TMI Blog1924 (1) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondents support the decree on the ground that this finding of the lower Court is not correct; and it is argued that when the case has been properly instituted in a Court and is pending the mere transfer of territorial jurisdiction affecting that case does not transfer the proceedings which were actually pending in the original Court. It is also argued that inasmuch as the plaintiff not only consented to the jurisdiction of the Kumbakonam Sub-Court but actually invoked its jurisdiction in this particular case, he is barred by the principle of Section 21, Civil Procedure Code, from raising the objection now. No doubt, in Subbiah Naicker v. Ramanathan Chettiar (1914) ILR 37 M 462 : 26 MLJ 189, it was observed that, unless the authority which changes the venue reserved the right to the Court which has lost the jurisdiction to continue pending proceedings affecting the property so transferred to another jurisdiction, such proceedings also, ipso facto, are transferred by the change of venue to the new Court. This observation in this particular case was made obiter; and when this case was considered by another Full Bench in Seeni Nadan v. Muthuswami Pillai (1919) ILR 42 M 821: 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction is removed unless it is specifically so done by the order of a competent authority. Once the suit has been entertained, the remaining proceedings taken therein are not taken by reason of any particular territorial jurisdiction, but in the exercise of the powers vested in the Court to try suits generally and consequently the only time at which the territorial jurisdiction comes into operation is at the time of filing the suit. Once the Court has seizin of the case, it has jurisdiction to try it to its conclusion, unless there is any reason for holding that that jurisdiction has been removed. If this be the right principle and I think it is, it would account for the fact that there is no provision in the Civil Procedure Code for the trial of suits, pending in a Court which had territorial jurisdiction at the time of their institution, after such jurisdiction has been removed before the trial is concluded. In this view, it appears to me that the final decree passed in this suit was not passed without jurisdiction. 3. Support to the view that territorial jurisdiction is not more important than and in fact probably not so important as the other form of jurisdiction of a Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndant on the 21st of October, 1912, and Exhibit I purports to contain the terms of the agreement. It is now, however, pleaded that Ex. I in its present condition does not contain the terms of the actual agreement and it is alleged that the document has been tampered with since its execution so as to alter its terms. The agreement, as it now stands, is undoubtedly an agreement to convey the whole of the mortgage property to the 1st defendant, whereas the plaintiff now alleges that out of the 5 velis of mortgage property it was agreed that one veli should be retained by the mortgagors, as well as ₹ 1000 for which there is a provision in Exhibit I. This specific agreement was not pleaded in the present plaint for plaintiff sues for the recovery of the whole of the mortgage property on the ground that the final decree is void. When the 1st defendant filed a counter-suit, the subject-matter of Appeal No. 329 of 1920 for specific performance of the agreement, Exhibit I, making the plaintiff and the mortgagors parties, one of the mortgagors pleaded the agreement now set up. He did not then allege that Ex. I had been tampered with but he did state that though this was the real agreem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed no explanation at all. The document has been carefully examined by us and it is quite clear that there have been erasures in three different portions of the document in paragraph 3, in paragraph 4 and in the correction statement. The erasure has been very carefully done and a casual glance at the document would not reveal it, for the letters have been removed without removing much of the surface of the paper. The most obvious erasure is at the end of the document and possibly this was the only one to which attention was drawn in the lower Court. A more careful examination of the document has now revealed the further erasures and Mr. T. M. Krishnaswami Aiyar for the appellant says that with the aid of a magnifying glass he is able to make out some of the words which had been erased and that those words show that there was a provision in the document whereby the 1st defendant was only to get four velis of land. It is perhaps unfortunate that an issue as to the alteration of this document was not specifically framed, but it could not very well have been framed until the oral evidence had been begun, and it can hardly be said that the defendants have been prejudiced by the omissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion and had merely to deliver up one veli to the original owners, no transfer deed being necessary as there was no transfer of title. This argument, therefore, that the document would be inconsistent, if the words said to be contained therein and erased had really been there fails. 5. It is then contended by the defendants that, inasmuch as the plaintiff seeks to recover this one veli of land and alleges fraud on the part of the defendants, it is incumbent on him to prove this fraud conclusively. The plaintiff does not, however, rely on this document but merely on an agreement between the mortgagors and the 1st defendant and points out that Ex. I, the documentary evidence adduced to prove this agreement is defective by reason of the erasures. It is further argued this document, Ex. I, has frequently been produced in Court on former occasions and no objection has been taken by the plaintiff until now. It was, no doubt, filed in the proceedings prior to the passing of the final decree and afterwards in claim proceedings and in a criminal case as to possession. This latter was as late as 1916, and the translation of the document appears in the printed papers in Criminal Revision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Venkatasubba Rao, J. 10. This appeal raises two questions: first, a question of law, which refers to the entire subject-matter of the suit; and secondly, a question of fact, which has a bearing only upon a portion of that subject-matter. 11. The point of law to be determined is, whether the final decree passed by the Subordinate Judge of Kumbakonam, dated the 25th of January, 1913, in O. P. No. 15 of 1903 is a nullity, for the reason that previous to the date of that decree, in virtue of a Government Notification, dated the 24th August, 1907, the Kumbakonam Sub-Court had ceased to have jurisdiction over certain tracts within the limits of which the suit properties are situated. The learned Subordinate Judge has decided the question in favour of the plaintiff holding that the decree is void as it was passed without jurisdiction, but he gave findings adverse to the plaintiff on the other issues raised and dismissed his suit. In my view the lower Court's judgment can be supported on the ground that the decree is not a nullity and it is therefore unnecessary to deal with the other points adverted to in the judgment of the learned Subordinate Judge. 12. His Lordship the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. The principle underlying Section 21 of the Civil Procedure Code is that the plea of want of territorial jurisdiction may be waived. This section enacts an exception to the general rule that parties by mutual consent cannot confer upon a Court jurisdiction where it has not, the exception enacted being that when the question is one of territorial jurisdiction the plea may be waived. Section 21 runs thus: 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. 15. Under the section, objection will not be allowed unless it was taken at the earliest possible opportunity and unless there has been a failure of justice. The section in terms no doubt does not apply, because it refers to the disallowing of the objection by an appellate or revisional Court. But the principle is of general application and if in appeal or revision the decree cannot be impeached it is equally reasonable that in a collateral proceeding it sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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