You are on page 1of 17

IN THE

LEARNED DISTRICT COURT OF JODHPUR

AT JODHPUR, INDIA

APPEAL NO. 1221 / 2015

UNDER SECTIONS 6, 7, 9, 19

OF THE

CIVIL PROCEDURE

CODE

-IN THE MATTER OF-

RAMNATH KUMAR &


ANR. ...................................................................PLAINTIFF

V.

ROYAL AUTOMOBILES
LIMITED........................................................DEFENDANT

MEMORIAL ON BEHALF OF THE DEFENDANT

TABLE OF CONTENTS

Index Of Authorities.......................................................................................................................iii
Cases...........................................................................................................................................iii
Statutes.......................................................................................................................................iii
Statement OF JURISDICTION.......................................................................................................v
Statement Of Facts...........................................................................................................................v
Issues Under Consideration............................................................................................................vi
I.
II.

Whether The District Court Of Jodhpur Has Jurisdiction To Look Into The Matter.......vi
Whether A Permanent Injunction Need To Be Granted...............................................vi

Summary Of Arguments................................................................................................................vii
I.
II.

Whether The District Court Of Jodhpur Has Jurisdiction To Look Into The Matter......vii
Whether A Permanent Injunction Need To Be Granted..............................................vii

Arguments Advanced.......................................................................................................................1
III.

Whether The District Court Of Jodhpur Has Jurisdiction To Look Into The Matter....1

II.

Whether A Permanent Injunction Need To Be Granted................................................6

PRAYER..........................................................................................................................................8
2

INDEX OF AUTHORITIES

CASES
Austin Distributors v. Nilkumar, 1970 Labour IC 323 (C)...............................................................4
Barraclough v. Brown, [1897] AC 615...........................................................................................6
C. T. Nikam v. Municipal Corporation of Ahmedabad, AIR 2002 SC 997.....................................3
Cutler v. Wandsworth Stadium Ltd., [1949] AC 398.......................................................................6
Dhulabhai v. State of M.P., [1968]3SCR662...................................................................................1
Doe D. Bishop of Rochester v Bridges, (1831) 1 B & Ad 847........................................................3
Hari Kishan and others v. The Administrator, Municipal Committee, Ludhiana, 1964 SCR (2)
273...............................................................................................................................................4
Jitendra Nath v Empire of India & Ceylon Tea Co., AIR 1990 SC 255..........................................3
K. S. Venkataraman & Co. v. State of Madras, 1966 SCR (2) 229..................................................7
Premier Automobiles Ltd. v. Kamelekar Shantharam Wadke, 1976 SCR (1) 427...........................5
Stevens v.Chown, [1901] 1 Ch 894..................................................................................................6
The State of Orissa v. Madan Gopal Rungta and others, AIR 1952 SC 12....................................7

STATUTES
Civil Procedure Code, 1908.............................................................................................................1
Industrial Disputes Act, 1947..........................................................................................................3

STATEMENT OF JURISDICTION

The plaintiff has approached the District court of Jodhpur under sections 6, 7, 9, 19 of the CPC.
It is most humbly submitted that the Court of India does not have competency and jurisdiction to
adjudicate the matters mentioned above.

All of which is urged in detail in the written submission and is most humbly submitted.

STATEMENT OF FACTS

In one of the departments of "Royal Automobiles Limited" there were three groups of
workers: One, the workers' union which was earlier recognised as a "trade union, and was
derecognised by the appellant, and secondly another union which was recognised in its

place and thirdly workmen who were members of neither union.


As a result of a settlement entered into with the derecognised union an incentive scheme

was in force in this department of the appellant.


After de-recognition of the union because of the increase in the strength of the workmen,
entered into a settlement with the union recognised later to revise the target figures of the

incentive scheme.
This led to protests from the derecognised union and Ramnath Kumar and Gopilal Deora
who were members of the derecognised union in a representative capacity allege that the
earlier settlement was a contract of service and that the new settlement would bring about
a change in their service conditions, that the new settlement was arrived at without

following the mandatory requirements of S. 9A of the Industrial Dispute Act.


Hence the plaintiff moved to the district court of Jodhpur to seek for a permanent
injunction to restrain the company from implementing the later settlement.

ISSUES UNDER CONSIDERATION

I.

WHETHER

THE DISTRICT COURT OF JODHPUR HAS JURISDICTION TO LOOK

INTO THE MATTER

II.

WHETHER A PERMANENT INJUNCTION NEED TO BE GRANTED

SUMMARY OF ARGUMENTS

WHETHER

THE DISTRICT COURT OF JODHPUR HAS JURISDICTION TO LOOK

INTO THE MATTER

The District Court of Jodhpur does not have jurisdiction to look into the matter because
thisa matter falling under the Industrial Disputes Act which has its own machinery to look
into Industrial Disputes. There is an implied bar to the civil court to look into the matter.
III.

