Unit VII- Place of Suing (Ss.

15 & 25)

1. Ss. 15 to 25 of the CPC deal with the place of suing.

2. S.15 provides for the pecuniary jurisdiction of a court and states that every suit shall
be instituted in a court of the lowest grade competent to try it.
3. However, this is a mere rule of procedure and doesn’t imply that if a suit is instituted
in a higher court, the decree of such higher court shall be a nullity.
4. The object of this provision is to ensure that the higher courts are not overburdened.
Further, it makes it more convenient for litigants.
5. The valuation of the suit depends on the plaintiff’s valuation in his plaint.
6. If the court finally makes a finding that the valuation made by the plaintiff is incorrect,
it doesn’t become incompetent to pass a decree with respect to such amount even
though the same exceeds its pecuniary jurisdiction. This was also upheld in Kiran Singh
v. Chaman Paswan.
7. If however, the court finds that the valuation made by the plaintiff is false, it shall be
the duty of the court to return the suit to be filed in the appropriate court.
8. The court may even require the plaintiff to prove such valuation and its basis.
However, if the court is unable to come to a conclusion about the valuation, it has to
accept the valuation of the plaintiff.
9. For the purpose of territorial jurisdiction, there are four main categories of suits,
namely-suits with respect to immovable property, suits with respect to movable
property, suits for compensation for wrongs or torts and other suits.
10. S.16 to S.18 deals with immovable property.
11. S.16 deals with the following 6 kinds of suits-
(a) Suits for recovery of immovable property with or without rent and profits
(b) Suits for partition of immovable property
(c) Suits for foreclosure, sale or redemption incase of a mortgage of or a charge upon
immovable property
(d) Suits for wrongs against immovable property
(e) Suits for determination of any rights or interests in immovable property
(f) Suits for recovery of movable property actually under distraint or attached

12. The section provides that in such cases, jurisdiction shall lie with the court having
territorial jurisdiction with respect to the area in which such property is situate.
13. Further, with respect to wrongs committed against immovable property wherein the
defendant is willing to submit himself to the court’s jurisdiction, jurisdiction shall lie
with the court having territorial jurisdiction with respect to the area in which such
property is situate or with respect to such area where the defendant actually and
voluntarily resides, carries on business or personally works for gain.
14. S.17 further provides that incase of any wrong to an immovable property and such
property comes within the jurisdiction of more than one court, the court within whose
territorial limits any portion of such property is situated shall have jurisdiction with
respect to the case, provided it has pecuniary jurisdiction with respect to such suit.
15. S.18 further provides that where there is an uncertainty as regards which court’s
jurisdiction such property is exactly situate, any one of such courts may take
 cognizance of the case after recording a statement as regards such uncertainty,
provided such court has the jurisdiction to try the suit.
16. S.18 (2) further provides that where such statement is not recorded and an objection
is brought before an appellate or revisional court that such court doesn’t have the
required jurisdiction, the appellate or revisional court shall not allow such objection
unless it is of the opinion that there is no reasonable ground of uncertainty as to the
jurisdiction of the court at the time of institution of the suit and there has been
consequent failure of justice.
17. S.19 deals with suits for wrongs done to persons and movable property. It states that
a suit for such act may be brought at the option of the plaintiff at the place where the
wrong has been committed or at the place where the defendant ordinarily resides,
carries on business or works personally for gain.
18. This is based on the principle that movables follow the person or Mobilia sequntur
personam.
19. Where such wrongs consist of a series of acts, a suit can be filed at any place where
any of such acts has been committed. Further, where a wrongful act commences at
one place and its consequences can be seen at another, a suit can be instituted at the
option of the plaintiff where the action took place or where the consequences where
seen.
20. S.20 covers all other suits and states that subject to the limitations provided in the
previous provisions, a suit shall be instituted in any of the following courts within
whose local limits-
(a) The cause of action in whole or in part arises
(b) The place where the defendant or any of the defendants (if more than one) actually
and voluntarily reside, carry on business or work for personal gain
(c) Where there is more than one defendant, the suit shall be instituted, where any
one of them actually and voluntarily resides, carries on business or works for personal
gain provided the leave of the court has been taken or the other defendant (s)
acquiesce to the same.

