Naik, J.
1. The question which has been referred to the Full Bench for decision is whether the decisions of a Division Bench of this Court reported in Jagannath v. Harisingh, 1968 Jab LJ 566 = (AIR 1969 Madh Pra 56) and Poonamchand v. Ramprasad, 1968 Jab LJ 583 = (AIR 1969 Madh Pra 44) laid down the correct law. According to the aforesaid decisions, where a suit of a small cause nature is instituted and tried as a regular suit in contravention of the provisions of Section 16 of the Provincial Small Cause Courts Act, the judgment so rendered In it is one which is without jurisdiction and nullity.
2. The facts giving rise to the reference may shortly be stated as follows!
The plaintiff-appellant Tikaram, on 6-5-1965, filed a civil suit in -the Court of Civil Judge, Class II, Narsimhapur, inter alia, for the recovery of Rs. 303.45 alleged to be due on account of the balance of unpaid consideration in respect of the sale of the plaintiff's Khasra No. 125, area 9.90 acres, situate in mouza Ramniwari, to the defendant. The plaintiff had alleged-
(a) that he had, on 4-6-1960, sold the aforesaid Khasra number to the defendant for a consideration of Rs. 3,437/- and executed a registered sale deed, of which Ex. P-3 Is a certified copy, in his favour;
(b) that a part of the consideration, viz., Rs. 273/- had been retained by the vendee for discharging the plaintiff's taccavi liability to the State for tractorisation of his lands, which liability was payable to the State in eight instalments;
(c) that the vendee had also to pay him, after the execution of the sale deed aforesaid but by Jeth Suddha Purnima, Samvat 2018, a part of the sale consideration amounting to Rs. 500/- in cash;
(d) that as the first four Instalments due on account of the taccavi liability were not paid by the vendee defendant, the Tahsildar startedrecovery proceedings against theplaintiff and recovered from MmRs. 198.45 on account of taccavi andinterest;
(e) that towards Rs. 500/- which thevendee defendant had to pay byJeth Suddha Purnima, Samvat2018 he had paid only Rs. 410/-leaving an unpaid balance of Rupees90/-; and
(f) that the vendee defendant was also liable for notice charges amounting to Rs. 15/-.
The prayer of the plaintiff was:--
^^v oknh }kjk tks VSDVj dh fdLr dk :i;k.' :i;k ' iSlk tek fd;k x;k gS fd mijksDr izfrokfn;ksa ls fnyk;k tkoso vkns'k fn;k tkos fd vkxs fd cdk;k fdLr tks VDV dh jg xbZ gS mls tek djus dkvkns'k fn;k tkosA
x Hkkouk ds 'ks'k tks .O :i;k jgx;s gSa os Hkh bl oknh dks fnyk;k tkosA
l oknh us tks jftLVVZ uksfVl odhy ds ekQZrmDr izfrokfn;k dks fn;k ftldk ' :i;k [kpZ Hkh fnyk;k tkosA
< bl okn dk ifjO;; Hkh fnyk;k tkosA
bZ vU; vuqrks.k tks U;k;ky; mfpr le>sosg Hkh oknh dks fnyk;k tkosA**
3. The defendant did not contest the suit, in spite of summons being served on him. Consequently, an ex parte, decree was passed against him on 27-8-1966 in the sum of Rs. 198.45. The claim for Rs. 90/-was dismissed as barred by time.
4. The plaintiff decree-holder, on 20-1-1967, started proceedings for the execution of the decree aforesaid. On 26-4-1967 the defendant judgment-debtor raised an objection that the suit as framed, being for payment of money, was exclusively triable by a Court of Small Causes and that as it had been tried as a regular civil suit by a Court of Civil Judge, Class II, in contravention of the provisions of Section 16 of the Provincial Small Cause Courts Act, its decree, being one without Jurisdiction, was a nullity. The objection was overruled by the executing Court; but, on appeal, the objection was upheld by the learned Additional District Judge, Narsimhapur.
5. The plaintiff decree-holder has, therefore, come up in miscellaneous second appeal.
6. It appears that before the learned Single Judge the question that was canvassed was that where a Civil Court tries a suit of a Small Cause nature as a regular civil suit, i.e., as a long cause, MB judgment and decree are not nullities, and that the two judgments of this Court re-ported In 1968 Jab LJ 566 = (AIR 1969 Madh Pra 56) and 1968 Jab LJ 583 = (AIR 1969 Madh Pra 44) required reconsideration.
7. In Jagannath's case 1968 Jab LJ 566 = (AIR 1969 Madh Pra 56) (supra), which arose out of a reference by Newaskar, J., the question referred for opinion to the Division Bench was:
'Where a Civil Judge, Second Class, having only limited power to try Small Cause suits tries a suit of Small Cause nature on the regular side without objection as to his jurisdiction by the defendant, is the decision a nullity when the suit could have been tried as a Small Cause 'suit by another Court, namely, the Court of Additional District Judge?'
The answer of the Division Bench was that the decision of the Civil Judge was a nullity.
8. Similarly, In Poonamchand's case, 1968 Jab LJ 583 = (AIR 1969 Madh Pra 44) (supra), which arose out of a reference by Singh, J., the questions referred were:
'(1) Whether, on the facts and in the circumstances of this case, the defendant can be permitted to raise the question of jurisdiction for the first time in revision?
(2) Is the decree passed by the Court of first instance entirely without jurisdiction?
(3) What is the course open for the High Court? Should this Court set aside the decrees passed by the Courts below and order return of the plaint or should it examine the merits of the case and pass any other suitable order?'
and the answer of the Division Bench was that 'the Court of the Civil Judge, Second Class, Mhow, had no jurisdiction to try the plaintiff-non-applicant Ramprasad's suit, which was a suit of small cause nature and which was cognizable by the Court of the Second Additional District Judge, Indore, exercising Small Cause powers and jurisdiction within the same local limits; that the decree passed by the Civil Judge, Second Class, Mhow, was without jurisdiction and a nullity; and that the High Court ought, therefore, while exercising its revisional powers under Section 115 of the Code of Civil Procedure, to set aside that decree and make an order for the return of the plaint for being presented to the proper Court under Rule 10 of Order VII of the Code of Civil Procedure.' It was further held that the High Court could not under Section 115 of the Code of Civil Procedure exercise the powers conferred on it under Rule 7 of Order XLVI of the Code of Civil Procedure, specially as the District Judge could not have made a reference under that Order when no question of jurisdiction was raised and decided by the Court of the Civil Judge Second, Class, Mhow.
9. Both the aforesaid references were heard at the same time and the latter case refers to the opinion in the first case for the reasons which governed its decision on the question of judgments and decrees in the cases being without jurisdiction and nullities.
10. Examining the reasons for the decision, we find that the decision mainly rests on an interpretation of Section 16 of the Provincial Small Cause Courts Acts and in the opinion of the learned Judges:
(i) that section was 'imperative in its terms';
(ii) it 'takes away jurisdiction of the regular Court to try a suit of small cause nature as an ordinary suit if there is at the time of the institution a Court of small Causes having jurisdiction to try the suit as a Small Cause Suit';
(iii) the words 'shall not be tried by any other Court having jurisdiction within the local limits ...........'..'mean that a regular Court is incompetent to try a suit cognizable by a Court of Small Causes having jurisdiction to try it;
(iv) the expression 'Save as expressly provided by this Act or by any other enactment for the time being In force', with which Section 16 of the Provincial Small Cause Courts Act begins, only emphasizes the fact that if a regular Court by error tries a suit, which is of small cause nature and is cognizable by a Small Cause Court exercising jurisdiction within the same local limits, then the proceedings of such Court are without jurisdiction and a nullity; and
(v) the observations in Jodha v. Maganlal, AIR 1930 Bom 80 that failure to comply with Section 16 was merely a defect in procedure were obiter'.
11. The learned single Judge in support of his order of reference for a reconsideration of the aforesaid decisions says:--
(i) A contravention of Section 16 has so far not been held to invalidate a decree.
(ii) The failure to comply with Section 16 of the Provincial Small Cause Courts Act seems to be merely a defect in procedure in proceeding in a Court other than the Small Cause Court having jurisdiction to try the suit, and non-compliance with the provisions of that section would not, therefore, render the proceedings or the decree therein a nullity; and that this must be the correct view is apparent fromthe provisions of Sections 24(4), 102 and Order XLVI, Rule 7, Code of Civil Procedure.
(iii) The Division Bench decisions have not taken full note of the facts--.
(a) that in Madhya Pradesh there are no Courts of Small Causes as such established under Section 5 of the Act,
(b) that in Madhya Pradesh Civil Courts have been invested with the powers to try suits of small cause nature under Section 9 of the Madhya Pradesh Civil Courts Act, and
(c) that Section 15 of the Madhya Pradesh Civil Courts Act may enable a District Judge by a Distribution Memo to overcome the inhibition contained in Section 16 of the Provincial Small Cause Courts Act, because that section in terms is again subject to the restriction 'Save as expressly provided by this Act or by any other enactment for the time being in force' which necessarily qualifies the operation of that section; and that the Madhya Pradesh Civil Courts Act is an 'any other enactment' within the meaning of Section 16 of the Provincial Small Cause Courts Act can hardly be denied.
12. We shall now examine the provisions of Section 16 of the Provincial Small Cause Courts Act to understand its true import and meaning in the context of the Act, the Code and the Madhya Pradesh Civil Courts Act.
13. Section 16 of the Provincial Small Cause Courts Act reads as follows:--
'Save as expressly provided by this Act or by any other enactment for the time being in force, a suit cognizable by a Court of Small Causes shall not be 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.'
The section in terms says that-
(i) a suit cognizable by a Court of SmallCauses,
(ii). Shall not be tried by any other Court having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which suit is triable,
(iii) save as expressly provided ,by thisAct or
by any other enactment for the time being in force.
14. In order to clearly understand the legislative intent underlying the aforesaid provision, we shall have to resort to the rules of statutory construction whereunder we are enjoined to look not only at the phraseology of the section but also to consider, its nature, its design and the consequences which would follow fromconstruing it in one way or the other. In the words of Lord Campbell:--
'No universal rule can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of Courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.'
[Liverpool Borough Bank v. Turner, (1860) 29 LJ Ch 827].
15. The learned Judges of the Division Bench in Jagannath's case, 1968 Jab LJ 566 = (AIR 1969 Madh Pra 56) (supra) have held that Section 16 of the Provincial Small Cause Courts Act is imperative in its terms and it takes away the jurisdiction of the regular Court to try a suit of a Small Cause nature as an ordinary suit if there is at the time of the institution a Court of Small Causes having jurisdiction to try the suit as a small cause suit. In coming to the aforesaid conclusion, the Division Bench considered only the phraseology of the section and does not appear to have considered the nature and object of the Act, and the consequences which would follow from construing it the one way or the other in the light of the provisions of Section 102 and Rules 6 and 7 of Order XLVI of the Code of Civil Procedure.
16. It is settled law that an Act must be judged as a whole regard being had not only to the language in which it was clothed but also to the object sought to be achieved by its enactment. It must be construed to harmonise with the provisions of the other Acts which have a bearing on its construction and to avoid any mischievous results which may seem to follow from its construction one way or the other.
17. It is, no doubt, true that Section 16 of the Provincial Small Cause Courts Act uses the words 'shall not be tried' and 'shall' is ordinarily a command which has to be obeyed; but the legislatures have often used the words 'shall' and 'may' interchangeably necessitating the Courts to enquire into the legislative intent, which alone is the sure guide to statutory construction. Nevertheless, we must start with the presumption that the legislature intended to use the words in their natural meaning and then to determine, in the light of the other circumstances, whether their natural meaning was clearly contrary to the obvious intention of the legislature.