WHETHER A PERMANENT INJUNCTION NEED TO BE GRANTED

No, a permanent injunction cant be granted because:


a. Since there is no jurisdiction, unlike the English courts, Indian civil courts cant provide
for any injunction, the matter totally cant be heard before a civil court.
b. the plaintiff has agreed to the scheme

ARGUMENTS ADVANCED

IV.

WHETHER

THE DISTRICT COURT OF JODHPUR HAS JURISDICTION TO LOOK

INTO THE MATTER

The civil court has no jurisdiction to look into the matter at hand. Sec 9 of CPC 1, speaks
of jurisdiction of civil courts, according to which courts shall not have jurisdiction to try
civil cases either if it is explicitly or implicitly barred.
The position was reiterated in various case laws. It has been laid down by the honourable
supreme court that2
1. Where the statute gives a finality to the orders of the special tribunals the civil Court'
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 provision, however, does not exclude
those cases where the provision of the particular Act have not been complied with or
the statutory Tribunal has not acted in conformity with the fundamental principles of
judicial procedure.
2. Where there is an express bar of the jurisdiction of the Court, an examination of the
scheme of particular Act to find the adequacy or the sufficiency of the remedies
provided may be relevant but is not decisive to sustain the jurisdiction of the civil
Court. Where there is no express exclusion the examination of the remedies and the
scheme of the particular Act to find out the intendment becomes necessary and the
1 Section 9, Civil Procedure Code.

2 Dhulabhai v. State of M.P., [1968]3SCR662


1

result of the inquiry may be decisive. In the latter case it is necessary to see if the
statute creates a special right or a liability and provides for the determination of the
right or a liability and further lays down that all questions about the said right and
liability shall be determined by the tribunals so constituted, and whether remedies
normally associated with actions in civil Courts are prescribed by the said statute or
not.
3. Challenge to the provisions of the particular Act as ultra vires cannot be brought
before the tribunals constituted under that Act. Even the High Court cannot go into
that question on a revision or reference from the decision of the tribunals.
4. When a provision is already declared unconstitutional or the constitutionality of any
provision is to be challenged, as 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.
5. Where the particular Act contains no machinery for refund of tax collected in excess
of constitutional limits or illegally collected a suit lies.
6. Questions of the correctness of the assessment apart from its 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 a
7.

relevant inquiry.
An exclusion of the jurisdiction of the civil Court is not readily to be inferred unless
the conditions above set down apply.

Here though there is no express bar to the jurisdiction of civil court it can be seen that
there is implied bar to the jurisdiction, which is the second point laid down in the case
because the ID act3 creates through Chapter II and section 10 and 33C a full fledged
3 Infra Note 5
2

complete mechanism to adjudicate and to provide remedy with regard to these rights
specially created by the act on matters that are industrial disputes as defined in sec 2 (k).
In the words of Untwalia, J., since the time of the earliest decisions of the Federal Court
and the Supreme Court of India it has been recognized fully well that the powers of the
authorities deciding industrial disputes under the Act are very extensive much wider than
the power of a Civil Court while adjudicating a dispute which may be an industrial
dispute. The jurisdiction of the civil court is ousted impliedly to in a case which could
form the subject matter of an industrial dispute collectively between workmen and their
employers4. ID Act5 creates a special machinery under sections 10, and 33C to enforce
specially created right because of which the ordinary court cant be approached by the
parties. The scheme of ID Act clearly excludes the jurisdiction of civil court by
implication in case of remedies that are available under the act and for which there is
complete procedure and machinery provided in the act6. There is no complete ouster if
jurisdiction of the civil court in matters regarding industrial disputes because individual
aggrieved cannot approach the Tribunal or the Labour Court directly for the redress of his
grievance without the intervention of the Government7.

4 C. T. Nikam v. Municipal Corporation of Ahmedabad, AIR 2002 SC 997

5 Industrial Disputes Act, 1947

6 Jitendra Nath v Empire of India & Ceylon Tea Co., AIR 1990 SC 255

7 Infra Note 11
3

Where an Act creates an obligation and enforces the performance in a specified manner,
we take it to be a general rule that performance cannot be enforced in any other manner 8.
If a new obligation is imposed by statute, and in the same statute a remedy is provided for
nonfulfillment of the obligation, then that remedy is the only remedy. The matter would
have had be different only if the obligation imposed under the statute brings into
existence a right in favour of an individual but provides no remedy for its enforcement.
This has been reiterated by Subba Rao, J as even if there was no such specific exclusion
(of jurisdiction of civil courts by the statute) , if it creates a 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 said remedy could be had9.
In the present case, we can see that there is a right to apply for adjudication in case of
industrial disputes that is being granted by the act and can be enforced by the act, and not
by the general law. This is not a case were the a obligation is not remedied by the ID Act
through the mechanism in 10 and 33C, nor does it fall into the category of violation of the
contract of service recognized only by the general law and not in ID Act 10. Supposing
after providing for awarding of certain compensation in Chapter VA of the Act there was
8 Doe D. Bishop of Rochester v Bridges, (1831) 1 B & Ad 847