21. As a general rule, a decision given by a court which does not possess the required
jurisdiction to do so will render such decision as being a nullity. This is particularly with
regard to a court lacking the required subject matter jurisdiction.
22. However, lack of territorial and pecuniary jurisdiction is regarded by the court as being
merely technical and it may be waived. Lack of such jurisdiction will not render the
decree passed by such court as being a nullity.
23. S.21 provides for the same and states that with respect to lack of territorial or
pecuniary jurisdiction, no objection as to lack of jurisdiction will be allowed by the
appellate or revisional court only if the following conditions are satisfied-
(a) The objection was taken at the court of first instance.
(b) It was taken at the earliest possible opportunity and in cases where issues are
settled, at or before such settlement of issues.
(c) There has been a consequent failure of justice.

24. All three conditions must necessarily coexist and exceptions cant be made with
respect to the same.
25. This is done so as to protect honest litigants from any sort of harassment.
26. The reason for the same is that jurisdiction cannot be conferred by way of consent,
waiver or acquiescence upon a court which is otherwise incompetent. However,
objection as to local jurisdiction of a court doesn’t stand on the same footing. This has
also been held in the case of Kiran Singh v. Chaman Paswan.
27. Exception has been made with respect to pecuniary jurisdiction primarily because the
valuation of a suit depends on the plaintiff and thus objection as to the same must be
taken by the defendant at the earliest possible opportunity.
28. However, objection as to subject matter jurisdiction may be sustained even in
collateral proceedings.
29. S.21 (3) provides that the same conditions are applicable in case of execution
proceedings as well.
30. S. 21-A constitutes a bar on the filing of a substantive suit to set aside the decree
passed by a court on the ground of place of suing.
31. However, this provision seems defective as it relates primarily to local or territorial
jurisdiction and not pecuniary jurisdiction. Nevertheless, pecuniary jurisdiction has
been taken to have been covered under the same.
32. S. 22 provides that where a suit may be instituted in more than one court and it has
been instituted in any one of such courts, any defendant may after giving notice to all
the parties to the suit and at the earliest possible opportunity and in all cases where
issues are settled, at or before the settlement of such issues, apply to have the case
transferred to another court. The court to which such application is made shall then
after considering the objections of the other parties, if any determine as to which of
the courts the case may be transferred.
33. S. 23 provides as to which court an application must be made. Where there are several
courts having jurisdiction subordinate to the same appellate court, application must
be made to such appellate court. Where they are subordinate to several appellate
courts but to the same High Court, application must be made to such High Court.
Further, where the courts are subordinate to different High Courts, the application
shall be made to the High Court within whose local limits the suit brought are situate.
34. S.24 empowers the High Court or District Court to transfer cases amongst subordinate
courts on application of any of the parties and after giving them notice about the same
and hearing them or on its own motion. (Read)
35. S. 25 gives such power to the Supreme Court to transfer cases between High Courts
or civil courts.
 Unit VIII- Parties to a Suit (O. I)

1. Order I Rule 1 provides for joinder of plaintiffs if the following conditions are satisfied-
(a) The relief alleged to exist in such plaintiffs arises out of the same act or transaction.
(b) The case is of such a character that if there were separate suits instituted by each
plaintiff, common questions of law or fact would arise.

2. Rule 3 lays down that the same conditions are applicable as regards the joinder of
defendants as well.
3. Further, under Rule 2 (for plaintiffs) and Rule 3-A (for defendants), the court may
order separate suits if it is of the opinion that a joinder of parties would lead to
embarrassment or delay in trial.
4. Rule 4 further provides that the court has the power to provide relief in favour of or
against any one of the plaintiffs or defendants respectively if it deems fit.
5. Rule 5 provides that there is no hard and fast rule that all the defendants must be
interested in all the relief claimed.
6. Rule 6 pertains to contracts and states that the plaintiff may join the defendants
regardless of the fact that they are liable severally or are jointly and severally liable.
This also pertains to bills of exchange, hundis and promissory notes.
7. Rule 7 provides that if the plaintiff is in doubt as to the liability of each or any of the
defendants, he may join all or any of them in a suit so that the liability of each may be
determined.
8. Necessary parties are those who are indispensable to the suit and in whose absence
no effective order can be passed.
9. The two tests which help is determining as to whether or not a party is a necessary
party are as follows-
(a) A relief must have been claimed in the suit against such party in respect of the
matter involved in such proceeding.
(b) It should not be able to pass an effective decree in the absence of such party.

