Code of Civil Procedure
Assignment II
“Civil Court has Inherent Jurisdiction to take cognizance of all dispute of Civil Nature except when barred.”

-Siddhesh S Pradhan
-241
-Division C
-BBA LLB Year 4

INTRODUCTION
Jurisdiction means the power or authority of a Court of law to hear and determine a cause or matter.[1] It is the power to entertain, deal with and decide a suit, an action, petition or other proceeding.[2] In Smt Ujjambai v. State of UP[3] it was stated that exclusion of jurisdiction means prevention or prohibition to the court not to entertain or try any matter though the dispute is civil in nature. Jurisdiction is a key question for the court which goes to the root of the case and decides the fate of a matter either at a preliminary stage or on merit. A division bench of the Supreme Court in Chandrabhai K. Bhoir v. Krishna A. Bhoir observed, “In any view of the matter, an order passed without jurisdiction would be a nullity. It will be a coram non judice. It is non est in the eye of law. Principles of res judicata would not apply to such cases.”[4] Thus, Jurisdiction of a Court means the extent of authority of a Court to administer justice prescribed with reference to the subject-matter, pecuniary value and local limits.[5]

JURISDICTION OF CIVIL COURTS UNDER SECTION 9 of the CPC
Section 9 of the Code of Civil Procedure 1908 states that, “The Court shall (subject to the provisions herein contained) have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred.”
The Supreme Court in the case of Dhulabhai and Ors. v. State of Madhya Pradesh and Anr.[6] while discussing Section 9 laid down the gennerally accepted principles under the Section which are “(1) Where the statute gives a finality to the orders of the special tribunals the Civil Court's jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statue or not. (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. (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 decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.”
In Rajasthan SRTC v. Krishna Kant[7] it was laid down, “(1) Where a dispute arises from the general law of contract, i.e., where relief’s are claimed on the basis of the general law of contract, a suit filed in a civil court cannot be said to be not maintainable, even though such a dispute may also constitute an “industrial dispute” within the meaning of section 2 (k) or section 2-A of the industrial Dispute Act,1947.
(2) Where, however, a dispute involves recognition, observance or enforcement of any of the rights or obligations created by the the industrial Dispute Act, the only remedy is to approach the famous created by the said act. (3) Similarly, where a dispute involves the recognition, observance or enforcement of rights and obligations created by enactments, like the industrial employment (standing order) act, 1946- which can be called “sister enactments’ to the industrial dispute act- and which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the industrial dispute act provided they constitute industrial disputes within the meaning of section 2(k) and section 2-A of the industrial dispute act or where such enactments says that such dispute shall be adjudicated by any of the forums created by the industrial disputes act. Otherwise, recourse to a civil court is open. (4) It is not correct to say that remedies provided by the industrial disputes act are not equally effective for the reason that access to a forum depends upon a reference being made by the appropriate government. The power to make a reference conferred upon the government is to be exercised to effectuate the object of the enactment and hence is not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex facie. The power conferred is the power to refer and not the power to decide, though it may be that the government is entitled to examine whether the dispute is ex facie frivolous, not meriting adjudication. (5) Consistent with the policy of law aforesaid, we commend to parliament and state legislature to make a provision enabling a workman to approach the labor court- i.e., without the requirement of a reference by the government- in case of industrial dispute covered by section 2-A of the industrial disputes act. This would go a long way in removing the misgiving with respect to the effectiveness of the remedies provided by the industrial disputes act. (6) The certified standing orders framed in accordance with the industrial dispute act and its sister enactment is to provide an alternative dispute- resolution mechanism to workmen, a mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to civil courts. Indeed, the powers of courts and tribunals under the industrial disputes act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute.”
These principles were reiterated in Chandrakant v. Municipal Corporation of Ahmedabad wherein the Supreme Court observed, “it cannot be disputed that the procedure followed by civil courts are too lengthy and, consequently, are not an efficacious forum for resolving the industrial disputes speedily. The power of the industrial courts also is wide and such forums are empowered to grant adequate relief as they just and appropriate. It is in the interest of the workmen that their disputes, including the dispute of illegal termination, are adjudicated upon by an industrial forum.”
In the Abdul Gafur and Anr. v. State of Uttarkhand[8] the Court observed, “Section 9 of the Code provides that civil court shall have jurisdiction to try all suits of a civil nature excepting the suits of which their cognizance is either expressly or impliedly barred. To put it differently, as per Section 9 of the Code, in all types of civil disputes, civil courts have inherent jurisdiction unless a part of that jurisdiction is carved out from such jurisdiction, expressly or by necessary implication by any statutory provision and conferred on another Tribunal or Authority. Thus, the law confers on every person an inherent right to bring a suit of civil nature of one's choice, at one's peril, howsoever frivolous the claim may be, unless it is barred by a statute.”
The general principle under Section 9 seems to be the one stated in Dhannalal v. Kalawatibai and Ors.[9] (2002) 6 SCC 16 wherein it was stated, “The plaintiff is dominus litis, that is, master of, or having dominion over, the case. He is the person who has carriage and control of an action. In case of conflict of jurisdiction the choice ought to lie with the plaintiff to choose the forum best suited to him unless there be a rule of law excluding access to a forum of the plaintiff's choice or permitting recourse to a forum will be opposed to public policy or will be an abuse of the process of law.”
This is co-extensive with the Court’s power under Section 151 of the Code which deals with the Inherent jurisdiction of a civil court.

