All civil court has the jurisdiction to try all civil court of a civil nature -illustrate and explain.
All around the world, there are several unrest prevailing in different systems. There are land disputes, marriage dissolution, property related issues and many more. In Bangladesh, which is a developing country these issues are more evident. Almost every house in the country has disputes over land, almost all offices have issues relating to posts and a huge percentage of couples are now into divorce. These are only a few issues regarding “suits of a civil nature”. There are quite a few of them discussed later in the report.
Jurisdiction of Civil Court under Civil Procedure Code
Section 9 of CPC deals with the jurisdiction of civil courts. It says that the courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either explicitly or impliedly excluded.
Explanation I– a suit in which the right to property or to an office is contested is a suit or a civil nature, in spite of that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
Explanation II– for the point of this section, it is irrelevant whether any fees are attached to the office or not referred to in explanation I or whether such an office is attached to the particular place or not.
A civil court has jurisdiction to try a suit if two conditions are fulfilled:
· The suit ought to be of a civil nature and
· The cognizance of such a suit must not have been explicitly or impliedly barred.
a) Suit of civil nature
i. meaning:- The civil court might have jurisdiction to try a suit and the primary condition which must be satisfied is that the suit ought to be of a civil nature? There is no proper definition of the word “civil” in the code. But the dictionary meaning says that it pertains to personal rights and remedies of a citizen as eminent from criminal, political, etc. The word ‘nature’ has been defined as ‘the elementary qualities of a person or thing; identity or necessary character; sort, category, character’’. The content is therefore broad. The term ‘civil nature’ is a much broader one compared to the term ‘civil proceedings’. Thus, a suit is of a civil nature only if the principal question within relates to the fortitude of a civil right. The status of the parties to the suit does not decide whether a suit is of civil nature, rather the subject matter of it determines it.
ii. Nature and scope:- the term “suit of a civil nature” will cover private rights and obligations of a citizen. Questions relating to politics and religion are not covered by that expression. If the principal question in a suit is based on caste or religion, then it is not a suit of civil nature, but if a suit consists of a principal question of civil nature (the right to property or to an office) and the judgment incidentally involves the willpower 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. The court has the right to judge upon those questions in order to decide the principal question which has to be of a civil nature. Explanation II has been added by the amendment act of 1976. Prior to this elucidation, a discrepancy of judicial opinion was prevalent 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 civil nature. But the legal spot has now been clarified by explanation II which exclusively provides that a suit relating to a religious office is maintainable irrespective of the fact that it carries a fee or whether or not it is attached to a exacting position.
iii. Doctrine explained: The Supreme Court states:
“The posh nature of the section is verified by the use of phraseology both positive and negative. The former part opens the door far and wide and the latter limits entry to only those which are explicitly or impliedly barred. The two explanations, one coming from commencement and later added in 1976, convey out clearly the lawmaking purpose of stretching operation of the section to religious issues where right to property or office is involved irrespective of whether any fee is attached to the office or not. The language in use is uncomplicated but open and apparent. It is prepared on the basis of a civilized jurisprudence that absence of machinery for enforcement of right renders it nugatory. The key to the section, “THE HEADING” brings out clearly that all civil suits are cognizable unless barred.
Each and every word and expression puts an obligation on the court to implement jurisdiction for enforcement of rights. No court can decline the job to entertain a suit if it matches the description mentioned in the section. That is enlarged by the use of the expression “all suits of a civil nature”. The word “civil”, according to the dictionary means “linking to the citizen as an individual; civil rights.”In Black’s legal dictionary it is defined as, ‘linking to provide rights and remedies required by civil procedures as contrasted with criminal proceedings’. It is understood as opposed to criminal in law. 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 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.”
iv. Test: 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 a question as to religious rites or ceremonies.
v. Suits of civil nature: illustrations- the following are suits of a civil nature.
· suits relating to rights to property;
· suits relating to rights of worship;
· suits relating to taking out of religious procession;
· suits relating to right to share in offerings;
· suits for damages for civil wrongs;
· suits for specific performance of contracts or for damages for breach of contracts;
· suits for specific relief’s;
· suits for restitution of conjugal rights;
· suits for dissolution of marriages;
· suits for rent;
· suits for or on account;
· suits for rights of franchise;
· suits for rights to hereditary offices;
· suits for rights to Yajmanvritis;
· suits against wrongful dismissal from service and for salaries, etc.
vi. suits not of civil nature- illustrations- the following are not suits of a civil nature:
1. suits involving principally caste questions;
2. suits involving purely religious rites or ceremonies;
3. suits for upholding mere dignity or honor;
4. suits for recovery of voluntary payments or offerings;
5. suits against expulsions from caste, etc.
i. 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 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.
