You are on page 1of 15

CODE OF CIVIL PROCEDURE

SUITS OF CIVIL NATURE

FIRST DRAFT

Aditya Tanay Pandey

2016_006

4th Semester

B.A.LLB.

Submitted To – Prof. Millind Gawai


TABLE OF CONTENTS

1. INTRODUCTION ................................................................................................................... 3

2. WHAT IS THE JURISDICTION OF CIVIL COURTS ........................................................ 4

3. WHAT IS MEANT BY ‘CIVIL’ ........................................................................................... 6

4. EXCLUSION FROM CIVIL COURTS JURISDICTION ..................................................... 9

4.1. GENERAL .......................................................................................................9

4.2. TESTS ...........................................................................................................10

4.3. SEVEN PROPOSITIONS .................................................................................12

5. CONCLUSION...................................................................................................................... 13

6. BIBLIOGRAPHY.................................................................................................................. 14

2
1. INTRODUCTION

The Section 9 of CPC provides that the civil courts shall have jurisdiction to try all suits of a
civil nature excepting suits of which their cognizance is expressly or impliedly barred. Now,
what are constitutes suits of civil nature has been explained by the Explanation I and II of
Section 9.

According to the Explanation I, a suit in which right to property or to an office is contested is a


suit of civil nature not with-standing that such rights may depend entirely upon the decision of
question as to religious rites or ceremonies. Also, Explanation II says that for the purpose 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. Therefore, it is clear
from the Explanation I of Section 9 that it will not make any difference if such right to property
or to an office depends entirely on the decision of questions as to religious rites or ceremonies.1

It is also seen that under Section 9 of CPC the words “suits expressly barred” means to say that
there are certain types of suits which are barred by the code itself, such as –

i) Section 11 of CPC or Res judicata bars the trial of a suit, in which the matter or issue
of the parties has already been decided by a competent court.
ii) Section 47 bars the determination of all questions relating to execution, satisfaction,
and discharge of decrees.
iii) Section 10, Section 95, Order 2 Rule 2, Order 9 Rule 9 and Order 22 Rule 11 also bar
filing of fresh suit.

It is further seen that Section 9 of CPC means to say that there are certain types of suits which
are barred by general principles of law or barred on the ground of public policy. Some statutes
also barred the jurisdiction of civil courts and conferred the jurisdiction on Tribunals.

1
Section 9, Code of Civil Procedure 1908

3
2. WHAT IS THE JURISDICTION OF CIVIL COURTS

To understand the role of Civil Courts it is instrumental to observe that the CPC does not define
the term jurisdiction. In fact, none of the substantive or procedural laws seeks to define the term
“jurisdiction". Black’s Law Dictionary defines “jurisdiction" as “A court’s power to decide a
case or issue a decree."2

The Calcutta High Court in a full bench judgment in Hirday Nath v. Ram Chandra3 sought to
explain the term jurisdiction. It stated:

“jurisdiction may be defined to be the power of Court to hear and determine a cause, to
adjudicate and exercise any judicial power in relation to it; in other words, by
jurisdiction is meant the authority which a court has to decide matters presented in a
formal way for its decision."

It went on to clearly demarcate three categories of jurisdiction namely, subject matter jurisdiction
i.e. whether the particular court in question has the jurisdiction to deal with the subject matter in
question; territorial jurisdiction i.e. whether the court can decide upon matters within the territory
or area where the cause of action arose; and pecuniary jurisdiction i.e. whether the court can hear
a suit of the value of the suit in question.

