1.1 What is ‘Jurisdiction’?

:
It is that power which a court has to decide the matters that are litigated
before it or to take cognizance of matters presented in a formal way for its
decision. For a court to have jurisdiction, it must not only have the jurisdiction
to try the suit i.e. jurisdiction to entertain the subject matter of suit, but must
also have the authority to pass the orders sought for [1] . For example, civil
court may have authority to settle a dispute regarding specific performance of
contract but may not have the pecuniary jurisdiction to pass the relief sought
for.

Inherent powers of the Civil Court

The law that deals with the inherent powers of the Civil Court, falls under Section-148 to
Section-153A of the Civil Procedure Code (CPC), which envisages the exercise of powers in
different circumstances. The provisions that deal with these inherent powers are:-

 Section-150: This provision is related to the transfer of business.

 Section-151: It conserves the inherent powers of the courts
 Section 152, 153 and Sec 153A: These provisions of the CPC deal with amendments
in decrees, judgments orders or in other proceedings.

Provisions under Civil Procedure Code (CPC),

Section 148, clearly points out that the court has no application when the time has not been fixed
or granted for doing a particular act, that has not been prescribed or allowed by the court. This
power of the court, being discretionary in nature cannot be claimed as a right. Section 148
provides that the court, may extend to a maximum period of 30 days, when a definite time period
is fixed or granted by it, for doing an act.

Section 149, deals with payment of court fees. The power of the court is discretionary and must
be exercised only in the interest of justice. This Section certifies the court to allow a party to
make up for the deficiency of court fees payable on a plaint or a memorandum of an appeal etc.,
even after the expiry of the limitation period that is provided for the filing of a suit or an appeal
etc.

Section 150 of CPC relates to the ‘Transfer of businesses’, and provides thus: “when the
business of any court is transferred to any other court, the transferee court will exercise the same
power or discharge same duties conferred or imposed by CPC upon the transferring court“.
The inherent powers of the court can be used to secure the ends of justice under Section 151 of
the CPC.
The scope of the exercise of these powers, under Sec 151 of CPC can be illustrated by a few
cases, such as-
• The court may recall it’s orders and correct any mistakes;
• An illegal order, or orders passed without a jurisdiction can be set-aside.
• The court has the power to hold a trial ‘in camera’ or prohibit any publication of its
proceedings.
Sec 152, 153 and 153A of the Civil Procedure Code relates to the application of the inherent
powers for effecting amendments of judgments, decrees, orders or other records.
• Section 152 provides that “clerical or arithmetical mistakes in Judgments, decrees or
orders arising from any accidental slip or omission may at any time be corrected by the court
either on its own motion or on the application of any of the parties”.
• The apex court explained that Section 152 is based on two principles:-
• Any act of the court shall not lead to any discrimination against anyone.
• It is the duty of the court to ensure that its records are true and represent the correct state
of affairs.
• Sec 152 and 153 of the CPC makes it clear that the court may correct any mistake made
in their records, at any time.
• While Section 152 is confined to amendments of Judgments, orders or decrees, Section-
153 confers a general power on the court to amend defects or errors of any proceedings in a suit.
Necessary amendments can be made in order to determine the real issues between the parties.
When can the inherent powers be exercised?
While exercising their inherent powers the court has two primary objectives, that it takes into
their consideration. This is recognized under Section-151 of the Civil Procedure Code:
1. The powers are to be exercised only for the ends of justice.
2. To prevent abuse of process of the court.
The powers can not be exercised when excluded or prohibited by the Code or any other statute.
In the situation where specific provisions exist in the Code, it is applicable to the litigation at
hand.1

1.2 Origins of doctrine of inherent jurisdiction :

The doctrine of inherent jurisdiction is a creature of the English common law.
Its origins can be traced back to 1840. Baron Alderson’s decision in Cocker v.
Tempest3 in 1840 is often cited as the originating point for the emergence of
the doctrine. He commented “the power of each court over its own processes
is unlimited; it is a power incident to all courts, inferior as well as superior;
were it not so, the court would be obliged to sit still and see its own process
abused for the purpose of injustice".

