THE CODE OF CIVIL PROCEDURE

Submitted by-

Harjyot Singh BA. L.L.B (Hons.)

17A049
Lihzu Shiney Konyak BA. L.L.B (Hons.)
17A074

Submitted to- Prof. Sanjeev Chaudhary (Assistant Professor

of Law)
Submission for Civil Procedure Internal Evaluation 2018.

This project is submitted in fulfilment of the academic requirements for the subject
‘Civil Procedure’

1|Page
 GNLU Project* Details and Academic Integrity Form

*
(Seminar paper/Research paper/Project/Article)

Student Name: Lihzu Shiney Konyak, Harjyot Singh.

Registration No. and Semester: 17A074, 17A049 (Semester III)

Subject: Civil Procedure

Faculty Member: Prof. Sanjeev Chaudhary

Allocation Date: August 2018.

Title Registration Date: August 2018.

Reason for selection of title: Interest in the said topic.

Faculty Member Signature

Academic Integrity Declaration

I warrant and represent that the attached report/research work/articles does not infringe upon
any copyright or other right(s), and that it does not contain infringing, libelous, obscene or other
unlawful matter and that I have given appropriate credit to the original author or source of
information and fully adhered to GNLU research guidelines. I am aware that the non-
compliance with the GNLU academic integrity directive may result into non-evaluation of the
academic/research work, attracting failure in the subject or course and any other measures as
decided by the concerned faculty members.

Student Signature & Date

05.10.2018

*PDAIF is an integral part of the GNLU Exam Records and shall be considered and complied
with the GNLU Exam Rules. Student shall be responsible to ensure full compliance with the
above details.

Original: Exam Department Copy: 1. Student 2. Faculty Member

2|Page
ACKNOWLEDGEMENT

We have taken intense efforts to conduct an in depth study for the purpose of writing this
project. However, it would not have been possible to conduct this extensive research in time
without the kind support and help of numerous individuals and thus we would like to extend
our most sincere gratitude to each and every one of them, primarily our respected faculty for
the subject of Civil Procedure, Prof. Sanjeev Chaudhary, under whose constant support and
guidance we were able to accomplish this task. We are indeed grateful to him for his efforts
in constantly monitoring the gradual progress and eventual completion of this project, and
most importantly granting us the much needed extension in lieu of our moot participation.

We are also highly indebted to our University for providing us the platform for such
intellectual pursuits and for its constant encouragement for such academic pursuits.

Lastly, we would like to thank our friends and family for their never-ending support and
steady motivation because of which we were able to write this research paper in time.

3|Page
Index
1) Section 9, The Code of Civil Procedure……………………………….…………………5

2) Jurisdiction – Meaning……………………………………………………….…………...5

3) Scope of Section 9………………………………………………………….……………..6

4) Jurisdiction and Consent………………………………………………………………….7

5) Agreement to ouster the jurisdiction of a court…………………………………………..8

6) Lack of jurisdiction and irregular exercise of jurisdiction…………………………...…..8

7) Basis to determine jurisdiction………………………………………………..………….9

8) Jurisdictional fact…………………………………………………………….………….11

9) Decision as to jurisdiction………………………………………………….……………11

10) Courts and Tribunals……………………………………………………...……………12

11) Caste Question…………………………………………………………….……………13

12) Conditions to establish the jurisdiction of a court…………………………….……….13

13) Suits expressly barred……………………………………………….…………………14

14) Suits impliedly barred………………………………………………………………….15

15) Objections to jurisdiction……………………………………………...….……………17

16) Exclusion of Jurisdiction……………………………………………..…...……………17

4|Page
Jurisdiction of Civil Courts: Supreme Court Cases Analysis
The provision regarding the jurisdiction of Civil Courts is contained in Section 9 of The Code
of Civil Procedure, 1908.

The Section reads as follows:

Section 9 – The court 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 II – 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.

The test of Jurisdiction over the subject matter is whether the court or tribunal can decide the
case at all and not whether the court has authority to issue a particular kind of order in the
course of deciding the same. A court is said to have jurisdiction of the subject matter of a
particular controversy if the court has authority to hear and decide causes of a class to which
the particular controversy belongs.1

Jurisdiction – Meaning
Although, the term jurisdiction has not been defined in the code, it is derived from the latin
terms “juris” and “dicto” which means “I speak by the law”

It means the power or authority of a court of law to hear and determine a case or matter. It is
the power to entertain, deal with and decide a suit, an action, petition or other proceedings

Official Trustee v Sachindra Nath2

It was held in this case that, by jurisdiction is meant the authority which the court has to
decide matters that are litigated before it or to take cognizance of matters presented in a
formal way for its decision.

