This is an application for a writ of certiorari directed to the Commissioner of the Corporation of Madras and the Chief Judge of the Court of Small Causes to call up their orders passed in the matter of Rao Bahadur Lakshmanan Chettiar declaring him to be disqualified as a candidate at the election about to be held to select a Councillor for the 29th division of this City. Our interference is invoked on the ground that both these officers acted without jurisdiction and that, therefore, their orders should be quashed. In such a matter we act not under statute but under the inherent powers which devolve upon us from the old Supreme Court of Madras. We therefore stand with regard to prerogative writs in the same position as the Court of King's Bench in England and, in our opinion, we ought to follow the rules laid down by that Court in the decided English Cases as to the scope and limitation of its jurisdiction. The facts were stated by us in our decision in C. R. P. No. 742 of 1926‡and it is unnecessary to repeat them. The broad ground on which the jurisdiction of these officers is challenged is that whereas they were only empowered to inquire into disabilities appearing on the face of the nomination paper they in fact travelled outside that jurisdiction and went into a matter of subsistence which was arguable only on grounds not appearing on the face of the nomination paper. Mr. Mockett has taken the preliminary objection that certiorari will not lie where the person who applies for that writ has by his conduct taken the chance of a pronouncement in his favour by the lower Court on the merits. Mr. Krishnaswami Aiyangar for the petitioner has frankly conceded, that his client did argue the case on the merits both before the Commissioner and before the Chief Judge and that he did not only not confine himself to the contention that those officers had no jurisdiction to entertain an objection to the jurisdiction but that he did not take this point at all. The English authorities which were cited prima facie establish the proposition that in such circumstances the applicant cannot obtain a writ of certiorari ex debito justitiae but the Court is exercising a purely discretionary power. See Queen v. Justices of Salop, Queen v. Justices of Leicester, Queen v. Knox Rex v. Williams, Ex parte Phillips, Rex v. West Suffolk Compensation Authority, Ex parte Hudson's Cambridge and Pampisford Breweries Ld.,(5). The point taken by Mr. Krishnaswami Aiyangar is that failure to object to the jurisdiction of the Court whose order is sought to be quashed only debars the applicant when the objection is one involving the investigation of facts which were or should have been within the knowledge of the applicant when he was before the lower Court, and does not apply to a contention of law We see no warrant in the cases for drawing any such distinction, because in our opinion the test that they lay down is whether the applicant armed with a point either of law or of fact which would oust the jurisdiction of the lower Court has elected to argue a case on its merits before that Court. If so, he has submitted himself to a jurisdiction which he cannot be allowed afterwards to seek to repudiate. We are of opinion that the applicant has so conducted himself as to preclude this Court from exercising a discretionary jurisdiction in his favour. The petition will, therefore, be dismissed with taxed costs.
The interim order passed on the 1st October will be vacated.
K.S.DPetition dismissed.