18. Having given the matter our careful consideration, we have come to the conclusion that the expression 'shall not be tried' in Section 16 of the Provincial Small Cause Courts Act is no doubt imperative in the sense that it directs the Courts not to try suits of a small cause nature in contravention of the provisionsof that section, but it is not so imperative as to result in judgments and decrees in cases tried in contravention of its provisions being rendered void or nullities. Our reasons for so holding may briefly be summarised as follows:
19. However, before doing so, we may first briefly refer to the provisions of Section 24 of the Code of Civil Procedure which are said to have a bearing on the construction of the aforesaid provision in the Provincial Small Cause Courts Act.
20. In our opinion. Section 24 of the Code is not of much help, because, even though the section provides for a transfer of a suit from a Court competent to try suit of a small cause nature to a Court which is not so competent, Sub-section (4) of that section by a legal fiction makes the transferee Court a Court of Small Causes for the purposes of the trial of such a suit.
21. First as to the object and purpose of the Act, the. Provincial Small Cause Courts Act is a complete code on matters of establishment, jurisdiction, practice and procedure of Small Cause Courts. It provides for the establishment of Courts of Small Causes and invests them with jurisdiction to try civil suits, except those of which cognizance is barred under Section 15(1) of the Act and the value of which does not exceed the pecuniary limit of their jurisdiction as provided in Sub-sections (1) and (2) of Section 15 of the Act, but no such Courts have been established in this State so far.
22. But, Section 9 of the Madhya Pradesh Civil Courts Act, however, empowers the High Court to invest Civil Courts within their jurisdiction with the powers of a Court of Small Causes. In pursuance of the aforesaid provision, the District Judges and the Additional District Judges have been invested with powers to try suits of a small cause nature, the value of which does not exceed Rs. 1,000/-, the Civil Judge Class I, with powers to try such suits the value of which does not exceed Rs. 500/-, and the Civil Judge, Class II, with powers to try such suits the value of which does not exceed Rs. 200/-.
23. Under Section 15 of the Madhya Pradesh Civil Courts Act, the District Judge has been empowered to direct by an order in writing that any civil business cognizable by it and the Courts under its control shall be distributed among those Courts in such manner as he thinks fit: provided that, except in so far as it may affect the exclusive jurisdiction of Court of Small Causes, or of a Court invested with the jurisdiction of a Court of Small Causes, a direction given under this section shall not empower any Court to exercise powers or deal with business beyond the limits of its proper jurisdiction.
24. In Madhya Pradesh, we thus do not have Small Cause Courts establishedunder Section 6 of the Provincial Small Cause Courts Act, but only Courts which have been invested with the powers of a Court of Small Causes under Section 9 of the Madhya Pradesh Civil Courts Act. But, under Section 33 of the Provincial Small Cause Courts Act, a Court invested with the jurisdiction of a Court of Small Causes with respect to the exercise of that jurisdiction, and the same Court with respect to the exercise of its jurisdiction In suits of a civil nature which are not cognizable by a Court of Small Causes, shall for the purposes of this Act and the Code of Civil Procedure, be deemed to be different Courts. It has been further provided in Section 32 of the Act that so much of Chapters III and IV as relates to-
(a) the nature of the suits cognizable by Courts of Small Causes,
(b) the exclusion of the jurisdiction of other Courts in those suits,
(c) the practice and procedure of Courts of Small Causes,
(d) appeal from certain orders of those Courts and revision of cases decided by them, and
(e) the finality of their decrees and orders subject to such appeal and revision as are provided by this Act,
applies to Courts invested by or under any enactment for the time being in force with the jurisdiction of a Court of Small Causes so far as regards the exercise of that jurisdiction by those Courts, so that the provisions of Sections 15 and 16, which deal with jurisdiction of the Courts of Small Causes, become applicable to such Courts.
25. No assistance can, therefore, be derived from the fact that the Civil Courts exercising, the powers of a Court of Small Causes 'under Section 9 of the Madhya. Pradesh Civil Courts Act are not Courts of Small Causes established under Section 5 of the Provincial Small Cause Courts Act, because even to such Courts as we have the provisions of Section 16 of the Provincial Small Cause Courts Act are applicable.
26. Now, the object of the Act is to reduce the burden on the regular Civil Courts in respect of trials of suits of a minor character which are designated as small cause as denned in the Act and at the same time to give speedy and cheap justice to the litigant public in respect of such cases. With this end in view, the trial procedure is simplied: cases are at once posted for final disposal, the judgments are permitted to be short, and there is no right of appeal. Only one revision is provided to the High Court, which only empowers it to satisfy itself that the decree of the Court of Small Causes is according to law. As the cases are expected to be disposed of in onesitting and the judgments are permitted to be short without any right of appeal, the jurisdiction to try them is entrusted to experienced judges with due regard to. their pecuniary valuation. Thus cases of a pecuniary value up to Rs. 200/- only are to be tried by a Civil Judge, Class II, up to Rs. 500/- by a Civil Judge, Class I, and up to Rs. 1,000/- by an Additional District Judge or the District Judge. It thus appears that when a small cause is tried as a regular civil suit, which we may, for convenience, call 'a long cause' or a long cause is tried as a small cause, only the mode of the trial is altered which, at the worst, is only a defect in the procedure of the trial and cannot be held to be such an error of jurisdiction as would or should vitiate the trial in contradistinction to a trial of a cause by a Coram non judice.
27. Secondly, the expression 'shall not be tried' is addressed to the Courts; and the general rule is that a statute, which regulates the manner in which public officials shall exercise the power vested in them, will be construed as directory rather than mandatory, especially where such regulation pertains to uniformity, order and convenience, and neither public nor private rights will be injured or impaired thereby. The rule further is that if the statute is negative in form or if nothing is stated regarding the consequences or effect of non-compliance, the Indication is all the stronger that it should not be considered mandatory: (see Craw- ford's 'The Construction of Statutes', para 266). In the instant case, the purpose of the prohibition is to secure uniformity in the observance of the Act and to effectively achieve the purpose of removing the congestion of such cases in the ordinary Civil Courts and to give speedier and cheaper justice to the litigant public. No doubt, the language of Section 16 of the Act would prevent any conscious and deliberate disregard of its provisions by any Court; but, if a long cause, through error or inadvertence, were tried as a small cause or vice versa, there are enough safeguards in the Act and in the Code of Civil Procedure to guard against any miscarriage of justice caused thereby; and consequently, in our opinion, the disregard of the provisions per se cannot be said to so injure or pair public or private rights as to render all judgments and decrees given in contravention of Section 16 of the Act per se null and void.
28. Thirdly, the Act does not prescribe the effect of non-compliance with the provisions of Section 16 of the Act. In this connection, we may usefully compare the phraseology of Section 15 of the Code which says:
'Every suit shall be instituted in the Court of the lowest grade competent to try it;'
and in respect of this section, it has been held that it prescribes only a rule of procedure and not of jurisdiction: Nidhilal v. Mazhar Husain, (1885) ILR 7 All 230 (FB) and Fazlur Rahim Abu Ahmed v. Dwarka Nath Chowdhry, (1903) ILR 30 Cal 453 (FB). In the words of Mahmood, J. in Nidhilal's case, (1885) ILR 7 All 230 (FB) 'the provision is no-doubt imperative; but it is merely a matter of procedure and does not affect the question of jurisdiction'. On a parity of reasoning, we agree with 'the observations in AIR 1930 Bom 80 (supra), Parshotamdas v. Bhagubhai, AIR 1932 Bom 486 and Kollipara Seeta-pathy v. Kankipati Subbayya, (1910) ILR 33 Mad 323 that the non-observance of the provisions of Section 16 of the Act was merely a defect in procedure and not of jurisdiction. It is, no doubt, true that in Nidhilal's case, (1885) ILR 7 All 230 (FB), Mahmood, J. had contradistinguished the phraseology of Section 15 of the Code with Section 6 of the Small Cause Courts Act (Act No. XI of 1865) and held that the rule contained in Section 12 (which is akin to Section 16 of the present Act) was 'imperative upon the Courts' and affected their jurisdiction; but the observations were obiter and based on an interpretation of Section 12 of the then Provincial Small Cause Courts Act without reference to the provisions in the Code contained in Section 102 and Rules 6 and 7 of Order XLVI.
29. Fourthly, the Courts, whether exercising jurisdiction as Courts of Small Causes or as Courts of general jurisdiction, always have the power, to determine whether they have jurisdiction to try the cause submitted to them, and their determination on the point, however wrong, cannot be disturbed, except by taking recourse to the methods prescribed by law for setting matters right. In this connection, we may usefully recapitulate what is meant by the word 'jurisdiction.' in relation to the jurisdiction of the Courts, whether regular or those which exercise the power of the Courts of Small Causes.
30. Various attempts have been made to define the word 'jurisdiction'. According to West, J. in Amritray Krishna Deshpande v. Balkrishna Ganesh Amrapurkar, (1887) ILR 11 Bom 488, jurisdiction consists in taking cognisance of a case involving the determination of some jural relation, in ascertaining the essential points of it, and in pronouncing upon them. According to the order of reference In Sukhlal Sheikh v. Tarachand Ta, (1906) ILR 33 Cal 68, jurisdiction may be denned to be the power of a Court to hear and determine a cause, to adjudicate or exercise any judicial power in relation to it. In other words, by jurisdiction is meantthe authority by which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision.
31. Jurisdiction of the Courts is sought to be restricted by the legislature in a variety of ways. It may be restricted with reference to the place of suing; itmay be restricted with reference to the pecuniary valuation of suits; and it may be restricted with reference to their subject-matter. These aforesaid categories are often designated as territorial jurisdiction, pecuniary jurisdiction and jurisdiction according to the subject-matter of the suit. All the aforesaid categories have a bearing on the existence of jurisdiction; but existence of jurisdiction has to be distinguished from the exercise of jurisdiction which is a very different thing: Govind Prasad v. Pawankumar,ILR (1952) Nag 444 = (AIR 1952 Nag 278) (FB). Broadly speaking, an authority to decide a cause at all and not the decision rendered therein is what makes up jurisdiction; and when there is jurisdiction over the person and the subject-matter, the decision of all other questions arising in the case is but an exercise of it. A jurisdiction to decide a cause is independent of the manner of its exercise, as also of correctness of the decision therein. The Judicial Committee of the Privy Council in Malkarjun Bin Shidramappa Pasare v. Narhari Bin Shiwappa, (1900) 27 Ind App 216 at p, 225 (PC) has said:
'A Court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not taken, the decision, however wrong, cannot be disturbed.'
32. Jurisdiction may again be considered in its two-fold aspect -- one where a Court has inherent jurisdiction over the subject-matter of litigation, and the other where it has not such inherent jurisdiction. In the leading case of Ledgard v. Bull, (1886) 13 Ind App 134 at p. 145 (PC), the Judicial Committee of the Privy Council said:
'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. But there are numerous authorities which establish that when, in a cause which the Judge is competent to try, the parties without objection join issue, and go to trial upon the merits, the defendant cannot subsequently dispute his jurisdiction upon the grounds that there were irregularities In the initial procedure, which, if objectedto at the time, would have led to the dismissal of the suit.'
We shall have to bear in mind that it is in this sense of inherent lack of jurisdiction that the dictum of the Court that no amount of consent, acquiescence or waiver can confer jurisdiction where there is none, nor oust it where there is, has to be understood.
33. Courts may broadly be classified as of two kinds -- Courts of superior or; plenary jurisdiction, and Courts of inferior or limited jurisdiction, and it is settled law that while the Courts of plenary jurisdiction have always jurisdiction to decide whether they have jurisdiction to try and determine the cause submitted to them, the Courts of limited jurisdiction have no such Power, because no tribunal of inferior jurisdiction can by its own decision finally decide on the question of the existence or extent of such jurisdiction, and it would be contradiction in terms to create a tribunal with limited jurisdiction and unlimited power to determine such limits at its own will and pleasure. See Rex v. Shoreditch Assessment Committee, (1910) 2 KB 859.
