V. Subramania Aiyar vs S.C. Annasami Iyer and Others

Kuppuswami Aiyyar, J.—The appellant is the legal representative of the judgment-debtor in O.S. No. 323 of Andu IIII on the file of the

Principal District Munsiff''s Court, Trivandrum. The respondent is the decree-holder. The appeal arises out of proceedings in execution of the

decree in the suit stated above. The defendant in the suit was not a resident of Travancore State and it has been held by both the lower Courts that

the suit was not one cognizable by the Trivandrum District Munsiff''s Court, against the defendant therein and the plea raised by the legal

representative of the defendant was that the decree was passed without jurisdiction and therefore ought not to be executed. Both the Courts have

found that there was submission to the jurisdiction and therefore the decree was validly passed and could be executed. It is as against that order

this appeal has been filed.

It has been held by a Bench of this Court in Narappa Maicker v. Govindaraja Naicken (1934) 67 M.L.J. 187 : ILR Mad. 824 that the question

as to whether there was submission to the foreign Court is a question of fact. Since the lower Courts have found in this case that there was

submission by the defendant, it is not open to me in second appeal to go behind that finding. The suit was filed in respect of a chit fund conducted

by the defendant as a stake holder who was living in Srivaikuntam in the Madras Presidency. The plaintiff had taken half a chit and was a

successful bidder and he sued to recover the balance of the chit amount due to him. The suit was filed as stated above in the Trivandrum District

Munsiff''s Court and the defendant did not appear in that Court. Evidence had to be let in and therefore the plaintiff got a commission issued to the

Srivaikuntam District Munsiff''s Court in the Tinnevelly District to have the defendant in the suit summoned and examined as a witness. The

defendant appeared in the Srivaikuntam Court, pleaded that the District Munsiff of Trivandrum had no jurisdiction to try the suit and he also

protested against any enquiry being made by his being examined as a witness in that case. The District Munsiff of Srivaikuntam held that the

question as to whether the Trivandrum Court had jurisdiction or not was not going to be decided by him and that he had jurisdiction as a Court to

which the papers were sent for examination on commission to call upon the defendant who was within his jurisdiction and examine him and that he

had to answer questions. At the same time the District Munsiff of Srivaikuntam pointed out that this will not amount to submission to jurisdiction.

The defendant who had to be examined on commission if he had merely answered the questions put to him by Court would not have done anything

voluntarily to charge him with having submitted to the jurisdiction of the Court. But he engaged a Counsel. He objected to the questions put to him

and got orders passed thereon by the Court and finally got himself cross-examined and gave statements which were likely to affect the merits of the

case. One of the defences raised by him was that the suit was not maintainable unless security bonds had been obtained and this was elicited not in

chief examination but in cross-examination. It is therefore a case in which it cannot be said that in the enquiry before the Commissioner which the

defendant would have certainly known would go to the District Munsiff of Trivandrum and was likely to influence him in the decision of the case,

the defendant did not make a voluntary act. It was a voluntary act and the question is whether such a voluntary act would amount to submission to

jurisdiction. In Dicey''s Conflict of Laws 5th edition at page 407 this question is dealt with thus:

A person who voluntarily appears as defendant in an action submits himself to the judgment of the Court so that he cannot afterwards dispute its

jurisdiction. A submission is, however, held to be voluntary not only when the defendant appears and pleads to the merits of the case without

protesting against the jurisdiction, but also when, although protesting, he also pleads to the merits and even if he merely appears in order to protest

against the jurisdiction. The ground on which such an appearance as the last can be deemed voluntary is that there is no compulsion on a defendant

to recognise in any way the jurisdiction of a Court which has not, under the rules dealt with in this Digest, jurisdiction over him if, therefore, he

chooses to appear and to object to the jurisdiction of the Court, he involves himself in the necessity of submitting to that jurisdiction, if the plea to

the jurisdiction should be disallowed by the Court. Nor does it make any difference what the motive of his appearance may be. An appearance is

equally voluntary whether it be motived by the fact that the defendant has property within the jurisdiction of the Court on which execution may be-

or has actually been--levied in the event of judgment going against him by default, or even by the fact that, though he has no property within the

jurisdiction, his business often takes him within the jurisdiction so that the judgment of the Court might be made effective against him.

It is thus clear that even though a man protests against the jurisdiction of a particular Court and pleads that the Court had no jurisdiction and does

not submit expressly, still if he does any act which is likely to place his view point before the trial Court and if he is likely to be benefited by a

decision in his favour, it must be presumed that he voluntarily did an act which would amount to submission to the jurisdiction of Court. In this case

there was no obligation on the part of the defendant to engage a Counsel or to take part in the proceedings. He could be prosecuted only if he

refused to answer questions put to him. The defendant not only engaged a Counsel but asked him to object to the several questions which were

put to him. He even got himself cross-examined and in the course of his cross-examination raised a plea which if it had been accepted by the Court

would have ended in the dismissal of the suit. It is therefore clear that this is a case in which there was a voluntary act done by the party in the trial

of the suit and before the decree was passed in which the defendant took the risk or a chance of getting a decision in his favour. It is therefore a

case in which the defendant did take part in the proceedings though he did not appear in the Court at Trivandrum. The commission evidence taken

in Srivaikuntam was part of the records of the case which was filed in Trivandrum and therefore when he voluntarily gave some materials which

formed the records of that case, these facts are enough to indicate or raise an inference that he submitted to the jurisdiction of the Court. Apart

from the fact that it is a decision on the question of fact there is also the circumstance that these facts are enough to indicate that he has submitted

to the jurisdiction of the Court. I accordingly dismiss the civil miscellaneous second appeal with costs. (Leave to appeal is refused).