It was said that:

“it is clear that before a court can be held to have jurisdiction to decide a particular matter it
must not only have jurisdiction to try the suit brought but must also have the authority to pass
orders sought for. It is not sufficient that it has some jurisdiction in relation to the subject-

1
1 MULLA, THE CODE OF CIVIL PROCEDURE 77 (Lexis Nexis 2007)
2
AIR 1969 SC 823.

5|Page
matter of the suit. Its jurisdiction must include the power to hear and decide the question at
issue, the authority to hear and decide the particular controversy that has arisen between the
parties.

Scope of Section 9
Pankaj Bhargav v Mahendra Nath3

It was held in this case that for defining jurisdiction for the subject matter in these terms, the
courts have emphasised that the jurisdiction of a court depends upon the right to decide the
case and not upon the merit of its decision.

The plea of lack of jurisdiction can be raised at any time even in second appeal, so also on the
execution side.4
Abdullah Bin Ali v Galappa5

In this case, it was held that the jurisdiction does not depend upon the defence taken by the
defendants in the written statement.

A litigant having a grievance of civil nature has, independently of any statute, a right to
institute a suit in the civil court unless its cognisance is either expressly or impliedly barred. 6
Nagri Pracharini Sanhu v Fifth Addl District and Sessions Judge, Varanasi7

This case held that exclusion of jurisdiction of civil court is not to be readily inferred and
such exclusion must be either express or implied.
Sanker Naryan Potti v K Sreedevi8

It was held in this case that in all types of civil disputes, civil court has inherent jurisdiction
as per s 9, unless a part of that jurisdiction is curbed out from such jurisdiction, expressly or
by necessary implication, by any statutory provision and conferred or any other tribunal or
authority.
In cases, where inclusion of civil court’s jurisdiction is expressly provided for, the
consideration as to the scheme of the statute in question and the adequacy of sufficiency of
the remedy provided for by it, may be relevant, but it cannot be decisive.9

3
(1991) 1 SCC 556.
4
MULLA, supra note 1 at 77.
5
(1985) 2 SCC 54.
6
1 MULLA, supra note 1, at 78.
7
(1991) Supp 2 SCC 36.
8
(1998) 3 SCC 751.
9
1 MULLA, supra note 1, at 78.

6|Page
Vatticherukuru Village Panchayat v Pachora Municipal Council10

In this case, it was held that the wherever exclusion is pleaded as a matter of necessary
implication, such consideration would be very important and inconceivable and it might
become even decisive.

Jurisdiction and Consent

Consent cannot confer nor take away jurisdiction of a court.11

AR Antulay v RS Nayak12

The judgement given in this case was penned by Mukharji,J.

It was held in the present case that the court, by its directions, could not confer jurisdiction on
the High Court of Bombay to try any case for which it did not possess jurisdiction.

The power to create or enlarge jurisdiction is legislative in character, so also to confer a right
of appeal or to take away right of 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.

Dhirendra Nath v Sudhir Chandra

It was held in this case that if the court has no inherent jurisdiction, neither acquiescence nor
waiver nor estoppel 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 judgement 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. A decree passed without jurisdiction is non est and its validity can be
set up wherever 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.

Kiran Singh v Chaman Paswan13

The Supreme court held in this case that 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

10
(1991) Supp 2 SCC 228.
11
CK TAKWANI, CIVIL PROCEDURE 41 (EBC 2017).
12
(1988) 2 SCC 602.
13
AIR 1954 SC 340.

7|Page
authority of the court to pass any decree, and such a defect cannot be cured even by the
consent of the parties.

Agreement to ouster jurisdiction of the court

ABC Laminart (P) Ltd. v AP Agencies14

It has been held in this case that - 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

Hakkam Singh v Gammon (India) Ltd.15

It was held in this case that, 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 the 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.

Lack of Jurisdiction and Irregular exercise of jurisdiction

Distinction between want of jurisdiction and irregular exercise of it is always there.

Ujjam Bai v. State of U.P.16

In the above case, it was held that once it is held that a court has jurisdiction to entertain and
decide a matter, the correctness of the decision given cannot be said to be without jurisdiction
inasmuch as the power to decide necessarily carries with it the power to decide wrongly as
well as rightly.

