Abdul Rahim Sahib vs P. Gangathara Aiyar

Krishnan, J.—This is an appeal against an order of the City Civil Court, Madras, returning for presentation to the proper Court the plaint in

Original Suit No. 262 of 1915, filed in that Court by the plaintiff-appellant. The defendant had applied u/s 41 of the Presidency Small Cause

Courts Act for an order of ejectment against the plaintiff and had obtained an order u/s 43 of that Act The plaintiff in his plaint alleges that he has a

permanent right of occupancy on the land and is not liable to be ejected under the order of the Small Cause Court, and prays for a declaration of

that right and for an injunction restraining defendant from executing the order of ejectment or in the alternative for a decree directing defendant to

eject plaintiff only on payment of Rs. 1,500, the value of the superstructures erected by him on the land. At the time he filed his suit the ejectment

order had not been executed and as he obtained a temporary injunction from the City Civil Court, the execution of that order was stopped. As the

learned City Civil Judge has observed, the suit was evidently intended to have the order of the Small Cause Court superseded by the decree

prayed for.

When a Court is given jurisdiction by Legislature to do certain acts or pass decrees or orders in certain matters, its action cannot be sat aside by

any other Court unless the Legislature itself authorises it. Orders and decrees of Courts are usually liable to be set aside by superior Courts in

appeal or in revision, where powers to do so are conferred on those Courts by the Legislature. In some cases certain orders are declared to be

subject to a right of suit. Of Section 73 and Order XXI, Rule 103, of the Civil Procedure Code, 1908. The order of a competent Court passed

with jurisdiction cannot be interfered with except in the manner provided therefor by Legislature, unless, of course, such order is vitiated by fraud.

In the case of an order passed under Chapter VII of the Presidency Small Cause Courts Act the Legislature has provided the remedy by suit

under Sections 46 to 49 of the Act : and except in the manner therein provided no suit will lie in any Court to supersede such an order. Section 46

declares in clause 1 that a person obtaining possession of any property under the chapter, when he was not entitled to such possession at the time

he applied for it, shall not be protected from a suit by any person aggrieved thereby and in clause 2 that the application for an order for possession

by such a person even though he had not obtained possession is itself an act of trespass. Section 47 shows that a suit for compensation for such

trespass is to be filed in the High Court; it also provides how proceedings in the Small Cause Court may be stayed pending such suit, whether the

ejectment order had been passed or not, provided it had not been executed and possession given. If possession had been delivered, Section 48,

clause (1), will apply and the resulting suit which would necessarily be one for trying the title"" must be filed in the High Court u/s 49. The expression

suit for trying the title to the property"" includes, as I understand it, a suit in which any title which the party aggrieved by the ejectment order alleges,

whether as a full owner or as a holder of a limited right, has to be tried and decided.

In both the classes of suits provided for under Sections 47 and 49, the High Court is the forum prescribed and no other Court including the City

Civil Court has, therefore, jurisdiction to entertain or try such suits. The City Civil Court is substituted for the High Court by Section 12 of the City

Civil Court Act only u/s 31 (a) of the Presidency Small Cause Courts Act dealing with execution against immovables, but not under any other

Section.

From the allegations in the plaint it is clear that plaintiff''s case was one falling under clause (2) of Section 46 and his remedy was a suit in the

High Court, The application for a temporary injunction made to the City Civil Court and the suit in that Court were both not maintainable.

It was suggested that the present plaint might be treated as one for a bare declaration of permanent occupancy right having no reference to the

ejectment order and thus cognisable by the City Civil Court. It is sufficient to say that that is not the nature of the plaint; nor will a suit for such a

declaration lie u/s 42 of the Specific Relief Act in the circumstances, as the plaintiff was a party to the ejectment order.

It is urged that suits of the kind filed by the plaintiff have, as a matter of long practice, been in the City Civil Court and tried and decided by it. It

is to be regretted that this question of jurisdiction was not raised before or considered by the City Civil Judge; but practice cannot confer

jurisdiction, however long-continued it may be. I, therefore, dismiss the appeal against order with costs.

Oldfield, J.

I concur.