JURISDICTION OF COURT

CHANAKYA NATIONAL LAW UNIVERSITY

PATNA

Submission of Final Draft

TOPIC: JURISDICTION OF A COURT

Submitted By:

Ajit Kumar Sharma

3rd Year(5th Semester), Section: A, Roll Number- 1303

Submitted To:

Dr. B.R.N.SHARMA

FACULTY OF LAW

Session: 2015-2020

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ACKNOWLEDGEMENT

I would like to thank DR. B.R.N. SHARMA whose guidance helped me a lot with
structuring my project. I owe the present accomplishment of my project to my friends, who
helped me immensely with materials throughout the project and without whom I couldnt
have completed it in the present way.

I would also like to extend my gratitude to my parents and all those unseen hands who helped
me out at every stage of my project.

Thank you,

Ajit Kumar Sharma

Roll no-1303.

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DECLARATION

I hereby declare that the work reported in the project entitled Jurisdiction of Court
submitted at CHANAKYA NATIONAL LAW UNIVERSITY is an authentic record of my
work carried out under the supervision of Prof. DR. B.R.N.SHARMA. I have not submitted
this work elsewhere for any other degree or diploma. I am fully responsible for the contents
of my Project Report.

Ajit Kumar Sharma

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TABLE OF CONTENTS

Contents
DECLARATION ......................................................................................................................................... 3
OBJECTIVES OF THE STUDY ..................................................................................................................... 5
HYPOTHESIS ............................................................................................................................................ 5
RESEARCH METHODOLOGY .................................................................................................................... 5
SOURCES OF DATA .................................................................................................................................. 5
LIMITATIONS OF THE STUDY ................................................................................................................... 5
SCOPE OF THE STUDY.............................................................................................................................. 5
CHAPTER-1 .............................................................................................................................................. 6
CHAPTER-2 .............................................................................................................................................. 7
CHAPTER-3 ............................................................................................................................................ 11
Pecuniary Jurisdiction: Sec-15........................................................................................................... 11
Territorial Jurisdiction: Sec- 16 To Sec -20 ........................................................................................ 12
Immovable Property: Sec- 16-18 .................................................................................................. 12
Movable Property Section 19..................................................................................................... 14
Jurisdiction As To Subject-Matter ..................................................................................................... 16
Objection As To Jurisdiction: Section 21 ........................................................................................... 16
CHAPTER-4 ............................................................................................................................................ 19
CHAPTER-5 ............................................................................................................................................ 24
BIBLIOGRAPHY ...................................................................................................................................... 26
PRIMARY SOURCES ........................................................................................................................... 26
i. Bare act of code of civil procedure ....................................................................................... 26
SECONDARY SOURCES ...................................................................................................................... 26
BOOKS ............................................................................................................................................... 26
WEBSITES .......................................................................................................................................... 26

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OBJECTIVES OF THE STUDY

The objectives of the study to

(i) To study the jurisdiction power of civil court.

(ii) To study kinds of jurisdiction of court.

HYPOTHESIS

The researcher comes with the following hypothesis that every civil court cant entertained
every civil suit.

RESEARCH METHODOLOGY

The researcher depend upon the existing materials like books, case laws, thus the researcher
opted doctrinal method of research. The researcher visited library and refer the primary and
secondary sources available there.

SOURCES OF DATA

The researcher went for primary and secondary sources of data. Secondary sources are all
those work done on primary sources.

LIMITATIONS OF THE STUDY

The researcher had time limitation as he has to complete this project within one month.

SCOPE OF THE STUDY

This research will be a source for a further researcher. This research will give him/her the
basic ideas in a very simple manner.

