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TMI Blog1920 (5) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... barred by res judicata. In the previous litigation, it appears, the plaintiffs succeeded in the Primary Court. Upon appeal by the defendants, the following order was recorded by the Subordinate Judge on the 18th September 1913: 'Heard both parties and appellant' objection. The plaintiff respondent applies to withdraw from suit with liberty to bring fresh suit. There appears reason. The plaintiff filed a Chitta dated 1246 B.S. his case is that the disputed land is covered by that Chitta as belonging to him. That Chitta was not compared or re-laid in the locality and the identity was not established, the oral evidence is not sufficient. I, therefore, allow the snit to be withdrawn and permit the plaintiff to bring fresh suit, if not otherwise barred, on condition of his paying appellants' costs in both the Courts before institution of fresh suit. Appeal thus disposed of. 2. The present suit was, thereafter, instituted on the 2nd April 1914, and was, as already stated, decreed by the trial Court where no objection was taken by the defendants that it was barred by reason of the alleged incompetence of the order in the previous suit. The objection was taken in the lowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others. 4. The case has been argued before us on the assumption that the order for withdrawal in the previous litigation was improperly made. The contention of the appellants is that, even on the assumption that the order was improperly made, it is conclusive between the parties, because, however erroneous it might be deemed to have been, it cannot rightly be regarded as trade without jurisdiction. The contention of the respondents, on the other hand, is that as the Sub ordinate Judge in the previous litigation, invoked the aid of Order XXIII, Rule 1(2) under circumstances not contemplated thereby, the order, in so far as it reserved liberty to the plaintiffs to institute a fresh suit, must be deemed to have been made without jurisdiction and consequently null and void, with the inevitable result that under Sub-rule (3) the plaintiffs are precluded from instituting the present suit. The question thus emerges for consideration whether an order for withdrawal of a suit, with liberty reserved to the plaintiffs to institute a fresh suit in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purposes, Record of Rights as between landlords and tenants. This classification into territorial jurisdiction, pecuniary jurisdiction and jurisdiction of the subject-matter is obviously of a fundamental character. Given such jurisdiction, we must be careful to distinguish exercise of jurisdiction from existence of jurisdiction, for fundamentally different are the con-sequences of failure to comply with statutory requirements in the assumption and in the exercise of jurisdiction. The authority to decide a cause at all, and not the decision rendered therein, is what makes up jurisdiction, and when there is jurisdiction of the person and subject- matter, the decision of all other questions arising in the case is but an exercise of that jurisdiction. The extent to which the conditions essential for creating and raising the jurisdiction of a Court or the restraints attaching, to the mode of exercise of that jurisdiction should be include J in the conception of jurisdiction itself is sometimes a question of great nicety, as is illustrated by the decisions reviewed in the order of reference in Sukh Lal v. Tara Chand 33 C. 68 : C.W.N. 1046 : 2 C.L.J. 241 : 2 Cr. L.J. 618 and Khosh Mahome ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the jurisdiction of the Court was calculated to introduce great confusion into the administration of the law. The view that jurisdiction is entirely independent of the manner of its exercise and involves the power to decided either way upon the facts presented to the Court, is manifestly well founded on principle, and has been recognized and applied elsewhere. Watkins, Ex parte (1883) 7 Peter U.S. 568 : 8 Law. Ed. 786 Herron v. Dater (1886) 120 U.S. 464 : 80 Law. Ed. 748, There is a clear distinction between the jurisdiction of the Court to try and determine a matter, and the erroneous, action of such Court in the exercise of that jurisdiction. The former involves the power to act at all while the latter involves the authority to act in the particular way in which the Court does act. The boundary between an error of judgment and the usurpation of power is this: the former is reversible by an Appellate Court within 'a certain fixed time and is, therefore, only voidable, the latter is an absolute nullity. When parties are before the Court and present to it a controversy which the Court has authority to decide, a decision not necessarily correct but appropriate to that questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Kali Prasanna Sil v. Panchanan Nandi Ghowdhury 33 Ind. Cas. 670 : 23 C.L.J. 489 : 20 C.W.N. 1000 : 44 C. 367; but, till it has been so vacated, it is operative between the parties and cannot be ignored or challenged collaterally in a different proceeding. There is thus to escape from the position that the decision in Kali Prasanna Sil v. Panchanan Nandi Chowdhury 33 Ind. Cas. 670 : 23 C.L.J. 489 : 20 C.W.N. 1000 : 44 C. 367 cannot be defended on principle. That decision, indeed, has been doubted on more than one occasion, as pointed out in the Order of Reference, Besides the cases mentioned therein, reference may particularly be made to the judgment of Srinivasa Aiyangir, J., in Tuljaram Bow v. Gopala Aiyar 40 Ind. Cas. 611 : 32 M.L.J. 434 : (1917) M.W.N. 234 : 21 M.L.T. 229 where the true rule was stated to be that, if a Court has jurisdiction to try a suit and has authority to pass orders of a particular kind, the fact that it has passed an order which it should not have made in the circumstances of that litigation, does not indicate total want or loss of jurisdiction so as to render the order a nullity. 8. The first three questions referred to the Full Bench must, con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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