10. A proper party on the other hand is one in whose absence an effective decree may be
passed. However, his presence allows the court to adjudicate more effectually and
completely. In the absence of such party, a court may pass a decree as long as it relates
to the parties to the suit.
11. An example may be given of a suit for recovery of rent wherein a tenant is a necessary
party while a sub-tenant is a proper party.
12. Rule 9 provides for non-joinder and mis-joinder of parties.
13. Non-joinder of parties is when a necessary party or a proper party has not been joined
in the suit. Mis-joinder of parties on the other hand means that under Rules 1 and 3,
the parties joined are neither necessary nor proper parties to the suit.
14. As a general rule, mere non-joinder or mis-joinder of parties cannot lead to dismissal
of a suit. However, where there has been a non-joinder of a necessary party, the suit
or appeal is liable to be dismissed on that ground alone.
15. In BP Rao v. State of Andhra Pradesh, the court did not dismiss the suit on the ground
of non-joinder of parties as it stated that the parties as had not been joined as parties
were represented by those who were parties to the suit.
16. Also a decree passed by the court on the ground of merits cannot be set aside on the
ground of misdescription of the defendant.
17. Rule 13 provides that all objections as to non-joinder or mis-joinder of parties must be
taken at the earliest possible opportunity and in cases where issues are to be settled,
before or at the time of settlement of such issues unless the ground of objection has
subsequently arisen. If the defendant objects to the same and the plaintiff waives such
right, he will not be allowed to rectify the same later.
18. Rule 10 provides for adding or striking out of the names of parties.
19. Rule 10 (1) provides that where a person’s name has been wrongly added as plaintiff
or where such plaintiff feels that the suit cannot be decided without adding another
person as plaintiff, the court may add or substitute such person as may be necessary
as plaintiff.
20. For the same, the following conditions must be satisfied-
(a) There was a bona fide mistake in filing the suit in the name of the wrong person.
(b) The substitution or addition is required so as to determine the real matter in the
dispute.

21. Such amendment may be allowed by the court at any stage of the suit based on the
circumstances.
22. However, no person may be added as a plaintiff without a next friend or as a next
friend suing for a plaintiff with some disability as per Rule 10(3).
23. Rule 10(2) provides that where the court by way of application of the parties or on its
own feels that the name of a particular party must be struck out or must be added to
completely decide the matter involved in the case, it can strike out or add the name
of such party.
24. However, while exercising its powers under Rule 10(2), the court must keep in mind
the fact that the plaintiff being dominus litis, he must be allowed to choose his
opponent and must not be compelled to fight against any person he doesn’t wish to.
25. But, if the court is satisfied that the addition of a party is necessary to conclusively and
effectively decide the case, it may still go ahead with the same irrespective of whether
or not the plaintiff wants the same.
26. In Anil Kumar v. Shivnath, it was stated that the main object of this provision was to
ensure that all persons with respect to the dispute are brought on record and the suit
may be decided once and for all, thereby avoiding any multiplicity of proceedings.
27. The test is whether or not the addition of parties is required to finally decide the
matter in question and not whether the plaintiff approves of the same.
28. Rule 10(4) states that where a defendant is added, the plaint must be suitably
amended and copies of the plaint as well as the summons must be served on the
defendant (s). Rule 10(5) further provides that for the purpose of the limitation act,
proceedings against the defendant are deemed to be instituted when summons are
served on him.
29. The principle under Rule 10 (2) has also been provided in Razia Begum v. Anwar
Begum.
30. Further, Rule 10-A provides that the court in its discretion may ask a pleader to
address before it any interest as may be affected by way of the decision of the court
especially when the party whose interest may be affected is not represented by a
pleader.
31. It has further been upheld in Ramesh v. Municipal Corporation of Bombay, that the
test is not whether the presence of the party shall assist the court to come to a correct
solution but whether or not the interests of the party to be added are actually going
to be affected by such decision.
32. Generally speaking, all persons interested in a suit must be added as parties to a suit.
However, the concept of representative suits under Order I Rule 8 of the CPC is an
exception to the same.
33. Rule 8 provides that one or more persons may sue or be sued on behalf of numerous
persons having the same interest in the suit with the permission or direction of the
court.
34. The plaintiff who wishes to sue in such cases need not obtain the permission of the
persons on whose behalf he sues.
35. The object of the provision is to facilitate decisions with respect to questions in which
a large number of persons are interested and thereby avoid the multiplicity of suits.
36. What is important is that such persons must have a common interest and a common
grievance.
37. This is however an enabling provision and no person shall be compelled to represent
numerous persons in a representative suit. Further, no person has a vested right to
sue under this provision.
38. For the operation of this provision, the following conditions must necessarily exist-
(a) The parties must be numerous.
(b) They must have the same interest in the suit.
(c) The permission or direction of the court must have been obtained for filing of such
suit.
(d) Notice must have been issued to the parties who have been proposed to be
represented by such suit (either personal service or by public advertisement).