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CHAPTER-1

INTRODUCTION

Civil law is the law of the state, Law of the land, law of the lawyers and law courts. In
measuring civil liability the law attaches more importance to the principal of compensation
than to that of fault. The civil Law baring few exceptions takes no account of character of the
offender or motive for the same. It also does not take account of probable or intended
consequences but only of the consequences, which actually ensue.1The word civil is derived
from jus civile' of roman. The law is not a scattered mass isolated decisions or directives
coming in piecemeal in the sovereign, it is intended to be an organic whole.2 The Civil Law
thus deals with civil or private rights with remedy as contrasted with criminal laws where the
state is involved. Civil Law is that body or branch of laws which every particular nation or
state or city has established peculiarly for itself. The objective of civil law is to decide civil
liability for an act or omission. Such liability is in various forms Like damages, specific
performance, compensation and various other segments like property law, intellectual
property law, civil aspects of the marital law etc. According to Mulla suits may be divided
into 2 classes namely suits which are of civil nature and suits which are not of civil nature.
Suits of civil nature comes within the domain of civil law system.3

The word civil nature" means such rights as are vested in the citizen and fall within the
domain of civil law and not public law.4 In terms of enforcement, ordinary civil courts are the
proper tribunals to which resort must be had for enforcement of civil right and that no wrong
of a civil nature shall be without a remedy in the civil court5The same principles have been
applied in the privy council ruling which is still followed. There may be, where right is
interpreted with injuria sine damno sufficient to found an action but no action can be
maintained where there is neither damnum nor injuria.6 The civil law administered in India
in modern times is influenced by the Common Law including English Law of torts as applied
and found suitable in Indian conditions and as modified by acts of Indian Legislature.7

1
Salmond On Jurisprudence Pg.107
2
Dean Pound Quoted In Jurisprudence By M P Tandan At Page 53.
3
Mulla Civil Procedure Code Pg.17 12th Edition.
4
Justice Holloway In 11 Mlj 422
5
Ashby V/S. White 1 Smiths Lc 216.
6
Law Of Torts By Ratanlal And Dhirajlal 23rd(Centernary) Edition 1997 At Page 15.
7
Setalwad In Common Law In India Page 110.
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CHAPTER-2

JURISDICTION OF CIVIL COURTS

Jurisdiction of Civil Court & Place Of Suing

Ubi Jus Ibi Remedium - "Where there is a right, there is a remedy"

The fundamental principle of English Law that wherever there is a right, there is a remedy,
has been adopted by the Indian legal system. It means, whenever the rights of a person is
infringed or curtailed or the person is stopped by anyone in enjoying the rights so guaranteed
to him, there must be some judicial forum having authority to adjudicate on the matter and
the rights so guaranteed should be restored or compensated as per the case.

To get the rights restored or claiming compensation or damage sustained, person has to
approach the appropriate forum, which has the authority to adjudicate on the matter and
award the relief so sought. So, the forum must have jurisdiction to deal with that matter.

The word jurisdiction is used in various contexts. It means legal authority, extent of power
and limitation on such powers. It is a term of comprehensive import embarrassing every kind
of judicial action. It means power and authority of the court to hear and determine a judicial
proceeding and power to render particular judgement in question. In other words it is the right
and power of the court to adjudicate the subject matter in a given case.8

The extent of jurisdiction will be determined with reference to the subject-matter, pecuniary
value and the local limits. So, while the question of jurisdiction of a court is determined, the
nature of the case, the pecuniary value of the suit, and the territorial limitation of the court
need to be taken into consideration.

Not only that, there may be a situation wherein the forum approached may have competency
to deal with the subject-matter, the suit is falling well within the pecuniary limitation and
within the local limits assigned with that court as well, but if the court is not competent to
grant the relief sought then also the court cannot be considered as the court having
jurisdiction as observed in Official Trustee V. Sachindra Nath9; the supreme court observed:

8
BLACKS LAW DICTIONARY 8th EDITION.
9
AIR 1969 SC 823
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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 the order
sought for.

Jurisdiction of A Civil Court: Sec-910

The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits
of a civil nature excepting suits of which their cognizance is either expressly or impliedly
barred.

[Explanation I].- 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 ll].- For the purposes 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.].

