This article is written by Indrasish Majumder and Akshita Singh from National Law Unversity Odisha.
This article has been published by Shoronya Banerjee.
Table of Contents
Introduction
Section 9 of the “Civil Procedure Code” explicates the jurisdiction of civil courts in India. The Section reads “subject to provisions herein contained courts shall have the jurisdiction to adjudicate on all suits of a civil nature barring those the cognizance of which are impliedly or expressly barred.” Two conditions need to be satisfied for a civil court to exert jurisdiction on a suit:
1. “The suit must be civil
2. The cognizance should not have been impliedly or expressly barred for such a suit.”
A civil suit has not been defined in any Act. Any suit of a non-criminal nature which ratifies or determines civil rights can be termed as a civil suit. The Supreme Court enunciated on the definition of a civil proceeding in Kehar Sinha Nihal Singh v. Custodian General as an approbation of private rights to corporations or human beings. The reward or retrieval of private property is the objective of a civil action. A civil action may, in other words, be defined as “a legal proceeding between two parties for the redressal, determination or implementation of private rights.”
The private rights and obligations of citizens are covered under the expression “suit of civil nature.” A civil suit shall not adjudicate on a political or religious question. However, if the moot question in a suit relates to property and certain ancillary questions involving caste or religion a decision relating to caste or religious rites shall not terminate the suit from being one of civil nature. The courts have the jurisdiction to decide on such cases, to adjudicate on the more important question which is civil.
Each phrase of the doctrine approbates a duty of the Apex Court to apply its jurisdiction for the purpose of allocation of rights. If the requirements under Section 9 are satisfied for a particular case, no court can deny examining the matter in concern. The dictionary definition of the word civil relates it to a citizen or an individual. The inherent qualities of a person/thing can be termed as his/her “nature.” The phrase “civil nature” is more pervasive than the phrase “civil proceeding.” The Supreme Court in PMA Metropolitan v. M.M Marthoma, enunciated the meaning of the term jurisdiction. The court observed, “the expensive nature of the section is demonstrated by the use of phraseology both positive and negative, the language used is simple but explicit and clear […]. It is structured based on a civilised jurisprudence that the absence of machinery for enforcement of rights renders it nugatory. The heading which is normally a key to the section brings out unequivocally that all civil 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 civil nature unless expressly or impliedly barred.”
Phrases including words and expressions obligate the court to invoke its jurisdiction for the purpose of application of rights. Further mandated by the usage of the word “shall.” So long a suit pertains to the nature mentioned in the section, the same cannot be refused by the court. The expression “all suits of civil nature” amplifies this duty. The above contention was reaffirmed in the case of Shankar Narayanan v. K. Sreedevi, wherein the Apex Court observed: “Civil Court has primary jurisdiction in all types of civil matters as per Section 9 of CPC unless the action is expressly or impliedly barred.” The decision implied that a civil court’s jurisdiction can be ousted by the legislature by amending or adding a provision to the Act in itself. The court was instructed in the case of Shri Panch Nagar v. Purushottam Das, if any specific terms are lacking from any statute, to find an implied dismissal of the civil courts’ jurisdiction enumerated in any design, plan, or suitable provisions of the statute.
Therefore, a suit which concerns a question of property is a suit of civil nature, irrespective of whether such suits might include a question pertaining to religious ceremonies or rituals and the complainant bears the authority to commence a civil suit unless its jurisdiction is “expressly or impliedly” forbidden by the court. The burden to prove the jurisdiction of the court is on the parties which try to dismiss it. The statute dismissing the court’s jurisdiction must be well explained and established. The court is supposed to refer to the theory of jurisdiction in case there is any doubt concerning the same. While a civil court is authorised to decide on a suit concerning its jurisdiction, in consequence, however, it may be established that the court lacks the jurisdiction to adjudicate the case.
The project seeks to understand several nuances of Section 9 in a comprehensive and analytical way. With a view to understanding several crucial concepts under the section better, the project presents an analysis of section 9 along with several key judgments on the issue. The authors end by providing their own insight and comments on the section.
Understanding important concepts under Section 9
Jurisdiction
In the world of law, the first point that an attorney is supposed to prove is that the court which has been approached by him has the jurisdiction to try the suit. However, neither procedural nor substantive laws attempt to describe what is meant by the term “Jurisdiction.” The word “Jurisdiction” has stemmed from the Latin phrase “juris” which translates to “law” and “dicere” meaning “to speak”. In simple terms, it can be defined as “The power of a court to decide a case or issue a decree.” A court is said to have jurisdiction for the suit when it not only has the power to try the suit but can also pass orders or decrees in relation to it.