CONDITIONS UNDER SECTION 9
A civil court has jurisdiction to try a suit if two conditions are fulfilled:-
a) The suit must be of a civil nature and b) The cognizance of such a suit should not have been expressly or impliedly barred.

a) The Suit must be of a civil nature
In order that a civil court may have jurisdiction to try a suit, the first condition which must be satisfied is that the suit must be of a civil nature. The word ‘civil’ has not been defined in the code. But according to the dictionary meaning,it pertains to private rights and remedies of a citizen as distinguished from criminal, political, etc.[10] The word nature has been defined as ‘the fundamental qualities of a person or thing; identity or essential character; sort, kind, character’. It is thus wider in content.[11] The expression ‘civil nature’ is wider than the expression ‘civil proceedings’.[12] Thus, a suit is of a civil is of a nature if the principal question therein relates to the determination of a civil right and enforcement thereof. 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 a civil nature.[13]
The expression “suit of a civil nature” will cover private rights and obligations of a citizen. Political and religious questions are not covered by that expression. A suit in which the principal question relates to caste or religion is not a suit of a civil nature. But if the principal question in a suit is of a civil nature (the right to property or to an office) and the adjudication incidentally involves the determination relating to a caste question or to religious rights and ceremonies, it does not cease to be a suit of a civil nature and the jurisdiction of a civil court is not barred.[14] In Sinha Ramanuja v. Ranga Ramanuja[15] it was obsevered that the court has jurisdiction to adjudicate upon those questions also in order to decide the principal question which is of a civil nature. Explanation II to Section 9 was added by the amendment Act of 1976 Explanatio II states, “For the purposes of this section, it is immaterial whether or not any fees are attached to the office reffered to in Explanation I or whether or not such office is attached to a particular place.” Before this explanation, there was a divergence of judicial opinion as to whether a suit relating to a religious office to which no fees or emoluments were attached can be said to be a suit of a civil nature. But the legal position has now been clarified by Explanation II which specifically provides that a suit relating to a religious office is maintainable whether or not it carries any fees or whether or not it is attached to a particular place.[16]
The scope of Section 9 is best explained by the Supreme Court in Most Rev. P.M.A. Metropolitan v. Moran Mar Marthona[17] wherein it was stated,“the expansive nature of the Section is demonstrated by the use of phraseology both positive and negative. The earlier part opens the door widely and the latter debars entry to only those which are expressly or impliedly barred. The two explanations, one existing from inception and later added in 1976, bring out clearly the legislative intention of extending operation of the Section to religious matters where right to property or office is involved irrespective of whether any fee is attached to the office or not. The language used is simple but explicit and clear. It is structured on the basis of a civilized jurisprudence that absence of machinery for enforcement of right renders it nugatory. The heading which is normally a key to the Section brings out unequivocally that all civil suits are cognizable unless bared. What is meant by it is explained further by widening the ambit of the section by use of the word ‘shall’ and the expression ‘all suits of a civil nature unless expressly or impliedly barred’. Each word and expression casts an obligation on the court to exercise jurisdiction for enforcement of rights. The word shall makes it mandatory. No court can refuse to entertain a suit if it is of the description mentioned in the section. That is amplified by the use of the expression ‘ all suits of civil nature’. The word civil according to the dictionary means, ‘relating to the citizen as an individual’; ‘civil rights’ in Black’s legal dictionary is defined as, ‘relating to provide rights and remedies sought by civil actions as contrasted with criminal proceedings’. In law it is understood as an antonym of criminal. Historically the two broad classifications were civil and criminal. Revenue, tax and company etc. were added to it later. But they too pertain to the larger family of civil. There is thus no doubt about the width of the word civil. Its width has been stretched further by using the word nature along with it. That is even those suits are cognizable which are not only civil but are even of civil nature.The word ‘nature’ has been defined as ‘the fundamental qualities of a person or thing; identity or essential character, sort; kind; character’. It is thus wider in content. The word ‘civil nature’ is wider that the word ‘civil proceeding’. The Section would, therefore, be available in every case where the dispute was of the characteristics of affecting one’s rights which are not only civil but of civil nature.”

