DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY LUCKNOW

final DRAFTCode of civil procedureJurisdiction of civil courts

SUBMITTED TO: mrs.neetu (asst.prof. in law)SUBMITTED BY: Ankit kr mishra6th SEMESTER (ROLL NO. 18) (SEC. A)

TABLE OF CONTENTSTitle of the Project Objective of the Project Jurisdiction meaning Jurisdiction and Consent Basis for determining jurisdiction Jurisdiction of Civil Courts Presumption as to jurisdictionBurden of proofExclusion of jurisdiction: limitationsExclusion of jurisdiction of civil court: principlesGeneral principlesConclusionBibliography

Title of the Project Jurisdiction of Civil Court.Objective of the Project In this project I am going to describe what jurisdiction of civil courts is, clarify the kinds of the jurisdiction that exists and finally state what are the general principles laid down from various decisions of the Supreme Court.Introduction - Jurisdiction meaning The term jurisdiction has not been defined in the Code. The word (jurisdiction) is derived from Latin terms juris and dicto which means I speak by the law.Stated simply, jurisdiction means the power or authority of a court of law to hear and determine a cause or a matter. It is the power to entertain, deal with and decide a suit, an action, petition or other proceeding[footnoteRef:1]. In other words, by jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision[footnoteRef:2]. [1: Concise Oxford English Dictionary (2002) at p. 768; P.R. Aiyar, Advanced Law Lexicon (2005) Vol. III at pp. 2527-30; Justice C.K. Thakker, Encyclopedic Law Lexicon (2009) Vol. II at pp. 2500-04.] [2: Official Trustee v. Sachindra Nath, AIR 1969 SC 823 at p.827: (1969) 3 SCR 92; Ujjan Bai v. State of U.P., AIR 1962 SC 1621 at p. 1629; (1963) 1 SCR 778; Raja Soap Factory v. S.P. Shantharaj, AIR 1965 SC 1449; (1965) 2 SCR 800.]

Thus, jurisdiction of a court means the extent of the authority of a court to administer justice prescribed with reference to the subject-matter, pecuniary value and local limits[footnoteRef:3]. [3: Raja Soap Factory v. S.P. Shantharaj, AIR 1965 SC 1449; (1965) 2 SCR 800.]

Jurisdiction and Consent - It is well-settled that consent cannot confer nor take away jurisdiction of a court. In the leading case of A. R. Anthulay v. R.S.Nayak, Mukharji[footnoteRef:4], J. (as he then was) started, This Court, by its directions, could not confer jurisdiction on the High Court of Bombay to try any case for which it did not possess...... [4: (1988) 2 SCC 602 at p. 650: AIR 1988 SC 1531.]

It was further stated:The power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away right to appeal. Parliament alone can do it by law and no court, whether superior or inferior or both combined, can enlarge the jurisdiction of a court or divest a person of his rights of revision and appeal.If the court has no inherent jurisdiction, neither acquiescene nor waiver nor estoppels can create it. A defect of jurisdiction goes to the root of the matter and strikes at the authority of a court to pass a decree. Such a basic and fundamental defect cannot be cured by consent of parties and the judgment or order passed by a court, however precisely certain and technically correct, is null and void and the validity thereof can be challenged at any stage[footnoteRef:5]. A decree passed without jurisdiction is nonest and its validity can be set up whenever it is sought to be enforced as a foundation for a right, even at the stage of execution or in collateral proceedings. In short, a decree passed by a court without jurisdiction is a coram non judice[footnoteRef:6]. [5: Ibid, see also Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman, (1970) 1 SCC 670: AIR 1970 SC 1475; Chandrika Misir v. Bhaiya Lal, (1973) 2 SCC 474 at p. 476: AIR 1973 SC 2391 at p.2393.] [6: Ibid, see also Sushil Kumar v. Gobind Ram, (1990) 1 SCC 193 at p.205; Isabella Johnson v. M. A. Susai, (1991) 1 SCC 494 at p. 498.]

In the case of Kiran Singh v. Chaman Paswan[footnoteRef:7], the Supreme Court observed: [7: AIR 1954 SC 340: (1955) 1 SCR 117.]

