‘Jurisdiction’ may be defined to be the power or authority 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 the court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision.[i]
In case of Official Trustee v. Sachindra Nath Chatterjee[ii]after referring to various decisions, the Supreme Court observed, “jurisdiction must include the power to hear and decide the issue/ dispute, the authority to hear and decide the particular controversy that has arisen between the parties.”
Section 9 – Courts to try all suits
“The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is expressly a impliedly barred”.
A suit in which the right to property or to office is contended is a suit of civil nature, notwithstanding that such right may depend entirely on the decision of the questions as to religions rites or ceremonies.
For the purposes of this section, it is immaterial whether or not any fee is attached to the office referred in Explanation I or whether or not such office is to a particular office.
Section 9 of the Code of Civil Procedure, 1908 confers the power upon the civil court to try all suits of civil nature unless barred by the express provisions. For the adjudication of such suits of civil nature as described under section 9, 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 civil nature.
In case of D. Joshi v. High Court of Judicature at Bombay[iii]it was held that “all courts are Tribunals. But Tribunal, unless it has all trappings of court is not court”.
In case of Satguru Construction Company Pvt. Ltd. v. Greater Bombay Co-operative Bank Ltd.[iv] it was held that non-pleading of issue of jurisdiction at initial stage will not clothe Civil Courts with jurisdiction when expressly barred under any Act.
For jurisdiction of court the existing law on date of institution of suit or on date on which suit comes up for hearing, will be applied. Further if Court has jurisdiction to try the suit when it comes for disposal, it then cannot refuse to assume jurisdiction by reason of the fact that it has no jurisdiction to entertain it at the date of institution of suit.
It was observed in case of Chiranjilal Shrilal v. Jasjit Singh[v] that: “If the Court has no inherent jurisdiction, neither acquiescence nor waiver nor estoppel can create it.” It means that a defect in jurisdiction goes to the root of the matter and strikes at the authority of the court to pass a decree. A decree passed without jurisdiction is non est and its validity can be set up whenever it is sought to be enforced as a foundation for a right, even at the stage of execution or in collateral proceedings.
It simply implies is that the court should have competent authority or jurisdiction to set off the dispute in question.
Consent and Jurisdiction
Again the parties are not at liberty to choose or by mutual consent to diminish the jurisdiction of a competent court. The principle is well-settled that consent cannot confer or take away jurisdiction of a court.
If the court has no jurisdiction, consent of the parties or their inaction cannot confer that jurisdiction; nor by consent jurisdiction can be ousted. The defect of jurisdiction goes to the root of the matter and strikes at the authority of the Court to pass a decree. A decree passed by a court without jurisdiction is a Coram non judice. Similarly, where the court has jurisdiction to decide a dispute, the same cannot be taken away or ousted by consent of parties. But if two or more courts have jurisdiction to try the suit, it is open to the parties to select a particular forum. Such an agreement would be legal, valid and enforceable.[vi]
In the leading case of Kiran Singh v. Chaman Paswan[vii], the Supreme Court observed: “A defect of jurisdiction……strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of the parties.”
Suits of Civil Nature
As we have earlier seen that under section 9 of the Code courts are authorised to entertain the suit of civil nature (if name adjudicate them) unless barred expressly.
A thorough interpretation of section 9 puts two basic conditions to test that whether a Civil Court has jurisdiction to try a suit or not.
(i) The suit must be of civil nature; and
(ii) The cognizance of such a suit should not have been expressly or impliedly barred.
So a suit to establish a person’s right to enter a religious place and suit to restrain the defendant from entering a place of worship are both, entertainable being suits of civil nature. The basic test is that whether a person’s civil right is affected or abridged by a particular act of a party or an institution and secondly whether the Courts are expressly barred to take such a particular issue for adjudication or not. Once it is settled that the suit/dispute is of a civil nature and the concerned court is not expressly barred to adjudicate the issue in question, the Court is supposed to have competent jurisdiction to determine the issue.