Furthermore, the Hon’ble Supreme Court in the matter of Abdul Gafur v. State of Uttrakhand 4,
observing on jurisdiction of Civil Court, has stated that as per Section 9 of CPC, in all types of
civil disputes, the Civil Courts have inherent jurisdiction unless a part of that jurisdiction is
carved out from such jurisdiction, expressly or by necessary implication by any statutory
provision and conferred on other Tribunal or Authority. Thus the law confers on every person an
inherent right to bring a suit of civil nature of one’s choice, at ones peril, howsoever frivolous the
claim maybe, unless it is barred by a statute.5

2
‘Jurisdiction’, Blacks Law Dictionary (Accessed on 3 rd February, 2:41 PM)
https://thelawdictionary.org/jurisdiction/
3
AIR 1929 Cal 445
4
2008 (10) SCC 97
5
O.P. Jaiswal and Others, Civil : Jurisdiction and Exclusion of jurisdiction (Accessed on 4th February, 6:45 AM)
http://mja.gov.in/Site/Upload/GR/%20%20Summ%20of%20Jurisdiction%20.pdf

4
It must be further understood that the jurisdiction of the court is not whether the court is entitled
to pass a particular order or decree in a suit. It is whether the court has the right to hear the
particular case. Moreover, the jurisdiction is decided by the allegations made in the plaint, and
not the defense’s arguments.

As seen in the introduction of this paper Section 9 of the CPC clearly allows for the legislature
by statute to expressly bar the jurisdiction of the Civil Courts.6 The general rule however is that
the presumption would be made in favour of the existence of a right to sue in a Civil Court, the
exclusion of the same being an exception.7 The Supreme Court has laid down the rule that the
plea of absence of jurisdiction can be raised and entertained at any stage.

In the absence of clarity in the point, the researcher believes that the plea of the absence of
jurisdiction should be allowed only at any point of the case when in the Court of First Instance,
and not in any appeals subsequent to it. Allowing such pleas in appeal might be misused by the
appellant having lost the suit in the lower court. For instance, the losing party in the Court of
First Instance may raise the plea in the appellate court in case he loses in the Lower Court,
despite the suit commencing on his petition. This would be gross injustice to the other party and
would also be against the principles of natural justice. Hence it must not be allowed to raise the
plea at the appellate court.

6
Section 9, Code of Civil Procedure 1908
7
Justice S.U. Khan, Brochure on Jurisdiction of Civil Court and Its Bar (Accessed on 4th February, 3:13 PM)
http://ijtr.nic.in/article_chairman2.pdf

5
3. WHAT IS MEANT BY ‘CIVIL’

Similar to ‘Jurisdiction’, the word ‘Civil’ has also not been defined. However, Explanation I of
Section 9 makes it clear that the suit in which the principal question relates to a civil right is a
civil suit.

In Sankaranarayan Potti v. K Sreedevi 8, the Apex Court held that, “it is obvious that in all types
of civil disputes civil courts have inherent jurisdiction as per Section 9 of the CPC unless a part
of that jurisdiction is carved out from such jurisdiction, expressly or by necessary implication, by
any statutory provision and conferred on any other tribunal or authority.”9

This in itself means that the Legislature, may, if it so desires, exclude certain portions of any law,
or any law in its entirety by including a clause or provision in the Act itself. Hence, the current
position regarding the jurisdiction of Civil Courts is that they have inherent jurisdiction to hear
into civil matters unless it is expressly or implied excluded by a statute.10 The Supreme Court has
held that the burden of proof for the exclusion of the jurisdiction of the court is on the party
contending it.11

Another important point to make here is that the Supreme Court in a landmark judgement held
that it is the Civil Courts itself that has the power to decide if it has the power to decide if it
lacks, or has the jurisdiction to entertain a particular suit, even if on investigation, it is found that
it does not.12

In the case of a statute that bars the jurisdiction of the Civil Courts, the Supreme Court in the
case of State of A.P. v. Manjeti Laxmi Kanth Rao13 devised a test for determination of the
exclusion of the jurisdiction of Civil courts. First it is to be determined the legislative intent to
exclude the jurisdiction “either explicitly, or by necessary implication". This means that the
Court must first try to determine the precise reasons for the exclusion of the Civil Courts, and
whether it is justified. However the justification is not open to judicial review. Once the court

8
(1998) 3 SCC 751
9
Id.
10
Supra at 5
11
Dwarka Prasad Agarwal v. Ramesh Chandra Agarwal And Ors, (2003) 6 SCC 220
12
Firm I.S. Chetty and Sons v. State of Andhra Pradesh, AIR 1964 SC 322
13
AIR 2000 SC 2220

6
satisfies itself of the same, the court needs to determine whether the statute, which bars such
jurisdiction provides for a suitable alternate remedy. An alternate remedy in this respect must be
capable of performing the functions that would have been performed by the civil court in the
absence of such exclusion, and must be empowered to pass any order which the civil court in like
circumstances would have passed. In the absence of such alternate mechanism, the jurisdiction of
the Civil Court cannot be excluded. This view has also been accepted by the High Court at
Calcutta in Arunava Ghosh and Ors v. Bar Council Of West Bengal 14.

