Jurisdiction of Civil Court & Its Bar

What exactly is ‘jurisdiction’?

Jurisdiction means “to hear and determine a cause, applying judicial powers in relation to it.” So jurisdiction can be termed as the decision and procedure that take place to support a particular cause of action/dispute of civil nature, where-in the competent court, having the right to hear and determine it, disposes of the issue/dispute by acting under its judicial powers.

In Official Trustee v. Sachindranath Chatterjee, the Supreme Court observed that the jurisdiction of civil court must include the power to hear and decide the issue/dispute, as well as the authority to hear and come to a decision, regarding the particular controversy that has arisen between the parties.

Section 9 of the Code of Civil Procedure 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 an appropriate civil nature.

To reiterate, the parties are not at liberty to choose, even by mutual consent, to diminish the jurisdiction of civil court. The principle is well-settled and acknowledged; consent cannot confer or take away the jurisdiction of civil court.

In the case of D. Joshi v. High Court of Judicature at Bombay, it was held that “All courts are Tribunals. However a Tribunal, unless it has all the trappings of a court, is not a court”.

In the case of Satguru Construction Company Pvt. Ltd. v. Greater Bombay Co-operative Bank Ltd., 2007, it was held that the non-pleading of an issue of jurisdiction at the initial stage will not clothe jurisdiction of the civil court if they are expressly barred under any Act.

In the case of Sudhir G. Angur v. M. Sanjeev, for the jurisdiction of civil court, the existing law applicable on either the date of institution of the suit or on the date on which suit comes up for hearing, will as such be applied accordingly. Furthermore, if the 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 said suit.

It was observed in the case of Chiranjilal Shrilal v. Jasjit Singh, “If the Court has no inherent jurisdiction, neither acquiescence nor waiver nor estoppel can create it.” What this means is that a defect in jurisdiction goes to the root of the matter and strikes at the very 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.

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From here it implies that the court should have competent authority or jurisdiction in order to set off the dispute in question.

In the leading case of Kiran Singh v. Chaman Paswan, 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.”

In J. Kumaradasan Nair v. IRIC Sohan, the Supreme Court held that mentioning of a wrong provision on non-mentioning of any provisions of law would, by itself, not be sufficient to take away the jurisdiction of civil court if it is otherwise vested it in law. While exercising its power, the court will merely consider whether it has the source to do so or not.

They will not apply the beneficent provisions in a pedantic manner. When the provisions are meant to apply and then 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 provision has been mentioned prior.

In Shiv Kumar Sharma v. Santosh Kumari, the Supreme Court held that the courts in India exercise jurisdiction both in equity as well as law, however, the exercise of equity jurisdiction will always be subject to the provisions of law. Such jurisdiction of civil court can be exercised only when no law operates in the field of course.

Conditions for the jurisdiction of civil court

A civil court has jurisdiction to try a suit in case these two conditions are fulfilled:

1. The suit must be of a civil nature as well as,
2. relating to rights to property;
3. relating to rights of worship;
4. relating to taking out of religious procession;
5. relating to the right to share in offerings;
6. for damages for civil wrongs;
7. for specific performance of contracts or for damages for breach of contracts;
8. for specific relief’s;
9. for restitution of conjugal rights;
10. for dissolution of marriages;
11. for rent;
12. for or on the account;
13. for rights of the franchise;
14. for rights to hereditary office
15. The cognizance of such a suit should not have been expressly or impliedly barred.
16. Suits 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 the jurisdiction of civil court, 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.
17. Suits impliedly barred- a suit is said to be ‘impliedly barred’ or ‘implicitly barred’ when it is barred by the 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.

Kinds of courts-

1. Territorial or local jurisdiction
2. Pecuniary jurisdiction
3. Jurisdiction as subject to matter
4. Original and appellate jurisdiction

According to Section 15, a suit is to be instituted before the court of lowest grade. By virtue of Section 16, a suit, in respect of immovable property, may be instituted before the court within whose territorial jurisdiction the property is situated in. For such suits, a place where the cause of action arises or where the defendant resides, etc. is wholly irrelevant to the fact.

In the case of Harshad Chimanlal Modi v. D.L.F. Universal Ltd., The authority proviso to Section 16 (the defendant’s personal obedience) has also been considered and it has been held that the proviso has no application. The relief sought by the plaintiff is for specific performance of an agreement, respecting immovable property by directing defendant No.1 to execute the sale deed in favor of the plaintiff and to deliver possession to him. The trial court was, therefore, right in holding that the suit was covered by clause (d) of Section 16 of the code, the proviso had no application.

Section 17 C.P.C. deals with suits for immovable property situated within the jurisdiction of different courts and Section 18 deals with place of institution of suits where the local limits of the jurisdiction of civil court is uncertain. Section 19 deals with the suits involving compensation for wrongs to persons or movables. Other suits, in view of Section 20, may be instituted before the courts within whose jurisdiction, either cause of action (wholly or in part) arises, or where the defendant resides, carries on business or works for gain.