As mentioned under sec-911 of the Code, the civil courts have jurisdiction to deal with all
matters provided it is a matter of civil nature and it is not expressly or impliedly barred.

The word civil is not defined in the Code, however as per dictionary meaning it pertains to
the private rights and remedies as distinguished from criminal and political. The word nature
indicates the fundamental quality of a thing or person, its identity or the essential character.
Hence, the suit of civil nature may be understood as a suit in which the fundamental question
for determination, the matters in controversy primarily relating to the private rights and
obligations, not to be related to political or religious rights and obligations; and if it is so the
civil courts have the jurisdiction provided it is not expressly or impliedly barred.

The concept of jurisdiction under section 9 was explained by Supreme Court in Most Rev.
P.M.A. Metropolitan V. Moran Mar Marthoma, AIR 1995 SC 2001, the Court stated:

1. Phraseology used in the section is both positive and negative,

2. The earlier part opens the door widely and latter debars the entry of those which are
expressly or impliedly barred.

10
Section 9 Of Code Of Civil Procedure
11
Supra 10
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3. The two explanation, one from the inception and the second added in 1976 reflects the
legislative intentions.

4. That those religious matters in which rights of the property or the office is involved
irrespective of the fact whether any fee is attached to the office or not is a matter of civil
nature and the civil court is competent to try such suit.

5. Each word and expression casts an obligation on the court to exercise jurisdiction for
enforcement of rights.

6. The word shall makes it mandatory.

7. No Court can refuse to entertain a suit if it is of the description mentioned in the section.

However, the court cannot try any suit if its cognizance is either expressly or impliedly
barred. A Suit is said to be expressly barred if it is barred by any enactment for the time being
in force. It is open to the legislature to bar the jurisdiction of civil court with respect to a
particular class of suit keeping itself within the ambit of power conferred on it by the
Constitution of India.

The development of the tribunal has taken away the jurisdiction of the civil court with respect
to the subject matter allotted to that tribunal on the first stage, however if any question of law
so raised, or any provision of the act which has so created the tribunal that can be looked into
by the civil court. Thus, matters falling within the exclusive jurisdiction of the 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, Cooperative Tribunal, Income Tax
Tribunal, Motor Accident Claims Tribunal, etc., are expressly barred from the cognizance of
the Civil Courts.

A suit is said to be impliedly barred when it is barred by the general principle of law. In fact,
certain suits, though of a civil nature, are barred from the cognizance of a civil court on the
ground of public policy. The principle underlying is that a court ought not to countenance
matters which are injurious to and against the public weal. Thus, no suit shall lie for recovery
of costs incurred in a criminal prosecution or for enforcement of a right upon a contract hit by

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Section 2312 of the Indian Contract Act, 1872; or against any judge for acts done in the course
of his duties, etc.

12
Section 23 Of Indian Contract Act, 1872
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CHAPTER-3

KINDS OF JURISDICTION

Kinds of Jurisdiction and Place of Suing: Sec-1513 To Sec-2014

There are basically three kinds of jurisdictions on the basis of which the place of suing may
be determined. These are

1. Pecuniary Jurisdiction

2. Territorial Jurisdictions, and

3. Subject Matter Jurisdictions

If the matter put forth by the litigant for adjudication in front of the court, and the court have
all these (pecuniary, territorial and Subject-Matter) jurisdiction, then only that court can try
the matters so brought by the litigants. In case, the court does not have any of the above
mentioned jurisdiction and still try the suit, it will be either termed as irregular exercise of
jurisdiction or lack of jurisdiction which may turn the decision void or voidable depending
upon the situations. The concept of Irregular Exercise of Jurisdiction and Lack of Jurisdiction
will be discussed separately at the end.

Pecuniary Jurisdiction: Sec-1515

Every suit shall be instituted in the Court of the lowest grade competent to try it.

The word competent to try indicate the competency of the court with respect to the pecuniary
jurisdiction. It means, the courts of lowest grade who has the jurisdiction with respect to
pecuniary value shall try the suit at first.

