OUSTER CLAUSES AND

JURISDICTION OF CIVIL COURTS

CONTENTS

TABLE OF CASES....................................................................................................................I

ABBREVIATIONS..................................................................................................................III

CHAPTER 1...............................................................................................................................1

1.1 Jurisdiction: Meaning and Scope 1

1.2 Types of Jurisdiction of Courts 2

1.2.1 Civil and Criminal jurisdiction.............................................................................2

1.2.2 Territorial or local jurisdiction.............................................................................2

1.2.3 Pecuniary jurisdiction...........................................................................................3

1.2.4 Subject Matter jurisdiction...................................................................................3

1.2.5 Original jurisdiction.............................................................................................3

1.2.6 Appellate jurisdiction...........................................................................................3

1.2.7 Foreign jurisdiction..............................................................................................3

CHAPTER 2...............................................................................................................................4

2.1 Jurisdiction of Civil Courts 4

2.2 Classes of Suits 5

2.2.1 Suits of a Civil Nature..........................................................................................5

2.2.2 Suits Not of a Civil Nature...................................................................................6

2.3 Cognizance of Suits Not Barred 7

2.3.1 Suits Expressly Barred.........................................................................................7

2.3.2 Suits Impliedly Barred.........................................................................................8

2.4 General Principles of Jurisdiction of Civil Court 9

CHAPTER 3.............................................................................................................................10

3.1 Ouster Clause: Meaning and Scope 10

3.1.1 Classifications....................................................................................................10

3.2 A Valid Ouster Jurisdiction Clause 11

3.3 Ousting Jurisdiction and Statute 13

3.4 Ouster of Jurisdiction of Civil Courts by Statutes 14

3.4.1 Bar under the Civil Liability for Nuclear Damage Bill, 2010............................14

3.4.2 Bar under the Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010......................................................................................................15

3.4.3 Bar under the Educational Tribunals Bill, 2010.................................................15

3.4.4 Bar under the Industrial Disputes Act, 1947......................................................15

3.5 Conclusion 16

BIBILIOGRAPHY..................................................................................................................IV

TABLE OF CASES

1. A.B.C. Laminart Pvt. Ltd. and Anr. v. A.P. Agencies, Salem, AIR 1989 SC 1239.

2. A.P.S.E.B Rept by Chairman v C.Subhadramma, 1983 LS (A.P) 66.

3. Abdul Waheed Khan v. Bhawani and Ors., AIR 1966 SC 1718.

4. Bai Shri Vaktuba and Ranjitsinghji Agarsingji v. Agarsingji Raisingji, (1910) 12 BOMLR 697.

5. Baker v. Jones, (1954) 1 WLR 1005.

6. Bennett v. Bennett, [1952] 1 KB 249.

7. Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors., (1993) 2 SCC 507

8. Dhulabhai and Ors. v. The State of Madhya Pradesh and Anr., AIR 1969 SC 78

9.His Holiness Peria Kovil Kelvi Appan Thiruvenkata Ramanuja Pedda Jiyyangarlu Varlu v. Prathivathi Bhayankaram Venkatacharlu and Ors. AIR 1947 PC 53

