“Exclusion /Ouster of Jurisdiction of Civil Court”

Civil Procedure Code and Limitation Act-I

Internal Assessment-I

Luke J.Chirayil

Roll No.11

Div. A

PRN.14010125011

BA LLB(Hons.)

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Index

Content Page No.

Abstract ……………… ………………………………………………………………..3

Acknowledgment……………….…………………………………………………….....4

Introduction………………………………………………………………………..……5-6

Analysis…………………………………………………………………………………7-8

Conclusion……………………………………………………………………………….9

Bibliography………………………………………………………………………….…10

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Abstract

The term ‘Jurisdiction’ is derived from the Latin words “ius” and “dicere” which holds the
meaning “law” and “speak” respectively. Jurisdiction means authority to decide1. Jurisdiction
in a technical sense means the extent of the authority of a court to administer justice not only
with reference to the subject matter of the suit, but also to the local and pecuniary limits of
jurisdiction2

As per Section 93, in all types of civil disputes, 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 authority4.
Hence a statute therefore expressly or by necessary implication can bar the jurisdiction of
civil courts in respect of a particular matter.

In the leading decision of Secretary of State v. Mask & Co. the Privy Council observed that:
“It is well settled law that exclusion of the jurisdiction of the civil court is not to be readily
inferred, but exclusion must neither be explicitly expressed nor clearly implied”. The famous
case- Umrao Singh vs. Bhagwan Singh held that, a suit is said to be expressly barred when it
is barred by an enactment for the time being in force. 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.

Hence, throughout this research paper, what the writer has meant is an in-depth analysis of
this very interesting subject of law and its applicability. Since, the research is a law student
who has immense passion on practising law; this research has thus been conducted and
portrayed from a practical aspect.

1
Ujjan Bai v. State of U.P- AIR 1962 SC 1621
2
Offical trustee,WB v. Sachindra- AIR 1969 SC 823
3
Section 9 of CPC 1908
4
Sankar Narayan Potti v. K Sreedevi- (1998)3 SCC 751

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Acknowledgment

Firstly, I thank Adv.Milind Hartalkar and Prof.Nitin for the very effective lectures which both
the faculties deliver. The self-explanatory classes of both the faculties are the very basic
knowledge which I possess in this field of law. I thank the Chief Librarian Prof.Kalpana
Jhadav for helping with the required library arrangements and coordination. I thank my
parents who have been supporting me throughout my life and last but not that the least; I
thank the God almighty for showering his blessings throughout my life.

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Introduction

It has been laid down that the exclusion of jurisdiction of civil courts in matters concerning
civil rights ought not to be rightly inferred. Unless the court is compelled to do so by an
express provision or by one to be inferred to do so by an express provision or by one to be
inferred by necessary implication, such ouster cannot be assumed and this principle was
rightly upheld in Chinna Piillai v. Govindswami5.

The provision under Section 96 of the code enables a person to file a suit of civil nature
expecting those, the cognizance whereof is expressly or by necessary implication barred 7.
The jurisdiction of civil court arises from this section and the bar arising from an express
provision or arising by necessary intendment can be overridden only by cases and situations
as stated in- Dhulabhai v. State of M.P8, The Honourable Supreme Court has laid down the
following seven propositions of law regarding the exclusion of jurisdiction of civil courts and
those are:

1. Where the statute gives a finality to the orders of the special tribunal the civil court’s
jurisdiction must be held to be excluded if there is adequate remedy to what the civil
courts will normally do in a suit.

2. Where there is an express bar of the jurisdiction of the court, an examination of the
schemes of the particular act to find the adequacy on the efficiency of the remedies
provided may be relevant but it is not decisive to sustain the jurisdiction of the court.

3. Challenges to the provisions of the particular act as ultra vires cannot be brought
before tribunals constituted under that act.

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

provision is to be challenged, a suit is open.

5
Chinna Piillai v. Govindswami- AIR 1969 Mad. 191
6
Civil Procedure Code,1908
7
Vishnu Datta Sharma v. Daya Sapra- AIR 1996 SC 2664
8
Dhulabhai v. State of M.P- 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 decisions of the authorities and a civil suit does not lie if the orders of the
authorities are declared to be final or if there is an express provision in that particular
act.

7. An exclusion of the jurisdiction of the civil court is not readily to be inferred unless
the condition above set applies.

There are some instances that even mala fide or void-ab-initio orders of authorities cannot be
questioned through filing a civil suit before the civil courts. If the bar is placed by the
constitution, which is the supreme law of the land then the jurisdiction of civil court would
not be invoked.

In Zuari Cement Ltd. v. Regional Director ESIC, Hydrabad9, the appellant sought exemption
from the operation of Employees State Insurance Act (ESI Act) on its concern from the State
Government which was refused. The refusal order was challenged through writ petition in the
High Court. The High Court disposed of the writ petition with the direction to the appellant to
approach ESI Court constituted under section 74. Thereafter the ESI Court granted the
exemption holding that the Government had wrongly refused to grant exemption. The said
order was set aside in appeal by the High Court. The Supreme Court confirmed the view of
the High Court holding that the earlier order of the High Court permitting to raise the dispute
before ESI Court was utterly wrong as jurisdiction cannot be conferred by a higher court.