1.3 Doctrine of Inherent Jurisdiction :

In determining the meaning of the term “inherent jurisdiction", it is imperative
to look into the much referred definition from Halsbury’s Laws of England:

In sum, it may be said that the inherent jurisdiction of the court is a virile and
viable doctrine, and has been defined as being the reserve or fund of powers,
a residual source of powers, which the court may draw upon as necessary
whenever it is just or equitable to do so, in particular to ensure the observance
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of due process of law, to prevent vexation or oppression, to do justice
between the parties and to secure a fair trial between them [2] .

Notwithstanding that the term inherent jurisdiction seems to apply to an

almost limitless set of circumstances, commentators have noted that there are
four general categories for the use of the court’s inherent jurisdiction :

To ensure convenience and fairness in legal proceedings

To prevent steps being taken that would render judicial proceedings

inefficacious

To prevent abuses of process

To act in aid of superior courts and in aid or control of inferior courts or

tribunals

The exercise of inherent jurisdiction is a broad doctrine allowing a court to

control its own process and to control the procedures before it. The power
sterns not from any particular statute or legislation, but rather from inherent
powers vested in a court to control the proceedings brought before it.

A pertinent question that emerge is that who decides whether civil court has
jurisdiction or not? The question has been settled by Supreme Court in the
case of A R Antulay v R S Nayak where it was held that a civil court has
inherent power to decide its own jurisdiction [3] , though it may rule that it has
no jurisdiction to entertain the suit. Thus, it is for a civil court to decide
whether it is barred from taking cognisance over a particular type of civil suit,
either expressively or impliedly.

1.4 Presumption of jurisdiction and burden of proof :

In Abdul v. Bhawani, the apex court has observed that every presumption
should be made in favour of the jurisdiction of a civil court and the provision
of exclusion of jurisdiction, if any, shall be strictly construed [4] . If there is any
doubt regarding ousting of jurisdiction of a civil court, the court shall lean to
an interpretation which would maintain the jurisdiction [5] . The burden of
proof is on the party who seek to oust the jurisdiction of a civil court.

Chapter 2 : Cognisance barred

Section 9, Civil Procedure Code, 1908 [6] : -

Courts to try all civil suits unless barred.

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 declares that a suit for an office is a suit of civil nature and it
does not cease to be one even if the said right depends entirely upon the
decision of a question as to religious rights or ceremonies [7] .

Explanation II as inserted by the Code of Civil Procedure(Amendment) Act,

1976, further widens the scope of Section 9 by declaring that in order to
maintain a suit it is immaterial that an offence reffered to in Explanation I
carries any fees or is attached to a particular case [8] .

2.2 Suits expressively barred :

As per Section 9, Civil Procedure Code, a suit is said to be expressively barred
when barred by any enactment for the time being in force. This may include
any statute, law, bye-laws, order etc. CPC itself expressively bars the
jurisdiction of civil courts in certain circumstances. Section 11 of the Code of
Civil Procedure bars a court from trying a suit in which matter in issue is res
judicata. Section 47 bars a decree holder from filing a suit when he can file
execution proceedings.

Other instances where jurisdiction of civil court is expressively barred includes

among others, special tribunals under relevant statutes e.g. – Industrial
Tribunal, Election Tribunal, Revenue Tribunal, Rent Tribunal, cooperative
Tribunal, Income Tax Tribunal(Sec. 293, Income-Tax Act, 1961)l, Motor
Accidents Claim Tribunal(Sec. 68-D, Motor Vehicles Act), etc. ; domestic
tribunals e.g. Bar Council, Medical Council, University, Club etc. Whenever
statutes uses the expression that a decision of an authority shall be final, the
jurisdiction of a Civil Court to go into the correctness or otherwise of the
decision is taken away [9] .

