Jurisdiction under Code of Civil Procedure 1908

Introduction

The word jurisdiction is not defined under the Code of Civil Procedure. It has been derived from the Latin terms “Juris” and “dicto” which denote “I speak by the law”. Jurisdiction means the authority to decide.[1] It also denotes the authority vested with a court to administer justice not only with respect to the subject matter of the suit but also to the local and pecuniary limits of its jurisdiction. When it is said that a court has jurisdiction to try a suit it means that it is competent to try it.[2]

Jurisdiction implies two things:[3]

1. jurisdiction over the subject matter of the suit, and
2. a power to make an order.

As per the proviso of section 9 of the code, the court shall have jurisdiction to try all suits of a civil nature except 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.[4]

Scope

Supreme Court in the landmark judgement of Official Trustee v. Sachindra Nath,[5] has made the following observation:

“When a court is 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 orders sought for. It is not sufficient that it has some jurisdiction in relation to the subject-matter of the suit. Its 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.”

It is well-settled that parties cannot consent to confer jurisdiction of a court. In the leading case of A.R. Antulay v. R.S. Nayak[6], Justice Mukharji stated, “This Court, by its directions, could not confer jurisdiction on the High Court of Bombay to try any case for which it did not possess.”

It was further stated:

The power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away the right of appeal or to take away the right of appeal. Parliament alone can do it by law and no court, whether superior or inferior or both combined, can enlarge the jurisdiction of a court or divest a person of his rights of revision and appeal.

Similarly, the consent of parties cannot bar a competent court’s jurisdiction to try the matter. The agreement between parties to absolutely oust the jurisdiction of the competent court would be unlawful and void, being against public policy (ex dolo malo non oritur actio). But if two or more courts have jurisdiction to try the suit, it is open to the parties to select a particular forum and exclude the other forums.

And, therefore, the parties may agree among themselves that the suit should be brought in one of those courts and not in the other since there’s no inherent lack of jurisdiction within the court. Such an agreement would be legal, valid and enforceable.[7]

Lack of Jurisdiction and Irregular Exercise of Jurisdiction

There is constantly a differentiation between the need for jurisdiction and the irregular exercise of it. When it is held that a court has jurisdiction to try and adjudicate a matter, the authority of the decision given cannot be said to be without jurisdiction inasmuch as the power to decide necessarily carries with it the power to decide wrongly as well as rightly.[8]

The matter of grave concern is: How the absence of jurisdiction can be segregated from irregular or erroneous exercise of jurisdiction.

In the matter of Anisminic Ltd. V. Foreign Compensation Commission[9], The House of Lords held that any mistake of law made by an adjudicating authority in the decision will be null and void and that a statutory prohibition provision doesn’t bar the court’s jurisdiction from judicial review except it is explicitly expressed.

Supreme Court in the matter of M.L. Sethi v. R.P. Kapur[10], defined the difference between jurisdictional error and error of law within the jurisdiction which is as follows:

The distinction between jurisdictional and non-jurisdictional error is ultimately based upon a foundation of sand. Much of the superstructure has already crumbled. What remains is likely quickly to fall away as the courts rightly insist that all administrative actions should be simply lawful whether or not jurisdictionally lawful.

Determination of Jurisdiction

A court has to determine whether it has the jurisdiction to decide a suit with reference to initial assumptions made. The question depends not on the truth or falsehood of the facts into which it needs to enquire, or upon the accuracy of its findings on these facts, yet upon their temperament, and it is definable “at the commencement, not at the conclusion of the inquiry.”[11]

The court has inherent jurisdiction to decide the question whenever it’s jurisdiction is challenged. All the courts or tribunals are not only entitled but bound to determine whether they can exercise their jurisdiction in the matter filed before them or not.[12]

Thus, when a tribunal is conferred with jurisdiction through a statute that governs it and imposes conditions under which it can work, it’s implied that before the tribunal accepts jurisdiction in an issue, it must be fulfilled that those conditions exist as per the law prevailing.

