Report No. 69
IV. Waiver of Objection to Jurisdiction
16.91. Waiver of objection as to giving jurisdiction.-
We may now refer to a comment of the Civil Justice Committee, relevant to section 44, which was as follows1:
"Under section 44 of the Evidence Act a party may show that any judgment relevant under sections 40, 41 and 42 was delivered by a court not competent to deliver it or was obtained by fraud or collusion. At one time, it was held that consent gave no jurisdiction in any case. A party to a judgment could show in a collateral proceeding that it was not binding on him on the ground of want of jurisdiction even if he had not appealed against it.
But, according to section 21 of the Code of Civil Procedure, an objection as to jurisdiction relating to the place where the suit is instituted is not allowed to be taken in any court of appellate or revisional jurisdiction, unless the same was urged duly in any court of first instance at the early possible opportunity, and in all cases, where issues are settled at or before such settlement, unless there has been a consequent failure of justice. Under section 44 as it stands, this objection can be taken in collateral proceedings and the judgment can be objected to.
This is anomalous. Under the Court Fees Act of 1870, 'every question relating to valuation for the purposes of determining the amount of any fee on a plaint or memorandum of appeal shall be decided by the court in which such plaint or memorandum, as the case may be is filed and such decision shall be final as between the parties to suit', and an appellate court can deal with such a dispute only if it had been decided by the Court in which such suit was instituted wrongly to the detriment of the revenue.
An objection by reason of the over-valuation or under-valuation of a suit or appeal in a court of first instance or in a lower appellate court which had not jurisdiction with respect thereto shall not be entertained by an appellant court unless (a) the objection was taken in the court of the first instance at or before the hearing at which issues were first framed and recorded; or in the lower appellate court in the memorandum of appeal to that court, or (b) the appellate court is satisfied, for reasons to be recorded by it in writing, that the suit or appeal was over valued or under-valued, and that the overvaluation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits 2.
Mere non-competence, even if there is an error as to pecuniary jurisdiction, is not thus a ground for vacating a decree on appeal. There is, therefore, no point in a person being allowed to object to a judgment being proved against him on the ground of want of pecuniary or territorial jurisdiction, where he had not taken such objection in the proceedings in which the judgment was passed or in appeal therefrom. The use of such judgment is calculated to prevent frivolous defences being taken, ignoring the judgment of a court otherwise competent. It should not be left to a litigant to lie quietly when a judgment is passed against him and ignore it on the ground that the court which passed it had not pecuniary or territorial jurisdiction. The recommendation we take leaves unaffected other grounds of want of competency of the tribunal which passed such judgment."
1. Civil Justice Committee, Report, pp. 499-501, paras..-3.
2. Section 11 of the Suits Valuation Act.
16.92. The Civil justice Committee wound up the discussion, with the following recommendation:
"We recommend that section 44 should be so modified as to enable courts to admit, in evidence, judgments if not reversed, or set aside, even though the court that passed them had no territorial or pecuniary jurisdiction to do so."
We agree with the reasoning of the Committee, so far as defects of territorial jurisdiction are concerned. Pecuniary jurisdiction covered on the provision in the Suits Valuation Act. In this connection, we may note that the Amendment made recently to implement the Law Commission's Reports on the Code of Civil Procedure has inserted the following section after section 21 in that Code1:-
"21A. No party to a suit shall be allowed to question the validity of a decree passed in a former suit between the same parties, or between the parties under whom they or any of them claim, litigation under the same title, on any ground based on an objection as to the place of suing.
Explanation.-The expression "former suit" means a suit which has been decided prior to the decision in the suit in which the validity of the decree is questioned, whether or not the previously decided suit was instituted prior to the suit in which the validity of such decree is questioned.
1. Section 9, Code of Civil Procedure Amendment Act, (106 of 1976).
16.94. This amendment will, in substance, achieve the object which the Civil Justice Committee had in mind.