It is a fundamental principle well-established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction...... strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.[footnoteRef:8] [8: Ibid, at p. 342 (AIR); see also Sushil Kumar v. Gobind Ram, (1990) 1 SCC 193.]

Conversely, where a court has jurisdiction to decide a dispute, the same cannot be taken away or ousted by consent of parties. An agreement to oust absolutely the jurisdiction of the court would be unlawful and void, being against public policy (ex dolo malo non oritur action)[footnoteRef:9]. But if two or more courts have jurisdiction to try the suit, it is open to the parties to select a particular forum and exclude the other forums. And, therefore, the parties may agree among themselves that suit should be brought in one of those courts and not in the other, since there is no inherent lack of jurisdiction in the court. Such an agreement would be legal, valid and enforceable[footnoteRef:10]. [9: A.B.C. Laminart (P) Ltd v. A.P.Agencies, (1989) 2 SCC 163 at p. 170.] [10: Hakam Singh v. Gammon (India) Ltd., (1971) 1 SCC 286.]

Basis for determining jurisdiction -It is well-settled that for deciding the jurisdiction of a civil court, the averments made in the plaint are material. To put it differently, the jurisdiction of a court should normally be decided on the basis of the case put forward by the plaintiff in his plaint and not by the defendant in his written statement.Thus, in Abdulla Bin Ali v. Galappa[footnoteRef:11], the plaintiff filed a suit in the civil court for declaration of title and for possession and mesne profits treating the defendants as trespassers. The defendants contended that the civil court had no jurisdiction since he was a tenant. [11: (1985) 2 SCC 54: AIR 1985 SC 577.]

Negativing the contention of the defendants, the Supreme Court observed, There is no denying the fact that the allegations made in plaint decide the forum. The jurisdiction does not depend upon the defence taken by the defendants in the written statement. On a reading of a plaint as a whole it is evident that the plaintiffs-appellants had filed the suit giving rise to the present appeal treating the defendants as trespassers as they denied the title of the plaintiffs-appellants. Now a suit against the trespasser would lie only in the civil court and not in the Revenue Court..... We are, therefore, of the considered opinion that on the allegations made in the plaint the suit was cognizable by the civil court.[footnoteRef:12] [12: Bismillah v. Janeshwar Prasad, (1990) 1 SCC 207 at pp. 210-11: AIR 1990 SC 540.]

The plaintiff, however, cannot by drafting his plaint cleverly circumvent the provisions of law in order to invest jurisdiction in civil court which it does not possess[footnoteRef:13]. It is also well established that in deciding the question of jurisdiction, what is important is the substance of the matter and not the form[footnoteRef:14]. [13: Ram Singh v. Mehal Kalan Gram Panchayat, (1986) 4 SCC 364.] [14: Moolji Jaitha and Co. v. Khandesh Spg. And Wvg. Mills Co. Ltd., AIR 1950 FC 83 at p.92.]

Thus, in Bank of Baroda v. Moti Bhai[footnoteRef:15], the plaintiff Bank lent a certain amount to the defendant in the usual course of its commercial business. By way of a collateral security, however, it obtained a hypothecation bond and a deed of mortgage from the defendant under the Tenancy Act conferring exclusive jurisdiction on the revenue court. When the suit was filed in the civil court for the recovery of amount, it was contended by the defendant that the civil court had no jurisdiction to try that suit. [15: (1985) 1 SCC 475: AIR 1985 SC 545.]

Jurisdiction of Civil Courts - (1) Section 9Under the Code of Civil Procedure, a civil court has jurisdiction to try all suits of a civil nature unless they are barred. Section 9 of the Code reads as under:The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation I. - A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Explanation ll.- For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.(2) ConditionsA civil court has jurisdiction to try a suit if two conditions are fulfilled:(i) The suit must be of civil nature; and(ii) The cognizance of such suit should have been expressly or impliedly barred.(a) Suit of civil nature(i) Meaning- In order that a civil court may have jurisdiction to try a suit, the first condition which must be satisfied is that the suit must be of a civil nature. But what is a suit of a civil nature? The word civil has not been defined in the Code. But according to the Dictionary meaning[footnoteRef:16], it pertains to private rights and remedies of a citizen as distinguished from criminal, political, etc. The word nature has been defined as the fundamental qualities of a person or thing; identity or essential character; sort, kind, character. It is thus wider in content. The expression civil nature is wider that the expression civil proceeding[footnoteRef:17]. Thus, a suit is of a civil nature if the principal question therein relates to the determination of a civil right and enforcement thereof. It is not the status of the parties to the suit, but the subject-matter of it which determines whether or not the suit is of a civil nature. [16: Concise Oxford Dictionary (1990) at p.206; S.A.L. Narayan v. Ishawarlal, AIR 1965 SC 1818 at p.1823.] [17: Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma, 1995 Supp (4) SCC 286 at pp. 318-19: AIR 1995 SC SC 2001 at pp. 2022-23.]