10. I.S Chetty & Sons v. State of Andhra Pradesh, AIR 1964 SC 322.

11. Janata Janardan Shikshan Sanstha and Anr. v. Vasant P. Satpute, 1986 MhLJ 260.

12. Jodhi Singh and Ors. v. Vedabarat Sharma Arya alias Mauji Singh and Ors., AIR 1956 Pat 205.

13. K. S. Venkataraman & Co. v. State of Madras, AIR 1966 SC 1089

14. Life Insurance Corporation of India v. Indian Automobiles and Co. and Ors., AIR 1991 SC 884.

15. Most. Rev. P.M.A. Metropolitan and Ors. v. Moran Mar Marthoma and Anr., AIR 1995 SC 2001

16. Nagindas Narandas Lavar v. Somnath Premchand Lavar, AIR 1932 Bom 122

17. Patel Roadways Limited, Bombay v. Prasad Trading Company, AIR 1992 SC 1514

18. Piramal Healthcare Limited v. Dia Sorin S.P.A., 172 (2010) DLT 131

19. Punjab State Electricity Board and Anr. v. Ashwani Kumar, (1997) 5 SCC 120

20. Official Trustee, West Bengal and Ors. v. Sachindra Nath Chatterjee and Anr., AIR 1969 SC 823

21. Raja Soap Factory and Ors. v. S.P. Shantharaj and Ors., AIR 1965 SC 1449

22. Rajasthan State Electricity Board v. Universal Petro Chemicals Ltd., (2009) 3 SCC 107

23. Ramakrushna Mohapatra and Ors. v. Gangadhar Mohapatra and Ors., AIR 1958 Ori 26

24. Ramesh Dwarkadas Mehra v. Indravati Dwarkadas Mehra, AIR 2001 Bom 470

25. Sankar Narayana Potti v K.Sreedevi, (1998) 3 SCC 751

26. Shree Baidyanath Ayurved Bhawan Pvt. Ltd. v. Praveen Bhatia and Ors., (2009) 8 SCC 779

27. Shri Sukhdev Chand, Asst. CIT, Acquisition Range vs. Shri Kashmir Singh Bhullar and Ors., (1984) 42 CTR (P&H) 345

28. State of Tamil Nadu v. Ramalinga Samigal Madam, AIR 1986 SC 794.

29. Sultan Ali Nanghiana v. Nur Hussain, AIR 1949 Lah 131

30. The Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke of Bombay and Ors., AIR 1975 SC 2238

31. Union of India v. Ram Chand Beli Ram, AIR 1955 P&H 166

32. Union of India v. Tarachand Gupta and Bros , AIR 1971 SC 1558

ABBREVIATIONS

AIR - All India Reporter

Anr. - Another

A.P - Andhra Pradesh

Bom - Bombay

BOMLR - Bombay Law Reporter

CTR - Current Tax Reporter

Del. - Delhi

DLT - Delhi Law Times

ED. - Edition

ILR - Indian Law Review

KB - King's Bench

Kant - Karnataka

Lah - Lahore

LS - Law Summary

Mad. - Madras

MP - Madhya Pradesh

MhLJ - Maharashtra Law Journal

n. - Note

Ori - Orissa

P. - Page No

Pat. - Patna

PC - Privy Council

P&H - Punjab and Haryana

Punj - Punjab

SC - Supreme Court

SCC - Supreme Court Case0073

v. - Versus

WLR - Weekly Law Reports 

CHAPTER 1

1.1 Jurisdiction: Meaning and Scope

The word jurisdiction is derived from Latin terms “juris” and “dicto” which means “I

speak by law”. Jurisdiction means the legal power, right, or authority of a particular court to

hear and determine causes, to try criminals, or to execute justice; judicial authority over a

cause or class of causes; as, certain suits or actions, or the cognizance of certain crimes, are

within the jurisdiction of a particular court, that is, within the limits of its authority or

commission.

Jurisdiction may be defined to be the power of a Court to hear and determine a cause,

to adjudicate and exercise any judicial power in relation to it: in other words, by jurisdiction

is meant the authority which a court has to decide matters that are litigated before it or to take

cognizance of matters presented in a formal way for its decision.1 The court’s jurisdiction

must include the power to hear and decide the question at issue, the authority to hear and

decide the particular controversy that has arisen between the parties.2 In Chiranjilal Shrilal

Goenka v. Jasjit Singh and Ors.,3, the Hon’ble Supreme Court observed:

“It is settled law that a decree passed by a court without jurisdiction on the

subject matter or on the grounds on which the decree made which goes to the root

of its jurisdiction or lacks inherent jurisdiction is a corum non judice. A decree

passed by such a court is a nullity and is non est. Its invalidity can be set up

whenever it is sought to be enforced or is acted upon as a foundation for a right,

1 Raja Soap Factory and Ors. v. S.P. Shantharaj and Ors., AIR 1965 SC 1449; Official Trustee, West Bengal and Ors. v. Sachindra Nath Chatterjee and Anr., AIR 1969 SC 823.2 Union of India v. Tarachand Gupta and Bros , AIR 1971 SC 1558;Official Trustee, West Bengal and Ors. v. Sachindra Nath Chatterjee and Anr., AIR 1969 SC 823. See also Halsbury’s Law of England, (Vol. 10 : 4thED.), para 715:

“By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by Statute or Charter or Commission under which the Court is constituted and may be extended or restricted by similar means. If no restriction or limitation is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind or nature of actions or the matters of which a particular Court has cognizance or as to the area over which the jurisdiction extends, or it may partake of both these characteristics”

3 Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors., (1993) 2 SCC 507. See also Patel Roadways Limited, Bombay v. Prasad Trading Company, AIR 1992 SC 1514

1

even at the stage of execution or in collateral proceedings. The defect of

jurisdiction strikes at the very authority of the court to pass decree which cannot

be cured by consent or waiver of the party.”

When a court has jurisdiction to decide a dispute, the same cannot be taken away

or ousted by consent of parties. An agreement to oust absolutely the jurisdiction of the

Court will be unlawful and void being against the public policy. Ex dolo malo non

oritur actio.4 A Civil Court has got jurisdiction in respect of all civil matters except

those of which tribunals are constituted under special statutes; and such tribunals have

limited jurisdiction. Whether a court has jurisdiction or not has to be decided with

reference to the initial assumption of jurisdiction by that court. Whenever the

jurisdiction of the court is challenged, the court has inherent jurisdiction to decide the

said question. Every court or tribunal is not only entitled but bound to determine

whether the matter in which it is asked to exercise its jurisdiction comes within its

jurisdiction or not.