39. Numerous persons here have not been defined and it is not necessary that they should
be capable of ascertainment however they must be sufficiently definite.
40. The factor which needs to be considered is whether such persons have a common
interest and a common grievance which they seek to redress. With the addition to the
explanation to this rule, it is now settled that the persons seeking redressal under this
provision need not have the same cause of action and the same was upheld in TN
Housing Board v. Ganapathy.
41. The permission (sub rule 1(a)) or direction (sub rule 1(b)) is necessary in such suits.
42. However, such permission may be granted even after the filing of the suit or at the
appellate stage and may be express or implied.
43. When a person sues or is sued on behalf of himself and several others, the decision
given by the court in such case is binding on all such persons as per Rule 8(6), unless
the decree is obtained by way of fraud or collusion.
44. Thus, notice of such suit must be given to all such persons as the decision will bind not
only those on record but also those who are not on record. [Rule 8(2)]
45. It is the duty of the court to ensure that notice is given either by way of personal
service or public advertisement as per Rule 8(2).
46. No such suit shall be abandoned or withdrawn and there shall be no agreement or
compromise or satisfaction recorded unless the court gives notice to all interested
 persons at the expense of the plaintiff. [Rule 8(4) to be read with Order XXIII Rule 3-
B]
47. The fact that the suit is a representative one must be stated in the plaint as well as the
title of the suit.
48.
49. Rule 8(3) provides that any person might make an application to be added to such suit
by showing that the same is not in proper hands and his interests would be
prejudicially affected if he is not added as a party. However, he cannot replace the
original parties and will be added only as a co-plaintiff or co-defendant.
50. However, after the addition of Rule 8(5), it has now been established that where the
person representing the interests of others and his own in such suits doesn’t proceed
with due diligence, he may be replaced by the court at its discretion.
51. Rule 8-A provides that if the court is satisfied that a person or body of persons in
interested in a question of law directly and substantially in issue in such a suit and it is
necessary in public interest to permit such person or body of persons to express his/its
opinion, it may allow the same and may allow such person (s) to take part in the
proceedings.
52. Incase of a representative suit, the death of a person doesn’t affect the rights of the
other interested persons.
53. Rule 11 provides that the court may give the conduct of the suit to such person as it
deems proper.
54. Rule 12 provides that where a number of persons have either been joined as plaintiffs
or defendants, any one or more of them may authorise any one or more of them in
writing to plead on their behalf.

