Khub Singh and Others vs Mohan Singh and Another

In this case there has been a misdescription, the names of the appellants having been substituted for the respondents. We order that to-be put right.

In our opinion our brother Stuart was bound on the facts stated to follow the decision of the Full Bench in Gokaran Singh v. Ganga Singh 52 Ind. Cas. 779 : 42 A. 91 : 17 A.L.J. 1072 : 1 U.P.L.R. (A.) 136. The point of difficulty in this particular case cannot be better put than it was put by Mr. Justice Piggott in the sentence which is quoted at page 97 in the passage beginning with the words" with regard to this I think it sufficient'' to remark....

It is the business of the Trial Court to decide whether a plea is bona fide or not. If it chooses to treat it seriously, it seems to us that it is not for the Court of Appeal to treat it as mala fide, when nobody in the suit in the Court below has ever suggested it. Once it is treated as a serious bona fide issue, and it takes its place among the framed issues, and the Assistant Collector or whoever he may be, gives a decision upon it, we cannot deny that a question of jurisdiction has been decided. If a question of jurisdiction has been decided, Section 177 applies and there is an end of the matter. In this case Mr. Justice Stuart points out that the defendants did plead over, and allege additional matter which raised a so-called question of jurisdiction. He seemed to think that that was not sufficient. That is the point on which we disagree with him and on which we think he failed to follow the Full Bench.

We allow the appeal, set aside the decree of the learned Judge of this Court and restore that of the District Judge dismissing the suit with costs in all Courts.