Tuesday, September 9, 2014

Jurisdiction of Civil Court under section 9, Code of Civil Procedure, 1908

Section 9 of the Code of Civil Procedure, 1908 (“CPC”) provides that a court “shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred”. Hence, as per section 9, civil courts have the inherent jurisdiction in all types of civil disputes unless a part of that jurisdiction is carved out, expressly or by necessary implication, by any statutory provision and conferred on any other tribunal or authority.[1] A party which seeks to oust the jurisdiction of an ordinary civil court shall establish the right to do so, such ouster being express or implied.[2] And the provision, which ousts the jurisdiction of a civil court, must be strictly construed.[3]For instance, Order 7 Rule 11(d) of CPC (rejection of a plaint where suit appears to be barred by law) shall be construed strictly.[4]Where a statute provides for ouster of civil court’s jurisdiction, conditions leading to such ouster should occur on the date of the institution of proceeding and not otherwise.[5]

The question of jurisdiction is to be determined primarily on the averments made in the plaint.[6] It does not depend upon the defence taken by the defendants in the written statement. [7] Moreover, any application filed under the provisions of different statutes cannot be treated as a suit or plaint unless otherwise provided in the said Act.[8]A court having no jurisdiction cannot decide on the merits of the case but only the question of jurisdiction.[9] It is well settled that a civil court has inherent power to decide the question of its own jurisdiction, although, as a result of its enquiry, it may turn out that it has no jurisdiction over the suit.[10] 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 case.[11] Where a court does not have jurisdiction, the same cannot be conferred by the consent of the parties.[12]

A special procedure provided in the Act, by necessary implication, may prohibit the Civil Court under Section 9 of the Civil Procedure Code 1908 to take cognizance of the objections arising under the Act for determination of certain question, for e.g., compensation for land acquired.[13] In such cases, there would not be repugnancy between § 9 of the Code and the special law. [14] Hence, where a tribunal is created by a special statue, it is assumed that it has ‘exclusive jurisdiction’ to decide the disputes entrusted by the statute.[15] Justice M. Hidayatullah had, while dealing with the question of civil court’s jurisdiction in relation to Madhya Bharat Sales Tax Act, 1950 (Dhulabhai v. State of M.P.), [16] laid down the following guidelines for determining the jurisdiction of civil court:

“(1) Where the statute gives a finality to the orders of the special Tribunals the civil courts' 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 provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.

Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the 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 the Tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.

(3) Challenge to the provisions of the 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 the decision of the 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 Limitation Act but it 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 illegality collected a suit lies.

(6) Questions of the correctness of the 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 the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.

(7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.”

The above guidelines are significant where jurisdiction of civil court is sought to be barred in view of a special law. Whenever statute 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.[17]However, civil court can interfere where a statutory tribunal does not observe fundamental principles of judicial procedure and where statutory provisions have not been complied with.[18]The court can also decide those questions which are not expressly barred under the statute.[19]Similarly, where the dispute is with respect to the applicability of an Act to a certain class of workers, jurisdiction of civil court may not be excluded.[20] The language of the provision, ousting the jurisdiction, should be clear and unambiguous. And where the language is ambiguous or there is no necessary implication of civil court’s jurisdiction, the suit before civil court would be maintainable.[21] Interestingly, it has been held that a scheme formulated by a decision of this Court (and not under a statute) is the nonetheless a “statute”, and therefore, the scheme can expressly or impliedly bar cognizance of suits.[22]

Contrary to an appeal, there is inherent right in every person to file a suit and for its maintainability it requires no authority of law.[23] For instance, a suit challenging the order of termination from service is maintainable.[24] The Supreme Court, in Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke, had summed up the principles applicable to the jurisdiction of the civil court in relation to an industrial dispute as follows:

“(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil court.

(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.

(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.

(4) If the right which is sought to be enforced is a right created under the Act such as Chapter V-A then the remedy for its enforcement is either Section 33-C or the raising of an industrial dispute, as the case may be.”

Apart from service law disputes, there are several other situations where a suit can be filed. Institution of a suit challenging the validity of a contract, containing an ‘arbitration clause’, had been held as not being barred under § 32 of the Arbitration Act, 1940.[25] A suit for possession is also maintainable under this section.[26] A suit can be filed for a declaration of right, e.g., right to enter the temple.[27]Money claim should be claimed by instituting a suit before civil court, and not under Article 226 of the Constitution of India, 1950 (“Constitution”).[28]A relief, which cannot be granted by a revenue court under the relevant statute, would be maintainable under § 9 of the Code.[29]

Since § 9 of the Code relates to ‘civil matters’, pendency of ‘criminal matter’ relating to the same issue should not bar civil court from proceeding with the case.[30]An order/decree made by the civil court without jurisdiction is a nullity.[31]As such, this 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.[32]Where a suit is time-barred and yet the court proceeds with it, the order therein cannot be challenged on the ground of lack of jurisdiction but on the ground of error/illegality (in an appeal).[33]

The above discussion provides an overview of § 9 of the Code. It had not intended to cover all issues related to section 9 of the Code but only basic ones. 