34. Whether a Court has jurisdiction or not has to be decided with reference to the initial assumption of jurisdiction by the Court: Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621. An enquiry, however, whether the Court has jurisdiction in any particular case is not an exercise of jurisdiction over the case itself, It is really an investigation as to whether the conditions of cognisance 'are satisfied. Therefore, Court is always clothed with jurisdiction to see whether it has jurisdiction to try the cause submitted to it: Bhatia, Co-op. Housing Society Ltd. v. D. C. Patel, 1953 SCR 185 = (AIR 1953 SC 16).
35. We have already seen that the legislature has restricted jurisdiction of Courts in a variety of ways, namely, territorial, pecuniary and according to the subject-matter. It is also settled law that where a Court has no jurisdiction over a litigation, its judgments and orders, however precisely certain and technically correct, are mere nullities and can be declared to be void by every Court in which they may be presented: See Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, There are, however, exceptions to the rule. One is contained in Section 21 of the Code of Civil Procedure, in regard to the territorial jurisdiction of Courts as to the place of suing; and another is contained in Section 11 of the Suits Valuation Act, in regard to the pecuniary jurisdiction of Courts. We shall have, therefore, to examine whether there is any such exception in respect of cases of small cause nature tried by the regular Civil Courts and vice versa. And, in our opinion, such an exception is provided in the provisions of Rules 6 and 7 of Order XLVI of the Code of Civil Procedure as we shall hereinafter show.
36. Fifthly, it has to be borne in mind that what are small causes is not always easy to determine. The question is often times one of difficulty on which there may be no clear guidance either from the Small Cause Courts Act or from decided cases.
37. We may here briefly refer to the jurisdiction of the Courts of Small Causes under the Provincial Small Cause Courts Act. The present Act (Act No. IX of 1887) is the successor of the Act No. 1 of 1865 and was passed on the repeal of the earlier Act. In regard to the jurisdiction of Small Cause Courts, the schemes of the two Acts are different. Under Section 6 of the old Act, certain specified matters were alone small causes, which could be tried under the Act; but under Section 15 of the present Act, suits falling within the pecuniary limits of Rs. 1,000/- are small causes, unless they or any of them are expressly excluded from the cognizance of Small Cause Courts by the Second Schedule of the Act.
38. A perusal of the Second Schedule would further show that it contains 44 Articles which are not capable of easier classification, and it is often times a matter of some doubt and difficulty to determine whether a particular cause falls within or outside the cognizance of the Courts of Small Causes.
39. Now, the principle is well settled that where enquiry into existence of facts is necessary to give jurisdiction to a Court, a party may waive such an enquiry Similarly, where a party submits to the jurisdiction of a Court and takes a chance of getting decision in its favour, it cannot be permitted to challenge the jurisdiction of that Court after the decision has gone against it. Thus in National Coal Co. Ltd. v. L. P. Dave, AIR 1956 Pat 294, it has been held that where the want of iurisdiction 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. Also, as said earlier 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 iurisdiction of that Court after the decision has gone against it. In such a case, there is no question of estoppel creating iurisdiction where there is none but of preventing a party from raising a question.
40. Thus, if a litigant does not place before the Court all the facts namely all the real allegations of fact contained in the plaint as well as the revelant articlesin Schedule II of the Act applicable to them, from which it could reasonably be ascertained whether a suit is cognizable by a Court of Small Causes or is not so cognizable and the Court proceeds to adjudicate on the merits of dispute without expressly finding that the conditions of its cognizance are satisfied, he cannot later on complain that the Court has assumed iurisdiction which it did not possess, as he would be deemed to have waived his objection to an enquiry whether the conditions of the Court's cognizance were fully satisfied. This would be all the more so when it is realised that often times the parties may themselves be in doubt either through ignorance or through misinformation, whether the suit was of a small cause nature or not and may not, therefore, raise any objection on the point at the trial.
41. Sixthly, as we have pointed out in paragraph 35 above, the provisions of Rules 6 and 7 of Order XLVI of the Code provide an exception to the rule that an error in the assumption of jurisdiction by a Court necessarily vitiates its judgment and decree.
42. Rule 6 and Rule 7 of Order XLVI of the Code read as follows:--
'Rule 6:- (1) Where at any time before judgment a Court in which a suit has been instituted doubts whether the suit Is cognizable by a Court of Small Causes or is not so cognizable, it may submit the record to the High Court with a statement of its reasons for the doubt as to the nature of the suit.
(2) On receiving the record and statement the High Court may order the Court either tq proceed with the suit or to return the plaint for presentation to such other Court as it may in its order declare to be competent to take cognizance of the suit.
'Rule 7. (1) Where it appears to a District Court that a Court subordinate thereto has, by reason of erroneously holding a suit to be cognizable by a Court of Small Causes or not to be so cognizable, failed to exercise a iurisdiction vested in it by law, or exercised a jurisdiction not so vested, the District Court may, and if required by a party shall, submit the record to the High Court with a statement of its reasons for considering the opinion of the subordinate Courts with respect to the nature of the suit to be erroneous.
(2) On receiving the record and statement, the High Court may make such order in the case as it thinks fit.
(3) With respect to any proceedings subsequent to decree in any case submitted to the High Court under this rule, the High Court may make such order as Sn the circumstance appears to it to be just and proper.
(4) A court subordinate to a District Court shall comply with any requisitionwhich the District Court may make for any record or information for the purposes of this rule.'
43. The scheme of the two rules aforesaid appears to be that after a suit has been instituted in a Court which is otherwise competent to try it, and a doubt arises whether the suit is dognizable by a Court of Small Causes or not so cognizable, then,--
(i) If the doubt arises before the judgment and the doubt is of the Court, the Court, may refer the case to the High Court which shall either
(a) order the referring Court to proceed with the trial of the suit presumably because, in its opinion, the referring Court was quite competent to try it, keeping in view the provisions of the Provincial Small Cause Courts Act, or
(b) order the referring Court to return the plaint for presentation to the proper Court
and
(ii) If the doubt arises after judgment, then a power has been given to the District Court to make a reference to the High Court, either suo mofu or on being moved to do so by any of the parties to the suit, subject to the condition that in the opinion of the District Court, the trial Court has by erroneously holding a suit to be cognizable by a Court of Small Causes or not to be so cognizable, failed to exercise a jurisdiction vested in it by law, or exercised a jurisdiction not so vested. The exercise of the power has been made discretionary so that it may be exercised by the District Court only in suitable cases where ends of justice required it. This was presumably because the legislature did not intend any seeming error of jurisdiction to necessarily vitiate the judgment of the trial Court, whether exercising the power as a Court of Small Causes or otherwise, on, the merits of the dispute-
(i) if the parties themselves were satisfied with the decision and did not seek to challenge it, and
(ii) if the District Court itself did not consider that the error of jurisdiction in trying a regular suit as a small cause suit or vice versa had resulted in any failure of justice.
But the exercise of the power was obligatory when the parties themselves or any of them challenged the decision on the ground of jurisdiction and the District Court considered that the trial Court had decided the question of jurisdiction erroneously: See Simson v. McMaster, (1890) ILK 13 Mad 344. It is significant to note that the power of reference is a limited one and can be exercised only in case where-
(a) the trial Court has given a decision on the question of its jurisdiction, and
(b) the District Court is of opinion that its decision on the question was erroneous: Madan Gopal v. Bhagwan Das, (1889) ILR 11 All 304, Ramlal v. Kabul Singh, (1903) ILR 25 All 135, Oor Nayakkan v. Arunachala Chettiar, AIR 1948 Mad 245 and Prabhakar Bhaskar v. Kashiram Vithoba, ILR (1958) Bom 340 = (AIR 1958 Bom 201). The last named case is the case of an ex parte decree which had been put into exeqution and in which a reference under Rule 7 of Order XLVI was refused on the ground that the question of jurisdiction had neither been raised nor decided by the trial Court passing the ex parte decree.
44. Examining the provisions of Rule 6 once again it is pertinent to note that under the Rule, where the trial Court itself is in doubt as to whether a suit is cognizable by a Court of Small Causes or not, it may refer the question to the High Court for decision. Suppose the High Court erroneously decides that a suit is not cognizable by a small cause nature, it cannot be suggested that if ever it is found that the suit was really of a small cause nature and had been erroneously tried as a long cause suit in contravention of Section 16, the judgment and decree rendered therein become nullities and can be completely ignored. The objection would be barred on the principles of res judicata. Does it make any difference if the question has not been expressly decided? The determination that a Court has jurisdiction to try a particular cause may be expressed or implied; and as this enquiry by a Court that conditions of its cognizance are satisfied must necessarily precede the determination of the cause on merits, we must necessarily imply such a determination when a Court proceeds to try a cause submitted to it on merits. Thus, in all cases, where it is found that a Court has proceeded to try a cause on merits in contravention of Section 16 of the Act, it must be presumed that it was due to an erroneous decision by it on the question of its initial assumption of jurisdiction which had to be corrected only by the methods prescribed by law. We see no reason why the objection should not be held barred on the principle of constructive res judicata. Any mistake as to erroneous assumption of jurisdiction in contravention of Section 16 of the Act could certainly be corrected in appropriate proceedings as provided by law, but such a mistake could not result in rendering judgments and decrees in cases tried in contravention of Section 16 of the Act as nullities.
45. Now examining the provisions of Rule 7, we find that the intention of the legislature appears to be that where, the question of jurisdiction was neither raised nor decided by the trial Court, the reference was incompetent; and where the judgment and decree of the Court were not challenged in an appeal or in revision, as prescribed by law, the judgment and decree, howsoever erroneous, cannot be disturbed. Thus, in (1903) ILR 25 All 135, where no question as to the Court's jurisdiction was/ raised by either party, and the Court of Small Causes proceeded to judgment as if the case was properly cognizable by it, the High Court refused to interfere upon a reference made by the District Judge purporting to be made under Section 646B of the Code of Civil Procedure. The learned Judges said:
'The defendant lost his case, and then, for the first time, had it suggested to him that there was a plea which he might have raised before a Court of Small Causes with effect, and thereupon tried to get the decision reversed by an application to the District Judge. We are not in favour of assisting parties to set aside decrees upon points which they did not raise before the Court which tried the matters in issue, and of which they gave no notice to the opposite party. The plea of want of jurisdiction could have been met by facts showing that the want alleged did not exist, and if the other side had had notice, it might have shown that the alleged act was an act of want on mischief, or some similar kind which would have rebutted the plea of want of jurisdiction:'
No doubt, the remedies under Rules 6 and 7 of Order XLVI of the Code are in addition to the remedies prescribed by Sections 96 and 115 of the Code against judgments and decrees of the Civil Courts exercising ordinary civil jurisdiction and by Section 25 of the Provincial Small Cause Courts Act against judgments and decrees of the Civil Courts exercising small cause jurisdiction. But, even when entertaining a revision under Section 115 of the Code, the provisions of Rule 7 of Order XLVI of the Code should be borne in mind.