9
Zuari Cement Ltd. v. Regional Director ESIC, Hydrabad - AIR 2015 SC 2764

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Analysis

The provision of Section 9A10 cannot be utilized as a matter of litigational strategy by the
Defendant or for that matter, by the Plaintiff depending upon whether an ad interim order has
or has not been passed by the court under Sub-section 2 of Section 9A11. Hence an exclusion
of jurisdiction is not total even if the exclusive jurisdiction is conferred on special tribunal.
An objection as to jurisdiction should be raised at the earliest stage. It cannot be determined
primarily on the averments made on the plaint. What needs to be noted is that the plea of
absence of jurisdiction can be raised and entertained in any stage, since the order or decree
passed without jurisdiction should be raised at the earliest stage, but it cannot be raised in
special leave petition.

In Foreshore Co-operative Housing Society Limited v. Praveen D. Desai12, it was held that:

“A defect of jurisdiction, whether it is pecuniary or territorial or whether, it is in respect of

the subject – matter of action, strikes at the very authority of the court to pass any decree,
and such a defect cannot be cured even by consent of parties”.

However, it is quite pertinent to note that a suit challenging the validity of departmental
proceedings will lie if the question raised is of such a nature that it goes to the root of
jurisdiction and the conduct of the departmental trial and vitiates the result. It is only if the
departmental proceeding is null and void that the plaintiff can obtain the reliefs. Such a suit
cannot be treated as an appeal from the finding in the departmental proceedings or
punishments inflicted upon government servant even if these are erroneous.

The cognizance of a suit is impliedly barred whether by general principles of law or on

grounds of public policy- was the principle question in Mohammad Ishaq v. Mohammad
Basheer13 it was held that where a special act set up a special set or hierarchy of tribunals
specially empowered to adjudicate upon the rights and obligations created by the special act,
the jurisdiction of the court is impliedly barred even if no express bar is stated in the act.

Where a right, not pre-existing in common law, is created by a statute which itself provided a
machinery for enforcement of that right and a finality of such statutory provision is intended
then, even in the absence of an exclusionary provision, the civil court’s jurisdiction is

10
Civil Procedure Code 1908
11
Civil Procedure Code 1908
12
Foreshore Co-operative Housing Society Limited v. Praveen D. Desai- AIR 2015 SC 2006
13
Mohammad Ishaq v. Mohammad Basheer- AIR 1961 punj.8

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impliedly barred. If, however a right pre-existing in common law is recognized by the statue
and a new statutory remedy for its enforcement is provided, without expressingly excluding
the civil court’s jurisdiction then both the common law and statutory remedies might become
concurrent remedies. Thus the ouster of Civil Court’s jurisdiction14 would depend on whether
the right was pre-existing in common law or not.

Hence the suits are impliedly barred on the following two grounds:

1. Barred by general principles of law15- A civil court has no jurisdiction to entertain

suits in respect of act of state. An act of state may generally be defined as an act done
or adopted by a state in its sovereign capacity and injurious to the person or property
of some person who is not at that time of the act, a subject of the state.
2. Barred on grounds of public policy16- The principle that a Court ought not to
countenance matters which are injurious to and against the public weal. Accordingly
it has been held by the Supreme Court that a suit for damages on account of breach of
contract which is illegal is not maintainable.

In, Ittyavira Mathai v. Varkey Varkey17, it was held that:

“Cases of lack of jurisdiction may broadly be divided into three categories. The first is of
pecuniary and territorial jurisdiction. Such defect is not absolutely fatal and as per section
21 C.P.C. if objection is not raised at the earliest opportunity and there has not been failure
of justice then lack of pecuniary or territorial jurisdiction will not vitiate the decree. The next
is of that type regarding which objection may be raised at late stage of the suit or even for the
first time in appeal (e.g. bar of limitation) but not in execution or collateral proceedings.”

14
Raja Ram Kumar Bhagawa v. Union of India, AIR 1988 SC 752
15
Bhavani Shankar v. Soma Sundara- AIR 1956 SC 316
16
Koteshwar Vittaf Kamath v. Rangappa Baliga and Co- AIR 1969 SC 504
17
Ittyavira Mathai v. Varkey Varkey- AIR 1964 SC 907

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Conclusion

The question as regards ouster of a jurisdiction of a Civil Court must be construed having
regard to the scheme of the act as also the object and purport of it seeks to achieve. The law
in this regard is no longer res integra. A plea of bar of jurisdiction of civil court must be
considered having regard to the contentions raised in the plaint. For the said purposes,
averments disclosing cause of action and the reliefs sought for therein must be considered in
their entirety. The court may not be justified in determine the question, one way or the other,
only having regards to the reliefs claiming de hors the factual averments made on the plaint.
The rule of pleading postulates that a plaint must contain material facts. When the plaint read
as a whole does not disclose material facts giving rise to a cause of action which can be
entertained only by a civil court, it may be rejected in terms of order VII, rule 11 of the Code
of Civil Procedure.

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Bibliography

Books

The Code of Civil Procedure by, M P Jain

Code of Civil Procedure & Limitation Act by, S.R.Myneni

Code of Civil Procedure by, P.Jaganathan

The Code of Civil Procedure by, Dinshah Fardunji Mulla

The Code of Civil Procedure – 1908 by, Abhinav Misra

Websites

www.scconline.com

www.manupatra.com

www.quora.com

www.law-lex.com

www.barandbench.com

www.livelaw.com

Magazines

AIR Law Lines

AIR Civil Cases

The Law Quarterly review

AIR Supreme Court Weekly

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