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
[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)
[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)
[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)
[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”)
[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
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