In the year 1928, the Calcutta High Court attempted to explain the meaning of the term jurisdiction in the case of Hriday Nath Roy v. Akhil Chandra Roy, the court stated: “jurisdiction is the power of the court to hear and determine a cause, to adjudicate and exercise judicial powers in relation to it.” It went further and demarcated three different categories of jurisdictions:
- Subject matter jurisdiction – Subject matter implies the main or the fundamental matter of a particular nature which is under question. Subject matter jurisdiction essentially states whether the court has the authority to try the subject matter in question. It primarily specifies whether the courts are allowed to try matters of a certain nature. If not, then the courts cannot try that particular case.
- Pecuniary jurisdiction – Pecuniary implies “related to capital”. It means of a certain monetary value. A court can have certain financial limitations which the courts should adhere to and beyond which the courts cannot try the matter. The primary aim of setting a pecuniary jurisdiction is to preclude the higher courts from getting burdened and at the same time extend help to the parties.
- Territorial jurisdiction – Also known as local jurisdiction, territorial jurisdiction lays down the geographical limits of a court’s authority. It ensures that such limits of courts are clarified clearly and specifically. No court is authorized to try matters which exist beyond their respective territorial limit.
Apart from the above three classifications, jurisdictions are also divided on the basis of “original”, and “appellate jurisdiction” or “exclusive” and “concurrent jurisdiction.” Additionally, the jurisdiction of the court is not decided on the arguments of the defense but on the basis of the allegations made in the complaint. An order passed by a court lacking jurisdiction is nullified and is unenforceable by law. When it comes to civil courts they are governed by the “Code of Civil Procedure 1908”, which is procedural law. The jurisdiction of the civil courts is dealt with under Section 9 of the Code of Civil Procedure, 1908.
Suits of civil nature
The term civil denotes rights and “remedies sought by action”. It relates to a suit that is not criminal in nature and concerns the rights of and wrongs done to individuals regarded as private persons. A cursory glance at Section 9 clarifies that all civil courts, subject to the provisions of the act, have the jurisdiction to try all suits of civil nature “except the suit of which cognizance is either expressly or impliedly barred.” Therefore, essentially any suit of civil nature can be tried by the court unless it is either expressly or impliedly barred. This implies that a court cannot try any matter which is not of civil nature.
As can be observed from the explanations, suits of civil nature mean a suit that is presented before a Civil Court for adjudication of a civil matter, more specifically to determine the right of property or office. In the landmark case, Shankar Narayan Potti v. K Sreedevi, the Apex Court held that ”it is obvious that in all type of civil dispute civil courts have inherited jurisdiction as per Section 9 of the CPC unless a part of Jurisdiction is carved out from such jurisdiction, expressly or by necessary implication by any statutory provision conferred on any other tribunal or authority.”
Expressly or impliedly barred
- Suits expressly barred – A suit barred by an enactment for the time being in force is said to be expressly barred. A competent legislature can bar jurisdiction of civil courts with respect to a particular class of suits of a civil nature, provided that, in doing so, it keeps itself within the field of legislation conferred on it and does not contravene any provision of the Constitution. Hence, a suit is said to expressly barred when it is prohibited by the statute for the time being in force.
- Suits impliedly barred – A suit barred by general principles of law is said to be impliedly barred. Where the statute provides a specific remedy, it deprives the person of a remedy of any other form. Similarly, even civil suits are barred from the cognizance of a civil court on the ground of public policy. A suit is said to be impliedly barred when it is said to be excluded by general principles of law. When a specific remedy is given by statute, it, therefore, denies a person who requires a remedy of any different form than is given by statute.”
In Raja Ram Kumar Bhargava v. Union of India, the Supreme Court set down certain important considerations for the determination of implied exclusion of Civil Court’s jurisdiction. They are:
a) Whether a right, not pre-existing in common law has been created by a statute.
b) That statute itself provided machinery for enforcement of that right.
c) Both rights and remedies have been created uno flatu.
d) A finality is intended to be the result of the statutory proceedings.
Unless the relevant statute entails a provision expressly or indicates to an inevitable/necessary implication stating the jurisdiction of the civil courts is excluded to try the immediate case, exclusion of the jurisdiction of civil courts will not be assumed. The general rule states the presumption would be made in favor of the existence of a right to sue in a civil court, whereas exclusion of the same would be considered an exception. If at all there are doubts regarding the ousting of the jurisdiction of a civil court, the court shall make an interpretation that would maintain the jurisdiction.
