CPC Project
CPC Project
ACADEMIC SESSION:2021-2022
B.A.L.L.B(Hons.)
CONTENTS
2. Acknowledgement 4
3. Introduction 5
9. Bibliography 17-18
DECLARATION
This research paper would not have been accomplished without the
generous contributions of individuals. First of all, I express my gratitude
to the Almighty, who aided me with his strength, wisdom and patience to
complete this project as a term paper.
I would also like to thank the authorities of Dr. Madhu Limaye Library
who provided the remote access of the library to provide the research
material.
I know that despite my best effort some discrepancies might have crept
in which I believe my humble professor would forgive.
Saddhvi Nayak.
INTRODUCTION
Jurisdiction (from the Latin ius, iuris meaning "law" and dicere meaning "to speak") is the
practical authority granted to a formally constituted legal body or to a political leader to deal
with and make pronouncements on legal matters and, by implication, to administer justice within
a defined area of responsibility. The term is also used to denote the geographical area or subject
matter to which such authority applies. Jurisdiction draws its substance from public international
law, conflict of laws, constitutional law and the powers of the executive and legislative branches
of government to allocate resources to best serve the needs of its native society. The District
Court or Additional District court exercises jurisdiction both on original and appellate side in
civil and criminal matters arising in the District. The territorial and pecuniary jurisdiction in civil
matters is usually set in concerned state enactments on the subject of civil courts. On the criminal
side jurisdiction is almost exclusively derived from code of criminal procedure. This code sets
the maximum sentence which a district court may award which currently is capital punishment.1
The court exercises appellate jurisdiction over all subordinate courts in the district on both civil
and criminal matters. These subordinate courts usually consist of a Junior Civil Judge court,
Principal Junior civil Judge court, Senior civil judge court (often called sub court)in the order of
ascendancy on the civil side and the Judicial Magistrate Court of 2nd Class, Judicial Magistrate
Court of 1st class, Chief Judicial Magistrate Court in the order of ascendancy on the criminal
side.2 Certain matters on criminal or civil side cannot be tried by a court inferior in jurisdiction to
a district court if the particular enactment makes a provision to the effect. This gives the District
Court original jurisdiction in such matters. Appeals from the district courts lie to the High court
of the concerned state.
1
http://www.scribd.com/codeofcivilprocedure1908 2
2
http://www.preservearticles.com/cpc/scopeofdifferentcivilcourts.np.nd.web
international court is subsidiary or complementary to national courts, the difficulty is avoided.
But if the jurisdiction claimed is concurrent, or as in the case of International Criminal Tribunal
for the former Yugoslavia (ICTY), the international tribunal is to prevail over national courts, the
problems are more difficult to resolve politically.3 The idea of universal jurisdiction is
fundamental to the operation of global organizations such as the United Nations and the
International Court of Justice (ICJ), which jointly assert the benefit of maintaining legal entities
with jurisdiction over a wide range of matters of significance to states (the ICJ should not be
confused with the ICC and this version of "universal jurisdiction" is not the same as that enacted
in the War Crimes Law (Belgium) which is an assertion of extraterritorial jurisdiction that will
fail to gain implementation in any other state under the standard provisions of public policy).
Under Article 34 Statute of the ICJ only states may be parties in cases before the Court and,
under Article 36, the jurisdiction comprises all cases which the parties refer to it and all matters
specially provided for in the Charter of the United Nations or in treaties and conventions in
force. But, to invoke the jurisdiction in any given case, all the parties have to accept the
prospective judgment as binding. This reduces the risk of wasting the Court's time.4 Despite the
safeguards built into the constitutions of most of these organizations, courts and tribunals, the
concept of universal jurisdiction is controversial among those states which prefer unilateral to
multilateral solutions through the use of executive or military authority, sometimes described as
real politik-based diplomacy.
Explanation I- a suit in which the right to property or to an office is contested is a suit or a civil
nature, notwithstanding that such right may depend entirely on the decision of questions as to
religious rites or ceremonies.
3
http://www.scribd.com
4
http://www.preservearticle.com
Explanation II- for the purpose 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.
CONDITIONS
A civil court has jurisdiction to try a suit if two conditions are fulfilled:
In order that a civil court may have jurisdiction to try a suit, the first condition which must be
satisfied is that the suit must be of a civil nature? The word ‘civil’ has not been defined in the
code. But according to the dictionary meaning, it pertains to private rights and remedies of a
citizen as distinguished from criminal, political, etc. the word ‘nature’has been defined as ‘the
fundamental qualities of a person or thing; identity or issential character; sort, kind, character’’.
It is thus wider in content. The expression ‘civil nature’ is wider than the expression ‘civil
proceedings’. Thus, a suit is of a civil is of a nature if the principal question therein relates to the
determination of a civil right and enforcement thereof. 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 a civil nature.
The expression “suit of a civil nature” will cover private rights and obligations of a citizen.