b) The cognizance of such a suit should not have been expressly or impliedly barred.
The Second requirement under Section 9 is that the cognizance of a suit should not have been i) expressly barred or ii) impliedly barred

i) Expressly barred
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, 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. 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.[20]
In State of T.N.Etc. v. Ramalinga Samigal Madam Etc.[21] it was observed, “having regard to the principle stated by the Supreme Court while enunciating the first proposition in Dhulabhai's case it is clear that even where the statute has given finality to the orders of the special Tribunal the civil Court's jurisdiction can be regarded as having been excluded if there is adequate remedy to do what the Civil Court would normally do in a suit. In other words, even where finality is accorded to the orders passed by the special tribunal one will have to see whether such special tribunal has powers to grant reliefs which Civil Court would normally grant in a suit and if the answer is in the negative it would be difficult to imply or infer exclusion of Civil Court's jurisdiction. 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.”
This exception also extends to the provisions of the CPC itself. Sections 16 and 20 deal with property matters and place of suing. The inherent powers under Section 9 would not be attracted in such cases. ii) Suits impliedly barred
The second exception to Section 9 deals with suits which are impliedly barred viz. a suit which is barred by general principles of law.[22] A specific remedy given by a statute, deprives the person who insists upon a remedy of any other form than that given by the statute.[23] Also in cases where an Act itself creates an obligation and enforces its performance in a specified manner, that performance cannot be enforced in any other manner.[24]
Certain suits are also barred on the grounds of Public Policy.[25] In Union of India v. Ram Chand[26] the principle of public policy was examined and it was held, “the principle underlying is that a court ought not to countenance matters which are injurious to and against the public weal.” A civil court has no jurisdiction to adjudicate upon disputes of a political nature.[27] There may, however, be cases where the remedy provided is not exclusive but in supplement to the remedy provided by the civil court. In such cases, jurisdiction of civil court is not impliedly barred. In State of Karnataka v. Vishwabarathi House Building Co-op. Society[28] it was observed by the Supreme Court in relation to the Consumer Protection Act, 1986, “By reason of the provisions of Section 3 of the Act, it is evident that remedies provided thereunder are not in derogation of those provided under other laws. The said Act supplements and not supplants the jurisdiction of the civil courts or other statutory authorities.The said Act provides for a further safeguard to the effect that in the event a complaint involves complicated issues requiring recording of evidence of experts, the complainant would be at liberty approach the civil court for appropriate relief. The right of the consumer to approach the civil court for necessary relief has, therefore, been provided under the Act itself.”

