Inherent Jurisdiction of the Civil Court

The inherent power of the court to exercise its procedural jurisdiction to avoid injustice and ensure efficiency in litigation has long been recognised as a fundamental element of the administration of justice. Yet, the courts, conscious of their place in the Common Law system, their duty to apply legislation as the primary source of law and the corresponding concern that judicial initiatives should not compromise this obligation, have placed limits on their capacity to generate a parallel and supplemental jurisprudence to the rules of court.

Section 9 of Civil Procedure Code puts a bar on jurisdiction of civil court. The section, however, is open to interpretation in by court and have been interpreted in a very strict sense, to expand the jurisdiction of civil court as much as possible. Jurisdiction in certain suits is expressively barred by many enactments including CPC itself. Implied bar on cognisance of civil court has been generally observed in cases where it is against public policy, or a specific and exhaustive remedy has been provided by the statute in question itself.

Though a civil suit may be barred u/s 9, CPC, either expressively or impliedly, a civil court still has jurisdiction for the purposes of administrative justice such as fairness, natural justice etc.

This project delves into the right of civil courts to examine all suits of civil nature. In furtherance of the object, it answers the following question :

What is the doctrine of inherent jurisdiction?

When cognisance by a civil court is barred u/s 9 of Civil Procedure Code?

Is there an absolute bar on jurisdiction of civil court?

Chapter 1 : Doctrine of Inherent Jurisdiction

1.1 What is ‘Jurisdiction’? :

It is that power which a court has to decide the matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. For a court to have jurisdiction, it must not only have the jurisdiction to try the suit i.e. jurisdiction to entertain the subject matter of suit, but must also have the authority to pass the orders sought for [1] . For example, civil court may have authority to settle a dispute regarding specific performance of contract but may not have the pecuniary jurisdiction to pass the relief sought for.

1.2 Origins of doctrine of inherent jurisdiction :

The doctrine of inherent jurisdiction is a creature of the English common law. Its origins can be traced back to 1840. Baron Alderson’s decision in Cocker v. Tempest3 in 1840 is often cited as the originating point for the emergence of the doctrine. He commented “the power of each court over its own processes is unlimited; it is a power incident to all courts, inferior as well as superior; were it not so, the court would be obliged to sit still and see its own process abused for the purpose of injustice”.

1.3 Doctrine of Inherent Jurisdiction :

In determining the meaning of the term “inherent jurisdiction”, it is imperative to look into the much referred definition from Halsbury’s Laws of England:

In sum, it may be said that the inherent jurisdiction of the court is a virile and viable doctrine, and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of due process of law, to prevent vexation or oppression, to do justice between the parties and to secure a fair trial between them [2] .

Notwithstanding that the term inherent jurisdiction seems to apply to an almost limitless set of circumstances, commentators have noted that there are four general categories for the use of the court’s inherent jurisdiction :

To ensure convenience and fairness in legal proceedings

To prevent steps being taken that would render judicial proceedings inefficacious

To prevent abuses of process

To act in aid of superior courts and in aid or control of inferior courts or tribunals

The exercise of inherent jurisdiction is a broad doctrine allowing a court to control its own process and to control the procedures before it. The power sterns not from any particular statute or legislation, but rather from inherent powers vested in a court to control the proceedings brought before it.

A pertinent question that emerge is that who decides whether civil court has jurisdiction or not? The question has been settled by Supreme Court in the case of A R Antulay v R S Nayak where it was held that a civil court has inherent power to decide its own jurisdiction [3] , though it may rule that it has no jurisdiction to entertain the suit. Thus, it is for a civil court to decide whether it is barred from taking cognisance over a particular type of civil suit, either expressively or impliedly.

1.4 Presumption of jurisdiction and burden of proof :

In Abdul v. Bhawani, the apex court has observed that every presumption should be made in favour of the jurisdiction of a civil court and the provision of exclusion of jurisdiction, if any, shall be strictly construed [4] . If there is any doubt regarding ousting of jurisdiction of a civil court, the court shall lean to an interpretation which would maintain the jurisdiction [5] . The burden of proof is on the party who seek to oust the jurisdiction of a civil court.

Chapter 2 : Cognisance barred

Section 9, Civil Procedure Code, 1908 [6] : –

Courts to try all civil suits unless barred.

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 declares that a suit for an office is a suit of civil nature and it does not cease to be one even if the said right depends entirely upon the decision of a question as to religious rights or ceremonies [7] .

Explanation II as inserted by the Code of Civil Procedure(Amendment) Act, 1976, further widens the scope of Section 9 by declaring that in order to maintain a suit it is immaterial that an offence reffered to in Explanation I carries any fees or is attached to a particular case [8] .

2.2 Suits expressively barred :

As per Section 9, Civil Procedure Code, a suit is said to be expressively barred when barred by any enactment for the time being in force. This may include any statute, law, bye-laws, order etc. CPC itself expressively bars the jurisdiction of civil courts in certain circumstances. Section 11 of the Code of Civil Procedure bars a court from trying a suit in which matter in issue is res judicata. Section 47 bars a decree holder from filing a suit when he can file execution proceedings.

Other instances where jurisdiction of civil court is expressively barred includes among others, special tribunals under relevant statutes e.g. – Industrial Tribunal, Election Tribunal, Revenue Tribunal, Rent Tribunal, cooperative Tribunal, Income Tax Tribunal(Sec. 293, Income-Tax Act, 1961)l, Motor Accidents Claim Tribunal(Sec. 68-D, Motor Vehicles Act), etc. ; domestic tribunals e.g. Bar Council, Medical Council, University, Club etc. Whenever statutes uses the expression that a decision of an authority shall be final, the jurisdiction of a Civil Court to go into the correctness or otherwise of the decision is taken away [9] .