Relevant rights under the Section
The Section covers within its ambit three important rights. First is the right to property. This right implies and includes “movable, immovable, intellectual, inheritable property and property that arise out of any contract, agreement, litigation, or out of any other civil rights.” Other than the former, we also have the right to the office, as given under the explanation. As against the right to property which only has to do with ownership, the right to office implies a right to both acquire a position and subsequently exercise it. This could include any position in a job, religion, etc.
In what has spurred controversy and debate, the right to religion has also been declared as a civil right. It must be noted that any suit, the primary question of which pertains to a religion or a caste, does not belong to a civil nature. However, if such question in a suit is of a civil nature (right to property or to an office) and it so happens that the adjudication incidentally involves an element that involves a dispute relating to caste or to religious rites and ceremonies, the suit does not immediately cease to be of a civil nature.
Analysis of Section 9 of CPC
Presumption and scope
It is a general presumption that when there’s a suit pending before a civil court, it would have the jurisdiction to try the same. If a party wishes to challenge the competence of the court, then it must prove it with relevant authorities as to why that is the case and such claims are not accepted on a prima facie perusal of facts. Further, even if there is a claim of non-competence of the court to hear the particular claim, the court may still exercise jurisdiction for cases wherein statutory bodies or tribunals have heard cases beyond their jurisdiction.
It is quite clear that Section 9 of the CPC covers “the jurisdiction of a Court to try the suit.” However, it is pertinent to note that there are two essential prerequisites that need to be fulfilled before the hearing of the suit. Firstly, there must be a “cause of action.” Without proving that there was a proper cause of action, could lead to the suit being summarily rejected. Additionally, courts have opined that suits for temporary injunctions are not maintainable.
Secondly, there needs to be an inherent right of the plaintiff to sue the defendant. It is pertinent to note that common law grants this as an inherent right upon all individuals for the filing of a suit. However, this would differ in cases of appeal as in the case of appeals there are statutory provisions that govern who may and who may not appeal, but that is not the case in the case of instituting suits. Furthermore, the principles that are to be applied have been very clearly laid down by a Constitution Bench of the Hon’ble Supreme Court wherein the object and scope of Section 9 have been discussed.
Limitations concerning the exclusion of jurisdiction
Common assumption dictates, civil courts have the jurisdiction to try any suit and the prosecution has the power to initiate a suit of civil nature in a civil court independent of any statute unless expressly or impliedly barred. However, the above-stated rule is not without exceptions. A court has the jurisdiction to adjudicate whether the provisions of the act and rules enumerated thereunder have or have not been complied with if the order is in contradiction to the law, mala fide, ultra vires, perverse, arbitrary, ‘purported’, or is in contradiction to the principles of natural justice, is based on “no evidence” rule and so forth. The Privy Council in Secretary of State v. Mask and Co., commented it is the established law that jurisdiction of civil courts is not supposed to be expressly inferred but should have been impliedly barred or explicitly expressed by any statute. The court further enunciated that civil courts have the jurisdiction to examine cases which may not have observed the fundamental principles of the judicial process.
In-State of A.P v. Majeta LaxmiKanth Rao, the Supreme Court examined the elimination of jurisdiction of the civil courts. First, the court needs to decide on the legislative intent to remove the suit either directly or impliedly. While the courts are obliged to discern the causes for the exclusion of the jurisdiction of civil courts and find an explanation for the same, the reason is not subject to judicial examination. Thereafter, the court after being convinced of the reasons needs to ponder on whether the statute prohibiting the jurisdiction allows for an alternative remedy. The civil court’s jurisdiction cannot be obliterated if no alternative remedy is stated. However, in Balawwa v. Hasanabi, it was propounded that the jurisdiction of a civil court is excluded only to such extent concerning a tribunal established by a statute when the support approbated by the tribunal is questioned.
Justice SubbaRao, J. in the leading case of Radha Kishan v. Ludhiana Municipality, enumerated the appropriate legal position concerning the jurisdiction of courts under Section 9 of the Civil Procedure Code, the court shall have jurisdiction to try all suits of civil nature except 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. A suit in a civil court will always question the order of a tribunal created by statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the act but in violation of its provisions.”
A glance at the landmark judgments
The above discussion clarifies the jurisdiction of civil courts is all-encompassing unless expressly excluded by law or intentions arising from such law.