(ii) Nature and scope The expression suit of a civil nature will cover private rights and obligation of a citizen. Political and religious questions are not covered by that expression. A suit in which the principal question relates to caste or religion is not a suit of a civil nature. But if the principal question in a suit is of a civil nature (the right to property or to an office) and the adjudication incidentally involves the determination relating to a caste question or to religious rights and ceremonies, it does not cease to be a suit of a civil nature and the jurisdiction of civil court is not barred. The court has jurisdiction to adjudicate upon those question also in order to decide the principal question which is of a civil nature. Explanation II has been added by the Amendment Act of 1976. Before, this Explanation, there was a divergence of judicial opinion as to whether a suit relating to a religious office to which no fees or emoluments were attached can be said to be as suit of a civil nature. But the legal position has now been clarified by Explanation II which specifically provides that a suit relating to a religious office is maintainable whether or not it carries any fees or whether or not it is attached to a particular place.(iii) Test A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of a question as to religious rites or ceremonies[footnoteRef:18]. [18: Sinha Ramanuja v. Ranga Ramanuja, AIR 1961 SC 1720 at p. 1724: (1962) 2 SCR 509.]

(iv) Suits of civil nature: Illustrations. - The following are suits of civil nature:(i) Suits relating to rights to property;(ii) Suits relating to rights of worship(iii) Suits relating to taking out of religious processions;(iv) Suits relating to right to shares in offerings;(v) Suits for damages for civil wrongs;(vi) Suits for specific performance of contracts or for damages for breach of contracts;(vii) Suits for specific reliefs;(viii) Suits for restitution of conjugal rights;(ix) Suits for dissolution of marriages;(x) Suits for rents;(xi) Suits for or on accounts;(xii) Suits for tight to hereditary offices;(3) Who may decide?It is well-settled that a civil court has inherent power to decide it own jurisdiction[footnoteRef:19]. [19: Bhatia Coop. Housing Society Ltd. V. D.C. Patel, AIR 1953 SC 16 at p.19.]

Presumption as to jurisdiction In dealing with the question whether a civil courts jurisdiction to entertain a suit is barred or not, it is necessary to bear in mind that every presumption should be made in favour of the jurisdiction of a civil court. The exclusion of jurisdiction of a civil court to entertain civil causes should not be readily inferred unless the relevant statute contains an express provision to that effect, or leads to a necessary and inevitable implication of the nature.Burden of proofIt is well- settled that it is for the party who seeks to oust the jurisdiction of a civil court to establish it. It is equally well settled that a statute ousting the jurisdiction of a civil court must be strictly construed. Where such a contention is raised, it has to be determined in the light of the words used in the statute, the scheme of the relevant provisions and the object and purpose of the enactment. In the case of a doubt as to jurisdiction, the court should lean towards the assumption of jurisdiction. A civil court has inherent power to decide the question of its own jurisdiction; although as a result of such inquiry it may turn out that it has no jurisdiction to entertain the suit.Exclusion of jurisdiction: limitationsA litigation having a grievance of a civil nature has, independent of any statute, a right to institute a suit in a civil court unless its cognizance is either expressly or impliedly barred. The exclusion of the jurisdiction of a civil court is not to be readily inferred and such exclusion must be clear.Again, even when the jurisdiction of a civil court is barred, either expressly or by necessary implication, it cannot be said that the jurisdiction is altogether excluded. A court has jurisdiction to examine whether the provisions of the act and the rules made thereunder have or have not been complied with, or the order is contrary to law, malafide, ultra vires, perverse, arbitrary, purported, violative of the principles of natural justice, or is based on no evidence and so on. In all these cases, the order cannot be said to be under the act but is de hors the act and the jurisdiction of a civil court is not ousted. In the leading decision of Secretary of State v. Mask & Co[footnoteRef:20]., the Privy Council rightly observed: [20: (1940) 42 BOMLR 767]