46. In Suresh Chunder Maitra v. Kristo Rangini Dasi, (1894) ILR 21 Cal 249 (supra), a suit which was cognizable by a Court of Small Causes was filed in a Munsiff' s Court and tried as a long cause. The Munsiff,' without any objection being raised, tried the suit and dismissed it. The plaintiff appealed in the Court of the District Judge where also no objection to the trial by the Munsiff was raised. The District Judge allowed the appeal, set aside the judgment of the Munsiff and decreed the plaintiff's suit. In the second appeal, in answer to theobjection by the plaintiff that no second appeal lay, the defendant contended that the Munsiff had no jurisdiction to try the suit which was of a small cause nature, the Division Bench said:
'Section 16 of Act 9 of 1887 of the Provincial Small Courts Act, declares that a suit cognizable by a Small Cause Court shall not be 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. So that under that section the suit could not have been tried by the ordinary Courts as it has been. But Act VII of 1888, Section 60, has introduced Section 646-B (now Rule 7 of Order XLVI) into the Code of Civil Procedure which modifies the operation of Section 16 of the Small Cause Courts Act, and introduces an entirely different principle ............... -SOthat, as we read the law, on a case so submitted the High Court has full power to consider the matter of jurisdiction or to deal with the case on the merits, so as to do substantial justice without necessarily putting the parlies to the expense of a fresh trial. Unless this is the intention of the Legislature, the enactment of Section 646B seems to be without any meaning or object. Consequently, Section 646-B must be read with Section 16 of the Provincial Small Cause Courts Act so as to modify its full effect in a case wrongly tried by an ordinary Civil Court and taken on appeal to the District Court. In this view of the law, we are of opinion that the parties having in both the Lower Courts submitted to the jurisdiction of the ordinary Courts, it is 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. The defendant, however, contends that he is entitled to a second appeal, and to ask for judgment on points other than that of the special jurisdiction. But the suit is of the nature cognizable by a Court of Small Causes, and the amount of the subject-matter does not exceed five hundred rupees, so that a second appeal is barred by Section 586 of the Code of Civil Procedure.'
47. In Parmeshwaran Nambudiri v. Vishnu Embrandri, (1904) ILR 27 Mad 478, a case of a small cause nature was tried as a regular suit and decreed in plaintiff's favour. The defendant, who had raised no objection to the mode of trial, preferred a regular appeal to the District Court making no reference to the question of jurisdiction. The District Judge dismissed the appeal. On the question of jurisdiction being raised for the first time in a revision before the High Court, the Division Bench consisting of Sir Subramania Ayyar, Officiating Chief Justice, and Benson, J. said:
'Section 16 of the Provincial Small Cause Courts Act must be read along with Section 646-B of the Civil Procedure Code. The latter section gives the High Court a discretion to pass such orders as it thinks proper in cases referred for its orders under that section and such cases include a case like the present where the small cause suit has been irregularly tried by an ordinary Civil Court. The obvious object of the section is to enable the High Court to pass such order as the justice of the case requires without being compelled to decide the case solely with reference to jurisdiction, and thus perhaps, put the parties to the expenses and trouble of fruitlessly litigating the same question again before the very Judge, sitting as a Small Cause Court, who had already tried the case on the ordinary civil side, and with the greater formality thereby required and with the safeguard of an appeal.
Though the present case comes before us under Section 622, Civil Procedure Code, it seems but reasonable that the principle of the express provision in Section 646-B should be followed in the exercise of the discretion allowed by Section 622, at least in cases like the present where the petitioner made no objection to the trial in the Court of First instance and raises the objection for the first time in this Court'
48. In (1910) ILR 33 Mad 323 (supra), a case of a small cause nature was tried as a regular suit and decreed in favour of the plaintiff by the District Munsiff. On appeal to the Sub-Judge, the decree was reversed. When the plaintiff filed an application in the High Court for revising the said order, contending that the order of the Sub-Judge on appeal was without jurisdiction as the suit was of a small cause nature in which no appeal lay to the District Judge, the learned single Judge declined to interfere for the reason that the plaintiff himself had instituted the suit on the original side and would not, therefore, be heard to complain that the defendant had filed an appeal against the decree in the original suit. On appeal to a Division Bench under the Letters Patent, Sankaran Nair and Abdur Rahim, JJ. doubted the correctness of the decision in (1904) ILR 27 Mad 478 (supra) so far as the appellate decision was concerned and referred the question to a Full Bench which said:
'We are unable to agree with the view taken by the learned Judges in (1904) ILR, 27 Mad 478, as regards the appellate decision in that case. As the decision of the appellate Court in the case before us was made without jurisdiction, we think this Court is bound to set it aside. As regards the decision of the Appellate Court, we think the cases Ramasamy Chettiar v. R. G. Orr. ILR 26 Mad 176and Shankarbhai v. Somabhai (1902) ILR 25 Bom 417 were rightly decided.'
With due deference to the learned Judges of the Full Bench, we see no reason to distinguish between the judgments of the trial Court and the Appellate Court, in this respect, nor do we see the necessity to hold that the appellate judgment must necessarily be set aside as one without jurisdiqtion. If a small cause suit is tried as regular suit, it is open to one appeal, though a second appeal is barred because of Section 102 of the Code. The first appeal, cannot, therefore, be held to be one without jurisdiction. We also agree with Sankaran Nair, J. In his order of reference that the District Court referred to in Rule 7 of Order XLVI is not necessarily the appellate Court to which an appeal from the judgment and decree of a small cause case tried regularly is preferred; but, even so, we see no reason to hold that the appeal is one without jurisdiction. In our opinion, if the case, which is triable by a Court of Small Causes, is tried regularly, one appeal shall lie from such judgment; and if a case, which is triable by a regular Civil Court, is tried by a Court of Small Causes, it shall be open to a revision under Section 25 of the Provincial Small Cause Courts Act, because the right of appeal or revision arises from what a court actually does and not from what it ought to have done. In our opinion, (1901) ILR 25 Bom 417 and (1902) ILR 26 Mad 176, which hold to the contrary, are not correctly decided.
49. That this has been the view of this Court is amply clear from the decision in Kamruddin v. Mt. Indrani, 19 Nag LR 179 = (AIR 1924 Nag 17), where a suit cognizable by a Court of Small Causes had been tried by a Munsiff and, decreed in favour of the plaintiff. The defendant appealed to the District Judge without reference to the question of jurisdiction, who reversed the decree of the Munsiff. On a revision under Section 115 of the Code to the Court of the Judicial Commissioner, Baker, the Officiating J. C. held:
'In this case the parties have had a full trial before the Munsiff and an appeal to the District Judge without objection on the point of his jurisdiction, and I respectfully agree with the view of the Allahabad and Calcutta High Courts. I, therefore, decline to interfere and dismiss the application with costs.'
The Allahabad and Calcutta view referred to above are those of (1903) ILR 25 All 135 and (1894) ILR 21 Cal 249. The decisions in (1901) ILR 25 Bom 417 and (1910) ILR 33 Mad 323 (supra) were distinguished on the ground that in those cases, the trial Judges having small cause Court jurisdiction, had tried the suits on the regular side and as, in theopinion of those courts, the character of the suits was not altered by the mode in which they were tried, the judgments and decrees in those cases must be held to be judgments and decrees of a Court of Small Causes which were not liable to appeal.
50. In our opinion, the distinction is not well founded. Under Section 33 of the Act, a Court when trying a cause as a long cause and the same Court trying a cause as a small cause are different Courts, so that no distinction can be made on the ground that when the same Court has both the jurisdictions, an appeal is not competent.
51. In AIR 1930 Bom 80 (supra), a case triable by a Court of Small Causes was tried as a long cause by the Joint Subordinate Judge. The claim was decreed; but, on appeal, the District Court reversed the decree. On a revision under Section 115 of the Code of Civil Procedure, the learned Judge set aside both the decrees -- the appellate decree on the authority of (1910) ILR 33 Mad 323 (supra), (1904) ILR 27 Mad 478 (supra) and Abdul Majid v. Bidyadhar Saran Das, ILR 39 All 101 = (AIR 1917 All 159) and the decree of the trial Court on the ground that the trial of the suit as an ordinary suit had prejudiced the parties because the Joint Subordinate Judge was not a Judge of sufficient seniority to be entrusted with Small Cause Court's powers and, therefore, not a proper tribunal for the trial of the suit. In our opinion, with respect, the reasoning of the judgment is faulty and we cannot agree with the conclusions reached in it. In the first place, the decision is contrary to 19 Nag LR 179 = (AIR 1924 Nag 17) (supra) with which we substantially agree; and, in the second place, we do not see how and why an appeal would not lie against the judgment and decree in a small cause suit tried as a long cause by a Judge who had not both the jurisdictions, the basis on which the learned Officiating Judicial Commissioner had distinguished the case in (1910) ILR 33 Mad 323 and (1901) ILR 25 Bom 417 (supra) in 19 Nag LR 179 = (AIR 1924 Nag 17) (Supra).
52. In Rajjupuri v. Deva, 30 Nag LR 133 = (AIR 1933 Nag 221) in a revision tinder Section 25 of the Provincial Small Cause Courts Act, Grille, A. J. C. held that before seeking his remedy in the High Court, it was incumbent on a person, whose plaint had been returned for presentation to the proper Court, both by the 'Court of Small Causes and that of the Subordinate Judge, to exhaust the remedies open to him by making an application to the District Judge under Order XLVI, Rule 7, of the Civil Procedure Code. This again shows that a challenge to the jurisdiction of a Court onthe allegation that it has acted or failed to act in conformity with the provisions of Section 16 of the Provincial Small Cause Courts Act must first be made under the provisions of Rule 7 of Order XLVI of the Code of Civil Procedure.
53. In U. K. Seal v. Aramugam Chettyar, AIR 1938 Rang 35, the question arose whether the judgment and decree of a Township Court, who had tried a cause of a small cause nature as a long cause on its regular side even though it had jurisdiction to try it as a small cause, were a nullity. Repelling the contention, Dunkley, J., said:--
'Order 46, Rule 7 of the Code makes it clear that where a suit which is cognizable by a Court of Small Causes has been, tried by a Court which is not a Small Cause Court, in contravention of the provisions of Section 16, Provincial Small Cause Courts Act, then the only procedure which may be taken to correct that error is for a party to the suit to require the District Court to make a reference to the High Court, and upon that reference, the High Court may make such order in the case as it thinks fit. This provision clearly shows that the proceedings of the Regular Court, although the suit has been tried by it in contravention of the provisions of Section 16, Provincial Small Cause Courts Act, are by no means a nullity, but may be upheld if the High Court considers that substantial justice has been done. This is the view which was taken by Nanavutty, J. in ILR 56 Bom 387 at p. 393 = (AIR 1932 Bom 486 at pp. 488-89) with which I respectfully agree. Moreover, whether the present application in revision be looked upon as an application under Section 25, Provincial Small Cause Courts Act, or under Section 115, Civil Procedure Code, the power of this Court to interfere 'to reverse or vary the decree of the original Court is discretionary, and in regard to this matter, I desire to remark that if the contention which has been put forward on behalf of the applicant is correct, then it would appear that the present application must have been made under Section 115, Civil Procedure Code, although it purports to have been brought under Section 25, Provincial Small Cause Courts Act. Learned counsel for the applicant is unable to contend that his client has been prejudiced in any way by the fact that the suit has been tried as a regular suit instead of as a small cause and it would scarcely be possible for either party to contend as in the regular trial they have had a better opportunity of placing their respective cases before the Court, and also they have obtained a full record of the evidence and considered judgment. Consequently, I should be unable to hold that it was a proper exercise of the discretion which is vested inme to interfere in this case on the sole ground that the Township Court tried the suit without jurisdiction, when it has to be admitted that neither party has been prejudiced by that action.'
54. It is further significant to note that on a reference being made to the High Court, it has been given the power to pass such order in the case as it thinks fit, which means that the legislature did not intend any error of jurisdiction in this behalf by the trial Court to necessarily vitiate its judgment and decree as void or as nullities. Because, if the trial of a suit in contravention of Section 16 of the Provincial Small Cause Courts Act was to' necessarily result in a void judgment and a void decree as passed without jurisdiction, there was no point, in the first place, in giving discretionary power to the District Court to make a ' reference or not and, in the second place, in empowering the High Court on a reference being made to pass such orders as it thinks fit. Any Court where the question of their legal validity arose could have under its general jurisdiction declared them as void and nullities. Thus, it has been held in AIR 1915 Cal 619, (1894) ILR 21 Cal 249, Jaduni Pande v. Sheonandan Pande, ILR 11 Pat 690 = (AIR 1933 Pat 31) and Sawnkey Mian v., Zabunnissa Begum, 1957-1 Andh WR 261 that in a reference under the aforesaid rule, the High Court is not bound to set aside the proceedings in all cases as null and void being without jurisdiction, but has been specifically empowered to go into the merits of the case so as to do substantial justice, without unnecessarily putting the parties to, the expenses of a fresh full trial de novo, on such a technical plea of jurisdiction.