However it was held in Balawwa and Anr. v. Hasanabi and Ors.15, that the jurisdiction of the
Civil Court is ousted in respect of a tribunal created by a statute only so far as the reliefs that
could be granted by the tribunal in question. The case was particularly in regards the Land
Tribunal, but the researcher believes that this is the correct implication and applies to all
tribunals under different Acts. In this respect, it has been held by the High Court at Allahabad in
number of cases that a suit is barred of jurisdiction by the Civil Courts only if the cognisance of
the entire suit is barred. This implies that if a certain suit arises, a part of which is not ordinarily
to be tried by the Civil Court, due to express or implied exclusion, it is not true that the entire suit
will be barred. Since the other points of law or reliefs sought are beyond the tribunal, or even if
not beyond the special tribunal created under the Act, the jurisdiction of the civil court is not
ousted and hence still has inherent jurisdiction to try the suit. It is not exactly clear if the special
tribunal under the Act can pass a judgment in relation to the part of the case in which the
jurisdiction of the civil court is excluded.

The Supreme Court held that if any statute creates right, which does not pre-exist in Common
Law, and creates a mechanism for enforcement of the same, both the right and the remedy being
created uno flatu, excludes the jurisdiction of the Civil Court, even in the absence of an express
provision.16 This view has been resonated by High Courts across the country.

The jurisdiction of a Civil Court is taken away when the statute in question clearly states that the
decision of the tribunal that the particular statute creates is final. This is subject to the fact that

14
AIR 1996 Cal 331
15
(2000) 9 SCC 272
16
Automobiles Ltd. v. Kamlakar Shantaram, AIR 1975 SC 2238

7
the tribunal thus created is sufficiently empowered to act as a Civil Court would in a similar
situation.

17
The Supreme Court has held in Shri Panch Nagar Parakh v. Purushottam Das that in the
absence of any express exclusionary provision, the court needs to examine the purpose, scheme
and relevant provisions of the Act in order to determine implied exclusion of the jurisdiction of
Civil Courts. An example of such implied exclusion would be a suit by a person whose property
is attached under Code of Criminal Procedure, 1898 is impliedly barred from filing a civil suit
and can only invoke clauses under that Act for remedies.

However it must be mentioned that the Supreme Court has held that ouster of the jurisdiction of
Civil Court by a statute, whether explicitly or implicitly does not bar the court from examining
whether the provisions of the Act have been complied with, or if the authority under the Act has
acted in accordance with the principles of natural justice.18

17
(1999) 6 SCC 656
18
Dhulabhai v. State of M.P., AIR 1969 SC 78

8
4. EXCLUSION FROM CIVIL COURTS JURISDICTION

It is often observed that to define something which is very broad, we prefer defining it by what it
doesn’t stand for instead of what it does. This can be seen in how ‘Hindu’ is defined under Hindu
Marriage Act as well. Thus when we talk about Civil Courts Jurisdiction, it is better to see what
doesn’t fall under it. This is explored further below in what is generally not under the jurisdiction
of the Civil Court, what tests have been laid down by the Judiciary to determine a case’s
jurisdiction as well as what are the seven propositions.