But, there may be circumstances where the remedy provided by a statute is

not adequate and all questions or disputes cannot be decided by a special
tribunal. In such cases, the jurisdiction of a civil court is not barred to the
extent of those issues or remedies, not provided for in the law ousting its
jurisdiction [10] . If the provisions of the statute has not been complied with or
the Statutory Tribunal has not acted in conformity with the fundamental
principles of judicial procedure or the tribunal or the authority acts ultra vires,
the Civil Court have jurisdiction to examine those cases to interfere and set
matters right.

For example, an order of eviction made by competent authority in relation to

unauthorised occupation of public premises can be said to be an order under
Madhya Pradesh Government Premises (Eviction) Act, 1952. It is necessary to
examine the question whether the appellant plaintiff was in unauthorised
occupation. An order of eviction made in relation to a person who is not in
unauthorised occupation of the premises cannot be called to be order made
under the Madhya Pradesh Government Premises (Eviction) Act, 1952 and
would be an illegal order made, dehors the Madhya Pradesh Government
Premises (Eviction) Act, 1952 which, therefore cannot bar the jurisdiction of
the Civil Court to try the suit [11] .

2.3 Suits Impliedly barred :

Suits may be barred impliedly when they are barred by general principles of
law as when they are barred being against the Public Policy or State Policy. For
example, suit by a witness to recover money agreed to be paid to him for
giving evidence in a Court of Law and suits based on illegal or immoral
contracts. Kapur,J. has observed in Union of India v. Ram Chand - “The
principle underlying is that a court ought not to countenance matters which
are injurious to and against the public weal [12] ."
Also, if a specific remedy is given by a statute, it deprives a person who insists
upon a remedy of any other form than that given by the statute [13] . In such
cases, suit is said to be expressively barred under Section 9, Civil Procedure
Code. For example, the right to appoint/remove the directors of a Company
being a creature of the Companies Act, which itself provides a machinery for
the enforcement of the said right, impliedly bars the jurisdiction of Civil
Court [14] . There may, however, be cases where the remedy provided is not
exclusive but in supplement to the remedy provided by the civil court. In such
cases, jurisdiction of civil court is not impliedly barred. For example, in the
recent case of State of Karnataka v. Vishwabarathi House Building Co-op.
Society, it was observed by the apex court that by reason if Section 3 of
Consumer Protection Act, it is apparent that the remedies provided there
under are not in derogation of those provided under other laws. The said Act
supplements and supplants the jurisdiction of the Civil Courts or other
statutory authorities. It provides for a further safeguard to the effect that in
the event a complaint involves complicated issues regarding recording of
evidence of experts, the complaint would be at liberty to approach the Civil
Court for necessary relief [15] .

Ordinarily, civil court has jurisdiction to go into the disputed questions of civil
nature whether or not fundamental fairness of procedure is violated. But
where fundamental fairness of procedure is followed, cognizance of civil cause
is excluded by necessary implication [16] .

In Raja Ram Kumar Bhargava v. Union of India [17] , SC has laid down guiding
considerations for implied exclusion of Civil Court’s jurisdiction. They are –

Whether a right, not pre-existing in common law has been created by a

statute.

That statute itself provided a machinery for enforcement of that right

Both right and remedy having been created uno flatu

A finality is intended to the result of the statutory proceedings.

It was observed that :

‘If, however, a right pre-existing in common law is recognised by the statute
and a new statutory remedy for its enforcement provided, without expressively
excluding civil courts jurisdiction, then , both the common law and the
statutory remedies might become concurrent remedies leaving open an
element of election to the persons of inheritance [18] .’

Chapter 3. No absolute bar on Jurisdiction

Even when the jurisdiction of civil court is barred, either expressively or
impliedly, it cannot be read as excluding its jurisdiction altogether. Court has
the jurisdiction to examine whether the provisions of the Act and the Rules
made there under have been complied with or not, or whether the order is
contrary to law, malaise, 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.