CPC – Introduction & History

 Substantive v Procedural Law

Substantive
Defines rights, liabilities and duties
and defines under what conditions a
certain right or liability exists
Concerned with the ends with which
the administration of justice seeks.
Example – IPC, ICA, SOGA
Procedural
Deals with the process of litigation –
the means and instruments by which
the ends of administration of justice
are worked out.
Concerned with the means and
instruments by which these ends are
to be attained.
Examples – CPC, CRPC
 Procedural Law is subservient to the substantive law – It can’t take
away anything given by the Substantive Law and it cannot give
anything if it’s not given by the Substantive Law. That being said for
Substantive law to function expeditiously and in a just manner,
Procedural Law has to be present.
 State of Punjab v Shamla Murari – procedural law is a servant and
not a tyrant – it’s a lubricant and not a resistant.
 CPC neither creates nor takes away any right and regulated the
functioning of Civil Courts. It is an act which consolidates and amends
the laws relating to procedure for civil courts.
 History of the Code:
 Before 1859 there were many codes being followed – no uniformity –
Bengal itself had 7 codes being applied in its area.
1. 1859 – First CPC was passed – only applicable to Mofussil Courts
and not to SCs in the presidency towns.
2. 1877 – a new code to repeal the previous code because of short
comings
3. 1882 – repealed the previous code and this code worked for more
than a quarter of a century – still too rigid and inadequate – 59
parts, 49 chapters and 652 sections
4. 1908 – superseded the previous code – came into force from 1st
Jan, 1909 – Select Committee was created for this purpose – body
divided into two main parts – body of code (the statutory part)
and the schedule (the procedural part).
 Applicable to the whole of India except J&K, Nagaland and the
tribal areas.
5. 1976 – code thoroughly amended on the recommendations made
by the LC in its 27th, 40th and 54th reports on the following points:
 Litigant should get a fair trial in accordance of principles of NJ
 Civil suit should be disposed of expeditiously
 Procedure should be simplified
 Changes made:
a) Res Jud
b) Power to the SC – proceedings from one HC to another
c) Portion of salary granted to all salaried employees.
d) Certain restrictions on right to appeal – only question of
law to be entertained up to 3000 in Small Causes Courts
e) Second appeal to the HC only for question of law.
f) No further appeal can be filed against the decision of a
single judge bench.
 g) Section 115 omitted which gave the power to the HC to
take a case from any court.
h) Provisions made to lessen the delay of filing of the written
statements and documents.
i) Order XVI – A: attendance of prisoners in courts to give
evidence and Order XXXII – special procedure in
litigations for family affairs.
j) Practice to pass preliminary and final decree in certain
suits abolished.
k) The scope pf summary suits widened. (basic cases)
l) Compensatory cost for delay.
m) Judgement debtor cannot be arrested in pity decree.( for
basic cases – one can’t be arrested)
 Based on Law Commission reports – 27th, 40th, 54th and 55th.
6. 1999 and 2002 – The previous amendments were not sufficient so
the Malimath Committee was appointed – and in pursuance of
the committee’s recommendations the code was amended.
Brought into force on 1st July, 2002.
 In 1996 – the arbitration law was passed which affected the
code and hence required certain changes.
 Recommendations of the 11th Lok Sabha Committee on
unnecessary judgements would cost more.
 The amendment of 1999 was not codified – got modified and
the amendment was passed in 2002.
 The concepts of fair play, evidence being admitted in the form
as an affidavit and the process of arbitration was introduced.
 Salem Bar Association v UOI 2003 and 2005 questioned the
validity of the amendments but the courts upheld them as
they were not in violation of the Constitution.
 Changes Made:
a) A plaint shall be filed in duplicate with necessary
documents and the written statement should be made
within 30 days.
b) Plaintiff summons from courts to avoid delay
c) Affidavit with the Examination in Chief as oral
pleadings took time.
d) Property dispute – application to the court for
evaluation
 e) J. Malimath Comm. – No further appeal from the
judgement of a single bench judge shall be in petition
under 226 or 227.
f) Copies of judgement to be made.

 Flexibility?
 The code of 1882 was considered to be very rigid. To make the
situation less rigid the code of 1908 was divided into two parts – the
body of code and the schedule. The body of code could only be
modified by the legislation whereas the High courts could make
rules according regulating the procedure by altering or modifying
the the schedule part of the code. These changes could be made as
long they were not in conflict of the body of the code as that would
be against the fundamental nature of the code. This is how they
maintained flexibility.
 Unit III- Jurisdiction