Political and religious questions are not covered by that expression. A suit in which the principal
question relates to caste or religion is not a suit of a civil nature. But if the principal question in a
suit is of a civil nature (the right to property or to an office) and the adjudication incidentally
involves the determination 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 jurisdiction to adjudicate upon those questions also in order to decide the principal
question which is of a civil nature. Explanation II has been added by the amendment act of 1976.
before this explanation, there was a divergence of judicial opinion 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 a civil
nature. But the legal position has now been clarified by explanation II which specifically
provides that a suit relating to a religious office is maintainable whether or not it carries any fees
or whether or not it is attached to a particular place.
Doctrine explained
Explaining the concept of jurisdiction of civil courts under section 9, in PMA Metropolitan v.
M.M. Marthoma, the Supreme Court stated:
“The expensive nature of the section is demonstrated by use of phraseology both positive and
negative. The earlier part opens the door widely and latter debars entry to only those which are
expressly or impliedly barred. The two explanations, one existing from inception and later added
in 1976, bring out clearly the legislative intention of extending operation of the section to
religious matters where right to property or office is involved irrespective of whether any fee is
attached to the office or not. The language used is simple but explicit and clear. It is structured
on the basic of a civilized jurisprudence that absence of machinery for enforcement of right
renders it nugatory. The heading which is normally a key to the section brings out unequivocally
that all civil suits are cognizable unless barred. What is meant by it is explained further by
widening the ambit of the section by use of the word ‘shall’ and the expression ‘all suits of a
civil nature unless expressly or impliedly barred’.5
Each word and expression casts an obligation on the court to exercise jurisdiction for
enforcment of rights. The word shall make it mandatory. No court can refuse to entertain a suit if
it is of the description mentioned in the section. That is amplified by the use of the expression.
‘all suits of civil nature’. The word civil according to the dictionary means, relating to the citizen
as an individual; civil rights.’ In Black’s legal dictionary it is defined as, ‘relating to provide
rights and remedies sought by civil actions as contrasted with criminal proceedings’. In law it is
understood as an antonym of criminal. 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.6 There is thus no doubt about the width of the word civil. Its width has been
5
http://ibid07.n.p.nd.web
6
http://www.indiankanoon.com
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.”
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.
As stated above, a litigant having a grievance of a civil nature has a right to institute a civil suit 9
unless its cognizance is barred, either expressly or impliedly.
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.
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.
“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.”
It is respectfully submitted that the following observations of Subba Rao, J. in the leading case of
Radha Kishan v. Ludhiyana Municipality lay down the correct legal position regarding
jurisdiction of civil courts and require to be produced:
“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.”
a) Where a statute gives finality to orders of special tribunals, the civil courts jurisdiction must
be held to be excluded if there is adequate remedy to do what the civil courts would normally
do in a suit. Such a provision, however, does not exclude those cases where the provisions of
a particular act have not been complied with or the statutory tribunal has not acted in
conformity with fundamental principles of judicial procedure.
b) Where there is an express bar of jurisdiction of a court, an examination of the scheme of a
particular act to find the adequate or sufficiency of the remedies provided may be relevant
but this is not decisive for sustaining the jurisdiction of a civil court. Where there is no
express exclusion, the examination of the remedies and the scheme of a particular act to find
out the intendment becomes necessary and the result of the inquiry may be decisive. In the
latter case, it is necessary to see if a statute creates a special right or a liability and provides
for the determination of the right or liability and further lays down that all questions about
the said right and liability shall be determined by tribunals so constituted, and whether
remedies normally associated with actions in civil courts are prescribed by the said statute or
not.
c) Challenge to the provisions of a particular act as ultra vires cannot be brought before
tribunals constituted under that act. Even the high court cannot go into that question on a
revision or reference from decisions of tribunals.
d) When a provision is already declared unconstitutional or the constitutionality of any
provisions is to be challenged, a suit is open. A writ of certiorari may include a direction for
refund if the claim is clearly within the time prescribed by the limitation act but it is not a
compulsory remedy to replace a suit.
e) Where the particular act contains no machinery for refund of tax collected in excess of
constitutional limits or is illegally collected, a suit lies.
f) Questions of the correctness of an assessment, apart from its constitutionality, are for the
decision of the authorized 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 a particular act. In either case, the
scheme of a particular act must be examined because it is a relevant enquiry.
g) An exclusion of jurisdiction of a civil court is not readily to be inferred unless the conditions
above set down apply.
The above principles enunciated are relevant in deciding the correctness or otherwise of
assessment orders made under taxing statutes. In Premier Automobiles v. K.S. Wadke, the
Supreme Court laid down the following principles as applicable to the jurisdiction of a civil court
in relation to industrial disputes:
a) If a dispute is not an industrial dispute, nor does it relate to enforcement of any other right
under the act, the remedy lies only in a civil court.
b) If a dispute is an industrial dispute arising out of a right or liability under the general or
common law and not under the act, the jurisdiction of a civil court is alternative, leaving it to
the election of a suitor or person concerned to choose his remedy for the relief which is
competent to be granted in a particular remedy.
c) If an industrial dispute relates to the enforcement of a right or an obligation created under the
act, then the only remedy available to suitor is to get adjudication under the act.
d) If the right which is sought to be enforced is a right created under the act such as chapter V-
A, then the remedy for its enforcement is either section 33-C or the raising of an industrial
dispute, as the case may be.
