BABU BAIJ NATH SINGH Vs. GAJRAJ SINGH

JUDGEMENT

(1.) THIS appeal arises out of a suit for profits, instituted in the Court of an Assistant Collector. The suit was dismissed for default. The plaintiff applied for restoration of the suit but that application was refused. The plaintiff then appealed to the District Judge and the District Judge allowed the appeal and remanded the case for trial on its merits. It is admitted -here that the order of the learned District Judge was passed without jurisdiction inasmuch as no appeal lay from the order of the Assitsant Collector refusing to restore the suit The Assistant Collector on the case being re-mitted to him decreed the suit in part. The defendant then appealed to the District Judge. It was then pleaded that the order of the District Judge remanding the case was without jurisdiction and that the Court of first instance, therefore, could not have entertained the suit. THIS plea was overruled and the District Judge dismissed the appeal, ihe defendants came in second appeal to this Court and it was contended that the order of the District Judge remanding the suit being without jurisdiction, the subsequent proceedings which resulted in a decree against the defendants were themselves without jursidiction. THIS plea was upheld by the learned Judge of this Court, who very fully reviewed the authorities and came to the decision that the learned District Judge was wrong m remanding the suit and that the proceedings of the Assistant Collector after the remand were without jurisdiction The learned Judge of this Court, therefore allowed the defendants appeal and dismissed the suit.

(2.) THE grounds taken in the memorandum of appeal under the Letters Patent are that the order of remand passed by the District Judge had become final and that Section 591 of the Civil P. C. was not applicable and the propriety of the order of the District Judge could not be questioned inconsequence. It is not necessary to review the authorities which have been considered at great length in the judgment of Mr. Justice Alston. It appears to us that the provisions of Section 578 clearly indicate that this Court can, in second appeal enter into a question which goes direct to the jurisdiction of the Court deciding the appeal. Section 591 deals with orders which the Court had jurisdiction to make but in the making of which the Court had committed an error or irregularity. THE order passed by the District Judge remanding the case was an order passed without jurisdiction, and not merely an erroneous or defective order. As to the authorities we need only refer to the language used by the learned Chief Justice in Rameshur Singh v. Sheodin Singh 12 A. 510 in which it was stated that when a Court does something which by statute it is enacted shall not be done, the doing of the thing by the Court is ultra vires and illegal, and if ultra vires or illegal, it must follow that it was done without jurisdiction. It was held in that case by a Full Bench that where an order was passed without jurisdiction all the proceedings in the case subsequent to the illegal order of remand were ultra vires and must be set aside although the remand order had been followed by the taking of evidence, by findings and by a decree. We, therefore, upholding the decision of the learned Judge of this Court, dismiss this appeal with costs.