NOTES NO.

SUITS OF A CIVIL NATURE

Black’s Law Dictionary defines “jurisdiction” as “A court’s power to decide a case or

The Calcutta High Court in a full bench judgment in Hirday Nath v. Ram
Chandra sought to explain the term jurisdiction. It stated “… jurisdiction may be
defined to be the power of 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 a court has to decide matters presented in a formal way for its
decision.”

It went on to clearly demarcate three categories of jurisdiction- subject matter

Before going on any further, it must be mentioned that the jurisdiction of the court is
not whether the court is entitled to pass a particular order or decree in a suit. It is
whether the court has the right to hear the particular case. Further, also the jurisdiction
is decided by the allegations made in the plaint, and not the defence’s arguments.

Section 9 of the CPC reads

“Courts to try all civil suits unless barred- The Court 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 1-
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 II-

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.”

The section clearly allows for the legislature by statute to expressly bar the
jurisdiction of the Civil Courts.

The general rule however is that the presumption would be made in favour of the
existence of a right to sue in a Civil court, the exclusion of the same being an
exception. 

The Supreme Court has laid down the rule that the plea of absence of jurisdiction can
be raised and entertained at any stage. In the absence of clarity in the point, the author
believes that the plea of the absence of jurisdiction should be allowed only at any
point of the case when in the Court of First Instance, and not in any appeals
subsequent to it. Allowing such pleas in appeal might be misused by the appellant
having lost the suit in the lower court. For instance, the losing party in the Court of
First Instance may raise the plea in the appellate court in case he loses in the Lower
Court, despite the suit commencing on his petition. This would be gross injustice to
the other party and would also be against the principles of natural justice. Hence it
must not be allowed to raise the plea at the appellate court.

Like jurisdiction, there is no definition of a civil suit in any Act. However,

In Sanker Naryan Potti v K Sreedevi  , the Apex Court held “…it is obvious that in all
types of civil disputes civil courts have inherent jurisdiction as per Section 9 of the
CPC unless a part of that jurisdiction is carved out from such jurisdiction, expressly
or by necessary implication, by any statutory provision and conferred on any other
tribunal or authority.” 

This in itself means that the Legislature, may, if it so desires, exclude certain portions
of any law, or any law in toto by including a clause or provision in the Act itself.

Hence, the current position regarding the jurisdiction of Civil Courts is that they have
inherent jurisdiction to hear into civil matters unless it is expressly or implied
excluded by a statute. The Supreme Court stated that the burden of proof for the
exclusion of the jurisdiction of the court is on the party contending it. 

Another important point to make here is that the Supreme Court in a landmark
judgement held that it is the Civil Courts itself that has the power to decide if it has
the power to decide if it lacks, or has the jurisdiction to entertain a particular suit,
even if on investigation, it is found that it does not. 

In the case of a statute that bars the jurisdiction of the Civil Courts, the Supreme
Court in the case of State of A.P. v. Manjeti Laxmi Kanth Rao devised a test for
determination of the exclusion of the jurisdiction of Civil courts. First it is to be
determined the legislative intent to exclude the jurisdiction “either explicitly, or by
necessary implication”. This means that the Court must first try to determine the
precise reasons for the exclusion of the Civil Courts, and whether it is justified.
However the justification is not open to judicial review. Once the court satisfies itself
of the same, the court needs to determine whether the statute, which bars such
jurisdiction provides for a suitable alternate remedy. An alternate remedy in this
respect must be capable of performing the functions that would have been performed
by the civil court in the absence of such exclusion, and must be empowered to pass
any order which the civil court in like circumstances would have passed. In the
absence of such alternate mechanism, the jurisdiction of the Civil Court cannot be
excluded. This view has also been accepted by the High Court at Calcutta in Bar
Council W.B. v. A. Aughstir.