Explaining the concept of jurisdiction of Civil Court(s) under section 9, in P.M.A. Metropolitan v. M.M. Marthoma[viii]the Supreme Court stated:–“The section would, therefore, be available in every case where the dispute was of the characteristic of affecting one’s rights which are not only civil but of civil nature.”
Examples of Suit of Civil Nature:- The following are suits of a civil nature:-
- Suits relating to right to property.
- Suits relating to right to worship/to share in offerings.
- Suits relating to taking out of religious procession.
- Suits for specific performance of contracts or for damages for civil wrongs/for breach of contract.
- Suits for specific relief.
- Suits for restitution of conjugal rights/for dissolution of marriage.
- Suits for rent/for on accounts, etc. ; Suit for dissolution of partnership.
- Suits for rights of franchise.
- A suit to declare the election of a candidate as contrary to law.
- A suit for declaration of the validity of election as municipal commissioner.
- A suit to set aside an award.
- Suits against wrongful dismissals from service and for salaries, etc.
- Suits for rights to hereditary offices – Suits challenging the validity of the ex-communication (the expulsion of a member from the caste involves the determination of a legal right; the right to remain in the community or to exercise the rights and privileges of the members of the community is a civil one) P.M.A. Metropolitan v Moran Mat Marthom AIR 1995 SC 2001.
Religious right is the right of a person to practice, profess and preach any religion of his choice. Such a right is civil in nature and therefore the dispute about the religious office is a civil dispute. Religious office of Christians in India (having no statutory law governing such office) is cognizable by civil court. Civil court can decide the validity of ex- communication.
Examples of Suit Not of Civil Nature:- The following are suits of not of a civil nature:-
- Suits involving principally caste question(viz. temporary exclusion of some members of a caste from social intercourse with other families on account of infringement of caste rules).
- Suits involving purely religious rites/ceremonies.
- Suits for recovery of voluntary payments or offerings.
- Suits for upholding mere dignity or honour (viz. a claim to be declared the of a temple, a suit by an honorary lecturer to compel delivery of lectures by him).
Suits Expressly/Impliedly Barred
A litigant having a grievance or 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 is barred by any enactment for the time being in force. 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. Thus, the matters falling within the exclusive jurisdiction of Revenue Courts or under the Code of Criminal Procedure or the matters dealt with by special tribunals under the relevant statutes(e.g. by Industrial Tribunal, Election Tribunal, Rent Tribunal Income Tax Tribunal, Motor Accident Claims Tribunal, etc., or by domestic tribunals e.g. Bar Council, Medical Council, etc.) are expressly barred from the cognizance of a civil court. But if the remedy provided by the statute is not adequate and all questions cannot be decided by a special tribunal, the jurisdiction of a civil court is not ousted.
Where a statute gives 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 do what the civil court would normally do in a suit. Therefore each case requires examination whether the statute provides right and remedies and whether the scheme of the Acts is that the procedure provided will be of the civil court in respect thereof.[ix]
In Jitendra Nath v. Empire Insia and Ceylone Tea Co.[x] it was held that 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 a statute. Similarly, certain suits though of a civil nature are barred on the ground of ‘public policy.’ Thus suits by a witness to recover money agreed to be paid to him in consideration of his giving evidence, suits on agreements void on grounds of public policy , suits for damages against a judicial officer for acts done in the course of his duties, etc.
In Laxmi Chand v Gram Panchayat, Kararia[xi] AIR 1996 SC 523 , it was held that the scheme of the Land Acquisition Act is complete in itself and thereby the jurisdiction of the civil court to take cognizance of the cases arising under the said Act, by necessary implication, stood barred.
Exclusion of Jurisdiction
In dealing with the question whether a civil court’s jurisdiction to entertain a suit is barred or not, it is necessary to bear in mind that every presumption should be made in favour of the jurisdiction of a civil court. The exclusion of jurisdiction of a civil court to entertain civil causes should not be readily inferred unless the relevant statute contains an express provision to that effect, or leads to a necessary and inevitable implication of that nature[xii]. Such exclusion must either be explicitly expressed or clearly implied[xiii].