Exclusion of Jurisdiction
A Court has jurisdiction to examine whether the provisions of an Act and the Rules made thereunder have or have not been complied with, or the order is contrary to law, malafide, ultra vires, perverse, arbitrary, purported, violative of natural justice principles etc.[29] In all these cases, the order cannot be said to be under the Act but is de hors the act and the jurisdiction of a civil court is not ousted.[30] In the leading decision of Secretary of State v. Mask & Co.[31] 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. It is also well established that even if jurisdiction is so excluded the civil courts have jurisdiction to examine into cases where the provisions of the act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.” Further, in Radha Kishan v. Ludhiyana Municipality[32] the Supreme Court held, “under Section 9 of the Civil Procedure Code the court shall have jurisdiction to try all suits of civil nature excepting 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. The mere conferment of special jurisdiction on a tribunal in respect of the said matter does not in itself exclude the jurisdiction of civil courts. The statute may specifically provide for ousting the jurisdiction of civil courts; even if there was no such specific exclusion, if it creates liability not existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the remedy could be had. Even in such cases, the civil court’s jurisdiction is not completely ousted. A suit in a civil court will always lie to question the order of a tribunal created by statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the act but in violation of its provisions.”
In Shriram City Union Finance Corporation Limited v. Rama Mishra[33] the Supreme Court stated, “There is a difference between inherent lack of jurisdiction of any Court on account of some statute and the other, where parties through agreement bind themselves to have their dispute decided by any one of the Courts having jurisdiction. A party is bound either by provision of the Constitution, statutory provisions or any rule or under the terms of any contract which is not against public policy. It is open for the parties to fix the jurisdiction of any competent court to have their dispute adjudicated by that Court alone, and in such a case, parties can only file a case under the Court so agreed upon. Thus, the question is not whether a Court have the jurisdiction to decide the plaintiff’s suit but whether the plaintiff could have invoked the jurisdiction of that Court in view of the agreement between him and the defendant. In such cases, suit filed in any other court apart from the one agreed upon will not be valid.”

CONCLUSION
As reflected in the above discussion a civil court has jurisdiction to try all suits of civil nature unless their cognizance is barred either expressively or impliedly. Agreements conferring jurisdiction, are however, valid and does not exclude jurisdiction of a court, but right of a party to file a suit before such court as decided upon.[34] A decree passed by a court without jurisdiction is a nullity and the validity thereof can be challenged at any stage of the proceedings, in execution proceedings or even in collateral proceedings.[35]
There is a distinction between want of jurisdiction and irregular exercise thereof. Every court has inherent power to decide the question of its own jurisdiction. Jurisdiction of a court depends upon the averments made in the plaint and not upon the defence in a written statement. For deciding jurisdiction of a court, the substance of a matter and its form is important. Every presumption should be made in favour of jurisdiction of a civil court. A statute ousting the jurisdiction of a court is on the party who asserts it. Even where jurisdiction of a civil court is barred, it can still decide whether the provisions of an Act have been complied with or whether an order was passed de hors the provisions of law.[36]

Lastly, a former judge of the Supreme Court, Justice C.K.Thakker concludes, “From various decisions of the Supreme Court, the following general principles relating to jurisdiction of a civil court emerge:
a. a civil court has jurisdiction to try all suits of a civil nature unless their cognizance is barred either expressly or impliedly.
b. Consent can neither confer nor take away jurisdiction of a court.
c. A decree passed by a court without jurisdiction is a nullity and the validity thereof can be challenged at any stage of the proceedings, in execution proceedings or even in collateral proceedings.
d. There is a distinction between want of jurisdiction and irregular exercise thereof.
e. Every court has inherent power to decide the question of its own jurisdiction.
f.Jurisdiction of a court depends upon the averments made in a plaint and not upon the defense in a written statement.
g. For deciding jurisdiction of a court, substance of a matter and not its form is important.
h. Every presumption should be made in favor of jurisdiction of a civil court.
i. A statute ousting jurisdiction of a court must be strictly construed.
j.Burden of proof of exclusion of jurisdiction of a court is on the party who asserts it.
k. Even where jurisdiction of a civil court is barred, it can still decide whether the provisions of an act have been complied with or whether an order was passed de hors the provisions of law.”[37]
REFERENCES
1. Takwani, C.K., “Civil Procedure” (6th Ed. 2011) 2. Das, J.K “Code of Civil Procedure” 2014 3. http://mja.gov.in/Site/Upload/GR/%20%20Summ%20of%20Jurisdiction%20.pdf (Last Accessed on 13th September, 2015 at 23.45 hrs) 4. http://ezproxy.symlaw.ac.in:2080/Pers/Personalized.aspx (Manupatra) (Last Accessed on 13th September, 2015 at 22.15 hrs) 5. http://www.vakilno1.com/bareacts/laws/civil-procedure-code-1908.html#9_Courts_to_try_all_civil_suits_unless_barred (Last Accessed on 14th September at 06.20 hrs)