Now, the biggest question is, who will determine the valuation of the suit for the purpose of
determining the pecuniary jurisdiction of the court. In general, it is the valuation done by the
plaintiff is considered for the purpose of determining the pecuniary jurisdiction of the court,
unless the court from the very face of the suit find it incorrect. So, if the court finds that the

13
Supra 10 at section 15
14
Supra 10 at section 20
15
Supra 13
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valuation done by the plaintiff is not correct, that is either undervalued or overvalued, the
court will do the valuation and direct the party to approach the appropriate forum.

So, prima facie, it is the plaintiffs valuation in the plaint that determines the jurisdiction of
the court and not the amount for which ultimately decree may be passed. Thus, if the
pecuniary jurisdiction of the court of lowest grade is, say, Rs. 10,000/- and the plaintiff filed a
suit for accounts wherein the plaintiff valuation of the suit is well within the pecuniary
jurisdiction of the court but court latter finds on taking the accounts that Rs. 15,000/- are due,
the court is not deprived of its jurisdiction to pass a decree for that amount.

Usually, a court will accept a valuation of the plaintiff in the plaint and proceed to decide the
matter on merits on that basis, however, that does not mean that plaintiff in all cases are at
liberty to assign any arbitrary value to the suit, and to choose the court in which he wants to
file the suit.

If it appears to the court that the valuation is falsely made in the plaint for the purpose of
avoiding the jurisdiction of the proper court, the court may require the plaintiff to prove that
the valuation are proper.

Next important question is the status of decision given by the court who does not have the
pecuniary jurisdiction in the matter. That is, what if the Court proceeded with the matter and
later come to know that it did not have the pecuniary jurisdiction. (The matter will be dealt
under heading irregular exercise of jurisdiction).

Territorial Jurisdiction: Sec- 1616 To Sec -2017

Immovable Property: Sec- 16-18

Sections 1618: Suits to be instituted where subject-matter situate Subject to the pecuniary or
other limitations prescribed by any law, suits-

(a) for the recovery of immovable property with or without rent or profits,

(b) for the partition of immovable property,

16
Supra 10 at section 16
17
Supra 14
18
Supra 16
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(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable
property,

(d) for the determination of any other right to or interest in immovable property,

(e) for compensation for wrong to immovable property,

(f) for the recovery of movable property actually under distraint or attachment, shall be
instituted in the Court within the local limits of whose jurisdiction the property is situate :

Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable
property held by or on behalf of the defendant, may where the relief sought can be entirely
obtained through his personal obedience be instituted either in the Court within the local
limits of whose jurisdiction the property is situate, or in the Court within the local limits of
whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or
personally works for gain.

Explanation - In this section property means property situate in India.

Section 1719: Suits for immovable property situate within jurisdiction of different Courts

Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property
situate within the jurisdiction of different Court, the suit may be instituted in any Court within
the local limits of whose jurisdiction any portion of the property is situate :

Provided that, in respect of the value of the subject matter of the suit, the entire claim is
cognizable by such Court.

Section 18: Place of institution of suit where local limits of jurisdiction of Courts are
uncertain

(1) Where it is alleged to be uncertain within the local limits of the jurisdiction of which of
two or more Courts any immovable property is situate, any one of those Courts may, if
satisfied that there is ground for the alleged uncertainty, record a statement to that effect and
thereupon proceed to entertain and dispose of any suit relating to that property, and its decree
in the suit shall have the same effect as if the property were situate within the local limits of

19
Supra 10 at section 17
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its jurisdiction: Provided that the suit is one with respect to which the Court is competent as
regards the nature and value of the suit to exercise jurisdiction.

(2) Where a statement has not been recorded under sub-section (1), and objection is taken
before an Appellate or Revisional Court that a decree or order in a suit relating to such
property was made by a Court not having jurisdiction where the property is situate, the
Appellate or Revisional Court shall not allow the objection unless in its opinion there was, at
the time of the institution of the suit, no reasonable ground for uncertainty as to the Court
having jurisdiction with respect thereto and there has been a consequent failure of justice.

