JURISDICTION OF CIVIL COURTS

-P.Vivveck Nayudu(10/BBA/035)

In modern days, in almost every legal system the civil disputes are resolved by the courts of civil

jurisdiction. As a rule, the civil courts can take cognizance of every controversy of civil nature as

the court of ultimate jurisdiction but there are some recognized exceptions to this general rule

which is to be discussed through this work.1 The word jurisdiction was come from the Latin

word Jus, Juris. The meaning of these words is “law” and Dicere meaning to speak. It is a

practical authority granted to a formally constituted legal body or to a political leader to deal

with and make pronouncements on legal matters and, by implication, to administer justice within

a defined area of responsibility.2 The term is also used to denote the geographical area or subject-

matter to which such authority applies.

Jurisdiction is derived from the Latin word juris meaning "law" and dicere meaning "to speak". It

is the practical authority granted to a formally constituted legal body or to a political leader to

deal with and make pronouncements on legal matters and, by implication, to administer justice

within a defined territorial or geographical area to which such authority applies. Jurisdiction

draws its substance from public international law, conflict of laws and constitutional law of the

state.

The term “Jurisdiction” has not been defined in the code. Jurisdiction means the power or

authority of a court of law to hear and determine a cause or a matter. It is a power to entertain,

deal with and decide a suit, an action, petition or other proceeding.3 In other word, by jurisdiction

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

cognizance of matter presented in a formal way for its decision.4 If the court has no inherent

jurisdiction, neither acquiescence nor waiver nor estoppel can create it.5 A decree passed without 1 Usman karim, Jurisdiction of Civil Courts, 03 September 2011, lawyers club India,http://www.lawyersclubindia.com/articles/Jurisdiction-of-Civil-Court-3976.asp#.UWp-7qJTAaY2 Shraddha ojha, Jurisdiction of Civil Courts under civil procedure code, January 17, 2011, legal servicehttp://www.legalservicesindia.com/article/article/jurisdiction-of-civil-court-under-civil-procedure-code-508-1.html3 Justice C.K. Thakker, Encyclopedic Law Lexicon (2009) Vol. II at pp. 2500-04. 4 Official Trustee v. Sachindra Nath, AIR 1969 SC 823 at p. 827.5 Dhirendra Nath v. Sudhir Chandra, AIR 1964 SC 1300 at p. 1304.

jurisdiction is non est and its validity can be set up whenever it is sought to be enforced as a

foundation for right, even at the stage of execution or in collateral proceedings. In short, a decree

passed by a court without jurisdiction is a coram non judice.6

The fundamental principle of English law that wherever there is a right, there is remedy (ubi jus

ibi remedium) has been adopted by the Indian legal system also. In fact, right and remedy are but

the two sides of the same coin and they cannot be separated from each other. Accordingly, a

litigant having a grievance of a civil nature has right to institute a civil suit in a competent court

unless its cognizance is either expressly or impliedly barred by any statute.7 Suits maintainability

requires no authority of law and it is enough that no statute bars it.8 Under section 9, the code of

civil procedure, a civil court has jurisdiction to try all suits of civil nature unless they are barred.

Jurisdiction means the authority by which a court has to decide matters that are brought before it

for adjudication. The limit of this authority is imposed by charter, statute or commission. If no

such limit is imposed or defined that the jurisdiction is said to be unlimited.

Limitation of jurisdiction of civil court is basically four kinds:

1. Jurisdiction over the subject matter- to try certain matters by certain court is limited by

statute (Ex. Small cause court- suit for money due under promissory note or a suit for

price of work done)

2. Place of suing or territorial jurisdiction – A territorial limit of jurisdiction for each court

is fixed by Government.

3. Jurisdiction over persons – All person of whatever nationality are subject to the

jurisdiction of the country except foreign state.

4. Pecuniary jurisdiction depending on pecuniary value of suit –There is no pecuniary

jurisdiction of high court and district court.6 Sushil Kumar v. Gobind Ram, (1990) 1 SCC 193 at p. 205.7 Abdul waheed khan v. bhawani, AIR 1966 SC 1718 At p. 1719: (1996) 3 SCR 617;brij raj singh v. laxman singh, AIR 1961 Sc 149 at p. 152: (1961) 1 SCR 616; most rev. P.M.A. Metropolitan v. moran mar marthoma, 1995 supp (4) Scc 286 at p. 318: AIR 1995 SC 2001 at p. 2022.8 Ganga bai v. vijay kumar, (1974) 2 SCC 393 at p. 397: AIR 1974 SC 1126 at p. 1129; most rev P.M.A. metropolitan v. moran mar marthoma, 1995 supp (4) SCC 286 at p. 318.