4.1. GENERAL

It is commonly observed that a Civil Court can entertain any suit of civil nature except those
whose cognizance is expressly or impliedly barred.19 Any exclusion from jurisdiction of civil
court should not to be readily inferred.20 Furthermore more it has been held that exclusion of the
jurisdiction of the civil court must be made in clear and unequivocal terms.21 The jurisdiction of
the Civil Court to which lies a right to decide dispute between parties, can only be taken away by
a statute in specific terms and this exclusion of right shouldn’t be easily inferred because there is
always a strong presumption that the Civil Courts have the jurisdiction to decide all questions of
civil nature, if at all there has to be an inference the same, it should be in favour of the
jurisdiction of the Court rather than against such jurisdiction. 22 It is further see that when a legal
right is infringed, a suit would lie unless there is a bar against entertainment of such civil suit and
the civil courts would take cognizance of it. Therefore, the normal rule of law is that civil courts
have jurisdiction to try all suits of civil nature except those of which cognizance is either
expressly or by necessary implication excluded. Thus the rule of construction becomes that every
presumption would be made in favour of existence of a right and remedy in a democratic set-up
governed by rule of law, and jurisdiction of the civil courts is assumed. The exclusion would,
therefore, normally be an exception.23

19
Ramkanya Bai v. Jagdish, (2011) 7 SCC 452
20
State of Andhra Prad v. Manjeti Laxmi Kantha Rao, AIR 2000 SC 2220 (2221, 2222)
21
Bhanwar Lal v. Rajasthan Board of Muslim Wakf, AIR 2014 SC 758
22
I.T.I Ltd. v. M/s. Siemens Public Communications Networks Ltd., AIR 2002 SC 2308 (2311)
23
S. Vanathan a v. Ramalingam, (1997) 6 SCC 143 (146)

9
It is further noted that ouster of the jurisdiction of the civil court shouldn’t be readily inferred.24
In case a tribunal is set up under a certain statute and it cannot grant a particular relief, then the
jurisdiction of the civil court to grant the relief is not barred.25 Also, the Civil Court does not
have the jurisdiction to decide matters which are required to be dealt by the Tribunal created
under a statute.26

Competency of the jurisdiction or the lack of the same in a particular Court cannot be determined
by the parties through their pleadings, viz., Court having jurisdiction under the law to decide a
particular issue cannot be kept away from deciding the same on the basis of averments made by
the parties and, in the same manner, the jurisdiction cannot be conferred on a particular Court on
the basis of pleading and admission.27

4.2. TESTS

The Jurisdiction of the civil court to deal with civil causes can be excluded by the Legislature by
special acts to deal with special subject matters; but the statutory provision must expressly
provide for such exclusion, or must inevitably lead to that inference. One test is whether the
special statute which excludes such jurisdiction has used clear and unambiguous words
indicating this intention.

Another test is that, does the said statute provide for an adequate and satisfactory alternative
remedy to a party that may be aggrieved by the relevant order under its provisions.28 This
exclusion of jurisdiction of the civil court would be subject to two limitations: First, 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. The second is as regards the exact extent to which the powers of
statutory tribunals are exclusive. Where the legislature says that if a certain state of facts exists
and is shown to such tribunal or before it proceeds to do certain things, it shall have jurisdiction
to do such things. But it is not for them to decide whether that state of facts exists, and if they
24
Narahari v Jadu Moni, A 1987 O 122
25
Balawwa v. Hansabai, (2000) 9 SCC 272 (274)
26
Saraswatibai Trimbak Gaikwad v. Damodar D. Motiwale, AIR 2002 SC 1568
27
Bhim Bahadur v. Vikram Singh, AIR 2016 UTR 8 (10)
28
Ramswarup v. Shikarchand, A 1966 SC 893

10
exercise the jurisdiction without its existence, what they do can be questioned, and it will be held
that they acted without jurisdiction. Also, the Legislature entrusts the tribunal with a jurisdiction,
which includes the jurisdiction to determine whether the preliminary state of facts exist as well
as the jurisdiction to proceed further or do something more on finding such a situation exists.
When the Legislature is establishing such a tribunal or body with limited jurisdiction, it also has
to consider whether there shall be an appeal from their decision, for otherwise there would be
none.

