“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 decide 1. 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 9 3, 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 authority 4. 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 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 2
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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. Govindswami 5. The provision under Section 9 6 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.P 8 , 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 Dhulabhai v. State of M.P- AIR 1969 SC 78
8
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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, Hydrabad 9, 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 t o 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 9A 10 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 9A 11. 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. Desai 12, 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 Basheer 13 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 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 11
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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 jurisdiction 14 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 policy 16- 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 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 15
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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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