1.2 Types of Jurisdiction of Courts

The term “jurisdiction” has not been defined in the Code.5 But several provisions in the

Civil Procedure Code6 speak of different kinds of jurisdiction of civil courts namely Sections

6, 9, 15 to 20 etc. The various types of jurisdiction are as follows:

1.2.1 Civil and Criminal jurisdiction

Civil jurisdiction is that which concerns and deals with disputes of a “civil nature”.

Criminal jurisdiction relates to crimes and punishes offenders.

1.2.2 Territorial or local jurisdiction

Every Court has its own territorial limits of jurisdiction. This power is so vested for

easy disposal of a matter. Extra territorial jurisdiction if granted will delay the process.

Government fixes the local limits to be exercised by a Court. Every state has a High Court

which is the higher judicial institution in the State. Every district will have a District Court

which will have overall control of courts and cases in that particular district. Generally a

Court does not have the authority to try cases beyond its territorial jurisdiction.

4 A.B.C. Laminart Pvt. Ltd. and Anr. v. A.P. Agencies, Salem, AIR 1989 SC 1239.5 The Code of Civil Procedure, 1908.6 Ibid.

2

1.2.3 Pecuniary jurisdiction

Section 6 of the Code7 says that no court will get jurisdiction over suits where the

amount or value of the subject-matter of which exceeds the pecuniary limits of its

ordinary jurisdiction. The pecuniary limit of jurisdiction of a Munsiff Court is one

lakh rupees. However the District Courts and High Courts do not have any pecuniary limits.

These higher courts act generally as Courts of Appeal.

1.2.4 Subject Matter jurisdiction

Each Court is having separate powers to deal with particular cases. Writ jurisdiction is

only vested with High Court and Supreme Court. Other lower courts cannot adjudicate a

matter concerning writs. The District Court normally acts as an appellate Court to judgements

passed by other lower courts. But it has ordinary original jurisdiction to entertain matters like

copyright, insolvency, local fund audit, etc. 

1.2.5 Original jurisdiction

Original jurisdiction is jurisdiction inherent in, or conferred upon, a court of first

instance. In exercise of that jurisdiction, a court of first instance decides suits, petitions or

applications.

1.2.6 Appellate jurisdiction

Appellate jurisdiction is the power or authority conferred upon a superior court to

rehear by way of appeal, revision, etc., of causes which have been tried and decided by courts

of original jurisdiction. Appeal from appeals or original judgments from the District

Courts will be filed in the High Court. Special cases will go for appeal in the Supreme Court

also. Supreme Court is the highest Court of Appeal in the country.

1.2.7 Foreign jurisdiction

Foreign jurisdiction means jurisdiction exercised by a court in a foreign country. A

judgement rendered or decision given by a foreign court is a foreign judgement.

7 Section 6, The Code of Civil Procedure, 1908.

6. Pecuniary jurisdiction.- Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.

3

CHAPTER 2

2.1 Jurisdiction of Civil Courts

The right to institute a suit for enforcement of a civil right in some civil court of

competent jurisdiction is a right inherent in a person under the general law which is

incorporated in Section 9 of the Code of Civil Procedure.8 Generally speaking, civil courts

can try all suits which involved the determination of any civil right. The civil court has

inherent jurisdiction, unless a part of that jurisdiction is curbed from such jurisdiction,

expressly or by necessary implication, by any statutory provision and is conferred on any

other tribunal or authority.9 Thus a civil court has jurisdiction to try a suit if two conditions

are satisfied:

(i) The suit must be of a civil nature; and

(ii) The cognizance of such suit should not have been expressly or impliedly barred.

“Civil nature” means such rights as are vested in the citizen, and fall within the domain

of private, and not of public law.10 Where there is a civil right there is a civil remedy – that is

to say, that the ordinary civil courts are the proper Tribunals to which resort must be had for

the enforcement of a civil right, and that no wrong of a civil nature shall be without remedy

in the Civil Court.11 According to Explanation I. of the section,12 a suit in which the right to

property or to an office is contested is cognizable by a civil court despite the fact that such

right may depend entirely on decision of questions as to religious rites or ceremonies.13

The expensive nature of the section is demonstrated by use of phraseology both positive

and negative. The earlier part opens the door widely and the latter debars the entry to only

those which are expressly or impliedly barred. It is structured on the basic principle of a

civilised jurisprudence that absence of machinery for enforcement of right renders it

8 Section 9, The Code of Civil Procedure, 1908.

9. Courts to try all civil suits unless barred.- 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 II.- 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.