it is settled law that the exclusion of the jurisdiction of the civil court is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well established that even if jurisdiction is so excluded the civil courts have jurisdiction to examine into cases where the provisions of the act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.It is respectfully submitted that the following observations of Subba Rao, J.(as he then was) in the leading case of Radha Kishan v. Ludhiyana Municipality lay down the correct legal position regarding jurisdiction of civil courts and require to be produced:under section 9 of the civil procedure code the court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. A statute, therefore, expressly or by necessary implication can bar the jurisdiction of civil courts in respect of a particular matter. The mere conferment of special jurisdiction on a tribunal in respect of the said matter does not in itself exclude the jurisdiction of civil courts. The statute may specifically provide for ousting the jurisdiction of civil courts; even if there was no such specific exclusion, if it creates liability not existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the remedy could be had. Even in such cases, the civil courts jurisdiction is not completely ousted. A suit in a civil court will always lie to question the order of a tribunal created by statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the act but in violation of its provisions.Exclusion of jurisdiction of civil court: principlesFrom the above discussion it is clear that the jurisdiction of civil courts is all- embracing except to the extent it is excluded by law or by clear intendment arising from such law.In the classic decision of Dhulabhai v. State of M.P[footnoteRef:21]., after considering a number of cases, Hidyatullah, C.J. summarized the following principles relating to the exclusion of jurisdiction of civil courts: [21: 1969 AIR 78, 1968 SCR (3) 662]

a. Where a statute gives finality to orders of special tribunals, the civil courts jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such a provision, however, does not exclude those cases where the provisions of a particular act have not been complied with or the statutory tribunal has not acted in conformity with fundamental principles of judicial procedure.b. Where there is an express bar of jurisdiction of a court, an examination of the scheme of a particular act to find the adequate or sufficiency of the remedies provided may be relevant but this is not decisive for sustaining the jurisdiction of a civil court.Where there is no express exclusion, the examination of the remedies and the scheme of a particular act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if a statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.c. challenge to the provisions of a particular act as ultra vires cannot be brought before tribunals constituted under that act. Even the high court cannot go into that question on a revision or reference from decisions of tribunals.d. When a provision is already declared unconstitutional or the constitutionality of any provisions is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the limitation act but it is not a compulsory remedy to replace a suit.e. Where the particular act contains no machinery for refund of tax collected in excess of constitutional limits or is illegally collected, a suit lies.f. Questions of the correctness of an assessment, apart from its constitutionality, are for the decision of the authorized and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in a particular act. In either case, the scheme of a particular act must be examined because it is a relevant enquiry.g. An exclusion of jurisdiction of a civil court is not readily to be inferred unless the conditions above set down apply.The above principles enunciated are relevant in deciding the correctness or otherwise of assessment orders made under taxing statutes.In Premier Automobiles v. K.S. Wadke[footnoteRef:22], the supreme court laid down the following principles as applicable to the jurisdiction of a civil court in relation to industrial disputes: [22: 1975 AIR 2238, 1976 SCR (1) 427]

h. If a dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the act, the remedy lies only in a civil court.i. If a dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the act, the jurisdiction of a civil court is alternative, leaving it to the election of a suitor or person concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.j. If an industrial dispute relates to the enforcement of a right or an obligation created under the act, then the only remedy available to suitor is to get adjudication under the act.k. If the right which is sought to be enforced is a right created under the act such as chapter V- A, then the remedy for its enforcement is either section 33-C or the raising of an industrial dispute, as the case may be.Again, in Rajasthan State Road Transport Corpn. V. Krishna Kant[footnoteRef:23], after considering various leading decisions on the point, the Supreme Court summarized the principles applicable to industrial disputes thus: [23: 1994 SCC, Supl. (1) 268 JT 1993 (5) 454]