But, there may be circumstances where the remedy provided by a statute is not adequate and all questions or disputes cannot be decided by a special tribunal. In such cases, the jurisdiction of a civil court is not barred to the extent of those issues or remedies, not provided for in the law ousting its jurisdiction [10] . If the provisions of the statute has not been complied with or the Statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure or the tribunal or the authority acts ultra vires, the Civil Court have jurisdiction to examine those cases to interfere and set matters right.

For example, an order of eviction made by competent authority in relation to unauthorised occupation of public premises can be said to be an order under Madhya Pradesh Government Premises (Eviction) Act, 1952. It is necessary to examine the question whether the appellant plaintiff was in unauthorised occupation. An order of eviction made in relation to a person who is not in unauthorised occupation of the premises cannot be called to be order made under the Madhya Pradesh Government Premises (Eviction) Act, 1952 and would be an illegal order made, dehors the Madhya Pradesh Government Premises (Eviction) Act, 1952 which, therefore cannot bar the jurisdiction of the Civil Court to try the suit [11] .

2.3 Suits Impliedly barred :

Suits may be barred impliedly when they are barred by general principles of law as when they are barred being against the Public Policy or State Policy. For example, suit by a witness to recover money agreed to be paid to him for giving evidence in a Court of Law and suits based on illegal or immoral contracts. Kapur,J. has observed in Union of India v. Ram Chand – “The principle underlying is that a court ought not to countenance matters which are injurious to and against the public weal [12] .”

Also, if a specific remedy is given by a statute, it deprives a person who insists upon a remedy of any other form than that given by the statute [13] . In such cases, suit is said to be expressively barred under Section 9, Civil Procedure Code. For example, the right to appoint/remove the directors of a Company being a creature of the Companies Act, which itself provides a machinery for the enforcement of the said right, impliedly bars the jurisdiction of Civil Court [14] . 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. For example, in the recent case of State of Karnataka v. Vishwabarathi House Building Co-op. Society, it was observed by the apex court that by reason if Section 3 of Consumer Protection Act, it is apparent that the remedies provided there under are not in derogation of those provided under other laws. The said Act supplements and supplants the jurisdiction of the Civil Courts or other statutory authorities. It provides for a further safeguard to the effect that in the event a complaint involves complicated issues regarding recording of evidence of experts, the complaint would be at liberty to approach the Civil Court for necessary relief [15] .

Ordinarily, civil court has jurisdiction to go into the disputed questions of civil nature whether or not fundamental fairness of procedure is violated. But where fundamental fairness of procedure is followed, cognizance of civil cause is excluded by necessary implication [16] .

In Raja Ram Kumar Bhargava v. Union of India [17] , SC has laid down guiding considerations for implied exclusion of Civil Court’s jurisdiction. They are –

Whether a right, not pre-existing in common law has been created by a statute.

That statute itself provided a machinery for enforcement of that right

Both right and remedy having been created uno flatu

A finality is intended to the result of the statutory proceedings.

It was observed that :

‘If, however, a right pre-existing in common law is recognised by the statute and a new statutory remedy for its enforcement provided, without expressively excluding civil courts jurisdiction, then , both the common law and the statutory remedies might become concurrent remedies leaving open an element of election to the persons of inheritance [18] .’

Chapter 3. No absolute bar on Jurisdiction

Even when the jurisdiction of civil court is barred, either expressively or impliedly, it cannot be read as excluding its jurisdiction altogether. Court has the jurisdiction to examine whether the provisions of the Act and the Rules made there under have been complied with or not, or whether the order is contrary to law, malaise, ultra vires, perverse, arbitrary, purported, violative of 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.

It was held in Secretary of State v. Mask & Co. by Privy Council –

“It is settled law that the exclusion of the jurisdiction of the civil courts 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 [19] .”

In Radha Kishan v. Ludhiana Municipality [20] it was held by J. Subba Rao that conferment of special jurisdiction on a tribunal is not sufficient in itself to exclude the jurisdiction of the civil courts. It should either bar the jurisdiction expressively or provide for liability not existing before or a special and particular remedy to the aggrieved party. In such cases, the separate remedy provided shall be followed. The same principle applies when the statute had provided for the particular forum in which the said remedy could be had. However, the court went on to say that –

“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 a 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.”

It was held in Union of India v. S. Sasi [21] that the Civil Court has jurisdiction to enforce the right of a subscriber under Section 7B of the Telegraph Act, though it provides for a seaparate machinery for the same. Civil Court has right to grant ad-interim relief in a case, when the question of jurisdiction of court is pending before it [22] .

Following are some more principles regarding exclusion of jurisdiction of Civil Court [23] –

Challenge to provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under such Act. Even the High Court cannot go into that question on a revision or reference from the decisions of the Tribunal. The constitutionality of the Act has to be challenged before a civil court.

Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.

Questions of the correctness of the assessment apart from the 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 relevant enquiry.

A plea to bar the jurisdiction of Civil Court must be considered having regard to the contentions raised in the plaint. For the said purpose, averments disclosing cause of action and the reliefs sought for therein must be considered in their entirety. The Court may not be justified in determining the question, one way or the other, only having regard to the reliefs claimed dehors the factual averments made in the plaint. Also, a party may not, by securing

an order from another Court be permitted to displace the jurisdiction of the Civil Court to try the suit which was within its competence when the suit was filed [24] .

2.1 Agreement conferring jurisdiction on a Court:

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 [25] .

Conclusion

A civil court has jurisdiction to try all suits of civil nature unless their cognisance is barred either expressively or impliedly. Consent can neither confer nor take away jurisdiction of a court. 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. 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 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.