Sarup Singh vs Ram Ditta Mal and Another

D. Falshaw, J. 1. This revision petition has arisen out of a suit for the recovery of Rs. 500 on the basis of a certain agreement alleged to have been entered into by the parties for the supply of a quantity of charcoal by the Defendants, residents of a village called Chaur Mast in the Ambala Tehsil, to the Plaintiff at Hissar.

The suit was originally instituted at Hissar, but the Defendants raised the plea that the Hissar Court had no jurisdiction to try the suit, and after an inquiry on this point, at which evidence was recorded, the Hissar Court held on the 17th of March, 1956, that it had no territorial jurisdiction and returned the plaint, which was presented in the Court of a Subordinate Judge at Jagadhri on the same day, i.e., the 17th of March. The question of limitation was raised and was decided in the Plaintiff�s favour by the trial Court which decreed the suit for Rs. 500.

In first appeal the learned Senior Subordinate Judge, Ambala, held that the question of limitation was dependent on the finding of fact regarding the execution of the alleged agreement, which was held not to be proved, and the suit was accordingly dismissed.

The point which arises in this revision petition by the Plaintiff is whether the lower Appellate Court was right in holding that a statement made by the scribe of the agreement in dispute as a witness and recorded in the proceedings which took place in the Court at Hissar was not admissible in evidence u/s 33 of the Evidence Act. It appears that by the time the scribe, Gurdit Singh, came to be examined in the course of the trial by the Court at Jagadhri he had become totally blind and his intelligence was also impaired, and the local commissioner who was deputed to examine him found that he could not give any answers which might be of any material value as evidence. The Plaintiff sought to rely an the earlier statement of the scribe recorded in the inquiry regarding the question of local jurisdiction, but the learned Senior Subordinate Judge held that the statement was not admissible u/s 33 of the Evidence Act and found that the rest of the evidence on the point did not establish the Plaintiff�s case.

In deciding the matter he relied on the cases Sankappa Rai and Ors. v. Keraga Pujary and Ors. AIR 1931 Madras 575, and Buta Singh v. Emperor AIR 1926 Lahore 582, in the first of which cases it was held that a proceeding before a Judge or Magistrate who had no pecuniary jurisdiction is not a judicial proceeding and the evidence of a witness given in such a proceeding cannot be used u/s 33 on a retrial before a competent Court. In the Lahore case the accused had been tried by the Sessions Judge, Ferozepore, and convicted for a murder committed in the Native State of Kalsia. On appeal the High Court set aside their convictions and sentences and suggested that Karam Singh, one of the accused, who was a native of Kalsia State, should be tried by the Court of the State, while with regard to the other accused, Buta Singh, who was a British Indian subject, it was left to the police to take action u/s 188, Criminal Procedure Code. Buta Singh was subsequently brought to trial again in the Court at Ferozepore and convicted some four years after the murder had taken place. In the meantime some witnesses had died and their statements in the earlier trial were used u/s 33 of the Evidence Act. It was held that since the earlier trial had been held to be without jurisdiction, the evidence given at that trial could not be used u/s 33 in a retrial in a competent Court. There can be no question about the correctness of these decisions, but it will be noted that in both the cases there was a lack of inherent jurisdiction in the Court which had recorded the statements which |were sought to be used in subsequent proceedings, whereas in the present case I do not consider that there was any lack of inherent jurisdiction in the Court at Hissar which recorded the evidence of witnesses for the purpose of deciding whether it had or had not local jurisdiction to entertain the suit. It is clear that the law recognises a vast difference between inherent jurisdiction and purely local jurisdiction, at any rate as regards civil Courts. This can be feen most clearly in the provisions of Section 21 of the CPC which provides that no objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. The effect of this is that a Defendant who fails to object to the local jurisdiction of a Court at the outset, either through ignorance of the law or in difference, is precluded from raising the question of local jurisdiction in any subsequent appeal or revision, and even if he has raised an objection at the proper time in the trial Court and it has been decided against him, he cannot succeed in appeal or revision on this ground unless he can show that the trial of the case by a Court which did not possess local jurisdiction has resulted in the failure of justice. This is a clear recognition of the principle that local jurisdiction in civil law at any rate is something quite distinct from inherent jurisdiction.

Apart from this it is clear that the Court at Hissar had jurisdiction to record evidence to enable it to decide the question whether it was the proper Court to entertain the suit and the proceedings in the Court at Jagadhri must be regarded as a later stage of the same judicial proceedings within the meaning of Section 33 of the Evidence Act, and there is no dispute that the other requirements of Section 33 are fulfilled in this case.

I am, therefore, of the opinion that the learned Senior Subordinate Judge wrongly excluded from consideration the statement of Gurdit Singh recorded as P.W. 2 in the Court at Hissar on the 12th of July, 1954, and I am of the opinion that the case must be reconsidered by him after taking this statement into account. I accordingly accept the revision petition, set aside the order of the learned Senior Subordinate Judge accepting the Defendants� appeal and dismissing the Plaintiff�s suit and remand the case for redecision after taking into account the evidence which has been ruled out as inadmissible. I make no order as to costs in this Court and the parties have been directed to appear in the Court of the Senior Subordinate Judge, Ambala, on the 7th of November, 1960.