In the words of Lord Hobhouse, “A court has jurisdiction to decide wrong as well as right. If
it decides wrong, the wronged party can only take the course prescribed by law for setting
matters right; and if that course is not taken, the decision, however wrong, cannot be
disturbed.”

Amrit Bhikaji Kale v. Kashinath Janardhan Trade17

In other words, if there is inherent lack of jurisdiction, the decree passed by a civil court is
nullity, and that nullity can be set up in any collateral proceedings.

14
(1989) 2 SCC 163
15
(1971) 1 SCC 286
16
AIR 1962 SC 1621.
17
(1983) 3 SCC 437.

8|Page
However, if a court having jurisdiction irregularly exercises its jurisdiction, the defect does
not go to the root of the matter and if there is any error in the exercise of jurisdiction, it can
be remedied in revision or in an appeal but the decision would be final if there is no such
remedy.

Ittyavira Mathai Mathai v. Varkey Varkey18

In this case, it was contended that the decree passed by the court is a nullity since the suit was
time barred. However, the Supreme Court negatived the contention and observed:

“If the suit was barred by time and yet, the court decreed it, the court would be committing
and illegality and therefore the aggrieved party would be entitled to have the decree set aside
by preferring an appeal against it. But it is well-settled that a court having jurisdiction over
the subject matter of the suit and parties thereto though bound to decide right may decide
wrong; and that even though it decided wrong it would not be doing something which it had
no jurisdiction to do. If the party aggrieved does not take appropriate steps to have that error
corrected, the erroneous decree will hold good and will not be open to challenge on the basis
of being a nullity.”

However, the important question is: What is the difference between absence of jurisdiction
and irregular or erroneous exercise thereof?

After M.L. Sethi v. R.P. Kapur19, the disctinction between jurisdictional error and error of
law within jurisdiction has been reduced almost to a vanishing point. The following
observations20 put the legal position thus:

“After Anisminic every error of law is a jurisdictional error. The distinction between
jurisdictional and non-jurisdictional error is ultimately based upon foundation of sand. Much
of the superstructure has already crumbled. What remains is likely to quickly fall away as the
courts rightly insist that all administrative actions should be simply lawful whether or not
jurisdictionally lawful.21

Basis to determine Jurisdiction

It is already settled that in order to decide the jurisdiction of a civil court, the allegations and
averments stated in the plaint are important. In other words, the jurisdiction of a civil court is
always decided based on the what the plaintiff puts forward in his plaint and not on what the
defendant writes in his written statement.

Abdullah Bin Ali v. Galappa22,

18
AIR 1964 SC 907.
19
(1972) 2 SCC 427
20
De Smith, Judicial Review of Administrative Action (5th Edn.) at p. 256.
21
TAKWANI, supra note 11, at 44.
22
(1985) 2 SCC 54

9|Page
A suit was filed in the civil court for declaration of title and for possession and mesne profits
and the defendants were treated as trespassers. The defendants’ contention was that the civil
court has no jurisdiction since he was a tenant.

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 the 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
plaintiffs-appellants. Now a suit against the trespassers would only lie in the civil court and
not in Revenue Court. We are, therefore, of the considered opinion that on the allegations
made in the paint, the suit was cognizable by the civil court.”

Ram Singh v. Mehal Kalan Gram Panchayat23

In this case, it was held that 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.

Bank of Baroda v. Moti Bhai24

In this case, a certain amount was lent to the defendant by the plaintiff in the usual course of
its commercial business. However, by way of a collateral security and under the Tenancy
Act, the plaintiff bank obtained a hypothetical bond and a mortgage deed from the defendant
which conferred exclusive jurisdiction on the revenue court. When the plaintiff bank filed a
suit for the recovery of the amount, the defendant contended that the civil court had no
jurisdiction to try the suit.

The Supreme Court negatived the contention of the defendant and observed that the business
of the bank was to lend money. If only by a way of collateral security, the bank obtains a
hypothecation bond or a deed of mortgage, the provisions of Tenancy Act cannot be attracted.
Primarily and basically, the suit filed by the bank was for the recovery of the amount due to it
by the defendant on the basis of the promissory note executed by the defendant. The main
relief sought by the bank was that the suit should be decreed for repayment of amount. The
civil court had, therefore, jurisdiction to entertain the suit filed by the bank. On the question
of jurisdiction, one must always have regard to the substance of the matter and not to the
form of the suit.

LIC v. India Automobiles & Co.25

When a court of limited jurisdiction (Rent Controller) has jurisdiction to decide only a
particular dispute (fixation of standard rent), it has jurisdiction to consider the collateral issue

23
(1986) 4 SCC 364.
24
(1985) I SCC 475.
25
(1990) 4 SCC 286.

