the High Court of Bombay. Hence it is that the section commences with the words "subject to the pecuniary or other limitations prescribed by any law." Clause (c) suits for foreclosure or redemption-- A mortgages his property to to secure repayment of a sum of money lent to him by B. Here A is the mortgagor, and B is the mortgagee. If A does not repay the amount of the loan on the due date, B may institute a suit against A for sale of the mortgaged property, so that the mortgage-debt may be paid out of the sale-proceeds of the property, or he may sue for foreclosure of the mortgage. The decree in a foreclosure suit provides that if the mortgagor fails to pay the amount that may be found due to the mortgagee within a time specified by the Court (generally six months), the mortgagor shall be absolutely debarred of all right to redeem the property (w). If A offers payment of the mortgage-debt to B, but B disputes the amount, A may sue B for redemption of the mortgage, and the Court will pass a (a) See Presidency Small Cause Court Act, (e) Transfer of Property Act, 1882, ss. 86, 87. 832, S. 19. decree ordering an account to be taken of what will be due to B, and directing that upon A paying to B the amount so due, B shall reconvey the property to A (x). Suits for sale, foreclosure or redemption must be instituted in the Court within the local limits of whose jurisdiction the mortgaged property is situate. A suit for sale of a mortgaged property, though not specifically mentioned in cl. (c), would come under cl. (d). Clause (d): suits for the determination of any other right to, or interest in, immoveable property.-There is no definition of immoveable property in the Code. "Immoveable property " is defined in the General Clauses Act 1897, s. 2, cl. (5), as including land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth. Trees standing on land (y) and standing crops (2) are immoveable property. But once the trees or crops are severed from the land, they assume the character of moveable property. Immoveable property," we have said, includes "benefits to arise out of land." Rent that has already accrued due is moveable property, for it is a benefit that has arisen out of land, but rent that is to accrue due is immoveable property, for it is a "benefit to arise out of land." Hence a suit for arrears of rent, (being virtually a suit for money), is governed by the provisions of s. 17, and it may be instituted in any one of the Courts specified in that section, although in such suit the plaintiff's title to the property of which the rent is claimed may incidentally come in question (a). But a suit for a declaration of the plaintiff's right to rent comes under cl. (d) of the present section, and must be instituted in the Court within the local limits of whose jurisdiction the property is situate (b). A suit to recover a share of the sale-proceeds of land that have already been realized, is a suit for money governed by the provisions of s. 17 (c). But a suit by a vendor of land for the recovery of unpaid purchase money against a buyer who refuses to complete the purchase, is a suit “for the determination of any right to or interest in immoveable property" within the meaning of cl. (d) (d), ` A suit by a mortgagee to recover the mortgage-debt from the mortgagor personally, is a suit for debt governed by the provisions of s. 17. But if in addition to the claim against the mortgagor personally, the mortgagee seeks to recover the mortgagedebt by sale of the mortgaged property, the suit will come under cl. (d) of the present section (e). Clause (e): wrong to immoveable property. This refers to torts affecting immoveable property, such as trespass, nuisance, infringement of easements, etc. Proviso to the section.-The last paragraph of the section provides that suits to obtain relief respecting, or compensation for wrong to, immoveable property, may be instituted at the plaintiff's option either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain, provided— (1) the property is held by or on behalf of the defendant ; (2) the relief sought can be entirely obtained through the personal obedience of the defendant (ƒ), and (x) Transfer of Property Act, ss. 92-93. (a) Chintaman v. Madhavrav, 6 B. H. C. A. C. 29. (b) Keshav v. Vinayak 2 Bom. 22. (c) Venkata v. Krishnasami, 6 Mad. 344 (e) Vithalrao v. Vaghoji, 17 Bom. 570. S. 16 S. 16 (3) the property is situate in, and not beyond, British India. Equity acts in personam.-We have in this proviso a partial application of the maxim, Equity acts in personam. If in condition (2) above, we substitute "partially or entirely " for "entirely," and in condition (3) we substitute "in or beyond" for "in, and not beyond," we have the statement of law involved in the doctrine, Equity acts in personam. That is to say, the English Court of Equity (now the Chancery Division of the High Court of Justice) will entertain a suit to obtain relief respecting immoveable property, though the property may be situate abroad, if the relief sought can be obtained either partially or entirely through the personal obedience of the defendant. The personal obedience of the defendant can be secured, only if the defendant resides within the local limits of the jurisdiction of the Court, or carries on business within those limits. For, in the one case, the person of the defendant being within the jurisdiction, and, in the other, his personal property, if he does not comply with the judgment, the Court may arrest the defendant and commit him to jail, or attach his goods, until he complies with the judgment of the Court (g). But if neither the person of the defendant nor his personal property is within the jurisdiction, the Court will not entertain a suit to obtain relief respecting immoveable property situate beyond its jurisdiction, for the Court cannot in that event execute its decree either in rem or in personam, and a Court will not entertain a suit, if it cannot enforce its own decree (h). Suits in personam.-Suits in respect of which the Court of equity in England exercises jurisdiction in personam are called suits in personam. The essential feature of suits in personam is that the land in respect of which the suit is brought is situate abroad, but the person of the defendant or his personal property is within the jurisdiction of the Court in which the suit is brought. The land being situate abroad, the decree cannot be executed in rem, that is to say, it cannot be executed against the land. But the person or the personal property of the defendant being within the jurisdiction, the decree can be executed in personam, that is to say, against the person or personal property of the defendant. From what has been stated above, it may be supposed that the English Court of equity will entertain every suit relating to land, though the land may be situate abroad, if the person or personal property of the defendant is within the jurisdiction of the Court. In other words, it may be supposed that the English Court of equity will take cognizance of every suit in personam. But that is not so. To determine what suits in personam are, and what suits are not, entertained by the English Court of equity, we shall divide suits in personam into two classes :— I. Those in which the relief sought can be entirely obtained by the personal obedience of the defendant, such as suits for injunction (†), or for an account of the rents and profits of land (j). II. Those in which the relief sought can be obtained only partially by the personal obedience of the defendant. These again may be divided into two groups according to the nature of the cases: (i) Cases of contract, fraud and trust.-This comprises suits for specific performance of contracts for sale of land (k), and suits for foreclosure (1), sale (m), or redemption (n), in the case of a mortgage of land. All these may be said to (g) Penn v. Lord Baltimore, 1 Ves. 444. (k) Colyer v. Finch, 5 H.L. Ca. 905 |