Dhulabhai v. State of M.P.
Justice Hidayatulla, in the case of Dhulabhai v. State of M.P, enumerated certain principles concerning the exclusion of jurisdiction of civil courts. The facts and the principles laid down in the aforementioned case are enlisted below.
Facts
The appellants, in this case, were tobacco dealers operating in Ujjain. Tobacco is bought and sold for the purposes of smoking, eating, and preparing bidis. During the same time the Madhya Bharat Sales Tax Act, 1950 was enumerated on 1st May 1950. As per Section 3 of the Act, every dealer whose business in the last year exceeded by rupees 12,000 was liable to pay a tax concerning the sales. It was explicated under Section 5 of the Act, the tax was of a single point nature, and the proviso specified the government is liable to point out the point of sales when the tax was to be paid. The Section specified the maximum and minimum level of tax, allowing the respective government to decide the actual rate i.e even though the tax rate is not prescribed the minimum and maximum level is. A plethora of notifications were issued by the government from April 1950 to January 1954 imposing taxes at different rates on tobacco as mentioned above. However, the tax was not collected at the above-stated rate. In Madhya Pradesh, the tax was not imposed on the purchase or sale of tobacco. The tax was accumulated by authorities in varying amounts for different quarters from the plaintiff. The plaintiff issued notices under Section 80 of the Civil Procedure Code explaining no suit can be instituted against the public officer/government until the completion of the two months’ notice in his official duty.
Principles laid down
- Wherein a finality is attributed to orders of special tribunals, the jurisdiction of civil courts is assumed to be excluded if sufficient remedy to do what normally civil courts in a suit would do. However, cases wherein the provisions of a particular Act has not been adhered to or the fundamental principles of judicial procedure have not been complied with by a statutory tribunal is excluded by the provision.
- Where an explicit bar exists to the jurisdiction of a court, finding the reasonableness and sufficiency of the provided remedies by examining the scheme of a particular Act may be deemed relevant but indecisive for preserving the jurisdiction of a civil court. However, when no definite exclusion exists, scrutiny of the remedies and scheme of a particular act to glean the intent becomes essential and the result of the probe may be decisive. It is necessary in the latter case to glean whether the statute enumerates any special rights or liabilities and provides for its determination. The statute further enumerates questions pertaining to the same right and liability as determined by the constituted tribunals and whether the remedies related to actions in civil courts are stipulated by the said statute or not.
- Any suit challenging the provisions of a particular act as ultra vires cannot be brought before the tribunals created under this Act. Neither can the High courts delve into such a question on a reference or revisions from decisions of tribunals.
- A suit may be filed in a case wherein the constitutionality of a provision is questioned or is deemed unconstitutional.
- A suit is said to lie where a particular Act does not consist of any machinery for a refund of the tax collected illegally or over constitutional limitations.
- A civil suit cannot be brought forth before the court if the directions of the authorities are deemed final and an explicit prohibition is enumerated in the Act. Concerns regarding the correctness of an assessment, barring questions concerning its constitutionality are to be decided by the requisite authorities. The Scheme of a particular Act in either case must be scrutinised considering the relevance of the enquiry.
- Unless the aforementioned conditions are satisfied, questions concerning an exclusion of the jurisdiction of a civil court are not to be inferred.
The principles enumerated are essential in deciding the exactitude of the assessment of orders under axing statutes.
Premier Automobiles v. K.D. Wadke
The Supreme Court in Premier Automobiles v. K.D. Wadke, propounded certain directions concerning industrial disputes relevant to the jurisdiction of civil courts. The facts and the principles laid down are mentioned below.
Facts
The case relates to Section 18(1) of the Industrial Disputes Act concerning the dispute between employer and employee and whether such a dispute can be decided by a civil court. The jurisdiction of the civil court concerning industrial dispute principles. Section 10A of the Industrial Disputes Act of arbitration-jurisdiction of civil courts to adjudicate.
Principles laid down
- If the suit is not an industrial dispute and it does not correspond to the enforcement of any rights under the Industrial Disputes Act, it shall come under the purview of civil courts.
- If the dispute is an industrial conflict arising from a right or liability under the public or general law and not under the ID Act, the jurisdiction of the civil court is to be decided by the appellant (person concerned), his/her remedy for the relief capable of being granted in a particular remedy.
- If the Industrial dispute concerns the enforcement of any right or obligation enumerated under the Act, the suitor can get a remedy only under the Industrial Disputes Act.