55. In our opinion, If a contravention of Section 16 of the Act was a defect of jurisdiction, power could not have been given to the High Court on a reference under Rule 7 of Order XLVI of the Code to pass such orders in respect of it as it thought fit. If the judgments and decrees were nullities for want of jurisdiction, all that had to be done or could be done was to declare them null and void. The want of jurisdiction, if there was one, could neither be ignored nor condoned; but as the Legislature did provide In Rule 7 of Order XLVI of the Code that it could be so ignored or condoned, if substantial justice had been done, It would only mean that a contravention of Section 16 of the Act was not intended to be a defect of jurisdiction vitiating the trial and rendering the judgments and decrees nullities.
56. Lastly, the provisions of Section 102 of the Code of Civil Procedure also support the view we have taken. Section 102 of the Code says:--
'No second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed one thousand rupees.'
The provision can have no reference to proceedings under the Provincial Small Cause Courts Act because Section 27 of the Provincial Small Cause Courts Act provides that the judgment and decrees of Courts of Small Causes are final and they are only subject to a revision to the High Court under Section 25 of the Act, so that no question of a second appeal can arise from a judgment and decree of a Court of Small Causes. But the provisions can have reference to following four situations arising out of trial of suits of Small Cause nature by regular Courts as long causes. The first is where a case of the nature cognizable by a Court of Small Causes is tried by a competent Civil Court as a regular suit because the question was not raised at the trial. The, second is where it is so tried because, though the question was raised, it was erroneously decided by the Court or by the High Court on a reference under Order 46, Rule 6 of the Code of Civil Procedure. The third is where a case is sent to a regular Civil Court for a trial in a regular way as a long cause under Section 23 of the Provincial Small Cause Courts Act. And the fourth is where if is so tried because there are no Small Cause Courts or Courts invested with the powers of Small Cause Courts for the local area so that there is no option but to try them as regular suits or as long causes.
57. The fourth situation would very seldom arise and if the provisions were confined to such cases, it would practically become a dead letter. It is also significant that its operation had so far not been confined to such cases only. Similarly, when a case of a nature cognizable by a Court of Small Causes is tried as a regular suit because of Section 23 of the Act, the suit remains a suit of the nature cognizable by a Court of Small Causes and as such governed by the provisions of Section 102 of the Code. See Sk. Fannu v. All Mia, AIR 1943 Cal 464. But if the Section applies to the first two situations also, as we think that it does, then it would be anomalous to say that such cases do not admit of a second appeal, when on the view that their trial was without jurisdiction and as such a nullity, no appeal or revision of any kind was permissible. It, therefore, appears more appropriate to hold that when a case of a nature cognizable by a Court of Small Causes is tried as a regular suit by a competent Court for any reason whatsoever, either through inadvertence OF error or because of the provisions of Sec-titon 23 of the Act or through the absence of a Court of Small Causes for that local area, its judgment and decree is not a nullity but that it would not admit of a second appeal so that by implication, it would be subject to one appeal only.
58. Thus, interpreting the Section, it has been held that if, instead of trying a small cause suit in a summary way, it is tried in the ordinary manner as a regular suit, the mistake will not alter the character of the suit which will nevertheless be a suit of the nature cognizable by a Court of Small Causes and as such subject to the limitations of Section 102 of the Code and that therefore, no decree or order in such a suit will admit of a second appeal. See Bapu Suryabhan v. Kisan, AIR 1928 Nag 136(1), Ganpat Laxman v. Nathu, AIR 1934 Nag 121; Deokali v. Abhram Bali, AIR 1931 Oudh 49; Samir Khan v. Basi Ram, AIR 1925 All 821; Bansi Lal v. Chairman, Town Area Committee, Saidpur, AIR 1941 All 144; Balwantrao Naik V. Biswanath Missir, AIR 1945 Pat 417; Naranappa v. Venkataraman, AIR 1917 Mad 897; Subbiah v. Rajah of Venkatagiri, AIR 1922 Mad 352 and Chidambara Thevar v. Subbaravar, AIR 1926 Mad 623.
59. We, however, do not agree with the view taken by some Courts that such cases will not admit even of one appeal nor with the view that such cases will only admit of a civil revision under the provisions of Section 25 of the Provincial Small Cause Courts Act. The right of a litigant to go up in appeal or revision depends on what the Court actually does and not on what it ought to have done. So, when a suit of a nature cognizable by a Court of Small Causes is tried by a competent Civil Court as a regular suit, It is futile to enquire if that Court had powers of a Court of Small Cause Court also because when exercising the powers of a Court of Small Causes, it is a distinct and a separate Court in view of the provisions of Section 33 of the Provincial Small Cause Courts Act. If it has tried a suit of a nature cognizable by a Small Cause Court as a regular suit, the case would be governed by the incidents of a regular suit subject to the limitations contained in Section 102 of the Code, namely, that such a case shall not admit of a second appeal. But, in our opinion, it would not be correct to hold that such a judgment and decree should none-the-less be held to be the judgment and decree of a competent Small Cause Court which shall not admit of any appeal whatsoever.
60. In AIR 1934 Nag 121, Staples, A. J. C. said-
'The applicant Ganpat brought a suit for damages in the Court of the Subordinate Judge, Second Class, Amraoti. His suit was dismissed and he then preferred an appeal to the Additional District Judge.The Additional District Judge held that the suit was one that was cognizable by a Court of Small Causes, that the appeal was, therefore, incompetent and that a reference could be made to this Court under Order 46, Rule 7. He, therefore, referred the case. The case is similar to that in AIR 1924 Nag 17 .................. I can find how-ever no reported decision to the effect that a suit cognizable by a Small Cause Court, which has been tried against the provisions of Section 16, Provincial Small Cause Courts Act, as an ordinary suit by a Judge who is not invested with Small Cause Court powers, the parties to the suit having raised no objection to the trial, should be considered as a Small Cause suit, and that no appeal would He from the decision. The decision in AIR 1924 Nag 17 would appear to take the contrary view, and I am also of opinion that in a case of this kind the matter would fall under Section 102, Civil P. C., and that there will be an appeal against the decree of the trial Court, but no second appeal where the amount or value of the subject-matter of the original suit does not exceed Rs. 500...............'
The aforesaid decision as well as the decision in Bapu Suryabhan v. Kisan, AIR 1928 Nag 136 were doubted by Chaturvedi, J. in Abdeali v. Fidahussain, AIR 1957 Madh Bha 122 who was of opinion that where a Court who tries a case of a Small Cause nature according to the ordinary procedure, is invested with the powers of a Court of Small Causes, he must be held to have dealt with the case under that jurisdiction even though he was not quite alive to it at the time but where he was not so invested and there was another Judge at the station invested with such powers, his orders were nullity and had to be set aside. In our opinion, there was no basis for such a distinction and we do not agree with him that in the first class of cases the judgments and decrees should be treated as judgments and decrees of a Court of Small Causes and in the latter case nullities being without inherent jurisdiction.
61. There is, on the other hand, the decision of Krishnan, J. (C. R. 377 of 1966 dated 27-3-1967) that there was no inherent lack of jurisdiction if a Court which is otherwise competent tries a suit in breach of Section 16 of the Provincial Small Cause Courts Act and that if the point of jurisdiction is not raised by the defendant in the Court below, he cannot be permitted to raise the objection for the first time in revision. We agree with him that there was no inherent lack of jurisdiction if a Court which is otherwise competent tries a suit in breach of Section 16 arid it will be a question to be decided in each case whether the applicant should be permitted under the facts and circumstances of the case to raise the questionof jurisdiction for the first time in a revision in view of the provisions of Order 46, Rules 6 and 7 of the Code of Civil Procedure. We are however clearly of the opinion that the provisions of Section 102 of the Code are inconsistent with the view that the judgments and decrees rendered by a Court in contravention of Section 16 of the Act are nullities.
62. We are, therefore, of opinion that the decisions in 1968 Jab LJ 566 = (AIR 1969 Madh Pra 56) and 1968 Jab LJ 583 = (AIR 1969 Madh Pra 44) (supra) do not lay down the correct law and are erroneous. In our opinion, the judgments and decrees passed in contravention of Section 16 of the Provincial Small Cause Courts Act are not null and void as having been passed without jurisdiction. On the other hand, they are good and effective, until set aside in accordance with law.
63. We may, however, mention that It was unfortunate that the question whether the suit giving rise to the execution proceedings was really cognizable by a Court of Small Causes has never so far been critically examined by any Court. It has all along been assumed that it was a case which was cognizable by a Court of Small Causes. A perusal of the plaint, however, shows that it was a suit by a vendor for the recovery of the balance of his sale consideration due on the sale of immovable property and for compelling the vendee to fulfil his part of the contract by satisfying the future taccavi liability of the plaintiff by paying the instalments in respect of it to the State Government as and when they fell due, and was as such not cognizable by a Court of Small Causes because of the provisions of Article 15 of Schedule II of the Provincial Small Cause Courts Act. The question has, however, not been tried so far, and we do not consider it necessary to pronounce on it as it is not a question referred to us. We, however, note the fact and leave it for the consideration of the learned referring Judge.
Shiv Dayal, J.
64. The question referred to this Full Bench is whether, where a suit of a small cause nature is instituted and tried as a regular suit in contravention of the provisions of Sec. 16 of the Provincial Small Cause Courts Act, the judgment or decree rendered in it is without jurisdiction and a nullity as was decided in 1968 Jab LJ 566 = (AIR 1969 Madh Pra 56) and 1968 Jab LJ 583 = (AIR 1969 Madh Pra 44).
65. The Provincial Small Cause Courts Act (No. 9 of 1887; hereinafter called 'the Act') is a special enactment which provides a speedy and cheap means of settling small causes; provides for the establishment of Courts and conferral of special jurisdiction on them to try such causes; lays down a summary procedureior them; and takes away the jurisdiction of the ordinary Court which otherwise had jurisdiction to try them, unless otherwise provided in the Act or any other enactment for the time being in force.
66. A Court of Small Causes as such is established under Section 5 of the Act and its territorial limits are defined by the State Government. Even where a Court of Small Causes as such is not established, an ordinary Court may be invested with jurisdiction of a Court of Small Causes by virtue of any enactment for the time being in force and in that case, the latter Court is, having regard to the provisions contained in Section 32 of the Act, practically a Small Cause Court. Section 33 of the Act then, declares that in the latter case, such Court shall be, for the purposes of the Act and of the Code of Civil Procedure, deemed to comprise of two different Courts, that is, (i) a Court of Small Causes in respect of the exercise of that jurisdiction; and (ii) an ordinary Court of regular civil jurisdiction in respect of the exercise of its jurisdiction in suits of a civil nature which are not cognizable by, a Court of Small Causes.
67. Section 16 of the Act reads thus:
'16. Exclusive jurisdiction of Courts of Small Causes:-- Save as expressly provided by this Act or by any other enactment for the time being in force, a suit cognizable by a Court of Small Causes shall not be 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.'
(underlined (here in ' ') by me)
This section clearly enacts that if a suit is cognizable by a Court of Small Causes, and if there exists a Small Cause Court having jurisdiction to try it, then the suit shall not be tried by any other Court, This section expressly takes away the jurisdiction of an ordinary Civil Court (which otherwise has jurisdiction) to try a suit of a small cause nature as a regular suit, provided a Court of Small Causes having jurisdiction to try it is in existence for that place. This is the meaning of the expression 'shall not be tried by an ordinary Court having jurisdiction'. That meaning is emphatically reinforced by the expression 'the exclusion of the jurisdiction of other Courts in those suits' employed in Section 32(1)(b) of the Act Therefore, the trial by an ordinary Court in contravention of Section 16 of the Act will be without jurisdiction.