Movable Property Section 19

Section 19: Suits for compensation for wrongs to person or movables

Where a suit is for compensation for wrong done to the person or to movable property, if the
wrong was done within the local limits of the jurisdiction of one Court and the defendant
resides, or carries on business, or personally works for gain, within the local limits of the
jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either
of the said Courts.

Illustrations:-

(a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in Delhi.

(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B.

B may sue A either in Calcutta or in Delhi.

Other Suits: Section 20

Section 2020: Other suits to be instituted where defendants reside or cause of action arises

Subject to the limitations aforesaid, every suit shall be instituted in Court within the local
limits of whose jurisdiction-

(a) the defendant, or each of the defendants where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on business, or
personally works for gain; or

20
Supra 14
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(b) any of the defendants, where there are more than one, at the time of the commencement of
the suit actually and voluntarily resides, or carries on business, or personally works for gain,
provided that in such case either the leave of the Court is given, or the defendants who do not
reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such
institution; or

(c) the cause of action, wholly or in part, arises.

Explanation-A corporation shall be deemed to carry on business at its sole or principal office
in India or, in respect of any cause of action arising at any place where it has also a
subordinate office, at such place

Illustrations21:-

(a) A is a tradesman in Calcutta, B carries on business in Delhi. B, by his agent in Calcutta,

buys goods of A and requests A to deliver them to the East Indian Railway Company. A
delivers the goods accordingly in Calcutta. A may sue B for the price of the goods either in
Calcutta, where the cause of action has arisen or in Delhi, where B carries on business.

(b) A resides at Simla, B at Calcutta and C at Delhi A, B and C being together at Benaras, B
and C make a joint promissory note payable on demand, and deliver it to A. A may sue B and
C at Benaras, where the cause of action arose. He may also sue them at Calcutta, where B
resides, or at Delhi, where C resides; but in each of these cases, if the non-resident defendant
object, the suit cannot proceed without the leave of the Court.

So, when a suit is related to immovable property, the court within whose local jurisdiction
property is situated have the jurisdiction to try the matter. In case when a part of the property
is situated in the local limit of the other courts as well, I mean when the property is situated in
more than one territorial limits of the courts than in that case the courts in whose territorial
limit any portion of the property is situated have the jurisdiction and in such situation it is the
plaintiff who will decide which court to approach. Where it is not possible to say with
certainty that the property is situated within the jurisdiction of the one or the other of several
courts, in such case one of these several courts, if it is satisfied that there is such uncertainty,
may after recording a statement to that effect proceed to entertain and dispose of the suit.

21
Code of civil procedure {professional book publishers,New Delhi,2017} p.10
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When suit is related to moveable property, as we know moveable property follow the person
and hence suit may be brought at the option of the plaintiff either at the place where the
wrong is committed or where the defendant resides, carries on business or personally works
for gain. Where such wrongs consists of series of acts, a suit may be filed at any place where
any of the acts has been committed. Similarly, where a wrongful act is committed at one
place and the consequence ensue at another place, a suit may be instituted at the option of the
plaintiff where the action took place or the consequences ensued.

A suit for compensation for wrong (tort) to a person may be instituted at the option of the
plaintiff either where such wrong is committed, or where defendant resides, carries on
business or personally works for gain.

Section 20 provides for all other cases not covered under any of the foregoing rules.

Jurisdiction As To Subject-Matter

Different courts have been empowered to decide different types of suits. Certain courts have
no jurisdiction to entertain certain suits. For examples, suits for testamentary succession,
divorce cases, probate proceedings, insolvency matters, etc. cannot be entertained by a Court
of Civil Judge (Junior Division). This is called jurisdiction as to subject matter.