9 Sankar Narayana Potti v K.Sreedevi, (1998) 3 SCC 751.10 Janata Janardan Shikshan Sanstha and Anr. v. Vasant P. Satpute, 1986 MhLJ 260.11 Umesh Chandra, Woodroffe & Ameer Ali’s Commentary on The Code of Civil Procedure, 1908, (4th ED. :

2006) (Delhi Law House, New Delhi) at P.119.12 See Supra n.813 Ramakrushna Mohapatra and Ors. v. Gangadhar Mohapatra and Ors., AIR 1958 Ori 26.

4

nugatory. Jurisdiction with reference to the subject-matter of dispute as distinguished from

local jurisdiction means jurisdiction with reference to the nature of the claim made by the

plaintiff.14

A litigant having a grievance of a civil nature has independently of any statute, a right

to institute a suit in some court or unless its cognizance either expressly or impliedly barred.15

The jurisdiction of the civil courts is all embracing except to the extent it is excluded by an

express provision of law or by clear intendment arising from such law. This is the purport of

Section 9 of the Code.16

Section 9 of the Code provides that Civil Court shall try all suits of civil nature, subject

to pecuniary jurisdiction, unless their cognizance is expressly or by necessary implication is

barred. Such suit would not be maintainable. It is true that ordinarily, the Civil Court has

jurisdiction to go into and try the disputed questions of civil nature where the fundamental

fairness of procedure has been violated.17

2.2 Classes of Suits

The suits can be divided into two classes – (1) those of a civil nature, and (2) those not

of a civil nature. It is only the former suits that a civil court has jurisdiction to entertain. A

civil court cannot entertain a suit which is not of a civil nature.

2.2.1 Suits of a Civil Nature

The word ‘civil’ has not been defined in the code. According to the dictionary meaning,

it pertains to private rights and remedies of a citizen as distinguished from criminal, political,

etc. the word ‘nature ’has been defined as ‘the fundamental qualities of a person or thing;

identity or essential character; sort, kind, character’’. It is thus wider in content. A suit is of a

civil nature if the principal question therein relates to a civil or legal right. It is not the status

of the parties to the suit, but the subject matter of it which determines whether or not the suit

is of a civil nature.

If the principal or only question in the suit is a caste question or a question relating to

religious rites or ceremonies, the suit is not of a civil nature for it deals not with the rights of

the citizen but with matters that are purely social. Conversely when, (1) a caste question or a

14 See Umesh Chandra, Supra n.11, at P.12015 Most. Rev. P.M.A. Metropolitan and Ors. v. Moran Mar Marthoma and Anr., AIR 1995 SC 2001.16 Dhulabhai and Ors. v. The State of Madhya Pradesh and Anr., AIR 1969 SC 7817 Sarkar Amit, Sarkar’s Commentary on The Code of Civil Procedure, 1908, (2nd ED. : 2008) (Dwivedi Law

Agency, Allahabad) at P.144.

5

question relating to religious rites or ceremonies is not the principal question in the suit, but is

merely a subsidiary question, and (2) the principal question is of a civil nature, and (3) the

principal question, which is of a civil nature, cannot be determined without deciding the caste

question or the question relating to religious rites or ceremonies, the court has the power to

decide the caste question or the question relating to religious rites or ceremonies, to enable it

to decide the principal question.18 According to Explanation II of the section,19 a suit relating

to a religious office is maintainable whether or not it carries any fees or whether or not it is

attached to a particular place. A few exemplifications of suits that are of a civil nature are as

follows:

Suits relating to rights to property;

Suits relating to rights of worship;

Suits relating to taking out of religious procession;

Suits relating to right to share in offerings;

Suits for damages for civil wrongs;

Suits for specific performance of contracts or for damages for breach of contracts;

Suits for specific reliefs;

Suits for restitution of conjugal rights;

Suits for dissolution of marriages;

Suits for rent;

Suits for rights to hereditary offices;

Suits against wrongful dismissal from service and for salaries;

2.2.2 Suits Not of a Civil Nature

A suit in which the principal question relates to caste or religion is not a suit of a civil

nature. The best description of “caste” is given in Nagindas Narandas Lavar v. Somnath

Premchand Lavar,20 as follows:

“The caste is a social combination, the members of which are enlisted by birth,

not by enrolment. Its rules consist partly of resolutions passed from time to time,

but for the most part of usages handed down from generation to generation. The

caste is not a religious body, though its usages, like all other Hindu usages, are

18 Ramakrushna Mohapatra and Ors. v. Gangadhar Mohapatra and Ors., AIR 1958 Ori 26; His Holiness Peria Kovil Kelvi Appan Thiruvenkata Ramanuja Pedda Jiyyangarlu Varlu v. Prathivathi Bhayankaram Venkatacharlu and Ors. AIR 1947 PC 53.19 See Supra n.820 Nagindas Narandas Lavar v. Somnath Premchand Lavar, AIR 1932 Bom 122

6

based upon religious feelings. In religious matters, strictly so called the members

of the caste are guided by their religious preceptors and their spiritual heads. In

social matters they lay down their own laws.”

