Name : Kinza Azeem

Roll # 48045

Subject: CPC

In the modern day, in almost every legal system, civil disputes are resolved by the courts of civil
jurisdiction. As a rule, civil courts can take cognizance of every controversy of civil nature as the courts
of ultimate jurisdiction but there are some recognized exceptions to this general rule which shall be
discussed in this article.

Section 9 of the Code of Civil Procedure 1908

Section 9 of Pakistan’s Code of Civil Procedure 1908 confers jurisdiction on civil courts to adjudicate
upon all suits of a civil nature, except such suits the cognizance of which is either expressly or impliedly
barred. In other words whenever the object of proceedings is the enforcement of civil rights, a civil court
would have jurisdiction to entertain the suit unless the cognizance of the same is barred through a
legislative instrument.

The legislature, both federal and provincial, has placed a bar on the exercise of jurisdiction of civil courts
through a number of Acts, Ordinances and other legislative instruments. For example, Section 172 of the
West Pakistan Land Revenue Act 1967 has placed an embargo over the powers of civil court to
adjudicate upon any matter in which the powers of adjudication have been given to the revenue
authorities – same is the case of Section 36 of the Colonization of Government Lands (Punjab) Act 1912.
Almost all special tribunals have been given exclusive jurisdiction by the legislature to decide matters
that fall within their domain, and their decisions/ actions are immune from scrutiny by the civil courts,
but there are certain exceptions to this general rule as well.

As per different judicial pronouncements on the subject, it has been established that the law requires
the civil court to be possessive about its jurisdiction and should not give away its right to hear and
adjudicate upon cases of civil nature unless there is a clear bar imposed by the legislature.

In the leading decision of Secretary of State v. Mask & Co. (67 I.A. 222) the Privy Council observed:
“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.”

In Radha Kishan v. Ludhiyana Municipality 1963 AIR 1547, 1964 SCR (2) 273 it was held:

“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 court’s jurisdiction is not completely
ousted.”

Now one shall discuss situations when civil court may take cognizance of any matter where the bar of
jurisdiction does exist.

Malice and Mala Fide Intention Attributed to Functionaries Acting Under Special Laws:

In Gul Shah and others v. Hafiz Ghulam Muhammad and others (2009 SCMR 1058) the honorable
Supreme Court of Pakistan held that:

“Admittedly, under Section 14 of Act XIII 1975 jurisdiction of civil court is ousted/ barred, but jurisdiction
is barred in ordinary cases and when malice and mala fide [intention] is attributed to the official
respondents, then civil courts are the courts of ultimate jurisdiction and they can decide the matter in
accordance with the law.”

In another case titled University of Punjab Vs. Miss Wajuha Arooj ( 2008 SCMR 1577) the august
Supreme Court held that:
“Where the action or order passed by the public officer, tribunal or authorities is within the four corners
of jurisdiction, the civil court cannot entertain the lis. But where the order passed or act done was void,
or without jurisdiction, or mala fide, or in excess of jurisdiction, or otherwise not in accordance with law,
or based on fraud, the civil courts would have jurisdiction to interfere with the same.”

It is abundantly clear now that civil courts can take cognizance of the matter irrespective of the barring
clause in the special enactment, if the order or action is not qualified according to the criteria laid down
by the apex court in the above-mentioned cases.

When a Serious Question of Fact is Involved in the Controversy:

There may be another situation when the civil court can take cognizance of the matter, notwithstanding
the barring clause in the special law. In a case where serious questions of facts are involved and their
determination requires framing of issues and necessitates recording of evidence, then the civil court
possesses the power to adjudicate upon the matter as the special tribunal has no power to effectively
decide the fate of the matter in issue.

In Muhammad Khan and others v. Province of Punjab and others (2007 SCMR 1169) the honorable
Supreme Court held:

“It is well settled by now that a purely administrative officer, who is empowered to pass an order if
certain circumstances exist, has no jurisdiction to determine those circumstances and the objective
existence of those circumstances is an essential condition of the validity of his order. In respect of every
order passed by him, the court can make an enquiry and if it finds that all the circumstances needed for
passing the order were not present, it will declare the order to be void….. So far as special judicial
tribunals are concerned they are given jurisdiction to determine certain fact but they are not judges of
the facts which are the foundation of their jurisdiction nor can they define the limits of their own
jurisdiction.”