A statute ousting the jurisdiction of a civil court should be strictly constructed. In case of doubt as to the jurisdiction, the court should lean towards assumption of jurisdiction(Kamala Mills v State of Bombay AIR 1965 SC 1942). ‘The jurisdiction of civil courts is all-embracing except to the extent it is excluded by law or by clear intendment arising from such law.
In State of Andhra Pradesh v. Manjeti Laxmi Kantha Rao (D)[xiv] by LRs.the facts are, the Manjeti Venkata Rao and Manjeti Kanta Rao filed a suit against the State of Andhra Pradesh for a declaration that the property comprised in R.S. No. 400 with a building thereon in which plaintiffs have a half share is not subject to any public or charitable trust of endowment and that the order G.O. Ms No. 1501, dated 12th July, 1979 is void.
The Trial Court framed several issues and on all issues held against the plaintiff. The two appeals filed in High Court against the judgment of Trial Court were dismissed. There upon two Letter Patent Appeals were filed. The contentions in Letter Patents Appeal were–
(i) The order under section 77 of the A.P. Charitable and Hindu Religious Endowment, 1966 does not affect a decision rendered in civil suit No. 11/67 inasmuch as question of title had been raised in the suit.
(ii) The order under section 77 of the A.P. Religious Endowment Act, 1986 and the suit had been decided by competent authority and, therefore proceeding under section 77 of the A.P. Religious Endowment Act could not operate as res judicata.
(iii) To challenge an order under section 77 of the A.P. Religious Endowment Act, 1986, a suit was required to be filed under section 78 of the A.P. Religious Endowment Act, the Court would construe the suit out of which appeal itself arises under section 77 of the Act.
The Supreme Court made following observations:
The suit was filed prior to initiation of proceedings under section 77 of the A.P. Religious Endowment Act, 1986 and, therefore, the said suit cannot be a suit contemplated under section 78 of the A.P. Religious Endowment Act, 1986. The order under section 77 is conclusive which determined the issue that the suit property is not subject to public charily or endowment unholding the case of defendants 4 to 12 that property is private property and is not an endowment. Such a question could have been decided in a proceeding under section 77(1)(d) of the A.P. Religious Endowment Act, 1986 as to whether any property is endowment and, if so, whether it is charitable or religious endowment. A person aggrieved could file a suit under section 78 of the A.P. Religious Endowment Act, 1986. Since no suit was filed the declaration made by Deputy Commissioner under section 77 and order made by him concluded the issue whether or not the suit property is charitable or religious endowment. With the coming in force of the A.P. Religious Endowment Act, 1986, the Deputy Commissioner considered the very question raised in the suit as to nature of the suit property and held that it is private property and having concluded as public charity or endowment that conclusion became final.
The Deputy Commissioner having followed due procedure made the order and that order could have been challenged as provided under section 78 of the A.P. Religious Endowment Act, 1986 by way of suit or by an appeal when neither of these courses were adopted, the order made by the authority in its special jurisdiction must be held to be conclusive and final. Therefore, view taken by High Court appears to be correct and the appeals are dismissed.
On the point of the law is section 9, the Supreme Court stated:
“The normal line of law is the Civil Courts have jurisdiction to try all suits of civil nature except those of which cognizance by them is either expressly or impliedly excluded as provided under section 9 of the Code of Civil Procedure, 1908 but such exclusion is not readily inferred and presumption to be drawn must be in favour of the existence rather than exclusion of jurisdiction of the Civil Courts to try civil suit. The test adopted in examining such a question is:
(i) Whether the legislative intent to exclude arises explicitly or by necessary implication?
(ii) Whether the statute in question provides for adequate and satisfactory alternative remedy to a party arrived by an order made under it?”
Kinds of Jurisdiction of a Court
Jurisdiction of a Court may be classified under the following categories:
(1) Territorial or local jurisdiction:- Every court is competent to adjudicate the matters/issues falling under the local limits of its jurisdiction. For example, the District Judge has to exercise the jurisdiction within his district and not outside it unless barred by pecuniary jurisdiction. And the High Court has jurisdiction over the issues relating to the concerned state.