A suit as to religious rites or ceremonies, which involves no question of the right to

property or to an office is to an office is to a suit of a civil nature within the meaning of the

section and is not within the jurisdiction of a Civil Court. A few exemplifications of suits that

are not of a civil nature are as follows:

Suits involving principally caste questions;

Suits involving purely religious rites or ceremonies;

Suits for upholding mere dignity or honour;

Suits for recovery of voluntary payments or offerings;

Suits against expulsions from caste;

2.3 Cognizance of Suits Not Barred

Under Section 9 of the Code, a Civil Court can entertain a suit of a civil nature except a

suit of which its cognizance is expressly or impliedly barred. It is settled principle that it is

for the party who seeks to oust the jurisdiction of the Civil Court to establish his contention.

It is also equally established well settled that a statute ousting the jurisdiction of the Civil

Court must be strictly construed.21

2.3.1 Suits Expressly Barred“Expressly barred”, means barred by the any enactment for the time being in force

passed by the Legislature.22 It is open to the State Legislature to bar the jurisdiction of Civil

Court with respect to particular class of suits, provided in doing so it keeps within the field of

legislation confided to its charge, and does not contravene any provision of the Constitution

Article.23 If the right has got to be taken away, that must be taken away by express terms or

by necessary implication. The general power vested in the courts of India under the Civil

Procedure Code to entertain suits of a civil nature excepting suits of which cognizance is

barred by any enactment for the time being in force does not carry with it the general power

of making declaration except in so far as such power is expressly conferred by statute.24 If

there is any doubt about the ousting of jurisdiction of a civil court, the court will lean to an

21 Abdul Waheed Khan v. Bhawani and Ors., AIR 1966 SC 1718.22 Shri Sukhdev Chand, Asst. CIT, Acquisition Range vs. Shri Kashmir Singh Bhullar and Ors., (1984) 42 CTR

(P&H) 34523 A.P.S.E.B Rept by Chairman v C.Subhadramma, 1983 LS (A.P) 66.24 Bai Shri Vaktuba and Ranjitsinghji Agarsingji v. Agarsingji Raisingji, (1910) 12 BOMLR 697.

7

interpretation which would maintain the jurisdiction.25 Thus, matters falling within the

exclusive jurisdiction of revenue courts or under the code of criminal procedure or matters

dealt with by special tribunals under the relevant statutes, or by domestic tribunals, are

expressly barred from the cognizance of a civil court. But if the remedy provided by a statute

is not adequate and all questions cannot be decided by a special tribunal, the jurisdiction of a

civil court is not barred.26 Similarly, when a court of limited jurisdiction prima facie and

incidentally states something, the jurisdiction of a civil court to finally decide the time is not

ousted.27

2.3.2 Suits Impliedly Barred

“Impliedly barred” means barred by general principles of law and equity or on ground

of public policy.28 Where a specific remedy is given by a statute, it thereby deprives the

person who insists upon a remedy of any other form than that given by the statute.29 Where an

act creates an obligation and enforces its performance in a specified manner, that

performance cannot be enforced in any other manner. Similarly, certain suits, though of a

civil nature, are barred from thee cognizance of a civil court on the ground of public policy.30

“The principle underlying is that a court ought not to countenance matters which are

injurious to and against the public weal.”31 Thus, no suit shall lie for recovery of costs

incurred in criminal prosecution or for enforcement of a right upon a contract hit by section

23 of the Indian Contract Act, 1872; or against any judge for acts done in the course of his

duties. Similarly, political questions belonging to the domain of public administrative law and

are outside the jurisdiction of civil courts. A civil court has no jurisdiction to adjudicate upon

disputes of a political nature.

2.4 General Principles of Jurisdiction of Civil Court

The general principles relating to jurisdiction of a civil court emerging from various

decisions of the Supreme Court can be summarized as follows:32

25 Dhulabhai and Ors. v. The State of Madhya Pradesh and Anr., AIR 1969 SC 78.26 State of Tamil Nadu v. Ramalinga Samigal Madam, AIR 1986 SC 794.27 Life Insurance Corporation of India v. Indian Automobiles and Co. and Ors., AIR 1991 SC 884.28 Jodhi Singh and Ors. v. Vedabarat Sharma Arya alias Mauji Singh and Ors., AIR 1956 Pat 205.29 Punjab State Electricity Board and Anr. v. Ashwani Kumar, (1997) 5 SCC 120; The Premier Automobiles

Ltd. v. Kamlekar Shantaram Wadke of Bombay and Ors., AIR 1975 SC 2238.30 The Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke of Bombay and Ors., AIR 1975 SC 2238.31 Union of India v. Ram Chand Beli Ram, AIR 1955 P&H 166

32 C.K. Takwani, Civil Procedure, (6th ED. : 2011) (Eastern Law House New Delhi) at P.61.

8

A civil court has jurisdiction to try all suits of a civil nature unless their cognizance is

barred either expressly or impliedly.