The jurisdiction of a tribunal or any other authority stands on a different footing. Where Parliament has invested such tribunal with the power to decide and determine finally the preliminary facts on which its jurisdiction depends, it can decide such facts and the finding recorded by the tribunal cannot be challenged by certiorari. But where a statute creating or establishing a tribunal does not confer that power on a tribunal, an inferior tribunal cannot, on a wrong decision on preliminary or collateral fact, assume and confer on itself jurisdiction that it does not possess. Such an order can be challenged by certiorari.[13]

Kinds of Jurisdiction

• Civil and criminal jurisdiction

Civil Jurisdiction means the jurisdiction which is concerned with disputes of a “civil nature”. While, Criminal jurisdiction, relates to crimes and punishment to offenders.

• Territorial jurisdiction

All the courts and tribunals have fixed local or territorial limits, where they can’t exercise their jurisdiction beyond that. These limits are fixed by the Government. Like, the High Court has jurisdiction over the territory within the State it is situated.

• Pecuniary jurisdiction

The Code provides that a court will have jurisdiction only over those suits the amount or value of the subject matter of which does not exceed the pecuniary limits of its jurisdiction. High Courts and District Courts have no pecuniary limits for jurisdiction, as they have unlimited pecuniary jurisdiction.

• Jurisdiction as to subject-matter

Different courts have been empowered to decide different types of suits. Certain courts are precluded from entertaining certain suits. A district Judge or Civil Judge (Senior Division) only has jurisdiction in respect of testamentary matters, divorce cases, probate proceedings, insolvency proceedings, etc.

• Original and appellate jurisdiction

Original jurisdiction is jurisdiction inherent in, or conferred upon, a court of the first instance. In exercise of this, the court of first instants decides suits, petitions or applications. Appellate jurisdiction is the power or authority conferred upon a superior court to re-adjudicate by way of appeal, revision, etc. for causes which have been adjudicated by courts of original jurisdiction.

• Exclusive and concurrent jurisdiction

Exclusive jurisdiction is what confers sole power on one court or tribunal to try, deal with and decide a case. No other court or authority can render a judgment or pass an order for such kind of matters.

Concurrent jurisdiction is a jurisdiction which may be exercised by different courts or authorities between the same parties, at the same time and over the same subject matter. It is, therefore, open to a litigant to invoke the jurisdiction of any such court or authority.

• Foreign Jurisdiction

Foreign jurisdiction means jurisdiction exercised by a court outside India in a foreign country. A judgement rendered or decision given by a foreign court is a “foreign judgement”.

Jurisdiction of Civil Courts

Under Section 9 of the Code of Civil Procedure, “a civil court has jurisdiction to try all suits of civil nature unless they are barred.” Section 9 of the Code reads as under:

The Court shall (subject to the provision herein contained) have jurisdiction to try all suits of a civil nature except 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 the question as to religious rites or ceremonies.
• Explanation II- For the purpose 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 an office is attached to a particular place.

Conditions

“A civil court has jurisdiction to try a suit if the following conditions are satisfied:

• The suit must be of civil nature; and
• The cognizance of such a suit should not have been expressly or impliedly barred.

Each word and expression casts an obligation on the court to exercise jurisdiction for enforcement of the right. The word ‘civil’ according to the dictionary means, “relating to the citizen as an individual; civil rights”. As per Black’s Law Dictionary, it is defined as, “relating to providing rights and remedies sought by civil actions as contrasted with criminal proceedings”.

Suit expressly barred

A suit can be said to be “expressly barred” when it is barred by any enactment till the time being in force. The legislators have the authority to bar the 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.”[14]

Suit impliedly barred

“A suit is said to be impliedly barred when it is barred by general principles of law. 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. Where an Act creates an obligation and enforces its performance in a specified manner, that performance cannot be enforced in any other” manner.[15]

Similarly, certain suits, though of a civil nature, are barred from the cognizance of a civil court on the grounds of public policy. “The principle underlying is that a court ought not to countenance matters which are injurious to and against the public welfare.”

Burden of proof

It is well-settled that it is for the party who seeks to oust the jurisdiction of a civil court to establish it. It is equally well-settled that a statute outside the jurisdiction of a civil court must be strictly construed. Where such a contention is raised, it has to be determined in the light of the words used in the statute, relevant provisions and the object and purpose of the” enactment.[16]

Exclusion of jurisdiction of civil court

From the above discussion, it is clear that the jurisdiction of a civil court is ambiguous except to the extent it is excluded by law or arising from such law.

