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Report No. 54

Lack of jurisdiction

1D.29. In order that estoppel by record may arise out of an English judgment, the court which pronounced the judgment must have had jurisdiction to do so.1 The lack of jurisdiction deprives the judgment of any effect, whether by estoppel. or otherwise.2 Thus, a magistrate hearing a summons3 for the expenses of making up a new street,4 or for trespass to land,5 and having jurisdiction for that purpose, may dismiss the summons on the express ground (in the one case) that the street was repairable by the inhabitants, or in the other that the defendant had established a title to the property; but though such a finding is embodied in the order as drawn up, it creates no estoppel between the parties for it relates to a matter which the magistrate had no jurisdiction directly and immediately to adjudicate upon, being at most incidentally cognizable, so far only as necessary to his decision on the actual question submitted6.

1. Cf. Rosenfeld v. Newman, (1953) 2 All ER 885 (CA).

2. (a) Rogers v. Wood, (1831) 2 B&Ad 245.

(b) Archbishop of Dublin v. Lord Trimleston, (1849) 12(I) Eq R 152.

3. Under the Public Health Act, 1875.

4. See R. v. Hutchings, (1881) 6 QBD 300 (CA); followed in Scoot v. Lowe, (1902) 86 LT 421.

5. A.G. for Trinidad and Tobago v. Eriche, 1893 AC 518 (PC).

6. Cf. Dover v. Child, (1876) 1 Ex D 172 [Magistrates' refusal to order delivery up of goods under the Metropolitan Police Courts Act, 1839 (2 and 3 Vict., C. 71), section 40 is not an adjudication on title which he has no jurisdiction to make]; Re Vitoria, ex parte Vitoria, (1894) 2 QB 387 CA (refusal of receiving order no adjudication on the debt); applied in King v. Henderson, 1898 AC 720 (730) PC.

1D.30. It appears that the problem is one which is inherent in the co-existence of courts of limited and unlimited jurisdiction. The problem, however, can be solved if a court of limited jurisdiction is required to submit the case to the district court-which is a court of unlimited jurisdiction-whenever the former is satisfied that the suit involves a question of such a nature that if a suit had been brought for relief based principally on that question, the court would have been incompetent to try the suit. What we have stated above may appear to be rather abstract, and we shall, therefore, deal with the matter more elaborately.

1D.31. If, for example, a court of Munsiff or a Junior Civil Judge trying a suit for rent is faced with the question of title, which, having regard to the value of the immovable property is beyond his pecuniary jurisdiction, then he should stay the trial, and refer the case to the district court, which will transfer the suit to another court competent to decide the question of title.


1D.32. In the light of what is stated above, we recommend the insertion of a new section as follows:-

To insert new section 23A.

"23A. (1) Where any court subordinate to the district Court is satisfied that a suit pending before it and within its jurisdiction involves a question of the nature referred to in sub-section (2), the determination of which is necessary for the disposal of the case, the Court shall stay the proceedings and submit the case, with a brief report explaining its nature, to the district Court.

(2) The question referred to in sub-section (1) is a question of such a nature that if a suit had been brought for relief based principally on that question, the Court would have been incompetent to try the suit.

(3) Where a case is submitted under sub-section (1) to the district Court, the district Court shall, after notice to the parties and after hearing such of them as desire to be heard-

(a) transfer the suit for trial to any Court subordinate to it and competent to try the suit referred to in subsection (2), or

(b) withdraw the suit to itself and try it.

(4) Where any suit has been transferred or withdrawn under sub-section (3), the Court which thereafter tries such suit may, subject to any special direction in the case of an order of transfer, either re-try it or proceed from the point at which it was transferred or withdrawn.

(5) For the purposes or this section, courts of Additional and Assistant Judges shall be deemed to be subordinate to the district Court.

(6) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.

(7) The district Court shall cause a copy of such order to be sent to the court by which the case is submitted".

The Code of Civil Procedure, 1908 Back

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