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. 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. Thus, 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. But if the remedy provided by a statute is not adequate and all questions cannot be decided by a special tribunal, the jurisdiction of a civil court is not barred. 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.
ii. Suits 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.
Similarly, certain suits, though of a civil nature, are barred from thee cognizance of a civil court on the ground of public policy. “The principle underlying is that a court ought not to countenance matters which are injurious to and against the public weal.” Thus, no suit shall lie for recovery of costs incurred in criminal prosecution or for enforcement of a right upon a contract hit by section 23 of the Indian Contract Act, 1872; or against any judge for acts done in the course of his duties.
Likewise, political questions belong to the domain of public administrative law and are outside the jurisdiction of civil courts. A civil court has no jurisdiction to adjudicate upon disputes of a political nature.
Who may decide?
It is well settled that a civil court has inherited power to decide its own jurisdiction.
Presumption as to 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 favor 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 the nature.
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 ousting 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, the scheme of the relevant provisions and the object and purpose of the enactment. In the case of a doubt as to jurisdiction, the court should lean towards the assumption of jurisdiction. A civil court has inherent power to decide the question of its own jurisdiction; although as a result of such inquiry it may turn out that it has no jurisdiction to entertain the suit.
Exclusion of jurisdiction: limitations
A litigation having a grievance of a civil nature has, independent of any statute, a right to institute a suit in a civil court unless its cognizance is either expressly or impliedly barred. The exclusion of the jurisdiction of a civil court is not to be readily inferred and such exclusion must be clear.
Again, even when the jurisdiction of a civil court is barred, either expressly or by necessary implication, it cannot be said that the jurisdiction is altogether excluded. A court has jurisdiction to examine whether the provisions of the act and the rules made there under have or have not been complied with, or the order is contrary to law, mollified, ultra virus, perverse, arbitrary, ‘purported’, violating the principles of natural justice, or is based on ‘no evidence’ and so on. 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. In the leading decision of Secretary of State v. Mask & Co., the Privy Council rightly 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.”
“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.”
From various decisions of the Supreme Court, the following general principles relating to jurisdiction of a civil court emerge:
· A civil court has jurisdiction to try all suits of a civil nature unless their cognizance is barred either expressly or impliedly.
· Consent can neither confer nor take away jurisdiction of a court.
· 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.
· 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 a plaint and not upon the defense in a written statement.
· For deciding jurisdiction of a court, substance of a matter and not its form is important.
· Every presumption should be made in favor of jurisdiction of a civil court.
· A statute ousting jurisdiction of a court must be strictly construed.
· Burden of proof of exclusion of 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.
From the above contents of my project it can be concluded that section 9 at ‘the porch of the Civil Procedure Code (C.P.C.) primarily deals with the question of civil court’s jurisdiction to entertain a cause. It lays down that subject to what are contained in section 10,11, 12, 13, 47, 66, 83, 84, 91, 92, 115, etc., civil court has jurisdiction to entertain a suit of civil nature except when its cognizance is expressly barred or barred by necessary implication. Civil court has jurisdiction to decide the question of its jurisdiction although as a result of the enquiry it may ultimately turn out that it has no jurisdiction over the matter. Civil court has jurisdiction to examine whether tribunal and quasi- judicial bodies or statutory authority acted within their jurisdiction. But once it is found that such authority, e.g., certificate officer had initial jurisdiction, then any flawed order by him is not open to collateral attack in a suit. Because there is an essential and marked difference between the cases in which courts lack jurisdiction to try cases and where jurisdiction is irregularly exercised by courts.
1. A.N. Saha’s ‘the code of civil procedure’, (Premier Publishing Company).
2. Mahmudul Islam & Probir Neogi’s “The Law of Civil Procedure”
3. Civil Procedure Code by Justice Naimuddin Ahmed (Member, Law Commission)
4. M.A. Mana, Mulla on the Code of Civil Procedure.
Civil procedure code, 1908, section 9.