1. The Indian legal system has adopted one of the fundamental principles of English law-
ubi jus ibi remedium- wherever there is a right there is a remedy.
2. A suit is not barred unless there is a statute that expressly or impliedly bars it.
3. Jurisdiction is the power or authority of a court of law to hear and determine a cause,
adjudicate upon it and exercise any judicial power with respect to it.
4. The court may exercise jurisdiction with respect to a cause either on the basis of
subject matter, pecuniary value or local limits.
5. In Official Trustee v. Sachindra, it was held that a court will have jurisdiction over a
matter only if it has the authority to try the same as well as pass orders with respect
to the same.
6. Jurisdiction of a court cannot be created by consent of parties. If a court lacks inherent
jurisdiction with respect to a particular cause of action, the same cannot be created
by way of acquiescence, waiver or estoppel by the parties.
7. A decree passed without jurisdiction is non est and its validity can be challenged at
any point of time. It may be challenged even at the stage of execution or in parallel
proceedings. It is treated as being non coram judice.
8. Conversely, the jurisdiction of a court cannot be taken away by way of an agreement
between parties. Such an agreement is against public policy. (ex dole malo non oritur
actio)
9. But if two or more courts have jurisdiction with respect to a particular cause of action,
it is upto the parties as to which court they wish to go to. An agreement for the same
would not be invalid. (Hukam Chand v. Gammon India Ltd)
10. There is a difference between lack of jurisdiction and irregular exercise of jurisdiction.
11. Lack of jurisdiction is when the court lacks inherent jurisdiction to decide a case. There
cannot be any appeal in such cases and the decision given is void.
12. Irregular exercise of jurisdiction is when a court wrongly decides a case. In such cases,
there can be an appeal to such decision.
13. However, now due to the decision given in Anisminic Ltd. v. Foreign Compensation
Commission, there is virtually no difference between the two.
14. The basis to determine jurisdiction is the case put forward by the plaintiff in his plaint
and not the defendant’s written statement. For example if a plaintiff files a suit in a
civil court stating that the defendant is a trespasser, the defendant cannot challenge
the validity of the same stating that he is a tenant and hence the revenue court has
jurisdiction.
15. The plaintiff however cannot invest jurisdiction in a civil court by cleverly drafting his
plaint. It is thus dependent on the substance of the matter and not the form.
16. Again where a court has jurisdiction with respect to a particular dispute but not with
respect to a collateral issue, it can prima facie decide the collateral issue. However,
this doesn’t bar the court having jurisdiction over the collateral issue from deciding
the same.
17. It must be noted that if the court in which the suit is instituted lacks territorial or
pecuniary jurisdiction as regards the matter, the plaint shall be returned to be
presented in a proper court. However, with respect to lack of subject-matter
jurisdiction, the matter will be dismissed in its entirety.
18. The jurisdiction of a court or any other authority is dependent on the fulfillment of a
particular fact known as the jurisdictional fact.
19. A court or tribunal has the inherent power to decide whether or not it has jurisdiction
with respect to a particular matter.
20. When Parliament by way of statute confers jurisdiction on a tribunal, it has the
jurisdiction to exercise the same and no writ of certiorari can be issued challenging its
decision.
21. The different kinds of jurisdiction may be seen as follows-
(a) Local/ Territorial jurisdiction- the High Courts and District Courts have jurisdiction
only with respect to the particular territory in which they are situated.
(b) Pecuniary jurisdiction- This is when a particular court has jurisdiction to try cases
only upto a particular amount such as the Presidency Small Causes court can try cases
only upto 1000 INR. However, certain courts such as the High Courts and District
Courts have no pecuniary jurisdiction.
(c) Subject matter jurisdiction- Certain courts can exercise jurisdiction only with
respect to certain kinds of cases. For example, Presidency small causes courts cannot
decide matters with respect to partition of immovable property, specific performance
of contract, etc. Similarly, district judges and civil judge senior division have
jurisdiction with respect to divorce cases, testamentary matters, insolvency
proceedings, etc.
(d) Original and appellate jurisdiction- Courts having original jurisdiction such as
Munsif’s courts, courts of civil judges and small causes courts can entertain and decide
suits. Courts having appellate jurisdiction can entertain and decide appeals as in the
case of District courts and High Courts.

