Author Name:   schoudhary

Exercise of Jurisdiction by Civil Court, Provision under Civil Procedure Code 1908

Jurisdiction of Civil Court & Place Of Suing

Ubi Jus Ibi Remedium - "Where there is a right, there is a remedy"

The fundamental principle of English Law that wherever there is a right, there is a remedy, has been adopted by the Indian legal system. It means, whenever the rights of a person is infringed or curtailed or the person is stopped by anyone in enjoying the rights so guaranteed to him, there must be some judicial forum having authority to adjudicate on the matter and the rights so guaranteed should be restored or compensated as per the case.

To get the rights restored or claiming compensation or damage sustained, person has to approach the appropriate forum, which has the authority to adjudicate on the matter and award the relief so sought. So, the forum must have jurisdiction to deal with that matter.

Jurisdiction generally means the power or authority of the court of law to hear and determine a cause or a matter.In other words, jurisdiction is meant the authority which a court has to decide matter that are litigated before it or to take cognizance of matters presented in a formal way for its decision.

The extent of jurisdiction will be determined with reference to the subject-matter, pecuniary value and the local limits. So, while the question of jurisdiction of a court is determined, the nature of the case, the pecuniary value of the suit, and the territorial limitation of the court need to be taken into consideration.

Not only that, there may be a situation wherein the forum approached may have competency to deal with the subject-matter, the suit is falling well within the pecuniary limitation and within the local limits assigned with that court as well, but if the court is not competent to grant the relief sought then also the court cannot be considered as the court having jurisdiction as observed in Official Trustee V. Sachindra Nath, AIR 1969 SC 823; the supreme court observed:

“That before a court can be held to have jurisdiction to decide a particular matter it must not only have jurisdiction to try the suit brought but must also have the authority to pass the order sought for.”

Jurisdiction of A Civil Court:Sec-9

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 expressly or impliedly barred.

[Explanation I].- 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 questions as to religious rites or ceremonies.

[Explanation ll].- For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.].

As mentioned under sec-9 of the Code, the civil courts have jurisdiction to deal with all matters provided it is a matter of civil nature and it is not expressly or impliedly barred.

The word civil is not defined in the Code, however as per dictionary meaning it pertains to the private rights and remedies as distinguished from criminal and political. The word nature indicates the fundamental quality of a thing or person, its identity or the essential character. Hence, the suit of civil nature may be understood as a suit in which the fundamental question for determination, the matters in controversy primarily relating to the private rights and obligations, not to be related to political or religious rights and obligations; and if it is so the civil courts have the jurisdiction provided it is not expressly or impliedly barred.

The concept of jurisdiction under section 9 was explained by Supreme Court in Most Rev. P.M.A. Metropolitan V. Moran Mar Marthoma, AIR 1995 SC 2001, the Court stated:
1. Phraseology used in the section is both positive and negative,
2. The earlier part opens the door widely and latter debars the entry of those which are expressly or impliedly barred.
3. The two explanation, one from the inception and the second added in 1976 reflects the legislative intentions.
4. That those religious matters in which rights of the property or the office is involved irrespective of the fact whether any fee is attached to the office or not is a matter of civil nature and the civil court is competent to try such suit.
5. Each word and expression casts an obligation on the court to exercise jurisdiction for enforcement of rights.
6. The word ‘shall’ makes it mandatory.
7. No Court can refuse to entertain a suit if it is of the description mentioned in the section.

However, the court cannot try any suit if its cognizance is either expressly or impliedly barred. A Suit is said to be expressly barred if it is barred by any enactment for the time being in force. It is open to the legislature to bar the jurisdiction of civil court with respect to a particular class of suit keeping itself within the ambit of power conferred on it by the Constitution of India.

The development of the tribunal has taken away the jurisdiction of the civil court with respect to the subject matter allotted to that tribunal on the first stage, however if any question of law so raised, or any provision of the act which has so created the tribunal that can be looked into by the civil court. Thus, matters falling within the exclusive jurisdiction of the 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, Cooperative Tribunal, Income Tax Tribunal, Motor Accident Claims Tribunal, etc., are expressly barred from the cognizance of the Civil Courts.

A suit is said to be impliedly barred when it is barred by the general principle of law. In fact, certain suits, though of a civil nature, are barred from the 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 a 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, etc.