It was held in Secretary of State v. Mask & Co. by Privy Council –

“It is settled law that the exclusion of the jurisdiction of the civil courts 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 [19] ."

In Radha Kishan v. Ludhiana Municipality [20] it was held by J. Subba Rao that

conferment of special jurisdiction on a tribunal is not sufficient in itself to
exclude the jurisdiction of the civil courts. It should either bar the jurisdiction
expressively or provide for liability not existing before or a special and
particular remedy to the aggrieved party. In such cases, the separate remedy
provided shall be followed. The same principle applies when the statute had
provided for the particular forum in which the said remedy could be had.
However, the court went on to say that -
“Even in such cases, the Civil Court's jurisdiction is not completely ousted. A
suit in a civil Court will always lie to question the order of a tribunal created by
a 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."

It was held in Union of India v. S. Sasi [21] that the Civil Court has jurisdiction
to enforce the right of a subscriber under Section 7B of the Telegraph Act,
though it provides for a seaparate machinery for the same. Civil Court has
right to grant ad-interim relief in a case, when the question of jurisdiction of
court is pending before it [22] .

Following are some more principles regarding exclusion of jurisdiction of Civil

Court [23] -

Challenge to provisions of the particular Act as ultra vires cannot be brought

before Tribunals constituted under such Act. Even the High Court cannot go
into that question on a revision or reference from the decisions of the
Tribunal. The constitutionality of the Act has to be challenged before a civil
court.

Where the particular Act contains no machinery for refund of tax collected in
excess of constitutional limits or illegally collected, a suit lies.

Questions of the correctness of the assessment apart from the

constitutionality are for the decision of the authorities 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 the particular Act. In either case, the scheme of the particular
Act must be examined because it is relevant enquiry.

A plea to bar the jurisdiction of Civil Court must be considered having regard
to the contentions raised in the plaint. For the said purpose, averments
disclosing cause of action and the reliefs sought for therein must be
considered in their entirety. The Court may not be justified in determining the
question, one way or the other, only having regard to the reliefs claimed
dehors the factual averments made in the plaint. Also, a party may not, by
securing
an order from another Court be permitted to displace the jurisdiction of the
Civil Court to try the suit which was within its competence when the suit was
filed [24] .

2.1 Agreement conferring jurisdiction on a Court:

There is a difference between inherent lack of jurisdiction of any Court on
account of some statute and the other, where parties through agreement bind
themselves to have their dispute decided by any one of the Courts having
jurisdiction. A party is bound either by provision of the Constitution, statutory
provisions or any rule or under the terms of any contract which is not against
public policy. It is open for the parties to fix the jurisdiction of any competent
court to have their dispute adjudicated by that Court alone, and in such a case,
parties can only file a case under the Court so agreed upon. Thus, the question
is not whether a Court have the jurisdiction to decide the plaintiff’s suit but
whether the plaintiff could have invoked the jurisdiction of that Court in view
of the agreement between him and the defendant. In such cases, suit filed in
any other court apart from the one agreed upon will not be valid [25] .

Conclusion
A civil court has jurisdiction to try all suits of civil nature unless their
cognisance is barred either expressively or impliedly. Consent can neither
confer nor take away jurisdiction of a court. Agreements conferring
jurisdiction, are however, valid and does not exclude jurisdiction of a court, but
right of a party to file a suit before such court as decided upon. 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.

There is a distinction between want of jurisdiction and irregular exercise

thereof. Every court has inherent power to decide the question of its own
jurisdiction. Jurisdiction of a court depends upon the averments made in the
plaint and not upon the defence in a written statement. For deciding
jurisdiction of a court, the substance of a matter and its form is important.
Every presumption should be made in favour of jurisdiction of a civil court. A
statute ousting the jurisdiction of a court is on the party who asserts it. 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.