In a landmark judgement of Dhulabhai v. State of M.P. [17], Chief Justice Hidayatullah summarised the following principles relating to the exclusion of jurisdiction of civil courts:

• When a tribunal is constituted through a special enactment, the jurisdiction of civil courts 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.
• Where there is an express bar of jurisdiction of a court, an examination of the provisions of a specific Act to find the adequacy or sufficiency of the remedies provided might be relevant however this isn’t decisive for supporting the jurisdiction of a civil court.
• Challenge to the provisions of a specific Act as ultra vires can’t be brought before tribunals constituted under that Act. Indeed, even the High Court can’t go into that question on a revision or reference from decisions of tribunals.
• When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit can be filed. A writ of certiorari may incorporate a course for a refund if the case is within the time recommended by the Limitation Act however it’s compulsory but a necessary solution for supplanting a suit.
• Where the specific Act contains no machinery for a refund of tax collected in excess of constitutional limits or is illegally collected, a suit lies.
• Questions of the accuracy of an assessment, apart from its constitutionality, are for the decision of the authorities and civil suit doesn’t lie if the orders of the authorities are pronounced to be conclusive or there is an express prohibition in a specific Act. In either case, the provisions of a specific Act must be examined for relevant enquiry.
• The exclusion of the jurisdiction of a civil court isn’t ready to be derived unless the conditions above apply.
• If a dispute is not an industrial dispute, nor does it relate to the enforcement of any other right under the Act, the remedy lies only in a civil court.[18]
• If a dispute is an industrial dispute emerging 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.
• If an industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to a suitor is to get an adjudication under the Act.
• 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.

Objection to jurisdiction

As per section 21 objection as to jurisdiction would not be entertained by the Appellate or Revisional Court unless the same was raised in the trial court.[19] Even if, such objection is taken at the earliest opportunity the decree of the trial court will not be set aside or the execution case will not be struck off unless there has been a failure of justice. With the enactment of sub-sec. (2) to section 21, it is now provided that even lack of pecuniary jurisdiction is regarded as technical and can be waived by the party by not raising objection at the earliest opportunity.[20]

Jurisdiction as Preliminary Issue

The issue regarding jurisdiction can be raised before the filing of a written statement by filing a petition and the court has to raise a preliminary issue regarding jurisdiction to decide the issue. However, the Gujarat High Court has held that in view of the amendment of Order 14 Rule 2 of the code, it is not proper to hear the issue regarding jurisdiction as a preliminary issue and the said issue has to be decided along with other issues during the evidence stage.[21]

Lack of Pecuniary or Territorial Jurisdiction

If the court finds that it has no pecuniary or territorial jurisdiction to try the suit, the proper order is not a dismissal of the suit but returning the plaint for presentation in a proper court.[22]

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[1] Ujjam Bai v. State of UP, AIR 1962 SC 1621

[2] Addl Collector of Customs v. Best and Co, AIR 1966 SSC 1713

[3] Kalyan Biswas v. Bahadur Khan, AIR 1925 Cal 1258

[4] Radhakishan v. Ludhiana Municipality, AIR 1963 SC 1547

[5] AIR 1969 SC 823

[6] AIR 1988 SC 1531

[7] Hakam Singh v. Gammon (India) Ltd., (1971) 1 SCC 286

[8] Ujjan Bai v. State of U.P., AIR 1962 SC 1621

[9] (1969) 2 AC 147

[10] AIR 1972 SC 2379

[11] R v. Boltan, (1841) 1 QB 66

[12] LIC v. Indian Automobiles & Co., (1990) 4 SCC 286 at pp. 293-294

[13] Ujjan Bai v. State of U.P., AIR 1962 SC 1621

[14] Umrao Singh v. Bhagwati Singh, AIR 1965 SC 15

[15] Premier Automobiles v. Kamlekar Shantaram, (1976) 1 SCC 496

[16] Abdul Waheed Khan v. Bhawani, AIR 1966 SC 1718

[17] AIR 1969 SC 78

[18] Premier Automobiles v. Kamlekar Shantaram, (1976) 1 SCC 496

[19] Kiran Singh v. Chaman Pashwan, AIR 1954 SC 340

[20] Baba Dai v. Muneswar, AIR 1985 Pat 67

[21] Kaushiklal v. Mafatlal Industries, AIR 1995 Guj 115

[22] R.S.D.V Finance Co. v. Vallabh Glass Works, AIR 1993 SC 2094

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