68. It seems to me incontestable that where, by a legislative provision, the jurisdiction of a Court is excluded in respect of a specified subject-matter, the Court becomes deprived of the jurisdiction to try such matter. The legislative provision which takes away the jurisdiction of a Court in respect of a specified subject-matter. is necessarily imperative and cannot be treated as directory. The word 'shall' in such a provision cannot be read as 'may' and it must be given its ordinary significance, i.e. mandatory, nO doubt, if such a provision is declared by the legislature to be subject to any exceptions, those exceptions will also have their operation and will control the main provision.
69. It is not possible to accept the proposition that where the jurisdiction of a Court is, by an express legislative provision, taken away in respect of a specified subject-matter, still the parties can have an option to invoke that jurisdiction which has' been excluded; or the Court has still the option to exercise such jurisdiction; or a decree passed by it can still be treated as valid unless set aside. To accept such a proposition will create utter confusion, which the law cannot tolerate.
70. It is well established that where Jurisdiction of a Court has been excluded In respect of a specified subject-matter, no amount of acquiescence, waiver, consent, Ignorance of law, bona fides, good faith or any other consideration can confer such Jurisdiction on such Court. In 9 Halsbury (Simonds) 452, it is stated:--
'Where, by reason of any limitation Imposed by statute, charter, or commission, a court is without jurisdiction to entertain any particular action or matter, neither the acquiescence nor the express consent of the parties can confer jurisdiction upon the Court'.
71. We are clearly of the view that the language of Section 16 of the Act is plain, unambiguous, emphatic and mandatory. It does not admit of any meaning other than this that no Court other than the Court of Small Causes can try a suit cognizable by, a Court of Small Causes within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable. In AIR 1954 SC 340, their Lordships have laid down the law emphatically in these words:-- -
'It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether, it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.'
In Govinddas v. Parmeshwaridas, AIR 1957 Madh Pra 71, it was held that a decree passed by a Small Cause Court in a suit not cognizable by it is a nullity. Hidayatullah, C. J. (now Chief Justice ofIndia), speaking for the Full Bench held thus:--
'It is well settled that the consent of parties cannot confer jurisdiction on the Court and an objection to jurisdiction can be taken at any stage in the proceeding. See (1886) 13 Ind App 134 (PC), Meenakshi Naidoo v. Subramaniya Sastri, (1887) 14 Ind App 160 (PC) and Ramlal v. Kisanchandra, AIR 1924 PC 95 .....................The matter is again open because an objection as to inherent jurisdiction can be taken even in execution. This was laid down by the Supreme Court in AIR 1954 SC 340. It is also a well established rule of law that a nullity remains a nullity and can be so declared at any stage.'
It is true that that case was on a converse proposition, but it is the ratio decidendi, that is, the principle of the case, which has binding force.
72. Section 21 of the Code of Civil Procedure is confined in its application to territorial jurisdiction and not to the competence of the Court to try a suit. In Hiralal v. Kalinath, AIR 1962 SC 199 = 1962-2 SCR 79, their Lordships said:--
'.........It is well settled that the objection as to the local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a Court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand an objection as to the local jurisdiction of a Court can be waived and this principle has been given a statutory recognition by enactments like Section 21 of the Code of Civil Procedure ....;.........The validity of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seizin of the case because the subject-matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the Court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it............'
73. Section 102 of the Code of Civil Procedure bars a second appeal when the suit is of the nature cognizable by a Court of Small Causes. It is obvious enough that this section has no application to a suit which is, tried by a Small Cause Court because no appeal at all lies (vide Section 27 of the Act). Section 102 comes into play only when a suit, although cognizable by a Court of Small Causes, is tried by an ordinary Court either for the reason that there is no Court of Small Causes in existence for that place or that the suit was, under the provisions of any enactment and subject to those provi-sions, transferred to an ordinary Court for trial. Section 102 has no application to any other situation.
74. No analogy can be taken from Section 15 of the Code of Civil Procedure. It is undoubted that while directing that a suit must be instituted in the Court of the lowest grade, the jurisdiction of a Court of higher grade has not been ousted. But it is not possible to accept that a Court of Small Causes is of a 'lower grade' than an ordinary Civil Court. It is unnecessary to dilate further upon that point.
75. It is an argument that a Court of Small-Causes is specially constituted or has special powers only to try a suit of the nature cognizable by a Court of Small Causes and it has no jurisdiction to try a suit which falls under the second schedule of the Act, but an ordinary Court has inherent iurisdiction to try a suit which is cognizable by a Court of Small Causes so that while in the former case there is inherent want of jurisdiction, in the latter, it is a mere irregularity in the procedure. In our opinion, this argument is not sound. The distinction between jurisdiction having not been conferred at all and jurisdiction having been taken away is without difference. In either case, jurisdiction does not exist when the suit is tried. It cannot be said to be a mere irregularity in the procedure. If that was so, Section 16 of the Act would have been differently worded. That section does not simply say that a suit cognizable by a Court of Small Causes shall not be tried in a manner other than that provided in the Act. What it enacts is that a suit shall not be tried by any other Court. In our opinion the language is precise and unambiguous.
76. Another argument is that where a suit is tried in an ordinary Court, there is a full trial, that is to say, issues are framed, parties have better opportunity to produce evidence and depositions of witnesses are recorded in full, so that there is no prejudice to the parties and it is merely an irregularity or defect in the procedure. This argument too is untenable. Such a meaning cannot be spelt out from the language of the section. Once the mandate of the legislature is that a suit shall not be tried by any other Court, there is no jurisdiction to try it and a search for prejudice or want of prejudice is idle.
77. An irregularity or defect of procedure is one which occurs in the course of a trial, while following a certain procedure, by a Court which has the initial iurisdiction to try it.
78. The untenability of both the above arguments can be illustrated by the following instance. In the case of a motor accident within the area for which a Motor Accident Claims Tribunal underSection 110 of the Motor Vehicles Act, 1939, exists, a suit is instituted in a Civil Court of ordinary iurisdiction and a decree is passed. The trial will be without jurisdiction and the decree will be a nullity (vide Section 110-F of the Motor Vehicles Act) although, but for the establishment of the Claims Tribunal for the area, the ordinary Civil Court would have had jurisdiction and although the suit has been tried with elaborate procedure under the Code of Civil Procedure and the substantive provisions of the law of torts have been applied.
79. Their Lordships have recently said in M. K. Rappaiva v. John, Civil Appeal No. 1787 of 1966, D/- 27-8-1969 (SC). :--
'It is well settled that if any matter is directly prohibited, the same cannot be achieved indirectly.'
In State of Rajasthan v. Leela, AIR 1965 SC 1296, Mr. Justice Ayyangar, speaking for the Court, expressed himself in emphatic language thus:--
'Unless the words are unmeaning orabsurd, it would not be in accord withany sound principle of construction to refuse to give effect to the provisions of astatute on the very elusive ground that togive them their ordinary meaning leadsto consequences which are not In accordwith the notions of propriety or justiceentertained by the Court. No doubt, ifthere are other provisions in the statutewhich conflict with them, the Court mayprefer the one and reject the other, on theground of repugnance,'
In Solmon v. Solomon and Co., 1897 AC 22at p. 28, it was observed that the Court isnot at liberty to give-
'speculative opinion as to what the Legislature probably would have meant although there has been an omission to enact it. In a Court of law or equity, what the Legislature intended to be done or not to be done, can only legitimately be ascertained- from that which it has chosen to enact either in express words or by reasonable and necessary implication.'
In Narayan Swami v. Emperor, AIR 1939 PC 47 at p. 51, their Lordships said:--
'When the meaning of words is plain it Is not the duty of the courts to busy themselves with supposed intentions.' '
Lord Macnaghten said in Vacher and Sons Ltd. v. London Society of Compositors, 1913 AC 107 at p. 118 (HL):--
'Some people may think the policy of the Act unwise and even dangerous to the community ..........:.... But a judicialtribunal has nothing to do with the policy of the Act which it may be called upon to Interpret. That may be a matter for private judgment. The duty of the Court, and its only duty, is to expound the language of the Act in accordance with the settled rules of construction.'
In Mungilal v. Sugan Chand, AIR 1965 SC 101, their Lordships observed:--
'It is certainly not open to a Court to usurp the functions of a legislature, Nor again is there scope for placing an unnatural interpretation on the language used by the legislature and impute to it an intention which cannot be inferred from the language used by it.........'
It was held in I. T. Commr. v, Indian Bank Ltd., AIR 1965 SC 1473:--
'If there is ambiguity in the terms of a provision recourse must naturally be had to well established principles of construction but it is not permissible first to create an artificial ambiguity and then try to resolve the ambiguity by resort to some general principle.'
In Rananjaya Singh v. Baiinath Singh, AIR 1954 SC 749 it was observed:--
'The spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly not be given effect to in opposition to the plain language of the sections of the Act and the rules made thereunder.'
In State of M. P. v. Vishnu Prasad, AIR 1966 SC 1593, the Supreme Court observed:--
'A supposed difficulty would not provide any justification for accepting an interpretation of a statute against the ordinary meaning of the language used in it'.
80. We shall now turn to the opening words of Section 16:--
'Save as expressly provided by this Act or by any other enactment for the time being in force'. Section 23 of the Act is such an exception. Section 24(4) of the Code of Civil Procedure is another exception. If Section 16 of the Act was not mandatory, it was unnecessary to incorporate Section 23 in the Act and it was also unnecessary to enact Section 24(4) of the Code of Civil Procedure, or, likewise, Order 46, Rules 6 and 7 of the Code of Civil Procedure, to which I shall presently refer.
81. Section 15 of the M. P. Civil Courts Act, 1958 is another provision which falls within the saving clause under Section 16 of the Act. The said section reads thus:
'15. Power to distribute business.--Notwithstanding anything contained In the Code of Civil Procedure, 1908 (5 of 1908), or the law relating to Courts of Small Causes, in force for the time being in any area, the District Judge may, by order in writing, direct that any civil business cognizable by it and the Courts under its control shall be distributed among those Courts in such manner, as he thinks fit: Provided that, except in so far as it may affect the exclusive jurisdiction of a Court of Small Causes, a direction given under this section shall not empower any Court to exercise powers or deal with businessbeyond the limits of its proper jurisdiction.'
Under this section, the District Judge to empowered to direct civil business cognizable by him and the Courts under his control to be distributed among them in such manner as he thinks fit. Because of such a distribution, Courts will have jurisdiction to try cases assigned to them according to the distribution. But the proviso lays down the exception that such a direction of the District Judge shall not empower any Court to exercise powers or deal with business beyond the limits of its proper jurisdiction. Thus, for instance, a Court of Small Causes shall not simply because of such distribution of business, have jurisdiction to try a suit not cognizable by it under the provisions of the Small Cause Courts Act, because such suits are beyond the limits of its proper jurisdiction. But as regards the converse case, the question is whether an ordinary Court can try a suit cognizable by a Court of Small Causes by virtue of the direction of the District Judge given under Section 15 of the M. P. Civil Courts Act, while distributing business among the Courts subordinate to it? The answer must be in the affirmative because of the words 'except in so far as it may affect the exclusive jurisdiction of a Court of Small Causes or of a Court invested with jurisdiction of a Court of Small Causes' in the proviso to Section 15. These words make it abundantly clear that even though it' is the exclusive jurisdiction of a Court of Small Causes (or of a Court invested with jurisdiction of a Small Cause Court) to try a suit cognizable by it and that no other Court can try such a suit, such a suit will be beyond the limits of the proper jurisdiction of an ordinary Court, yet, the ordinary Court shall be competent to try such a suit. This special provision contained in Section 15 of the M. P. Civil Courts Act, 1958, squarely falls within the purview of the saving clause of Section 16 of the Small Cause Courts Act: 'Save as expressly provided by this Act or by any other enactment for the time being in force'. Let it be mentioned here that the M. P. Civil Courts Act, 1958, was enacted after the assent of the President having been accorded to it.