For the purpose of invoking the jurisdiction of the Court only because two causes-of-action joined in terms of the provisions of the Code of Civil Procedure, 1908, the same would not mean that thereby the jurisdiction can be conferred upon a court which had jurisdiction to try only the suit in respect of one cause-of-action and not the other. Recourse to the additional forum, however, may be taken if both the causes of action arise within the jurisdiction of the court which otherwise had the necessary jurisdiction to decide all the issues.[xv]
(2) 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 exceeds the limit of the jurisdiction. Thus, a Presidency Small Causes Court cannot entertain a suit in which the amount claimed exceeds Rs. 1000.
(3) Jurisdiction as to subject-matter:- A court cannot entertain and adjudicate an issue which does not fall within its competency as to competency over the matter. Thus, the Presidency Small Causes Court has not jurisdiction to try suit, for specific performance of a contract, partition of immovable property for closure or redemption of a mortgage, etc. Similarly, in respect of testamentary matters, divorce cases, probate proceedings, the Court of District Judge has exclusive jurisdiction.
(4) Original and appellate jurisdiction:- In the exercise of original jurisdiction, a court entertains and decides suits and in its appellates jurisdiction, it entertains and decides appeals. District Courts and High Court have original as well as appellate jurisdiction.
In J. Kumaradasan Nair v. IRIC Sohan[xvi], the Supreme Court held that mentioning of a wrong provisions on non-mentioning of any provisions of law would, by itself, be not sufficient to take away the jurisdiction of a court if it is otherwise vested in it in law. While exercising its power, the court will merely consider whether it has the source to exercise such power or not. They will not apply the beneficent provisions in a padantic manner. When the provisions are meant to apply and in fact found to be applicable to the facts and circumstances of a case, there is no reason as to why the court will refuse to apply the same only because a wrong provisions has been mentioned.
In Shiv Kumar Sharma v. Santosh Kumari[xvii], the Supreme Court held that the Courts in India exercise jurisdiction both in equity as well as law but exercise of equity jurisdiction is always subject to the provisions of law. Such jurisdiction can be exercised only when no law operates in the field.
[i] Hirday Nath v. Ramchandra AIR 1921 Cal 34.
[ii]Official Trustee v. Sachindra Nath Chatterjee AIR 1969 SC 823.
[iii]D. Joshi v. High Court of Judicature at Bombay AIR 2011 SC 848.
[iv]Satguru Construction Company Pvt. Ltd. v. Greater Bombay Co-operative Bank Ltd. (2007) 5 AIR Bom 37.
[v]Chiranjilal Shrilal v. Jasjit Singh (1993) 2 SCC 507.
[vi] Hakam Singh v Gammon(India) Ltd. AIR 1971 SC 740]
[vii]Kiran Singh v. Chaman Paswan AIR 1954 SC 340.
[viii]P.M.A. Metropolitan v. M.M. Marthoma AIR 1995 SC 2001.
[ix] Vankamamidi V. Subba Rao v. Chatlapalli S. Ranganayakamma AIR 1997 SC 3082.
[x] Jitendra Nath v. Empire Insia and Ceylone Tea Co. AIR 1990 SC 255.
[xi] Laxmi Chand v. Gram Panchayat, Kararia AIR 1996 SC 523.
[xii] Dhulbhai v. State of M.P. AIR 1969 SC 78; See also Gurbax Singh v Financial Commr. AIR 1991 SC 435.
[xiii] Secretary of State v. Mask AIR 1940 PC 105.
[xiv]State of Andhra Pradesh v. Manjeti Laxmi Kantha Rao (D) by LRs. AIR 2000 SC 2220.
[xv]Dhodha House v. S.K. Maingi AIR 2006 SC 730.
[xvi]J. Kumaradasan Nair v. IRIC Sohan AIR 2009 SC 1333.
[xvii]Shiv Kumar Sharma v. Santosh Kumari AIR 2008 SC 171.