I mean, every courts have been allotted the subject over which the court can entertain the
matter, and the subject which is not within the preview of the court, that court cannot deal
with that matters at all.

In case, court took up the matter which is not been allotted to it, that is the matter is beyond
the subject matter competency, what will be the status of the decision given by the court in
such situations.

Objection As To Jurisdiction: Section 21

Section 2122: Objections to jurisdiction

(1) No objection as to the place of suing shall be allowed by any appellate or Revisional
Court unless such objection was taken in the Court of first instance at the earliest possible

22
Section 21 of code of civil procedure
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opportunity and in all cases where issues or settled at or before such settlement, and unless
there has been a consequent failure of justice.

(2) No objection as to the competence of a Court with reference to the pecuniary limits of its
jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was
taken in the Court of first instance at the earliest possible opportunity, and in all cases where
issues are settled, at or before such settlement, and unless there has been a consequent failure
of justice.

(3) No objection as to the competence of the executing Court with reference to the local
limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such
objection was taken in the executing Court at the earliest possible opportunity, and unless
there has been a consequent failure of justice.

It is a fundamental rule that a decree of a court without jurisdiction is nullity. Halsbury

rightly states:

where by reason of any limitation imposed by statute, charter or commission, a court is

without jurisdiction to entertain any particular action or matter, neither the acquiesce nor the
express consent of the parties can confer jurisdiction upon the court nor can consent give a
court jurisdiction if a condition which goes to the root of the jurisdiction has not been
performed or fulfilled.

However, this does not apply to territorial or pecuniary jurisdiction. In case an error is
committed by the court in exercising the jurisdiction with respect to pecuniary or territorial
jurisdiction, the decision so given will not be void, it will be considered as irregular exercise
of jurisdiction. No doubt, party has a right to raise the issue but at the earliest possible time
and once the court proceeded with the matter and given the decision the same cannot be
raised at the appellate stage at all as observed in the case of Kiran Singh V. Chaman
Paswan.23

However, when the error is committed by the court with respect to subject-matter
jurisdiction, the decision so given by the court is null and void as it falls within the ambit of
lack of jurisdiction. And the issue of such error can validly be raised at any stage of the
proceedings, even at the appellate level as well.

23
AIR 1954 SC 340
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Section 21-A: Bar on suit to set aside decree on objection as to place of suing

No suit shall lie challenging the validity of a decree passed in a former suit between the same
parties, or between the parties under whom they or any of them claim, litigating under the
same title, on any ground based on an objection as to the place of suing. Explanation.-The
expression "former suit" means a suit which has been decided prior to the decision in the suit
in which the validity of the decree is questioned, whether or not the previously decided suit
was instituted prior to the suit in which the validity of such decree is questioned.

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CHAPTER-4

EFFECT OF LACK OF JURISDICTION

Exclusion of jurisdiction: limitations

A litigation 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.

Again, 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, malafide, ultra vires,
perverse, arbitrary, purported, violative of the principles of natural justice, or is based on
no evidence and so on. In all these cases, the order cannot be said to be under the act but is
de hors the act and the jurisdiction of a civil court is not ousted. In the leading decision of
Secretary of State v. Mask & Co., the Privy Council rightly observed:

it is settled law that the exclusion of the jurisdiction of the civil court is not to be readily
inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is
also well established that even if jurisdiction is so excluded the civil courts have jurisdiction
to examine into cases where the provisions of the act have not been complied with, or the
statutory tribunal has not acted in conformity with the fundamental principles of judicial
procedure.

It is respectfully submitted that the following observations of Subba Rao, J.(as he then was)
in the leading case of Radha Kishan v. Ludhiyana Municipality lay down the correct legal
position regarding jurisdiction of civil courts and require to be produced:

under section 9 of the civil procedure code 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 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
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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 courts jurisdiction is not completely ousted. A
suit in a civil court will always lie to 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.

Exclusion of jurisdiction of civil court: principles

From the above discussion it is clear that the jurisdiction of civil courts is all- embracing
except to the extent it is excluded by law or by clear intendment arising from such law.