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[1] Takwani, C.K., “Civil Procedure” (6th Ed. 2011) p.40
[2] Aiyar, P.R., “Advanced Law Lexicon Vol. III” (3rd Ed. 2005) pp. 2527-30
[3] Smt Ujjambai v. State of UP AIR 1962 SC 1621
[4] Chandrabhai K. Bhoir v. Krishna A. Bhoir
See also: Chief Justice of Andhra Pradesh and Others v. L.V.A. Dixitulu (1979) 2 SCC 34, Union of India v. Pramod Gupta (2005) 12 SCC 1 and National Institute of Technology and Ors. v. Niraj Kumar Singh (2007) 2 SCC 481
[5] Raja Soap Factory v. S.P. Shantharaj AIR 1965 SC 1449
[6] Dhulabhai and Ors. v. State of Madhya Pradesh and Anr. A.I.R.1969 S.C. 78
[7] In Rajasthan SRTC v. Krishna Kant AIR 1995 SC 1715
[8] Abdul Gafur and Anr v. State of Uttarkhand 2008 (10) SCC 97
[9] Dhannalal v. Kalawatibai and Ors. (2002) 6 SCC 16
[10] Takwani, C.K., “Civil Procedure” (6th Ed. 2011) p 50
[11] Ibid
[12] Most Rev. P.M.A. Metropolitan v. Moran Mar Marthona AIR 1995 SC 2001
[13] Supra Note 9
[14] Explanation I Section 9 CPC, 1908
[15] Sinha Ramanuja v. Ranga Ramanuja AIR 1961 SC 1720
[16] Takwani, C.K., “Civil Procedure” (6th Ed. 2011) p 51
[17] Supra. Note 11
[18] Umrao Singh v. Bhagwati Singh AIR 1956 SC 15
[19] State of Vindhya Pradesh (now M.P) v. Moradhwaj Singh AIR 1960 SC 796
[20] Takwani, C.K., “Civil Procedure” (6th Ed. 2011) p 53
[21] State of T.N. Etc. v. Ramalinga Samigal Etc. AIR 1986 SC 794
[22] Takwani, C.K., “Civil Procedure” (6th Ed. 2011) p 54
[23] Premier Automobiles v. Kamlekar Shantaram AIR 1975 SC 2238
[24] Ibid
[25] Indian Airlines Corp v. Sukhdeo Rai AIR 1971 SC 1828
[26] Union of India v. Ram Chand AIR 1955 Punj 166
[27] Takwani, C.K., “Civil Procedure” (6th Ed. 2011) p 53
[28] State of Karnataka v. Vishwabarathi House Building Co-op. Society (2003) 2 SCC 412
[29] Takwani, C.K., “Civil Procedure” (6th Ed. 2011) p 56
[30] Srinivasa v. State of A.P. AIR 1971 SC 71
[31] Secretary of State v. Mask & Co AIR 1940 PC 105
[32] Radha Kishan v. Ludhiyana Municipality AIR 1963 SC 1547
[33] Shriram City Union Finance Corporation Limited v. Rama Mishra (2002) 9 SCC 613
[34] Shriram City Union Finance Corporation Limited v. Rama Mishra (2002) 9 SCC 613
[35] Das, J.K “Code of Civil Procedure” 2014 p.89
[36] Church of North India v. Lavajibhai AIR 2005 SC 2544 See also: Sopan Sukhdeo Sable and Ors. v. Assistant Charity Commissioner and Ors. AIR 2004 SC 1801
[37] Takwani, C.K., “Civil Procedure” (6th Ed. 2011) p.56