Rajasthan State Road Corporation v. Krishna Kant
The Supreme Court recapitulated the principles applicable to industrial disputes after referring to a plethora of leading decisions on the subject, in Rajasthan State Road Corporation v. Krishna Kant.
Facts
The respondents in this immediate case are employees of the appellant corporation i.e Rajasthan State Board Transport Corporation. The services of the employees were discontinued following disciplinary proceedings initiated against them on charges of misconduct. The respondents contended in the civil suits filed by them that the directive terminating their services is illegal. They further contended for a declaration by the court that they still continued working for the corporation and were therefore eligible for all consequential benefits. The suit was challenged by the corporation on the grounds of lack of jurisdiction of civil courts to entertain the suit.
Principles laid down
1. When a suit arises from a general law of contract in a civil court i.e. and reliefs are claimed on basis of the general law of contract, it cannot be deemed maintainable, even if the dispute is of an “industrial nature” within the meaning of “section 2(k)” or “section 2-A of the Industrial Disputes Act, 1947.”
2. However, wherein the conflict involves observance, recognition, or enforcement of any rights and obligations arising out of the Industrial Dispute Act, the way to approach the forum is under the auspices of the same act “Section 2(k)”, “2-A”.
3. It is incorrect to state the remedies under the “Industrial Disputes Act” are not so effective because the access to a forum is contingent on a reference made by the appropriate government.
4. Though the government may approve the power to examine, the power disbursed is not the power to suggest but decide.
5. Consistent with the aforesaid law i.e. command the parliament and state legislature to enact a provision enabling a workman to address the labour court i.e. without the government’s recommendation in a suit of Industrial Dispute under “Section 2-A” of the Act. This would help in the removal of any misgivings concerning the effectiveness of the remedies enumerated under the Industrial Disputes Act.
Lastly, the Supreme Court recently in ChandrakantTukaram v. Municipal Corporation, of Ahmedabad, reinstated the principles enumerated in previous decisions. The appeals in concern are directed against three judgments delivered by the Division Bench of Gujrat High Court by a Single Judge dated 22nd September 1990. A civil suit was filed by the workmen of Ahmedabad Municipal Corporation challenging the orders of termination/dismissal of service. Four issues were framed by the city civil court, one of which challenged the jurisdiction of the civil court to entertain the suit.
It was held 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 are 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.”
Conclusion
The findings from the project thereby suggest “Section 9 of the Civil Procedure Code” concerns the jurisdiction of a civil court to entertain a cause. The section enumerates, subject to the provisions of Section 10, 11, 12, 13 47, 66, 83, 84, 91, 9(115) civil courts have an “inherent” jurisdiction to entertain any suit unless its cognizance is expressly or impliedly barred by requisite implications in the respective statute. The civil court is entitled to decide on a suit concerning its jurisdiction, however, in consequence, it may turn out the court does not have any jurisdiction over the matter. Civil courts have the jurisdiction to decide on whether tribunal, quasi-judicial bodies, or statutory authorities operate within its jurisdiction. Once it has been established that such authority e.g. certificate officer has initial jurisdiction, any erroneous order by him in such circumstance would not be prone to any collateral attack concerning the suit. This is because of an essential or palpable difference between cases wherein the courts lack jurisdiction to adjudicate cases and wherein the court exercises the jurisdiction irregularly. However, the Apex Court is yet to clarify the situation with the case concerning the jurisdiction of a civil court wherein its jurisdiction is partly barred, impliedly, expressly, or where it is not.
References
- A.N Saha’s, The Code of Civil Procedure (first published 1stJanuary 2019, Premier Publishing Company)
- “PMA Metropolitan V. M.M Marthoma[1995] 4 SCC 226 (318-19)”
- Shankar Narayanan v. K. Sreedevi(1959) 58 (P&H).
- Bharat Aluminum Co. v. Kaiser Aluminum Technical services Inc. 2012 (9) SCC 552
- Ganga Bai v. Vijai Kumar, AIR 1974 SC 1126.
- State v. Mask and Co. [1940] 105; 67 IA 222 (PC).
- State of A.P. v. Manjeti LaxmiKanth Rao[2000] 2220 SCC (SC).
- Rachit Sharma, ‘Dhulabhai v. State of Madhya Pradesh’ (Racolblegal, April 27th2017) < https://racolblegal.com/dhulabhai-vs-state-of-madhya-pradesh-air-1969-sc-78-1968-scr-3-662/> accessed 8 November 2020.
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