10 | P a g e
(title of the landlord to the property) only prima facie and the jurisdiction of a civil court to
decide such issue finally is not taken away.

Ananti v. Chhannu26

In this case, the following observations were made by the Full Bench of the Allahabad High
Court which was also approved by the Supreme Court and lays down the correct law om the
point:

“The plaintiff chooses his forum and files his suit. If he establishes the correctness of his facts
he will get his relief from the forum chosen. If he frames his suit in a manner not warranted
by the facts, and goes for his relief to a court which cannot grant him relief on the true facts,
he will have his suit dismissed. Then there will be not question of returning the plaint for
presentation to the proper court, for the plaint, as framed, would not justify the other kind of
court to grant him the relief. If it is found, on a trial on the merits so far as this issue of
jurisdiction goes, that the facts alleged by the defendants are true, and that the case is not
cognizable by the court, there will be two kinds of orders to be passed. If the jurisdiction is
only one relating to territorial limits or pecuniary limits, the plaint will be ordered to be
returned for presentation to the proper court. If, on the other hand, it is found that, having
regard to the nature of the suit, it is not cognizable by the class of court to which the court
belongs, the plaintiff’s suit will have to be dismissed in its entirety.”

Jurisdictional Fact
Fulfilment of certain conditions or existence of a particular fact decides the jurisdiction of a
court, tribunal or authority. This particular fact is known as “jurisdictional fact”. The
existence of such a preliminary or a collateral fact is a sine qua non or a condition precedent
to the assumption of jurisdiction by the authority. If the jurisdictional fact exists, the authority
has the jurisdiction and it can act. However, if the authority wrongly assumes the existence of
such jurisdictional fact, a writ of certiorari can be issued.

Decision as to jurisdiction
The court’s jurisdiction shall be decided with reference to the initial assumption of
jurisdiction by that court.

Ujjambai v. State of UP27

This case held that the question of deciding the jurisdiction of a court depends not on the
truth or falsehood of the facts into which it has to enquire, or upon the correctness of its

26
AIR 1930 All 193.
27
AIR 1962 SC 1621.

11 | P a g e
findings on these facts, but upon their nature, and it is determinable “at the commencement,
not at the conclusion of the inquiry.

Bhatia Coop, Housing Society Ltd. v. D.C. Patel28

In this case, it was held that every court or tribunal is not only entitled but bound to determine
whether the matter in which it is asked to exercise its jurisdiction comes within its
jurisdiction or not.

Similarly, where a tribunal derives its jurisdiction from the statute that creates it and imposes
conditions under which it can function, it goes without saying that before the tribunal
assumes jurisdiction in a matter, it must be satisfied that those conditions in fact exist. Such
facts are known as preliminary or jurisdictional facts.29

Courts and Tribunals

Bhatia Coop. Housing Society Ltd. v. D.C. Patel30

This case held that a civil court has inherent power to decide the question whether it has
jurisdiction to entertain, deal with and decide the matter which has come before it.

However, deciding the jurisdiction of a tribunal or any other authority is different from
deciding the jurisdiction of a civil court. If the tribunal, by Parliament, is invested with the
power to decide and finally determine the preliminary facts on which its jurisdiction depends,
the tribunal can decide such preliminary facts and the finding recorded by the tribunal cannot
be challenged by certiorari.

Ujjambai v. State of UP31

This case held that where a statute creating or establishing a tribunal does not confer that
power on a tribunal, an inferior tribunal cannot, on a wrong decision on preliminary or
collateral fact, assume and confer on itself jurisdiction which it does not possess. Such an
order can be challenged by certiorari.

28
AIR 1953 SC 16.
29
TAKWANI, supra note 11, at 46.
30
AIR 1953 SC 16.
31
AIR 1962 SC 1621.

12 | P a g e
Caste Question
State of Gujarat v. Rajesh Kumar32

In this case, it was held that if a court does not have jurisdiction, it does not have jurisdiction,
regardless of the fact that one of the parties involved, is a gram panchayat or the period
involved is very short, or the amount involved is very short.

The test for determining whether a question is a caste question or not is whether its
cognizance constitutes interference with the caste’s autonomy.