Consent can neither confer nor take away jurisdiction of a court.

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.

There is a distinction between want of jurisdiction and irregular exercise thereof.

Every court has inherent power to decide the question of its own jurisdiction.

Jurisdiction of a court depends upon the averments made in a plaint and not upon the

defence in a written statement.

For deciding jurisdiction of a court, substance of a matter and not its form is

important.

Every presumption should be made in favour of jurisdiction of a civil court.

A statute ousting jurisdiction of a court must be strictly construed.

Burden of proof of exclusion of jurisdiction of a court is on the party who asserts it.

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.

9

CHAPTER 3

3.1 Ouster Clause: Meaning and Scope

An Ouster or Finality Claus is a provision in an Act of Parliament to restrict or

eliminate judicial review in the interests of the smooth administration of justice. Parliament

uses these clauses to bring finality to decisions that they wish to be determined in the way

they have laid down without delays or without an interpretation that does not meet the

political expectations of the executive.

Ouster clauses are sections of legislation that allow Parliament to deny members of the

public the right to have decisions reviewed by the courts, in the public interest. It is

sometimes provided by a particular statute that a decision taken under it ‘shall be final’, or

‘shall be final and conclusive’, or ‘shall not be appealable’, or ‘shall not be questioned in any

legal proceedings whatsoever’. Such expressions are known as ‘finality’ or ‘ouster clauses

because they make the original decision final by attempting to oust the jurisdiction of the

courts.33

3.1.1 Classifications

Ouster clauses may be classified under three heads:

1. Constitutional ouster clauses;

2. Statutory ouster clauses;

3. Non-statutory ouster clauses;

A constitutional ouster clause is usually found in modern written constitutions, where a

provision of the constitution would aim at ousting or restraining the jurisdiction of the courts

on certain matters. When a statute ousts or restrains the jurisdiction of the courts in respect of

certain matters the ouster is referred to as statutory ouster clause. Apart from constitutions or

statues, an agreement or treaty or the rules of a voluntary organization may contain clauses

that may be treated non-statutory ouster clauses.

In considering a non-statutory ouster clause a contract was held to be illegal on the

ground of public policy, in so far as it terms forbade the parties to seek remedy in a court of

law.34 In Baker v. Jones,35 the court held that a provision in the rules of a voluntary

33 See Zoe Kirk-Robinson, Ouster Clauses in English Law, http://www.suite101.com/content/ouster-clauses-

in-english-law-a161264 (Last Visited : Mar. 27, 2011).34 Bennett v. Bennett, [1952] 1 KB 249.35 Baker v. Jones, (1954) 1 WLR 1005.

10

association making its governing council the sole and ultimate arbiter on the legal

construction of the rules of the association was contrary to public policy and thus void.

3.2 A Valid Ouster Jurisdiction Clause

A statute may confer exclusive jurisdiction on the authorities constituting the

machinery to decide finally a jurisdictional fact thereby excluding by necessary implication

the jurisdiction of a civil court in that regard. But an authority created by a statute cannot

question the vires of that statute or any of the provisions thereof where under it functions. 36 It

must act under the Act and not outside it. If it acts on the basis of a provision of the statute,

which it ultra vires, to that extent it would be acting outside the Act. In that event, a suit to

question the validity of such an order made outside the Act, would certainly lie in a civil

court.37 A statute ousting jurisdiction of civil court must be strictly construed; the expensive

nature of Section 9 is demonstrated by use of phraseology both positive and negative. 38

From the different sections enacted under the Civil Procedure Code and the various

decisions of the court it is explicit that more than one court may have jurisdiction in respect

of the same subject matter as per the circumstances of the particular case. In such a situation,

the parties may enter into an agreement and confer exclusive jurisdiction on one of the

Courts, and at the same time oust the jurisdiction of other Courts, which may also have

jurisdiction on the subject matter as provided in the Code. 

There are number of decisions of the Apex Court wherein it was held that where there

may be two or more competent courts which can entertain a suit consequent upon a part of

the cause of action having arisen therein, if the parties to the contract agree to vest

jurisdiction in one such court to try the dispute which might arise as between themselves,

such agreement would be valid and binding.39 In A.B.C. Laminart Pvt. Ltd. and Anr. v. A.P.