Kinds of Jurisdiction and Place of Suing: Sec-15 To Sec-20

There are basically three kinds of jurisdictions on the basis of which the place of suing may be determined. These are

1. Pecuniary Jurisdiction
2. Territorial Jurisdictions, and
3. Subject Matter Jurisdictions

If the matter put forth by the litigant for adjudication in front of the court, and the court have all these (pecuniary, territorial and Subject-Matter) jurisdiction, then only that court can try the matters so brought by the litigants. In case, the court does not have any of the above mentioned jurisdiction and still try the suit, it will be either termed as irregular exercise of jurisdiction or lack of jurisdiction which may turn the decision void or voidable depending upon the situations. The concept of Irregular Exercise of Jurisdiction and Lack of Jurisdiction will be discussed separately at the end.

Pecuniary Jurisdiction: Sec-15

Every suit shall be instituted in the Court of the lowest grade competent to try it.

The word competent to try indicate the competency of the court with respect to the pecuniary jurisdiction. It means, the courts of lowest grade who has the jurisdiction with respect to pecuniary value shall try the suit at first.

Now, the biggest question is, who will determine the valuation of the suit for the purpose of determining the pecuniary jurisdiction of the court. In general, it is the valuation done by the plaintiff is considered for the purpose of determining the pecuniary jurisdiction of the court, unless the court from the very face of the suit find it incorrect. So, if the court finds that the valuation done by the plaintiff is not correct, that is either undervalued or overvalued, the court will do the valuation and direct the party to approach the appropriate forum.

So, prima facie, it is the plaintiff’s valuation in the plaint that determines the jurisdiction of the court and not the amount for which ultimately decree may be passed. Thus, if the pecuniary jurisdiction of the court of lowest grade is, say, Rs. 10,000/- and the plaintiff filed a suit for accounts wherein the plaintiff valuation of the suit is well within the pecuniary jurisdiction of the court but court latter finds on taking the accounts that Rs. 15,000/- are due, the court is not deprived of its jurisdiction to pass a decree for that amount.

Usually, a court will accept a valuation of the plaintiff in the plaint and proceed to decide the matter on merits on that basis, however, that does not mean that plaintiff in all cases are at liberty to assign any arbitrary value to the suit, and to choose the court in which he wants to file the suit.

If it appears to the court that the valuation is falsely made in the plaint for the purpose of avoiding the jurisdiction of the proper court, the court may require the plaintiff to prove that the valuation are proper.

Next important question is the status of decision given by the court who does not have the pecuniary jurisdiction in the matter. That is, what if the Court proceeded with the matter and later come to know that it did not have the pecuniary jurisdiction. (The matter will be dealt under heading – irregular exercise of jurisdiction).

Territorial Jurisdiction: Sec- 16 To Sec -20

Immovable Property: Sec- 16-18
Sections 16: Suits to be instituted where subject-matter situate Subject to the pecuniary or other limitations prescribed by any law, suits-
(a) for the recovery of immovable property with or without rent or profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,
(d) for the determination of any other right to or interest in immovable property,
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate :

Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant, may where the relief sought can be entirely obtained through his personal obedience be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.

Explanation - In this section “property” means property situate in India.

Section 17: Suits for immovable property situate within jurisdiction of different Courts
Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Court, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate :

Provided that, in respect of the value of the subject matter of the suit, the entire claim is cognizable by such Court.

Section 18: Place of institution of suit where local limits of jurisdiction of Courts are uncertain
(1) Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more Courts any immovable property is situate, any one of those Courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to that property, and its decree in the suit shall have the same effect as if the property were situate within the local limits of its jurisdiction: Provided that the suit is one with respect to which the Court is competent as regards the nature and value of the suit to exercise jurisdiction.

(2) Where a statement has not been recorded under sub-section (1), and objection is taken before an Appellate or Revisional Court that a decree or order in a suit relating to such property was made by a Court not having jurisdiction where the property is situate, the Appellate or Revisional Court shall not allow the objection unless in its opinion there was, at the time of the institution of the suit, no reasonable ground for uncertainty as to the Court having jurisdiction with respect thereto and there has been a consequent failure of justice.

Movable Property – Section 19

Section 19: Suits for compensation for wrongs to person or movables

Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.

Illustrations:-
(a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in Delhi.

(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B.

B may sue A either in Calcutta or in Delhi.

Other Suits: Section 20

Section 20: Other suits to be instituted where defendants reside or cause of action arises
Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction-

(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

Explanation-A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.