82. We shall now advert to the provisions contained in Order 46, Rules 6 and 7 of the Code of Civil Procedure.
83. According to the known consequences provided in the law, whenever there is want of jurisdiction to try a suit, the only course open is to direct return of the plaint for presentation to the proper Court. And, if in the meantime, the limitation for the suit has run out, the plaintiff has to seek shelter under Section 14 of the Limitation Act. It is only then that the question of good faith becomes crucial. Once it is held that theCourt had no jurisdiction to try a suit, its judgment or decree is a nullity and no consideration can make it valid or effective. Hardship is wholly beside the point. See for instance, the illustration given by us of a suit arising out of a motor accident being tried by an ordinary Court when there is a Motor Accident Claims Tribunal established for that area.
84. However, there are two peculiarities about a suit of the nature cognizable by a Court of Small Causes. One, by its very nature, it is a petty matter and if substantial justice can be done on the basis of the material before it, it may be unduly harsh to drive the parties to a fresh trial; second, it is sometimes not easy to determine whether the suit is really of the nature cognizable by a Court of Small Causes. It is evident from the provisions contained in Rules 6 and 7 that the legislature took a special note of these exceptional circumstances and conferred an extraordinary power upon the High Court. Rule 6 runs thus:--
'6(1) Where at any time before judgment a Court in which a suit has been instituted doubts whether the suit is cognizable by a Court of Small Causes or is not so cognizable, it may submit the record to the High Court with a statement of its reasons for the doubt as, to the nature of the suit.
(2) On receiving the record and statement, the High Court may order the Court either to proceed with the suit or to return the plaint for presentation to such other Court as it may in its order declare to be competent to take cognizance of the suit.'
This Rule empowers the High Court to determine the nature of the suit being cognizable by a Court of Small Causes or not, and further to order whether that suit shall be continued to be tried by the Court which is trying it, or shall be tried by the Court which is trying it, or shall be tried by another Court which the High Court declares to be competent to take cognizance of it. Rule 7 of Order 46, reads thus:--
'7(1) Where it appears to a District Court that a Court subordinate thereto has, by reason of erroneously holding a suit to be cpgnizable by a Court of Small Causes or not to be so cognizable, failed to exercise a jurisdiction vested in it by law, or exercised a jurisdiction not so vested, the District Court may, and if required by a party shall, submit the record to the High Court with a statement of its reasons for considering the opinion of the subordinate Court with respect to the nature of the suit to be erroneous.
(2) On receiving the record and statement the High Court may make such order in the case as it thinks fit.
(3) With respect to any proceedings subsequent to decree in any case, submitted to the High Court under this rule, the High Court may make such order as in the circumstance appears to it to be just and proper.
(4) A Court subordinate to a District Court shall comply with any requisition which the District Court may make for any record or information for the purposes of this rule'.
Three things must first be made clear about this Rule. Firstly, this Rule can be invoked not only when a suit is pending but also when it has been decided. Secondly, this Rule applies equally to a case where a suit cognizable by a Court of Small Causes is tried by an ordinary Court and to a case 'vice versa'. -Thirdly, a Court subordinate to a District Court within the meaning of Clause (1) of the Rule may be the trial Court or the executing Court. It is clear from the language of the Rule that it enjoins the High Court to first determine the nature of the suit --whether it was cognizable by a Court of Small Causes or not -- and to consequently hold whether it was tried by a Court having jurisdiction or not. In case, the High Court comes to the conclusion that truly speaking the Court which tried the suit had no jurisdiction to try it, it may make such order as it thinks fit. There can be no doubt that the decree passed in such a suit shall be a nullity, but the language of Clause (2) of the Rule makes it quite clear that the High Court can as well deal with the case on merits so as to do substantial iustice to the parties and save them from being put to unnecessary expense and botheration of a fresh trial, for instance, both the parties may have led all their evidence end the case be of such a nature that the High Court thinks that on the material before it, substantial iustice can be done to the parties by a fresh decree tq be made by it. In such a case, the High Court will not merely stop by saying that the Court which tried the suit had no jurisdiction but to pass such decree as it thinks fit, that is to say, it may pass a decree in favour of the plaintiff wholly or in part or may dismiss the suit, or may make such other order as it thinks fit. The language of the Rule invests in the High Court large and discretionary power, We have no doubt that unless this was the intention of the legislature, there would have been no meaning or object in enacting this Rule. The reason is this: (i) Ordinarily it is the trial Court or the Court exercising appellate or revisional jurisdiction which decides the question of jurisdiction and the known consequences provided in the law then necessarilyfollow; and (II) if, on the other hand, the provisions of Section 16 of the Act were merely directory and the decree passed in its contravention can be given effect to unless set aside, then also this Rule was redundant. No Court can arrogate to itself, nor can a superior Court confer on an inferior Court jurisdiction not vested in it by the legislature; nor can any Court validate a decree which is a nullity by reason of lack of iurisdiction. But by this extraordinary provision contained in Rule 7, the High Court has been given large and discretionary power to make a fresh decree to do substantial justice to the parties, having regard to all the facts and circumstances and the material on record before it. See (1894) ILR 21 Cal 249; (1904) ILR 27 Mad 478; AIR 1915 Cal 619 and ILR 11 Pat 690 = (AIR 1933 Pat 31). As already pointed out, this extraordinary power has for its basis the two exceptional considerations which are attached to a suit of the nature cognizable by a Court of Small Causes. The High Court is not bound under Rule 7 to make a fresh decree when the one made by the subordinate Court is without iurisdiction and the High Court may leave the matter to follow the ordinary consequences; for instance, return of the plaint for presentation to proper Court. Rule 7 merely invests the High Court with iurisdiction but not necessarily directs the ordinary consequences to follow but to make a fresh decree as it thinks fit. But it must be well understood that the expression 'the High Court may make such order as it thinks fit' does not mean that the High Court validates a decree which is a nullity, or condones or cures the defect of jurisdiction. What the expression dors it to confer upon the High Court the large and discretionary power to pass a fresh decree of its own on the basis of the material on record and then it is the decree of the High Court which, by its own force, becomes executable or operative and not because the defect of iurisdiction is condoned or cured. Therefore, this Rule cannot be called in aid to hold that the provisions of Section 16 are directory.
85. In our opinion, it cannot be argued that where the consequences of non-compliance with a provision excluding the jurisdiction of a Court are not specifically provided in the law, such a provision excluding iurisdiction of a Court can be treated as directory. Where jurisdiction of a Court is excluded, that is, when there Is want of jurisdiction, the well known consequence is that the decree rendered by it is a nullity. This principle has been called, by their Lordships of the Supreme Court, 'a fundamental principle well established'. See Kiran Singh's case, AIR 1954 SC 340 (supra).
86. The conclusions we have reached may now be summed up thus:-- (1) Thereis no practical difference between a Court of Small Causes constituted under Section 5 of the Small Cause Courts Act and a Court invested with iurisdiction of a Small Cause Court; for instance, under Section 9 of the M. P. Civil Courts Act, 1958. (2) A Court so invested with jurisdiction of a Small Cause Court is to be deemed, for the purposes of the Small Cause Courts Act and of the Code of Civil Procedure to comprise of two different Courts; (i) a Court of Small Causes with respect to the exercise of jurisdiction of a Small Cause Court; and (ii) a Court with respect to the exercise of its jurisdiction in suits not cognizable by a Court of Small Causes. (3) When there is a Court of Small Causes which has jurisdiction to try a suit, the jurisdiction of all other Courts, which otherwise had jurisdiction to try it is excluded by Section 16 of the Small Cause Courts Act.(4) The language of Section 16 is precise, unambiguous, emphatic and mandatory.(5) There is no difference between a Court which never had jurisdiction but it is excluded by a legislative provision. In either case, there is want of iurisdiction. And, the decree which is passed by a Court without iurisdiction Is a nullity. Such a decree cannot be executed, nor can otherwise be given effect to. (6) Where jurisdiction of a Court has been excluded in respect of a specified subject-matter, no amount of acquiescence, waiver, consent, ignorance of law, inadvertence, error, bona fides, good faith, or any other consideration such (will-Ed) confer such jurisdiction on such Court. (7) When a suit is tried by a Court whose jurisdiction has been excluded, it is a case of jurisdictional want, not a mere procedural defect. A defect in the procedure is an irregularity which occurs in the course of a trial, while following a certain procedure, by a Court which has the initial jurisdiction to try it. (8) A legislative provision, which excludes jurisdiction of a Court, is necessarily imperative and cannot be treated as directory. The word 'shall' in such a provision must be given its ordinary significance (that is, mandatory); it cannot be read as 'may'.(9) It is a fundamental principle well established that a decree passed by a Court without iurisdiction is a nullity and that its invalidity can be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of execution and even in a collateral proceeding.(10) The provisions in the Small Cause Courts Act (for instance. Section 23) and those contained in any other enactment for the time being in force (for instance, Section 24, Civil P. C.; Order 46, Rules 6 and 7, Civil P. C.; Section 15 of the M. P. Civil Courts Act) must be given effect to by virtue of the saving clause in Section 16 of the Small Cause Courts Act. (11) UnderOrder 46, Rule 7, Civil P. C., even if the High Court finds that a decree has been made by an ordinary Court in a suit cognizable by a Small Cause Court, the High Court has large and discretionary power to do substantial justice to the parties by making a fresh decree of its own, having regard to the entire facts and circumstances of the case and the material on record, and thus save the parties of the expense and botheration of a fresh trial. In doing so, the High Court does not validate a decree which is a nullity for want of jurisdiction, nor condones or cures the defect of jurisdiction. The decree which it makes in exercise of the large and discretionary powers under the Rule is a fresh one and shall operate and be given effect to by its own force.
87. I answer the reference thus:--
(1) Where a suit of the small cause nature is instituted and tried as a regular suit by an ordinary Court in contravention of the provisions of Section 16 of the Small Cause Courts Act (No. 9 of 1887), the decree or order rendered in it is without jurisdiction and a nullity.
(2) However, the provisions in the Small Cause Courts Act (for instance. Section 23) and those contained in any other enactment for the tune being in force (for instance, Section 24, Civil P. C.; Order 46, Rules 6 and 7, Civil P. C., Section 15 of the M. P. Civil Courts Act) must be given effect to by virtue of the saving clause in Section 16 of the Small Cause Courts Act. In these and such other cases, the decree passed by an ordinary Court is not in contravention of Section 16 of that Act.
(3) When, by virtue of an order of the District Judge under Section 15 of the M. P. Civil Courts Act, 1958, any civil business cognizable by the District Judge and the Courts under his control is distributed among them and if because of such distribution any cases cognizable by a Court of Small Causes are assigned to ordinary Courts, then the decrees passed by the latter are not nullities; they are valid being within the saving clause of Section 16.
(4) Once the High Court is seized of a case under Order 46, Rule 7, Civil P. C., it has large and discretionary power to make such fresh decree as it may think fit, having regard to all the facts and circumstances of the case and the material on record, even though it finds that an ordinary Court has tried a suit cognizable by a Small Cause Court; and the decree or order passed by such Court is a nullity, being without jurisdiction. Such a decree made by the High Court is a fresh one and is execut-able and given effect to by its ownforce, not because it validates, curesor condones the nullity.
Tare, J.
88. Although, originally I proposed to concur with the opinion of my brother, Naik, J., on going through the opinion of my brother, Shiv Dayal J., I think it necessary to express my own opinion by giving reasons as to why agreeing with the conclusion of Naik, J. and some observations of Shiv Dayal, J. I am unable to agree with certain observations made by my learned brothers in their separate opinions.