Agencies, Salem,40 the Court stated thus;

“From the foregoing decisions it can be reasonably deduced that where such

an ouster clause occurs, it is pertinent to see whether there is ouster of

jurisdiction of other courts. When the clause is clear, unambiguous and specific

36 See Sarkar Amit, Supra n.17, at P.140.37 K. S. Venkataraman & Co. v. State of Madras, AIR 1966 SC 1089.38 Ramesh Dwarkadas Mehra v. Indravati Dwarkadas Mehra, AIR 2001 Bom 470.39 Rajasthan State Electricity Board v. Universal Petro Chemicals Ltd., (2009) 3 SCC 107; Shree Baidyanath

Ayurved Bhawan Pvt. Ltd. v. Praveen Bhatia and Ors., (2009) 8 SCC 779; Piramal Healthcare Limited v. Dia Sorin S.P.A., 172 (2010) DLT 131.

40 A.B.C. Laminart Pvt. Ltd. and Anr. v. A.P. Agencies, Salem, AIR 1989 SC 1239.

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accepted notions of contract would bind the parties and unless the absence of ad

idem can be shown, the other courts should avoid exercising jurisdiction. As

regards construction of the ouster clause when words like “alone”, “only”,

“exclusive” and the like have been used there may be no difficulty. Even without

such words in appropriate cases the maxim “expressio unius est exclusio

alterius” -- expression of one is the exclusion of another -- may be applied. What

is an appropriate case shall depend on the facts of the case. In such a case

mention of one thing may imply exclusion of another. When certain jurisdiction is

specified in a contract an intention to exclude all others from its operation may in

such cases be inferred. It has therefore to be properly construed.”

In light of the law explained by the Supreme Court in the above stated case,41 the

wording of the ouster clause is unambiguous particularly when it uses words like “exclusive”,

“alone” and the like. In those circumstances, no option is left to the court to still assert its

jurisdiction. Once an ouster clause is clear that it is only the particular court will have the

jurisdiction, it is not possible to ignore such a clause and still say that since a part of the cause

of action has arisen within the territorial jurisdiction of this court, this suit should be

entertained.

But the mere fact that a special statute provides for certain remedies may not by itself

necessarily exclude the jurisdiction of the civil courts to deal with a case brought before it in

respect of some of the matters covered by the said statute.42 A suit in the civil court will

always lie to question the order of a tribunal created by a statute, even if it is, expressly or by

necessary implication, made final, if the said provision abuses its power or does not act upon

the act but in violation of its provisions. It is equally well established that civil courts have

power to entertain a suit in which the question is whether the executive authority has acted

ultra vires its power.43 It is for the party who seeks to oust the jurisdiction of the civil court to

establish his contention.44

Therefore the aforementioned principles declared by Supreme Court and the other

courts should be kept in view while drafting a jurisdiction ouster clause otherwise the

jurisdiction ouster clause may not be enforceable.

41 Ibid.42 I.S Chetty & Sons v. State of Andhra Pradesh, AIR 1964 SC 322.43 K. S. Venkataraman & Co. v. State of Madras, AIR 1966 SC 1089.44 Abdul Waheed Khan v. Bhawani and Ors., AIR 1966 SC 1718.

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3.3 Ousting Jurisdiction and Statute

If a right or liability is created by a statute, then the statute may create a specific forum

for its enforcement. In such a case, the question whether the civil courts’ jurisdiction is

impliedly excluded within the meaning of the Section 9 of the Code is one of statutory

construction. If the right is a new one, ouster may be inferred.45 The principles regarding the

exclusion of civil court’s jurisdiction as summarized in Dhulabhai and Ors. v. The State of

Madhya Pradesh and Anr.,46 maybe stated as follows:

1. Where the statute gives finality to the orders of the special tribunals the Civil Court's

jurisdiction must be held to be excluded if there is adequate remedy to do what the

Civil Courts would normally do in a suit. Such 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 statue 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.

45 Vinay Kumar Gupta, Mulla Code of Civil Procedure (Abridged) (14th ED. : 2010) (Lexis Nexis Butterworths Wadhwa, Nagpur) at P.44.46 Dhulabhai and Ors. v. The State of Madhya Pradesh and Anr., AIR 1969 SC 78.

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5. Where the particular Act contains no machinery for refund of tax collected in excess of

constitutional limits or illegally 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.