Illustrations:-
(a) A is a tradesman in Calcutta, B carries on business in Delhi. B, by his agent in Calcutta, buys goods of A and requests A to deliver them to the East Indian Railway Company. A delivers the goods accordingly in Calcutta. A may sue B for the price of the goods either in Calcutta, where the cause of action has arisen or in Delhi, where B carries on business.

(b) A resides at Simla, B at Calcutta and C at Delhi A, B and C being together at Benaras, B and C make a joint promissory note payable on demand, and deliver it to A. A may sue B and C at Benaras, where the cause of action arose. He may also sue them at Calcutta, where B resides, or at Delhi, where C resides; but in each of these cases, if the non-resident defendant object, the suit cannot proceed without the leave of the Court.

So, when a suit is related to immovable property, the court within whose local jurisdiction property is situated have the jurisdiction to try the matter. In case when a part of the property is situated in the local limit of the other courts as well, I mean when the property is situated in more than one territorial limits of the courts than in that case the courts in whose territorial limit any portion of the property is situated have the jurisdiction and in such situation it is the plaintiff who will decide which court to approach. Where it is not possible to say with certainty that the property is situated within the jurisdiction of the one or the other of several courts, in such case one of these several courts, if it is satisfied that there is such uncertainty, may after recording a statement to that effect proceed to entertain and dispose of the suit.

When suit is related to moveable property, as we know moveable property follow the person and hence suit may be brought at the option of the plaintiff either at the place where the wrong is committed or where the defendant resides, carries on business or personally works for gain. Where such wrongs consists of series of acts, a suit may be filed at any place where any of the acts has been committed. Similarly, where a wrongful act is committed at one place and the consequence ensue at another place, a suit may be instituted at the option of the plaintiff where the action took place or the consequences ensued.

A suit for compensation for wrong (tort) to a person may be instituted at the option of the plaintiff either where such wrong is committed, or where defendant resides, carries on business or personally works for gain.

Section 20 provides for all other cases not covered under any of the foregoing rules.

Jurisdiction As To Subject-Matter
Different courts have been empowered to decide different types of suits. Certain courts have no jurisdiction to entertain certain suits. For examples, suits for testamentary succession, divorce cases, probate proceedings, insolvency matters, etc. cannot be entertained by a Court of Civil Judge (Junior Division). This is called jurisdiction as to subject matter.

I mean, every courts have been allotted the subject over which the court can entertain the matter, and the subject which is not within the preview of the court, that court cannot deal with that matters at all.

In case, court took up the matter which is not been allotted to it, that is the matter is beyond the subject matter competency, what will be the status of the decision given by the court in such situations.

Objection As To Jurisdiction: Section 21

 

Section 21: Objections to jurisdiction

(1) No objection as to the place of suing shall be allowed by any appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues or settled at or before such settlement, and unless there has been a consequent failure of justice.

(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.

(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.

It is a fundamental rule that a decree of a court without jurisdiction is nullity. Halsbury rightly states:

“where by reason of any limitation imposed by statute, charter or commission, a court is without jurisdiction to entertain any particular action or matter, neither the acquiesce nor the express consent of the parties can confer jurisdiction upon the court nor can consent give a court jurisdiction if a condition which goes to the root of the jurisdiction has not been performed or fulfilled.”

However, this does not apply to territorial or pecuniary jurisdiction. In case an error is committed by the court in exercising the jurisdiction with respect to pecuniary or territorial jurisdiction, the decision so given will not be void, it will be considered as irregular exercise of jurisdiction. No doubt, party has a right to raise the issue but at the earliest possible time and once the court proceeded with the matter and given the decision the same cannot be raised at the appellate stage at all as observed in the case of Kiran Singh V. Chaman Paswan, AIR 1954 SC 340.

However, when the error is committed by the court with respect to subject-matter jurisdiction, the decision so given by the court is null and void as it falls within the ambit of lack of jurisdiction. And the issue of such error can validly be raised at any stage of the proceedings, even at the appellate level as well.

Section 21-A: Bar on suit to set aside decree on objection as to place of suing

No suit shall lie challenging the validity of a decree passed in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, on any ground based on an objection as to the place of suing. Explanation.-The expression "former suit" means a suit which has been decided prior to the decision in the suit in which the validity of the decree is questioned, whether or not the previously decided suit was instituted prior to the suit in which the validity of such decree is questioned.

ISBN No: 978-81-928510-1-3
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