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The explanation to Section 20, has been as such elucidated in New Moga Transport Company v. United India Insurance Co. Ltd. It has been held after placing reliance upon Patel Roadways v. Prasad Trading Co., that if a corporation has a principle office as well as one or more subordinate offices and the cause of action arises at a subordinate office, then only that place has jurisdiction and not any principal office.

The explanation to Section 20 has been held applicable additionally in plaintiff in a suit instituted under Copyright Act 1957 and Trade Marks Act 1999 under which a suit may also be filed at the place where plaintiff resides, works for gain or carries on business, even though Section 62 of the Copyright Act and Section 134 of the Trade Marks Act use the words notwithstanding anything contained in C.P.C. in Indian Performing Rights 28 Society v. Sanjay Dalia AIR 2015 SC 3479.

This suit had been instituted at Delhi, despite the Head Office of plaintiff being in Maharashtra. The entire cause of action also arose at Maharashtra and was held to be not maintainable at Delhi, merely on the grounds that plaintiff’s branch office was located there.

In the case of Mohanakumaran Nair v. V. Janyakumaran Nair, the residence of defendant referred to in Section 20 is preceded by the words at the time of commencement of the suit. Accordingly, if at the time of institution of the suit, the defendant was not residing within the jurisdiction of civil court, his subsequent act of residing there would not bring the suit within territorial jurisdiction of that court.

The type of suits (Specific Relief) for recovery of movable or immovable property (Sections 5 to 8 of Specific Relief Act), Specific 7- performance of contract, (Sections 9 to 25), rectification of instruments (Section 26) recession of contract (Sections 31 to 33), declaration (Sections 34 and 35) and preventive relief in the form of injunction (Section 36 to 42). Prohibitory/preventive relief of injunction may be claimed either on the basis of a legal right independent of any agreement or based upon any agreement. The right of Specific Relief is also inherent in nature.

The Specific Relief Act only defines and amends the law relating to certain kinds of such Specific Reliefs (preamble to Specific Relief Act). The Act does not purport to create any right. Specific Relief of a kind not covered by the its parent Act is also an inherent right and may be pursued by an aggrieved person if need be.

In the case of Ramji Gupta v. Gopikrishan Agrawal, it was held that there can be a declaration even outside the scope of the Section 34. We are not inclined to enter into the controversy regarding Section 34 of the Specific Relief Act, 1963, as it was submitted that the remedy of declaration envisaged by the said provisions is not exhaustive and that there can be a declaration even outside the scope of said Section 34.

Plea regarding lack of jurisdiction of civil court

As a general principle, if a court has no jurisdiction to try and decide a suit, it cannot be conferred jurisdiction by consent, either express or implied (e.g.- by the absence of an objection at the appropriate time), as a decree without jurisdiction is a nullity and may be questioned at any stage, including execution or even in collateral proceedings.

In the case of Karansingh v. Chaman Paswan, paragraph 6 of Kiran Singh, it was held as follows. It is a fundamental principle, well established, that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in other collateral proceedings.

A defect of jurisdiction, whether it is pecuniary or territorial or whether it is in respect of the subject – the 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 the parties. However it was further held that the lack of pecuniary jurisdiction is an exception to the general principle in view of Section 11 of Court Fees Act and a decree suffering from such a defect is not to be treated as would be otherwise, thus making it null and void, according to the Section. The same exception will apply to a lack of territorial jurisdiction in view of Section 21, C.P.C.

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

 

In the case of Ittyavira Mathai v. Varkey Varkey and another, AIR 1964 Supreme Court 907, the question that fell into consideration before this court was in the case that a court having jurisdiction over the parties to the suit and subject matter, thereof passes a decree in a suit which was barred by time, if such a decree would come technically within the realm of nullity. The court answered the question in the negative holding, that such a decree cannot be treated to be nullity but at the highest be treated to be an illegal decree.

The third type of jurisdictional defect, which may be described as the jurisdictional defect of the highest order, is such which renders the decree nullity and liable to be questioned even in execution or the collateral proceedings. It is termed as lacking jurisdiction over the subject matter, Section 21, lacking competence of the Court to try the case, or just an inherent lack of jurisdiction overall.

In the case of Hasham Abbas, however, was hastened to add that a distinction must be made between a decree passed by a court which has no territorial or pecuniary jurisdiction in the light of Section 21 of the C.P.C.; a decree passed by a court having no jurisdiction in regard to the subject matter of the suit, whereas in the former case, the appellate court may not interfere with the decree unless some prejudice is shown. Ordinarily, it would be the second category of the cases that were interfered with.

 

-Shreya Patel

(Member, The Legal State)