Conditions to establish the jurisdiction of a civil court

A civil court has jurisdiction to try a suit if two conditions are fulfilled

1) The suit must be of a civil nature

2) The cognizance of such a suit should not have been expressly or impliedly barred33

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. Although, the word “civil” has not been
defined in the code, but the dictionary defines it as pertaining 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 a thing,
identity or essential character; sort, kind, character” Thus, its context is wider. The word
“civil nature” is wider than “proceedings”. 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.34

Sinha Ramanuja v. Ranga Ramanuja35

In this case, the court held that the expression “suit of a civil nature” will cover private rights
and obligations 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 for e.g., the right to
property 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 a civil court is not barred. The court has jurisdiction to
adjudicate upon those questions also in order to decide the principal question which is of a
civil nature.

32
AIR 1996 SC 2664
33
TAKWANI, supra note 11 at 50.
34
Ibid at 50.
35
AIR 1961 SC 1720.

13 | P a g e
Most Rev. PMA Metropolitan v Moran Mar Marthoma36

In this case, the Supreme Court said that the expansive nature of Section 9 is demonstrated by
the use of phraseology both positive and negative. The earlier part opens the door widely and
the latter debars the entry to those which are expressly or impliedly barred. The two
explanations, one existing from inception and the latter added in 1976 bring out clearly the
legislative intention of extending operation of the section to such religious matters where
right to property or office is involved irrespective of whether any fee is attached to the office
or not. The language used in simple but explicit and clear. It is structured on the basic
principle of civilised jurisprudence that absence of machinery for enforcement of right
renders it nugatory. The heading which is normally the key to the section brings out
unequivocally that all suits are cognizable unless barred. What is meant by it is explained
further by widening the ambit of the section by use of the word “shall” and the expression
“all suits of a civil nature” unless “expressly or impliedly barred”.

Each word and expression casts an obligation on the court to exercise jurisdiction for
enforcement of right. The word “shall” makes it mandatory. No court can refuse to entertain a
suit if it is of the description mentioned in the section. That is amplified by the use of the
expression, “all suits of civil nature”. The word civil is understood in law as an antonym of
criminal. Historically, the two broad classifications were civil and criminal. Revenue, tax and
company etc. were added to it later. But they too pertain to the larger family of ‘civil’. There
is thus no doubt about the width of the word ‘civil’. Its width has been stretched further by
using the word ‘nature’ along with it. That is even those suits are cognizable which are not
only civil but of a civil nature.

The section would, therefore be available in every case where the dispute was of the
characterstic of affecting one’s rights which are not only civil but of a civil nature.

Suits expressly barred

Umrao Singh v Bhagwati Singh37

It was held in this case that a suit is said to be “expressly barred” when it is barred by any
enactment for the time being in force.

State of Vindhya Pradesh v Moradhwaj Singh38

It was held in this case that is is open to a competent legislature to bar jurisdiction of civil
courts with respect to a particular class of suits of civil nature, provided that, doing so, it
keeps itself within the field of legislation conferred on it and does not contravene any
provision of the Constitution.

36
AIR 1995 SC 2001
37
AIR 1956 SC 15
38
AIR 1960 SC 796.

14 | P a g e
Abdul Waheed Khan v Bhawani39

It was held in this case that every presumption should be made in favour of the jurisdiction of
a civil court and the provision of exclusion of jurisdiction of a court must be strictly
construed.

Bharat Kala Bhandar (P) Ltd. v Municipal Committee, Dhamangaon40

It was held in this case that if there is any doubt about the ousting of jurisdiction of a civil
court, the court will lean to an interpretation which would maintain the jurisdiction.

State of TN v Ramalinga Samigal Madam41

It was held in this case that matters falling within the exclusive jurisdiction of Revenue
Courts or under the Code of Criminal Procedure or matters dealt with by special tribunals
under the relevant statutes e.g. By Industrial Tribunal, Election Tribunal, Revenue Tribunal,
Rent Tribunal, Cooperative Tribunal, Income Tax Tribunal, Motor Accidents Claims
Tribunal etc., or by Domestic Tribunals, e.g. Bar Council, Medical Council, University, Club
etc. are expressly barred from the cognizance of a civil court. But if the remedy provided by
the statute is not adequate and all questions cannot be decided by a special tribunal, the
jurisdiction of a civil court is not barred.

LIC v India Automobiles and Co.42

It was held in this case that when a court of limited jurisdiction prima facie and incidentally
states something, the jurisdiction of a civil court to finally decide the time is not ousted.