In the classic decision of Dhulabhai v. State of M.P., after considering a number of cases,
Hidyatullah, C.J. summarized the following principles relating to the exclusion of jurisdiction
of civil courts:

a. Where a statute gives finality to orders of 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 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.

b. Where there is an express bar of jurisdiction of a court, an examination of the scheme of a

particular act to find the adequate 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 and the result of the inquiry may
be decisive. In the latter case, it is 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.

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c. 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.

d. When a provision is already declared unconstitutional or the constitutionality of any

provisions 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.

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

f. Questions of the correctness of an assessment, apart from its constitutionality, are for the
decision of the authorized 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 enquiry.

g. An exclusion of jurisdiction of a civil court is not readily to be inferred unless the

conditions above set down apply.

The above principles enunciated are relevant in deciding the correctness or otherwise of
assessment orders made under taxing statutes.

In Premier Automobiles v. K.S. Wadke, the supreme court laid down the following principles
as applicable to the jurisdiction of a civil court in relation to industrial disputes:

h. If a dispute is not an industrial dispute, nor does it relate to enforcement of any other right
under the act, the remedy lies only in a civil court.

i. If a 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 a civil court is alternative, leaving it to
the election of a suitor or person concerned to choose his remedy for the relief which is
competent to be granted in a particular remedy.

j. If an industrial dispute relates to the enforcement of a right or an obligation created under

the act, then the only remedy available to suitor is to get adjudication under the act.

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k. 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.

Again, in Rajasthan State Road Transport Corpn. V.Krishna Kant, after considering various
leading decisions on the point, the Supreme Court summarized the principles applicable to
industrial disputes thus:

1. where a dispute arises from the general law of contract, i.e., where reliefs are claimed on
the basis of the general law of contract, a suit filed in a civil court cannot be said to be not
maintainable, even though such a dispute may also constitute an industrial dispute within
the meaning of section 2 (k) or section 2-A of the industrial Dispute Act,1947.

2. where, however, a dispute involves recognition, observance or enforcement of any of the

rights or obligations created by the the industrial Dispute Act, the only remedy is to approach
the famous created by the said act.

3. similarly, where a dispute involves the recognition, observance or enforcement of rights

and obligations created by enactments, like the industrial employment (standing order) act,
1946- which can be called sister enactments to the industrial dispute act- and which do not
provide a forum for resolution of such disputes, the only remedy shall be to approach the
forums created by the industrial dispute act provided they constitute industrial disputes within
the meaning of section 2(k) and section 2-A of the industrial dispute act or where such
enactments says that such dispute shall be adjudicated by any of the forums created by the
industrial disputes act. Otherwise, recourse to a civil court is open.

4. it is not correct to say that remedies provided by the industrial disputes act are not equally
effective for the reason that access to a forum depends upon a reference being made by the
appropriate government. The power to make a reference conferred upon the government is to
be exercised to effectuate the object of the enactment and hence is not unguided. The rule is
to make a reference unless, of course, the dispute raised is a totally frivolous one ex facie.
The power conferred is the power to refer and not the power to decide, though it may be that
the government is entitled to examine whether the dispute is ex facie frivolous, not meriting
adjudication.

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5. consistent with the policy of law aforesaid, we commend to parliament and state legislature
to make a provision enabling a workman to approach the labor court- i.e., without the
requirement of a reference by the government- in case of industrial dispute covered by
section 2-A of the industrial disputes act. This would go a long way in removing the
misgiving with respect to the effectiveness of the remedies provided by the industrial disputes
act.

6. the certified standing orders framed in accordance with the industrial dispute act and its
sister enactment is to provide an alternative dispute- resolution mechanism to workmen, a
mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of
procedural laws and appeals upon appeals and revisions applicable to civil courts. Indeed, the
powers of courts and tribunals under the industrial disputes act are far more extensive in the
sense that they can grant such relief as they think appropriate in the circumstances for putting
an end to an industrial dispute.