A civil court has jurisdiction to try a suit if two conditions are fulfilled9:

1) The suit must be of a civil nature; and

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

In the leading decision of Secretary of State v. Mask & Co.10 the Privy Council 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”.

A suit is said to be “expressly barred” when it is barred by any enactment for the time being in

force.11 It is open to a competent legislature to bar jurisdiction of civil courts with respect to a

particular class of suits of a civil nature, provided that, in doing so, it keeps itself within the field

of legislation conferred on it and does not contravene any provision of the constitution.12 But

every presumption should be made in favour of the jurisdiction of a civil court and the provision

of exclusion of jurisdiction of a civil court and the provision of exclusion of jurisdiction of a

court must be strictly construed.13

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

interpretation which would maintain the jurisdiction.14 A suit is said to be impliedly barred when

it is barred by general principle of law. Certain suits, though of a civil nature, are barred from the

cognizance of a civil court on the ground of public policy.15 The principle underlying is that a

court ought not to countenance matters which are injurious to and against the public weal.16

A litigant having a grievance of a civil nature has a right to institute a civil suit unless its

cognizance is barred, either expressly or impliedly. A suit is said to be ‘expressly barred’ when it

9 C.K. Takwani, Civil Procedure with limitation Act, 1963, 7th edition, eastern Book Company, 2011.10 Secretary of State v. Mask & Co. (1940) 42 BOMLR 767.11 Umrao Singh V. Bhagwati Singh, AIR 1956 SC 15.12 State of Vidhya Pradesh v. Moradhwaj Singh, AIR 1960 SC 796.13 Abdul Waheed Khan v. Bhagwani, AIR 1966 SC 1718 at P. 1719.14 Bharat Kala Bhandar (P) Ltd. v. Municipal Committee, Dhamangaon, AIR 1966 SC 249. 15 Indian Airliness Corpn. V. Sukhdeo Rai, (1971) 2 SCC 192. 16 Per Kanpur, J. in Union of India v. Ram Chand, AIR 1955 Punj 166 at p. 169.

is barred by any enactment for the time being in force.17 It is open to a competent legislature to

bar jurisdiction of civil courts with respect to a particular class of suits of a civil nature, provided

that, in doing so, it keeps itself within the field of legislation conferred on it and does not

contravene any provision of the constitution.18 But every presumption should be made in favor of

the jurisdiction of a civil court and the provision of exclusion of jurisdiction of a court must be

strictly construed.19 If there is any doubt about the ousting of jurisdiction of a civil court, the

court will lean to an interpretation which would maintain the jurisdiction. 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, e.g. by industrial tribunal,

income tax tribunal, revenue tribunal, electronic tribunal, rent tribunal, cooperative tribunal,

motor accident claims tribunal, etc. or by domestic tribunals, e.g. Bar Council, Medical Council,

university, club etc. 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.20 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.21From decision of Supreme Court, the following general principles relating to

jurisdiction of a civil court emerge:

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

barred either expressly or impliedly.

2. Consent can neither confer not take away jurisdiction of a court.

3. A decree passed by a court without jurisdiction is a nullity and the validity thereof can be

challenged at any stage of the proceedings.

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

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

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

in written statement.

17 Umrao singh v. bhagwati singh, AIR 1956 SC 15.18 State of vindhya Pradesh v moradhwaj singh, AIR 1960 SC 796.19 Abdul waheed khan v. bhawani, AIR 1966 SC 1718 at p.20 State of tamil nadu v. ramalinga samigal, (1985) 4 SCC 10: AIR 1986 SC 794.21 LIC v. India automobiles & co., (1990) 4 SCC 286:AIR 1991 SC 884.

7. For deciding jurisdiction of a court, the substance of manner and not its form is

important.

8. Every presumption should be made in favor of jurisdiction of a court is on the party who

asserts it.

From the above contents of my paper 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 court’s 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 their jurisdiction. But once

it is found that such authority, e.g., 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.