3.4 Ouster of Jurisdiction of Civil Courts by Statutes

It is well settled that the jurisdiction of a civil court and the provisions of the Act

enforceable therein may be excluded by the clear implication arising from the scheme of an

Act. This is more so when the legislature sets up a special forum for determining the disputes

and the rights and liabilities of the disputes and the rights and liabilities of the parties under

the statute itself.47

Where a right is created by statute which also prescribes the manner in which the right

may be enforced, the party complaining of any infringement of such right can only seek such

remedy as is provided by that statute. When a plea of ouster of the civil court’s jurisdiction is

taken the essential question to determine is whether such jurisdiction is barred expressly or by

necessary implication.48 Where there is no provision in the statute that the civil courts have no

jurisdiction to entertain the suit the question falling for decision is whether on true

construction of the various provisions contained in that statute it can be held that the

jurisdiction of the civil court is impliedly barred.49

3.4.1 Bar under the Civil Liability for Nuclear Damage Bill, 2010

The Clause 35 of the proposed Act in the Civil Liability for Nuclear Damage Bill, 2010

contains provisions for exclusion of jurisdiction of civil courts, it provides that no civil court

shall have jurisdiction to entertain any suit or proceedings in respect of which the Claims

Commissioner or the Nuclear Damage Claims Commission is empowered to adjudicate under

the proposed legislation and no injunction shall be granted by any court or other authority in

47 See Umesh Chandra, Supra n.11, at P.136.48 See Umesh Chandra, Supra n.11, at P.156-157.49 Sultan Ali Nanghiana v. Nur Hussain, AIR 1949 Lah 131.

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respect of any action taken or to be taken in pursuance of any power conferred by or under

the proposed legislation.

3.4.2 Bar under the Public Interest Disclosure and Protection to Persons

Making the Disclosures Bill, 2010

The Clause 20 of the proposed Act in the Public Interest Disclosure and Protection to

Persons Making the Disclosures Bill, 2010 provides for exclusion of jurisdiction of civil

courts. It provides that no civil court shall have jurisdiction in respect of any matter which the

Competent Authority is empowered by or under the proposed legislation to determine and no

injunction shall be granted by any court or other authority in respect of any action taken or to

be taken in pursuance of any power conferred by or under the proposed legislation.

3.4.3 Bar under the Educational Tribunals Bill, 2010

The Section 47 of the proposed Act in the Educational Tribunals Bill, 2010 Educational

Tribunals Act, 2010 contains provisions for exclusion of jurisdiction of civil courts, it

provides that no civil court shall have jurisdiction to entertain any suit or proceeding in

respect of any matter which the State Educational Tribunal or the National Educational

Tribunal is empowered by or under the proposed legislation to determine and no injunction

shall be granted by any court or other authority in respect of any action taken or to be taken in

pursuance of any power conferred by the proposed legislation.

3.4.4 Bar under the Industrial Disputes Act, 1947

The principles applicable to the jurisdiction of the Civil Court in relation to an

industrial dispute under the Industrial Disputes Act, 1947 may be stated as:50

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.

50 The Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke of Bombay and Ors., AIR 1975 SC 2238;

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4. If the right which is sought to be enforced is a right created under the Act such as

Chapter VA then the remedy for its enforcement is either Section 33C or the raising of

an industrial dispute as the case may be.

3.5 Conclusion

A judgement passed by a court without jurisdiction is ultra vires or illegal which cannot

be enforced. Section 9 of the Civil Procedure Code primarily deals with the question of civil

court’s jurisdiction to entertain a case. It states that 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 their jurisdiction. But once it is found that such authority had initial

jurisdiction, then any erroneous order by the authority is not open to collateral attack in a suit.

This is 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. Thus

the general rule is that if the court rendering a judgement suffers from want of jurisdiction

then its judgement is nullity and may be ignored.

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BIBILIOGRAPHY

Books

1. C.K. Takwani, Civil Procedure, (6th ED. : 2011) (Eastern Law House New Delhi)

2. Sarkar Amit, Sarkar’s Commentary on The Code of Civil Procedure, 1908, (2nd ED. :

2008) (Dwivedi Law Agency, Allahabad)

3. Umesh Chandra, Woodroffe & Ameer Ali’s Commentary on The Code of Civil

Procedure, 1908, (4th ED. : 2006) (Delhi Law House, New Delhi)

4. Vinay Kumar Gupta, Mulla Code of Civil Procedure (Abridged) (14th ED. : 2010)

(Lexis Nexis Butterworths Wadhwa, Nagpur)

Articles

1 See Zoe Kirk-Robinson, Ouster Clauses in English Law,

http://www.suite101.com/content/ouster-clauses-in-english-law-a161264 (Last Visited :

Mar. 27, 2011).

2 Nigel P. Gravel, Time Limit Clauses and Judicial Review. Some Second Thoughts,

http://www.jstor.org/stable/1095798, (Last Visited : Mar. 26, 2011)

3 Henry P. de Vries, Jurisdiction in Civil Law Countries, http://www.heinonline.org : 55

A.B.A. J. 246 1969, (Last Visited : Mar. 15, 2011)

4 M.A. Fazal, Effectiveness of Ouster Clause in India, http://www.jstor.org/stable/312203 ,

(Last Visited : Mar. 17, 2011)

IV