However it was held in Balawwa v. Hasanabi , that the jurisdiction of the Civil Court
is ousted in respect of a tribunal created by a statute only so far as the reliefs that
could be granted by the tribunal in question. The case was particularly in regards the
Land Tribunal, but the author believes, that this is the correct implication and applies
to all tribunals under different Acts. In this respect, it has been held by the High Court
at Allahabad in number of cases that a suit is barred of jurisdiction by the Civil Courts
only if the cognisance of the entire suit is barred. This implies that if a certain suit
arises, a part of which is not ordinarily to be tried by the Civil Court, due to express or
implied exclusion, it is not true that the entire suit will be barred. Since the other
points of law or reliefs sought are beyond the tribunal, or even if not beyond the
special tribunal created under the Act, the jurisdiction of the civil court is not ousted
and hence still has inherent jurisdiction to try the suit. It is not exactly clear if the
special tribunal under the Act can pass a judgment in relation to the part of the case in
which the jurisdiction of the civil court is excluded. If it can, does the civil court has
to limit itself to the other points and is it limited by the decision of the tribunal? These
are questions that are not yet completely clear.

The Supreme Court held that if any statute creates right, which does not pre-exist in
Common Law, and creates a mechanism for enforcement of the same, both the right
and the remedy being created uno flatu, excludes the jurisdiction of the Civil Court,
even in the absence of an express provision. This view has been accepted by the High
Courts at Calcutta [18] and Gujarat. The Apex Court in a decision has held that if the
right in question is one in Common Law and not the creation of any statute, the
jurisdiction of the Civil Court will not be excluded because the statute seeks to
provide for an exclusive tribunal for the enforcement under the statute.

The jurisdiction of a Civil Court is taken away when the statute in question clearly
states that the decision of the tribunal that the particular statute creates is
final. [21] This is subject to the fact that the tribunal thus created is sufficiently
empowered to act as a Civil Court would in a similar situation. 

However the Supreme Court has held that there are two limitations to such exclusive
jurisdiction of tribunals under any Act, meaning that the jurisdiction of the Civil Court
will not be excluded in certain circumstances. One such situation would be where the
Act states that the decision of the tribunal will be final for ‘the purposes of this
Act’. Another circumstance would be where the statute does not state that all
questions regarding the special right created by the statute will be determined by the
special authority created under the Act. 
Apart from being expressly barred by a statute, the jurisdiction of the civil court may
also be impliedly barred. However to be considered as impliedly barred, the
jurisdiction of the civil court must be necessarily barred. The Supreme Court has held
in Shri Panch Nagar Parak v. Puru Shottam Das that in the absence of any express
exclusionary provision, the court needs to examine the purpose, scheme and relevant
provisions of the Act in order to determine implied exclusion of the jurisdiction of
Civil Courts.

An example of such implied exclusion would be a suit by a person whose property is

However it must be mentioned that the Supreme Court has held that ouster of the
jurisdiction of Civil Court by a statute, whether explicitly or implicitly does not bar
the court from examining whether the provisions of the Act have been complied with,
or if the authority under the Act has acted in accordance with the principles of natural
justice. 

It is interesting to note in this regard that the various High Courts also enjoy certain
civil jurisdictions in their ordinary jurisdiction. Further under Article 228 , the High
Court has the ability to call upon any matter pending in any lower court to decide it on
its own, or to determine the points of law involved in it and return the same. In the
absence of any detailed explanation to this section, it is to be implied that this power
also extends to the Civil matters in lower courts. This implies that the civil
jurisdiction of the High Court can generally not be ousted even in the absence of any
express clause.

Conclusion

Hence it is clear that the jurisdiction of the Civil Court does not extend to all matters
but might be limited in certain cases. However it has “inherent” jurisdiction to try all
suits of a civil nature in the absence of any exclusion of the same.
However the author hopes that the Apex Court comes out clarifying the situation with
the case regarding the jurisdiction of a Civil Court in which its jurisdiction is partly
barred, expressly or impliedly and where a part of it is not.