1. where a dispute arises from the general law of contract, i.e., where reliefs are claimed on the basis of the general law of contract, a suit filed in a civil court cannot be said to be not maintainable, even though such a dispute may also constitute an industrial dispute within the meaning of section 2 (k) or section 2-A of the industrial Dispute Act,1947.2. where, however, a dispute involves recognition, observance or enforcement of any of the rights or obligations created by the the industrial Dispute Act, the only remedy is to approach the famous created by the said act.3. similarly, where a dispute involves the recognition, observance or enforcement of rights and obligations created by enactments, like the industrial employment (standing order) act, 1946- which can be called sister enactments to the industrial dispute act- and which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the industrial dispute act provided they constitute industrial disputes within the meaning of section 2(k) and section 2-A of the industrial dispute act or where such enactments says that such dispute shall be adjudicated by any of the forums created by the industrial disputes act. Otherwise, recourse to a civil court is open.4. it is not correct to say that remedies provided by the industrial disputes act are not equally effective for the reason that access to a forum depends upon a reference being made by the appropriate government. The power to make a reference conferred upon the government is to be exercised to effectuate the object of the enactment and hence is not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex facie. The power conferred is the power to refer and not the power to decide, though it may be that the government is entitled to examine whether the dispute is ex facie frivolous, not meriting adjudication.5. consistent with the policy of law aforesaid, we commend to parliament and state legislature to make a provision enabling a workman to approach the labor court- i.e., without the requirement of a reference by the government- in case of industrial dispute covered by section 2-A of the industrial disputes act. This would go a long way in removing the misgiving with respect to the effectiveness of the remedies provided by the industrial disputes act.6. the certified standing orders framed in accordance with the industrial dispute act and its sister enactment is to provide an alternative dispute- resolution mechanism to workmen, a mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to civil courts. Indeed, the powers of courts and tribunals under the industrial disputes act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute.Very recently, in Chandrakant Tukaram v. Municipla Corporation of Ahmedabad, the supreme court reiterated the principles laid down in earlier decisions and stated:it cannot be disputed that the procedure followed by civil courts are too lengthy and, consequently, are not an efficacious forum for resolving the industrial disputes speedily. The power of the industrial courts also is wide and such forums are empowered to grant adequate relief as they just and appropriate. It is in the interest of the workmen that their disputes, including the dispute of illegal termination, are adjudicated upon by an industrial forum.General principles From various decisions of the Supreme Court, the following general principles relating to jurisdiction of a civil court emerge:a. a civil court has jurisdiction to try all suits of a civil nature unless their cognizance is barred either expressly or impliedly.b. Consent can neither confer nor take away jurisdiction of a court.c. A decree passed by a court without jurisdiction is a nullity and the validity thereof can be challenged at any stage of the proceedings, in execution proceedings or even in collateral proceedings.d. There is a distinction between want of jurisdiction and irregular exercise thereof.e. Every court has inherent power to decide the question of its own jurisdiction.f.Jurisdiction of a court depends upon the averments made in a plaint and not upon the defense in a written statement.g. For deciding jurisdiction of a court, substance of a matter and not its form is important.h. Every presumption should be made in favor of jurisdiction of a civil court.i. A statute ousting jurisdiction of a court must be strictly construed.j.Burden of proof of exclusion of jurisdiction of a court is on the party who asserts it.k. Even where jurisdiction of a civil court is barred, it can still decide whether the provisions of an act have been complied with or whether an order was passed de hors the provisions of law.ConclusionFrom the above contents of my project it can be concluded that section 9 at the threshold of the Civil Procedure Code (C.P.C.) primarily deals with the question of civil courts jurisdiction to entertain a cause. It lays down that subject to what are contained in section 10,11, 12, 13, 47, 66, 83, 84, 91, 92, 115, etc., civil court has jurisdiction to entertain a suit of civil nature except when its cognizance is expressly barred or barred by necessary implication. civil court has jurisdiction to decide the question of its jurisdiction although as a result of the enquiry it may eventually turn out that it has no jurisdiction over the matter. Civil court has jurisdiction to examine whether tribunal and quasi- judicial bodies or statutory authority acted within there jurisdiction. But once it is found that such authority, e.g., certificate officer had initial jurisdiction, then any erroneous order by him is not open to collateral attack in a suit. Because there is an essential and marked distinction between the cases in which courts lack jurisdiction to try cases and where jurisdiction is irregularly exercised by courts.

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