9 Hari Kishan and others v. The Administrator, Municipal Committee, Ludhiana, 1964 SCR (2)
273

10 Austin Distributors v. Nilkumar, 1970 Labour IC 323 (C)


4

no provision made in it like section 10 or section 33C, then there would have arisen a
case were the statue is providing for award of compensation, but not remedy is being
made for its enforcement. In such a case, the civil court would have had jurisdiction to
look into the matter. But here, since in the matter under consideration, right and a
mechanism to meet and enforce that right has been laid down, it impliedly strikes down
the jurisdiction of the civil court as the specific act lays down the manner of enforcement
and hence a general act cant have a say in the matter.
It can be seen that the Supreme Court has laid down four principles with regard to the
jurisdiction of civil court with respect to industrial dispute11:
1. If the dispute is not an industrial dispute, nor does it relate to enforcement of any
other right under the Act the remedy lies only in the civil court.
2. If the 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 the Civil Court is
alternative, leaving it to the election of the suitor concerned to choose his remedy for
the relief which is competent to be granted in particular remedy.
3. If the industrial dispute relates to the enforcement of a right or an obligation created
under the Act, then the only remedy available to the suitor is to get an adjudication
under the Act.
4.

If the right which is sought to be enforced is a right created under the Act such as
Chapter VA then the remedy for its enforcement is either section 33C or the raising of
an industrial dispute, as the case may be.

11 Premier Automobiles Ltd. v. Kamelekar Shantharam Wadke, 1976 SCR (1) 427
5

It has been specifically laid out in this case that when a right is to be enforced under Chapter 5A,
which is the chapter from which the right arises in this case, then the remedy for its enforcement
is as per Section 33 C of the act, thereby making it clear that the present fact scenario it the right
being sought for is not one created by general law, but instead by the specific act.
Also, the case strictly lays down the position of law as for adjudication of an industrial dispute in
connection with a right or obligation under the general or common law and not created under the
Act, the remedy is not exclusive but alternative, while for the enforcement of a right or an
obligation under the Act the remedy provided in the act in it is the exclusive remedy. The
position provided in the act is as per section 33C, where the party claiming the right are to
approach the government for setting up means for adjudication.
This position can be seen as had been adopted in various foreign judgments too. When the
special statute under consideration gave a right to recover expenses in court of Summary
Jurisdiction from a person who was not otherwise liable at common law, it was held that there
was no right to come to the High Court for a declaration that the applicant had a right to recover
the expenses in a court of Summary Jurisdiction. Lord Watson in that case expressed out "The
right and the remedy are given uno flatu, and the one cannot be dissociated from the other." In
other words if a statute confers a right and in the same breach provides for a remedy for
enforcement of such right the remedy provided by the statute is an exclusive one12.
Further, going by the test of scope and purpose of a statute 13, it can be seen that the object of the
Act, as its preamble indicates, is to make provision for the investigation and settlement of
12 Barraclough v. Brown, [1897] AC 615

13 Cutler v. Wandsworth Stadium Ltd., [1949] AC 398


6

industrial disputes, which means adjudication of such disputes also. Hence the mechanism laid
down in the ID Act prevails over approaching the civil court.
I

WHETHER A PERMANENT INJUNCTION NEED TO BE GRANTED

No, a permanent injunction cant be granted because:


a. The position of law in England that even if a suit could not lie in a civil court for
enforcement of the right, still the remedy of injunction by a suit was not lost 14 is not the
position of law in India. The principle of separate remedy only for the purpose of
injunction available in a court of Chancery, which was kept intact even after the
Judicature Act of 1873 is not applicable in India and the jurisdiction of the Civil Court in
India is limited to cases in which there is a right at law, that is to say a right to be pursued
in such Court15. So by virtue of the above arguments, since the civil court doesnot have
jurisdiction the rights of parties under the ID Act, it doesnt have the jurisdiction to
pronounce a permanent injunction too.A suit merely for the purpose of injunction would
not lie to prevent an action which when completed cannot be challenged in a civil court16.
b. As an arguendo it can also be seen that till date because the plaintiff had been availing
renumeration in accordance with the new scheme, it shows their tacit consent to the
scheme. A person cant apply for injunction once they have availed and have benefitted
from the scheme that they are challenging because that party cant avail the same benefit

14 Stevens v.Chown, [1901] 1 Ch 894

15 Supra note 11, The State of Orissa v. Madan Gopal Rungta and others, AIR 1952 SC 12

16 K. S. Venkataraman & Co. v. State of Madras, 1966 SCR (2) 229


7

in two different ways. So even if the learned court finds that it has jurisdiction to deal
with the matter, no injunction can be granted to the plaintiff.

PRAYER

Wherefore in the light of the facts stated, issues raised, arguments advanced and
authorities cited, it is most respectfully prayed before this Learned Court that it may be
pleased to declare:
1. That it has no jurisdiction to hear the present matter
2. That no permanent injunction can be granted
3. And further pass any other order or decree in favour of the defendant as this
Learned Court may deem fit in the ends of equity, justice and good conscience.
All of which is most humbly and respectfully prayed.

Date: 6. 08. 2015

Counsel for the Defendant

Place: Jodhpur