In the latter of the two cases it is erroneous to say that the tribunals cannot give themselves
jurisdiction by wrongly deciding certain facts to exist, because the Legislature gave them
jurisdiction to determine all the facts including existence of preliminary facts on which the
further exercise of their jurisdiction depends and if they were given jurisdiction so to decide,
without any appeal being given, there is no appeal from exercise of such jurisdiction. The
question whether any particular case falls under the first or the second of the above categories
would depend on the purpose of the statute and the general scheme, taken in conjunction with the
scope of enquiry entrusted to the tribunal and other relevant factors.29

Generally speaking, the broad guiding considerations for determining whether civil court
jurisdiction is excluded are that whenever a right, not pre-existing in common law, is created by
a statute which itself provided a machinery for enforcement of that right, and a finality of such
statutory provision is intended, then, even in the absence of an exclusionary provision the civil
court's jurisdiction is impliedly barred. If however a a right pre-existing in common law is
recognized by the statute and a new statutory remedy for its enforcement provided, without
expressly excluding the civil court's jurisdiction, then both the common law and the statutory
remedies might become concurrent remedies.30

29
Desika Charyulu v. S, A 1964 SC 807, Ebrahim v. Custodian, A 1952 SC 319, Gurbax Singh v Financial
Commissioner AIR 1991 SC 435, Bharat Aluminum Co. v. Kaiser Aluminum Technical Services Inc. (2012) 9 SCC
552
30
Raja Ram v Union, A 1988 SC 752

11
4.3. SEVEN PROPOSITIONS

In closing we see that there are seven propositions of law regarding exclusion of jurisdiction of
civil court which have been laid down through various judgments –

1. In cases where orders are deemed to be final since they are passed by the special
tribunals, the civil courts’ jurisdiction is held to be excluded since there is an adequate
remedy to do what civil courts would normally do in a suit. Such instances, however, do
not exclude those cases where the provisions of the particular Act have not been
complied with or the statutory tribunal has not acted in line with the fundamental
principles of judicial procedure.
2. In cases where there is an express bar on the jurisdiction of the court, the scheme of the
particular act should be examined to find the adequacy or sufficiency of the remedies
provided for as they may not be decisive to sustain the jurisdiction of the civil court.
Further in cases where there is no express exclusion, the examination becomes necessary
to find out the intendment to assure that the result of the inquiry is decisive. In the latter
case it is necessary to see if the statute creates a special right or a liability and provides
for its redressal and further emphasizes that all the questions of the provided right or
liability are determined by the tribunals which are constituted.
3. Furthermore it has been held that challenges to provisions of particular Acts which are
ultra vires to the said Act cannot be brought before tribunals constituted under that Act.
4. In cases where a provision has been declared unconstitutional or the constitutionality of
any provision is being challenged, validity of a suit stands.
5. Suits are allowed in instances of Acts having no machinery for redressal or for instance,
refund of tax collected in excess of constitutional limits or illegally collected.
6. In instances where the correctness of the assessment is questioned and not its
constitutionality and it is to be decided by particular authorities and a civil suit does not
lie if the orders of the authorities is declared to be final or there is an express prohibition
in the particular Act, then the scheme of the particular Act must be examined.

12
7. If the above conditions do not apply then an exclusion of jurisdiction of the civil court
cannot be readily inferred.31

The normal rule of law is that Civil Courts have jurisdiction to try all suits of civil nature except
those of which whose cognizance is either expressly or impliedly excluded under Section 9 of
the Code of Civil Procedure. It should be taken into account that such exclusion is not readily
inferred and the assumption to be drawn should be in favour of the existence rather than rejection
of the Civil Courts to try Civil Suit. The test adopted in examining such a question is a) whether
the legislature intent to exclude arises explicitly or by implication, and b) whether the statute in
question provides for adequate and satisfactory remedy to a party aggrieved by an order made
under it. However, in cases where a statute gives finality to the orders of the special tribunals,
jurisdiction of the civil courts is excluded if there is adequate remedy to do what the civil courts
would normally do in a suit. Furthermore, such provision does not exclude those cases where the
provisions of the particular Act have not been complied with or the statutory tribunal has not
acted in conformity with the fundamental principles of judicial procedure.32

5. CONCLUSION

We see clearly from all the above research that the jurisdiction of the Civil Court does not extend
to all matters. Furthermore, it is limited to certain extent on case to case basis. However it has
“inherent" jurisdiction to try all suits of a civil nature in the absence of any exclusion of the
same. Nevertheless the researcher hopes that the Supreme Court of our country comes out with
further clarifications, to remove any lacunas of uncertainty regarding the jurisdiction of a Civil
Court.