Again, in Rajasthan State Road Transport Corpn. V.Krishna Kant, after considering various
leading decisions on the point, the Supreme Court summarized the principles applicable to
industrial disputes thus:
1. Where a dispute arises from the general law of contract, i.e., where relief’s are claimed on the
basis of the general law of contract, a suit filed in a civil court cannot be said to be not
maintainable, even though such a dispute may also constitute an “industrial dispute” within
the meaning of section 2 (k) or section 2-A of the Industrial Dispute Act, 1947.
2. Where, however, a dispute involves recognition, observance or enforcement of any of the
rights or obligations created by the Industrial Dispute Act, the only remedy is to approach the
famous created by the said act.
3. Similarly, where a dispute involves the recognition, observance or enforcement of rights and
obligations created by enactments, like the Industrial Employment (standing order) Act,
1946- which can be called “sister enactments’ to the industrial dispute act- and which do not
provide a forum for resolution of such disputes, the only remedy shall be to approach the
forums created by the industrial dispute act provided they constitute industrial disputes
within the meaning of section 2(k) and section 2-A of the Industrial Dispute Act or where
such enactments says that such dispute shall be adjudicated by any of the forums created by
the Industrial disputes act. Otherwise, recourse to a civil court is open.
4. It is not correct to say that remedies provided by the industrial disputes act are not equally
effective for the reason that access to a forum depends upon a reference being made by the
appropriate government. The power to make a reference conferred upon the government is to
be exercised to effectuate the object of the enactment and hence is not unguided. The rule is
to make a reference unless, of course, the dispute raised is a totally frivolous one ex facie.
The power conferred is the power to refer and not the power to decide, though it may be that
the government is entitled to examine whether the dispute is ex facie frivolous, not meriting
adjudication.
5. Consistent with the policy of law aforesaid, we commend to parliament and state legislature
to make a provision enabling a workman to approach the labor court- i.e., without the
requirement of a reference by the government- in case of industrial dispute covered by
section 2-A of the Industrial Disputes Act. This would go a long way in removing the
misgiving with respect to the effectiveness of the remedies provided by the Industrial
Disputes Act.
6. The certified standing orders framed in accordance with the Industrial Dispute Act and its
sister enactment is to provide an alternative dispute- resolution mechanism to workmen, a
mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of
procedural laws and appeals upon appeals and revisions applicable to civil courts. Indeed, the
powers of courts and tribunals under the industrial disputes act are far more extensive in the
sense that they can grant such relief as they think appropriate in the circumstances for putting
an end to an industrial dispute.
“It cannot be disputed that the procedure followed by civil courts are too lengthy and,
consequently, are not an efficacious forum for resolving the industrial disputes speedily. The
power of the industrial courts also is wide and such forums are empowered to grant adequate
relief as they just and appropriate. It is in the interest of the workmen that their disputes,
including the dispute of illegal termination, are adjudicated upon by an industrial forum.”
GENERAL PRINCIPLES
From various decisions of the Supreme Court, the following general principles relating to
jurisdiction of a civil court emerge:
a) A civil court has jurisdiction to try all suits of a civil nature unless their cognizance is barred
either expressly or impliedly.
b) Consent can neither confer nor take away jurisdiction of a court.
c) 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.
d) There is a distinction between want of jurisdiction and irregular exercise thereof.
e) Every court has inherent power to decide the question of its own jurisdiction.
f) Jurisdiction of a court depends upon the averments made in a plaint and not upon the defense
in a written statement.
g) For deciding jurisdiction of a court, substance of a matter and not its form is important.
h) Every presumption should be made in favor of jurisdiction of a civil court.
i) A statute ousting jurisdiction of a court must be strictly construed.
j) Burden of proof of exclusion of jurisdiction of a court is on the party who asserts it.
k) 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.
CONCLUSION
From the above contents of my project it can be concluded that section 9 at ‘the threshold 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 eventually 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 erroneous
order by him is not open to collateral attack in a suit. Because there is an essential and marked
distinction between the cases in which courts lack jurisdiction to try cases and where jurisdiction
is irregularly exercised by courts. The court exercises appellate jurisdiction over all subordinate
courts in the district on both civil and criminal matters. These subordinate courts usually consist
of a Junior Civil Judge court, Principal Junior civil Judge court, Senior civil judge court (often
called sub court)in the order of ascendancy on the civil side and the Judicial Magistrate Court of
IInd Class, Judicial Magistrate Court of Ist class, Chief Judicial Magistrate Court in the order of
ascendancy on the criminal side. Certain matters on criminal or civil side cannot be tried by a
court inferior in jurisdiction to a district court if the particular enactment makes a provision to the
effect. This gives the District Court original jurisdiction in such matters.
BIBLIOGRAPHY
BOOKS :
1. www.scribd.com
2. www.preservearticles.com
3. www.lawnotes.com
4. www.googledocs.com
5. www.indiankanoon.com