[1] Sankaranarayanan Potti v. K. Sreedevi, (1998) 3 SCC 751, 761; Abdul Gafur v. State of Uttarakhand, (2008) 10 SCC 97, 102; Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393, 397; Musamia Imam v. Rabari Govindbhai, AIR 1969 SC 439
[2] Sri Vedagiri Lakshmi Narasimha Swami Temple v. Induru Pattabhirami Reddi, (1967) 1 SCR 280:AIR 1967 SC 781; Sahebgouda v. Ogeppa, (2003) 6 SCC 151,156
[3] Abdul Waheed Khan v. Bhawani, (1966) 3 SCR 617: AIR 1966 SC 1718; Swamy Atmananda v. Sri Ramakrishna Tapovanam, (2005) 10 SCC 51, 66; Sulochana v. Rajinder Singh, (2008) 15 SCC 538, 547; Madhav Rao Jivaji Rao Scindia v. Union of India, (1971) 1 SCC 85, 162; Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651, 688-89
[4] Vishnu Dutt Sharma v. Daya Sapra, (2009) 13 SCC 729, 735
[5] Ishar Singh v. National Fertilizers, 1991 Supp (2) SCC 649 at page 651
[6] Ramesh Chand Ardawatiya v. Anil Panjwani, (2003) 7 SCC 350, 364
[7] Abdulla Bin Ali v. Galappa, (1985) 2 SCC 54, 56
[8] P.A. Ahammed Ibrahim v. Food Corpn. of India, (1999) 7 SCC 39, 44
[9] Athmanathaswami Devasthanam v. K. Gopalaswami Ayyangar, AIR 1965 SC 338
[10] Bhatia Coop. Housing Society v. D.C. Patel, AIR 1953 SC 16
[11] Pankaj Bhargava v. Mohinder Nath, (1991) 1 SCC 556,568; See also Mohd. Hasnuddin v. State of Maharashtra, (1979) 2 SCC 572, 584 (it must be satisfied that the conditions requisite for its acquiring seisin of that matter have in fact arisen)
[12] Chiranjilal Shrilal Goenka v. Jasjit Singh, (1993) 2 SCC 507, 519
[13] State of Mizoram v. Biakchhawna, (1995) 1 SCC 156, 160
[14] State of V.P. v. Moradhwaj Singh, (1960) 3 SCR 106:AIR 1960 SC 796 (no question of repugnancy between special law and § 9 where the former bars the jurisdiction of a civil court)
[15] Athmanathaswami Devasthanam v. K. Gopalaswami Ayyangar, (1964) 3 SCR 763:AIR 1965 SC 338; State of Kerala v. N. Ramaswami Iyer & Sons, AIR 1966 SC 1738
[16] Dhulabhai v. State of M.P., (1968) 3 SCR 662: AIR 1969 SC 78; See also Bank of India v. Lekhimoni Das, (2000) 3 SCC 640, 649 (alternative remedy not to bar regular suit); But see Srikant Kashinath Jituri v. Corpn. of the City of Belgaum, (1994) 6 SCC 572, 578 (The ground of ‘alternative remedy’, as available for entertaining a petition under Article 226 of the Constitution, is not available for a suit under § 9 of the Code)
[17] Anwar v. Ist ADJ, (1986) 4 SCC 21, 26
[18] Gurbax Singh v. Financial Commissioner, 1991 Supp (1) SCC 167, 174; Katikara Chintamani Dora v. Guntreddi Annamanaidu, (1974) 1 SCC 567, 580 (erroneous finding)
[19] Akbar Khan Alam Khan v. Union of India, AIR 1962 SC 70
[20] Pabbojan Tea Co. Ltd. v. Dy. Commr., AIR 1968 SC 271
[21] Shiromani Gurdwara Parbandhak Committee v. Raja Shiv Rattan Dev Singh, AIR 1955 SC 576
[22] Dayaram v. Sudhir Batham, (2012) 1 SCC 333, 351 (“This is because the “statute” which gives rise to a cause of action referred to in the aforesaid decisions in V. Venkata Subba Rao [(1997) 5 SCC 460] , Bal Mukund Bairwa (2) [(2009) 4 SCC 299 : (2009) 1 SCC (L&S) 812 : (2009) 2 SCC (Civ) 138] and Dhulabhai [AIR 1969 SC 78 : (1968) 3 SCR 662] , in this case is substituted by the “quasi-legislative” stopgap scheme created by the decision of this Court”)
[23] Shiv Shakti Coop. Housing Society v. Swaraj Developers, (2003) 6 SCC 659, 669
[24]  Ram Kumar v. State of Haryana, 1987 Supp SCC 582 at page 583
[25]  Orient Transport Co. v. Jaya Bharat Credit & Investment Co. Ltd., (1987) 4 SCC 421, 422
[26]  Raj Narain Pandey v. Sant Prasad Tewari, (1973) 2 SCC 35, 40; Gurucharan Singh v. Kamla Singh, (1976) 2 SCC 152, 159; See also Saraswati v. Lachanna, (1994) 1 SCC 611, 615
[27] Nar Hari Shastri v. Shri Badrinath Temple Committee, 1952 SCR 849:AIR 1952 SC 245
[28] Amrit Bhikaji Kale v. Kashinath Janardhan Trade, (1983) 3 SCC 437 at page 444
[29] Ram Prasad v. Asstt. Director of Consolidation, 1994 Supp (2) SCC 228, 233
[30] State of Rajasthan v. Kalyan Sundaram Cement Industries Ltd., (1996) 3 SCC 87
[31] Amrit Bhikaji Kale v. Kashinath Janardhan Trade, (1983) 3 SCC 437 at page 444
[32] Kiran Singh v. Chaman Paswan, AIR 1954 SC 340
[33] Ittyavira Mathai v. Varkey Varkey, AIR 1964 SC 907

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