Suits impliedly barred

A suit is said to be impliedly barred when it is barred by General principles of law43

Premier Automobiles v Kamekar Shantaram44

In this case it was held that where a specific remedy is given by a statute, it thereby deprives
a person who insists upon a remedy of any other form than that given by the statute. Where
an act creates an obligation and enforces its performance in a specified manner, that
performance cannot be enforced in any other manner.

The court in this case also laid down principles as applicable to the jurisdiction of a civil
court in relation to industrial disputes.

39
AIR 1966 SC 1718.
40
AIR 1966 SC 249.
41
AIR 1986 SC 794.
42
AIR 1991 SC 884.
43
TAKWANI, supra note 11 at 53.
44
(1976) 1 SCC 496.

15 | P a g e
Indian Airlines Corporation v Sukhdeo Rai45

In this case, it was held that certain suits, though of a civil nature, are barred from the
cognizance of a civil court on the ground of Public policy.

The underlying principle is that a court ought not take up matters which are injurious to and
against the public will. For e.g. no suit shall lie for the recovery of costs incurred in a
criminal prosecution or for the enforcement of a right upon a contract affected by Section 23
of Indian Contract Act, 1872; or against a judge for acts done in the course of his duties.46

Bhatia Coop Housing Society Ltd v DC Patel47

It was settled in this case that a civil court has inherent powers to decide on its own
jurisdiction.

Although as a result of such inquiry it may turn out that the court had no jurisdiction to
entertain the suit.

Firm of Illury Subbayya Chetty & Sons v State of AP48

This case held that, in dealing with the question whether a civil court’s 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 the civil court. The exclusion of jurisdiction of a civil
court to entertain civil cases 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 that
nature.

The case also settled that it is for the party who seeks to oust the jurisdiction of a civil court
to establish it. It also held that statute ousting the jurisdiction of a civil court must be strictly
construed.

Kamala Mills v State of Bombay49

This case settled that whenever a contention is raised to oust the jurisdiction of a civil court, 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 doubt as to jurisdiction,
the court should lean towards the assumption of jurisdiction.

45
(1971) 2 SCC 192.
46
TAKWANI, supra note 11 at 53.
47
AIR 1953 SC 16.
48
AIR 1964 SC 322.
49
AIR 1965 SC 1942.

16 | P a g e
Objection as to Jurisdiction
Hira Lal v Kali Nath50

In this case, where the suit was ought to have been filed in Agra was filed in Bombay High
Court with the leave of the court.

It was held in this case that, it is a fundamental rule that a decree of a court without
jurisdiction is a nullity. But, this does not, however apply to territorial or pecuniary
jurisdiction, inasmuch as objections to such jurisdiction are regarded by the code as merely
technical and, unless raised at the earliest possible opportunity, they will not be entertained in
appeal or in revision for the first time.

Exclusion of Jurisdiction
Dhulabhai v State of MP51

It was held in this case that a litigant 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.

The princples relating to the exclusion of jurisdiction of civil courts have also been
summarized by Hidyatullah, CJ in this case. These principles are:

1) Where a statute gives finality to orders of special tribunals, the civil court’s 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.

2) Where there is an express bar of jurisdiction of a court, an examination of the scheme of a

particular Act to find the adequacy 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 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.

50
AIR 1962 SC 199
51
AIR 1969 SC 78.

17 | P a g e
3) 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.

4) When a provision is already declared unconstitutional or the constitutionality of any

provision 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 Limitaion Act but is not a
compulsory remedy to replace a suit.

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

6) Questions of the correctness of an assessment, apart from its 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 a particular Act. In either case, the
scheme of a particular Act must be examined because it is a relevant inquiry.

7) An exclusion of jurisdiction of a civil court is not readily to be inferred unless the

conditions above set down apply.

Dharangadhra Chemical Works Ltd. v State of Saurashtra52

In this case, the supreme court said that 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, mala fide, 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 the civil court is not
ousted.

Firm Seth Radha Kishan v Administrator, Municipal committee, Ludhiana53

It has been rightly laid down in this case that – Under Section 9 of the Code of Civil
Procedure, 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 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 a 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. A suit in a civil

52
AIR 1957 SC 264.
53
AIR 1963 SC 1547.

18 | P a g e
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.

Rajasthan SRTC v Krishna Kant54

The court in this case summarised the principles relating to jurisdiction of Industrial
disputes.

Chandrakant v Municipal Corpn. of Ahmedabad55

The court in this case reiterated the principles relating to jurisdiction of Industrial tribunals.
The court said that 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 think 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.

54
AIR 1995 SC 1715.
55
(2002) 2 SCC 542.

19 | P a g e