Very recently, in Chandrakant Tukaram v. Municipla Corporation of Ahmedabad, the

supreme court reiterated the principles laid down in earlier decisions and stated:

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 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.

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CHAPTER-5

CONCLUSION

From various decisions of the Supreme Court, the following general principles relating to
jurisdiction of a civil court emerge:
a. a civil court has jurisdiction to try all suits of a civil nature unless their cognizance is
barred either expressly or impliedly.
b. Consent can neither confer nor take away jurisdiction of a court.
c. A decree passed by a court without jurisdiction is a nullity and the validity thereof can be
challenged at any stage of the proceedings, in execution proceedings or even in collateral
proceedings.
d. There is a distinction between want of jurisdiction and irregular exercise thereof.
e. Every court has inherent power to decide the question of its own jurisdiction.
f.Jurisdiction of a court depends upon the averments made in a plaint and not upon the
defense in a written statement.
g. For deciding jurisdiction of a court, substance of a matter and not its form is important.
h. Every presumption should be made in favor of jurisdiction of a civil court.
i. A statute ousting jurisdiction of a court must be strictly construed.
j.Burden of proof of exclusion of jurisdiction of a court is on the party who asserts it.
k. Even where jurisdiction of a civil court is barred, it can still decide whether the provisions
of an act have been complied with or whether an order was passed de hors the provisions of
law.

From the above contents of my project it can be concluded that section 9 at the threshold of
the Civil Procedure Code (C.P.C.) primarily deals with the question of civil courts
jurisdiction to entertain a cause. It lays down that subject to what are contained in section
10,11, 12, 13, 47, 66, 83, 84, 91, 92, 115, etc., civil court has jurisdiction to entertain a suit of
civil nature except when its cognizance is expressly barred or barred by necessary
implication. civil court has jurisdiction to decide the question of its jurisdiction although as a
result of the enquiry it may eventually turn out that it has no jurisdiction over the matter.
Civil court has jurisdiction to examine whether tribunal and quasi- judicial bodies or statutory
authority acted within there jurisdiction. But once it is found that such authority, e.g.,

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certificate officer had initial jurisdiction, then any erroneous order by him is not open to
collateral attack in a suit. Because there is an essential and marked distinction between the
cases in which courts lack jurisdiction to try cases and where jurisdiction is irregularly
exercised by courts.

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BIBLIOGRAPHY

PRIMARY SOURCES

i. Bare act of code of civil procedure

SECONDARY SOURCES

BOOKS

i. Jain, M.P., Civil Procedure Code, 2nd Edition (Nagpur, Wadhwa Publications, 2007)
ii. Bakshi, P.M., Mulla on Civil Procedure Code, 15th Edition (Bombay, N.M. Tripathi
(P) Ltd, 1997)
iii. Thakker, C.K. & Thakker, S.M., Thakker on Civil Procedure Code (Lucknow,
Eastern Book Company, 2005)
iv. Saha, A.N., Saha on Civil Civil Procedure Code, 6th Edition (Allahabad, Premier
Publishing Company, 2004)
v. Paul, Sulil & Srivastava, Anupam, Mulla's Civil Procedure Code, 16th Edition (Delhi,
LexisNexis Butterworths, 2002)
vi. Nandwani, Anil, Law of Civil Procedure Code in India, 1st Edition (Faridabad,
Allahabad Law Agency, 2006)
vii. Sarkar, Supidto & Manohar, V.R., Sarkar's Civil Procedure Code, 11th Edition
(Nagpur, Wadhwa Publications, 2008)

WEBSITES

i. http://www.legalservicesindia.com/article/article/jurisdiction-of-civil-court-under-
civil-procedure-code-508-1.html
ii. http://www.lawyersclubindia.com/articles/Jurisdiction-of-Civil-Court-3976.asp#.Ve0-
UNwdDuc

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