A further detailed synopsis will be included in the final submission.

31
Dhulabhai v. State of MP, A 1969 SC 78. See also, Church of North India v. Lavajibhai Ratanjibhai, AIR 2005
SC 2544; Bhanwar Lal v. Rajasthan Board of Muslim Wakf, AIR 2014 SC 758; State of Andhra Pradesh v. Manjeti
Laxmi Kantha Rao, AIR 2000 SC 2220 (2221,2222)
32
State of Andhra Pradesh v. Manjeti Laxmi Kantha Rao, AIR 2000 SC 2220 (2221,2222)

13
6. BIBLIOGRAPHY

Web-Links Referred -

 ‘Jurisdiction’, Blacks Law Dictionary (Accessed on 3rd February, 2:41 PM)


https://thelawdictionary.org/jurisdiction/
 Justice S.U. Khan, Brochure on Jurisdiction of Civil Court and Its Bar (Accessed on 4th
February, 3:13 PM) http://ijtr.nic.in/article_chairman2.pdf
 O.P. Jaiswal and Others, Civil : Jurisdiction and Exclusion of jurisdiction (Accessed on
4th February, 6:45 AM)
http://mja.gov.in/Site/Upload/GR/%20%20Summ%20of%20Jurisdiction%20.pdf

Statute Referred -

 Code of Civil Procedure 1908

Cases Referred –

 Abdul Gafur v. State of Uttrakhand 2008 (10) SCC 97


 Arunava Ghosh and Ors v. Bar Council Of West Bengal AIR 1996 Cal 331
 Automobiles Ltd. v. Kamlakar Shantaram, AIR 1975 SC 2238
 Balawwa and Anr. v. Hasanabi and Ors (2000) 9 SCC 272
 Bhanwar Lal v. Rajasthan Board of Muslim Wakf, AIR 2014 SC 758
 Bharat Aluminum Co. v. Kaiser Aluminum Technical Services Inc. (2012) 9 SCC 552
 Bhim Bahadur v. Vikram Singh, AIR 2016 UTR 8 (10)
 Church of North India v. Lavajibhai Ratanjibhai, AIR 2005 SC 2544
 Desika Charyulu v. S, A 1964 SC 807
 Dhulabhai v. State of MP, A 1969 SC 78
 Dwarka Prasad Agarwal v. Ramesh Chandra Agarwal And Ors, (2003) 6 SCC 220
 Ebrahim v. Custodian, A 1952 SC 319
 Firm I.S. Chetty and Sons v. State of Andhra Pradesh, AIR 1964 SC 322
 Gurbax Singh v Financial Commissioner AIR 1991 SC 435
 Hirday Nath v. Ram Chandra AIR 1929 Cal 445

14
 I.T.I Ltd. v. M/s. Siemens Public Communications Networks Ltd., AIR 2002 SC 2308
(2311)
 Narahari v Jadu Moni, A 1987 O 122
 Raja Ram v Union, A 1988 SC 752
 Ramkanya Bai v. Jagdish, (2011) 7 SCC 452
 Ramswarup v. Shikarchand, A 1966 SC 893
 S. Vanathan a v. Ramalingam, (1997) 6 SCC 143 (146)
 Sankaranarayan Potti v. K Sreedevi (1998) 3 SCC 751
 Saraswatibai Trimbak Gaikwad v. Damodar D. Motiwale, AIR 2002 SC 1568
 Shri Panch Nagar Parakh v. Purushottam Das (1999) 6 SCC 656
 State of Andhra Pradesh v. Manjeti Laxmi Kantha Rao, AIR 2000 SC 2220 (2221,2222)

15