89. At the outset it may be observed that the present suit was not at all a suit triable by a Court of Small Causes, nor could it be said to be a suit of the nature of small causes, as has been rightly observed by Naik, J. in the concluding portion of his opinion. As, however, a reference was made by the learned Single Judge to this Full Bench probably without recording a finding whether the present suit was triable by a regular Court or by a Small Cause Court, it is necessary for the Full Bench to answer the reference and record its opinion, as the two Division Bench decisions of this Court in 1968 Jab LJ 566 = (AIR 19G9 Madh Pra 56) and in 1968 Jab LJ 583 = (AIR 1969 Madh Pra 44) have created a lot of confusion and the decrees passed by the regular Courts in numerous cases have been rendered null and void on account of those two decisions.
90. The controversy arose initially when S. B. Sen, J. in Mukund in Firm Kashilal, Civil Revn. No. 178 of 1965. D/-29-9-1965 (MP) expressed the view that a decree passed in contravention of Section 16 of the Provincial Small Cause Courts Act, was a nullity, which could be challenged in execution. The contrary opinion was expressed by Krishnan, J. in Manakchand v. Rajmal, Civil Revn. No. 377 of 1966, D/-29-3-1967 (MP) wherein he expressed the opinion that the trial of a case in contravention of Section 16 of the Provincial Small Cause Courts Act would be a matter relating to procedure and not relating to iurisdiction. Therefore, according to Krishnan, J. the decree passed would not be a nullity and the same could not be challenged in execution proceedings, if no objection be raised during the trial of the suit. It was on account of that conflict that the question was referred by Nevaskar, J. to a larger Bench in 1968 Jab LJ 566 = (AIR 1969 Madh Pra 56) (supra) and by Singh, J in 1968 Jab LJ 583 = (AIR 1969 Madh Pra 44) (supra), and the Division Bench in both those cases, presided over by Dixit, C. J and S. B. Sen, J., answered the reference by holding that such decrees would be nullities, which could be challenged not only in execution proceedings, but also in collateral proceedings, on the principle laid down bytheir Lordships of the Supreme Court in AIR 1954 SC 340.
91. The relevant provisions have been reproduced by my learned brothers, Naik and Shiv Dayal, JJ. in their separate opinions. Therefore, I find it unnecessary to reproduce all those provisions. Section 16 of the Act which relates to exclusion of jurisdiction of other Courts provides as follows: --
'Save as expressly provided by this Act or by any other enactment for the time being in force, a suit, cognizable by a Court of Small Causes shall not be 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.'
My Brother, Naik, J. has given eight reasons for holding that a trial held in contravention of the said section would not affect the initial jurisdiction of a Civil Court to try a suit of civil nature and therefore the same would not be a nullity. Therefore, Naik, J. has opined that if no objection be raised during trial, the same cannot be raised in execution proceedings and the decree can in no case be challenged in collateral proceedings and the principle laid down by their Lordships of the Supreme Court in AIR 1954 SC 340 (supra) would not be attracted. On the other hand, my brother, Shiv Dayal, J. has expressed the opinion that as Section 16 provides for the exclusive jurisdiction of Small Cause Courts thereby excluding jurisdiction of the ordinary Courts, a trial in contravention of the said section would relate to a question of jurisdiction and as the regular Court would be lacking in initial jurisdiction, its decree in contravention of the said section would be a nullity so as to attract the dictum laid down by their Lordships of the Supreme Court in AIR 1954 SC 340 (supra). My learned brothers in their separate opinions ditfer only to this extent; while in respect of other matters, I find practically no conflict.
92. So far as the conclusions Nos. 2 and 3 mentioned by my brother, Shiv Dayal, J are concerned, I do not find any difficulty in agreeing with them. From the separate opinion of my brother, Naik, J., I find that he has made observations which accord witb the said conclusions of Shiv Dayal, J But the only difference between the two is regarding the conclusion No. 1 and partly conclusion No. 4, and I propose to elaborate on that.
93. At this stage I might record my dissent with the observations made by my brother, Naik, J. to the effect that the same principle would be applicable to decree of regular Courts passed in contravention of Section 16 of the Provincial Small Cause Courts Act as to the decrees passed by a Small Cause Court in contra-vention of Section 15 of the Provincial Small Cause Courts Act. With due respect to my learned brother, I may observe that the question whether s decree passed by a Small Cause Court in contravention of Section 15 of the Provincial Small Cause Courts Act, would be a nullity does not arise in the present case and I would reserve my opinion for some suitable occasion.
94. As regards proposition No. 1. propounded by my learned brother, Shiv Dayal, J., I may observe that Section 16 of the Act is no doubt framed in mandatory terms and on the face of it, it might suggest that the prohibition against trial of a suit of the nature of small causes by a regular Court would be absolute. If that be the interpretation, I would have no hesitation in holding that a decree passed in contravention of Section 16 of the Provincial Small Cause Courts Act would be a nullity.
95. But what prevents me from coming to that conclusion and instead persuades me in agreeing with the view expressed by my learned brother, Naik, J., is that Section 16 of the Act has made a provision for a saving clause. The Division Bench in 1968 Jab LJ 566 = (AIR 1969 Madh Pra 56) (supra) and 1968 Jab LJ 583 = (AIR 1969 Madh Pra 44) (supra) expressed its opinion without examining the implication and scope of the saving clause. If the implication and scope of the saving clause had been examined by that Division Bench in details. I am sure, the conclusion of the Division Bench would have been otherwise and in consonance with the view expressed by Naik, J. To illustrate it, I may observe that the Division Bench assumed that a trial of a suit of small cause nature by a regular Court would be in contravention of Section 16 of the Provincial Small Cause Courts Act With due respect to the learned Judges constituting the said Division Bench. I may observe that it is not every trial that would be in contravention of Section 16 of the Act. A trial which is covered by the saving clause under Section 16 of the Act would be perfectly valid and to that extent I am in full agreement with the view expressed by my learned brother, Shiv Dayal, J. Further, I feel that the view as expressed in the said two Division Bench cases needs to be overruled by this Full Bench and accordingly agreeing with my brother, Naik, J., I would overrule the said two Division Bench decisions.
96. If we examine the scope of the saving clause of Section 16 of the Act, it would encompass cases which are mentioned in Section 102 of the Code of Civil Procedure; in Section 24(4) of the Code of Civil Procedure, in Order 46, Rule 6, Civil P. C., in Order 46, Rule 7, Civil P. C., in Section 23 of the Provincial Small CauseCourts Act and also in Section 15 of the M. P. Civil Courts Act, 1958.
97. These provisions have been elaborately scrutinised and examined by learned brothers, Naik and Shiv Dayal, JJ. However, Section 15 of the M. P. Civil Court Act, 1958, has an overriding effect over the provisions of the Code of Civil Procedure and the Provincial Small Cause Courts Act. It may be relevant to reproduce the said Section, which is as follows:
'Section 15. Power to distribute business.--Notwithstanding anything contained in the Code of Civil Procedure. 1908 (5 of 1908), or the law relating to Courts of Small Causes, in force for the time being in any area, the District Judge may by order in writing direct that any civil business cognizable by it and the Courts under its control shall be distributed among those Courts in such manner, as he thinks fit: Provided that except in so far as it may effect the exclusive jurisdiction of a Court of Small Causes', or of a Court invested with the jurisdiction of a Court of Small Causes, a direction given under this section shall not empower any Court to exercise powers or deal with business beyond the limits of its proper jurisdiction.'
Therefore, it is open to a District Judge to send a case of Small cause nature for trial by a regular Court, notwithstanding the provisions of Section 16 of the Provincial Small Cause Courts Act and if such a trial is held by a regular Court, it will not be vitiated, nor can that decree be attacked as a nullity. Of course, according to the proviso to the Section, the Court to which the case is sent for trial should not lack in inherent jurisdiction to try a case of that kind and it must not be beyond the limits of its proper jurisdiction. In that event if the trial is not vitiated. Section 102, Civil P. C. will be attracted, with the result that there will be one appeal under Section 96 of the Code of Civil Procedure, but there will be no Second appeal and the appellate decision, at the most, would be revisable by the High Court under Section 115. Civil P. C. Such a trial would be regularised by the saving clause contained in Section 16 of the Provincial Small Cause Courts Act.
98. Section 23 of the Provincial Small Cause Courts Act also provides for return of the plaint for presentation to a regular Court, where a question of title to immovable property or other title is involved, which a Small Cause Court cannot adjudicate upon. The trial of such a question by the regular Court would also be valid by virtue of the saving clause in Section 16 of the Provincial Small Cause Courts Act.
99. Furtheron Section 24(4) of the Code of Civil Procedure empowers the High Court or the District Court to transfer a case from a Small Cause Court toregular Court. But the only provision Is that for the purposes of such a suit, the transferee Court will also be deemed to be a Court of Small Causes.
100. Order 46. Rule 6, Civil P. C. provides for a reference by a regular Court or by a Small Cause Court to the High Court, where that Court is in doubt whether the suit is cognizable by a Court of Small Causes or is not so cognizable. Such a reference has undoubtedly to be made before the delivery of judgment. In that event the High Court can resolve the doubt and can order the trial of the case by a particular Court. A similar reference is provided for by Rule 7, Order 46, Civil P. C, by subordinate Court. The District Court can make a reference to the High Court and on such reference, the High Court can pass an appropriate order. As has been pointed out by my learned brother. Shiv Dayal, J., the decree passed by the subordinate Court cannot be treated to be a nullity, because the High Court has not been given the power to validate a nullity, but only to pass an appropriate order as in the circumstances of a case may appear to the High Court to be just and proper. All these instances which come within the ambit of the saving clause of Section 16 of the Provincial Small Cause Courts Act, would make the decree valid. In my opinion, these are the eventualities in which the trial of a case would be saved by the saving clause and the trial in such cases, at least, cannot be said to be a nullity. I may further observe that if the matter comes to the High Court either on appeal or in revision, the matter can be set right in exercise of appellate or revisional powers. There is no bar to that course being adopted. In my opinion, it would be a matter relating to procedure only, as has been suggested by my learned brother, Naik. J. Under Section 9 of the Code of Civil Procedure, a Civil Court has the jurisdiction to try all causes of civil nature and as such it would have jurisdiction to try even a small cause suit or a suit of a small cause nature, but for the provisions of Section 16 of the Provincial Small Cause Courts Act, which, however, has provided for a very comprehensive saving clause so as to include many categories of cases, and moreover, Section 15 of the M. P. Civil Courts Act, 1958 having an overriding effect over the provisions of the Code of Civil Procedure and the Provincial Small Cause Courts Act, the trial of a case in contravention of Section 16 of the Provincial Small Cause Courts Act, can, in my opinion, not be said to be vitiated so as to be treated as trial without jurisdiction and to render the decree passed in such a trial an utter nullity. For this reason. I would agree with the view expressed by my learned brother, Naik. J. with due respect to my learned brother, Shiv Dayal, J. with whomI am unable to agree with respect to conclusion No. 1 and conclusion No. 4 (partly) mentioned in the concluding portion of his opinion.
101. Therefore, I would answer the reference by agreeing with the view expressed by Naik. J. on the question referred to this Full Bench.
ORDER
102. In accordance with the opinion of the majority, it is held that the decisions of the Division Bench of this Court in 1968 Jab LJ 566 = (AIR 1969 Madh Pra 56) and 196R Jab LJ 583 = (AIR 1969 Madh Pra 44) do not lay down the correct law and are therefore, hereby overruled. In our opinion, where a suit of a small cause nature is instituted and tried as a regular suit in contravention of the provisions of Section 16 of the Provincial Small Cause Courts Act, the judgment so rendered in it is one which is not without Surisdiction and, therefore, not a nullity.