When the Aggrieved Person Has No Remedy:

Almost all special laws provide a mechanism for assailing the order of the authority before the next
higher authority. For instance, as per Section 82D of the Banking Companies Ordinance 1962 the
Banking Mohtasib has been given authority to decide the complaint filed against any bank or its
employee. The order of the Banking Mohtasib, as per Section 82E (4) of the same Act, can be appealed
against before Governor State Bank within 30 days of passing of the order by the Mohtasib. If there may
be a situation where the appellate authority is not available or is not appointed, then, what would be
the remedy available to the aggrieved party if it feels aggrieved with the order and wants to challenge
the same?

This same situation came under discussion in a case titled All Pakistan Textile Mills Association v.
Federation of Pakistan (PLD 2009 Lahore 494) before the honorable Lahore High Court and the court
held that:

“In the present case, Association of Textile Manufacturers, subject to its locus standi undoubtedly had a
right of appeal under the statute, which was the most sacred right, however, if for any reason the forum
of appeal had not been established enabling the exercise of such valuable right, the right, could not be
allowed to be frustrated or stultified, for the lapse on part of the federal government as it was the
fundamental principle of law that the rights and the remedies of the parties could not be left in vacuum,
thus, in the situation the Association (subject to its locus standi) shall have an independent right to
challenge any such order under Art. 199 of the Constitution, if it had been passed by a forum which
could be construed to be a forum against which a writ of certiorari would lie, otherwise before the
courts of plenary civil jurisdiction under S.9 of CPC.”

No Further Recourse to Departmental Authorities in Case of Void Order:

In special enactments the legislature provides the mechanism to check the actions of authorities that
perform their functions under the said statute. In almost all special laws the provisions of appeals and
revisions have been provided and in some of the statutes, powers of review have also been given to the
authorities. For instance, in the West Pakistan Land Revenue Act 1967, the revenue functionaries have
been given powers to hear appeals against the orders of their subordinate revenue officers (section 161
of the Act). The Executive District Officer (Revenue) and the Board of Revenue have also been given
powers of revision (section 164 of the Act) and as per Section 163 of the Act certain revenue officers
have been authorized to review their orders.
In this situation the next question that may arise is whether a person who is aggrieved by the order
passed by a special tribunal/ administrative officer is bound to assail that order under the special law by
filing an appeal or revision before the functionary designated to hear the same under that law, or
whether he or she may approach the civil court on any admissible ground, without exhausting all the
remedies provided under the special law. As per the general rule, the aggrieved person is bound to avail
all the remedies provided under the special law before approaching the civil court, so that even if the
order is void, the departmental authorities should rectify the error themselves. But there are also
certain exceptions to this rule which were highlighted in Mohd. Latif v. Province of West Pakistan”(PLD
1970 SC 180) where the honorable Supreme Court held that:

“There is no doubt that under Section 11 of the Sindh Revenue Jurisdiction Act 1876, ordinarily the party
in revenue matters should exhaust all remedies by way of appeal before invoking the aid of civil court.
But there are different considerations where the allegation of the party is that the impugned order is a
nullity in the eye of law. The civil courts have jurisdiction to examine into cases where statutory
provisions have not been complied with or the statutory tribunal has not acted in conformity with the
fundamental principles of judicial procedure.”

Absolute Bar on Jurisdiction:

There are some instances where even mala fide or void ab initio orders of authorities cannot be
questioned through the filing of a civil suit before civil courts. If the bar is placed by the Constitution,
which is the supreme law of the land, then the jurisdiction of civil courts would not be invoked in any
situation whatsoever. As per Article 212 of the Constitution of Islamic Republic of Pakistan no court can
take cognizance of the matter relating to the terms and conditions of civil servants, except for the
service tribunals. There is also a bar on jurisdiction of all courts, except the tribunal established by
legislation, in taxation matters. As per Article 225 of the Constitution, the elections of the National or
Provincial Assembly can only be challenged through election petition before election tribunals. All of
these matters are absolutely immune from scrutiny by the civil courts since immunity has been granted
by the Constitution and the bar on jurisdiction is absolute without any exception. The question of
invalidity of an order or action for being mala fide and void etc. can only be raised before special
tribunals established by the legislature under the command of the Constitution or by other remedies
provided by the Constitution itself.

Conclusion
In light of judgments of the superior court, we may safely draw the following conclusions:

Notwithstanding the bar placed by the legislature over jurisdiction of the civil court, the civil court may
take cognizance of a case in the following circumstances:

When the order/ action has been taken in a mala fide and malicious manner;

When the order has been passed or authority has been exercised in excess of jurisdiction or without
jurisdiction;

When a serious question of fact is involved which cannot be decided without recording the evidence;

When the aggrieved person has been left wihtout a remedy due to non-availability of an appellate
authority.