22. S.9 of the CPC provides for jurisdiction of civil courts. It states that a civil court has
jurisdiction to try all suits of a civil nature unless they are barred.
23. Suits of a civil nature includes all such suits where primarily, the private rights of
parties must be determined and enforced. It is distinguished from criminal or political
suits. The principal question to be determined is of a civil nature and such suits have
a wider scope than civil proceedings.
24. The first explanation to this section states that a suit with respect to right to property
or office shall be considered as being a civil suit even if it may depend entirely on the
determination of questions relating to religious rites or ceremonies. What is important
is whether or not the principal question is civil in nature.
25. The second explanation to this section which was added by the amendment of 1976
states that it is immaterial whether the office referred to in explanation 1 has any fee
attached to it or whether or not it is in a particular place.
26. Examples of suits of a civil nature- suits relating to right to property, suits with respect
to right to worship, suits relating to right to sharing in offerings, etc.
27. Examples of suits not of a civil nature- suits which principally involve caste questions,
suits against expulsion from a caste, etc.
28. Thus, a civil court may decide any suit of a civil nature provided it is not barred, either
expressly or by implication.
29. A suit is said to be barred expressly when it is barred by any enactment for the time
being in force.
30. It is thus open to the legislature to exclude the jurisdiction of a civil court with respect
to certain matters provided in doing so it doesn’t contravene the legislation which
confers such power on it and doesn’t do anything which is unconstitutional.
31. However, generally a presumption is made in favour of the fact that the civil court
infact has jurisdiction and the provisions of the statute barring such jurisdiction must
be strictly construed.
32. But, if the remedy in the statute is not adequate and all questions cannot be decided
by a special tribunal, the civil court shall have jurisdiction over the same.
33. Some examples of such cases are- those to be decided by the revenue court, industrial
tribunal, rent court, company law board, etc.
34. Suits barred by implication are those excluded by way of general principles of law. This
means that the civil court is prohibited from taking cognizance of such cases as are
against public policy such as a contract hit by S.23 of the contract act, an agreement
in restraint of trade as under S.27 of the Contract Act, etc.
35. However, the jurisdiction of the civil court must not be barred unless the statute
expressly bars the same or where there is a necessary or inevitable implication as
regards the same.
36. However, in cases where a tribunal or court created under a statute does not exercise
its jurisdiction in compliance with the statute in question or passes orders as are mala
fides, ultra vires, arbitrary, etc, the civil court has the jurisdiction to decide whether or
not such order is valid or not. Such an act of the court/tribunal cannot be said to be
within the act but it is de hors the act.
37. The exclusion of jurisdiction of civil courts was comprehensively laid down in
Dhulabhai v. State of MP, wherein the following important principles were laid down-
(a) If a statute confers jurisdiction upon a special tribunal with respect to certain
matters and the remedies to be provided by such tribunal are the same as would be
provided by a civil court, the jurisdiction of the civil court will be excluded. However,
the civil court will have the authority to adjudicate upon matters such as whether or
not the decision of the tribunal was ultra vires the parent statute or whether or not it
was unconstitutional, etc.
(b) If a statute expressly excludes the jurisdiction of a civil court, an examination of
the adequacy of the remedies provided by such statute may be assessed however the
same shall not be regarded as being sufficient for the sustaining the jurisdiction of the
civil court.
(c) The tribunal constituted under the statute cannot go into the fact of the provisions
of the statute as being ultra vires. Even the High Court cannot go into such matters as
a revision or reference from such tribunal.
(d) Further, a suit shall lie incase of unconstitutionality of any statutory provision.
(e) A suit shall lie incase of illegal taxation or excessive taxation.
(f) Questions as regards correctness of assessment other than those with respect to
constitutionality shall be decided by the authorities constituted under the act and if
the act expressly states the decision of such authority being final, no suit shall lie in
the civil court with respect to the same.
(g) The jurisdiction of the civil court shall not be presumed to be excluded unless the
above conditions are adhered to.
38. In Premier Automobiles v. KS Wadke, the jurisdiction of civil courts with respect to
industrial disputes was examined. It was stated that incase of a dispute which was not
an industrial dispute and no remedy with respect to the same was provided under the
main statute, it shall fall within the jurisdiction of the civil court. Further, if there was
an industrial dispute which was one relating to a general or common law right not
covered under the act, the jurisdiction of the civil court would be an alternative and it
would be upto the parties to choose the forum. Also, in case of an industrial dispute,
rights with respect to which could be enforced under the act, the civil court would
have no jurisdiction.
39. The decision given in Rajasthan State Road Transport Corporation v. Krishna Kant,
summarized the principles as given in the previous case. It stated that incase of any
dispute which arises from the general law of contract would fall within the jurisdiction
of the civil court even if it were an industrial dispute. Further, incase of any dispute,
the rights and obligations with respect of which have been created under the
Industrial Disputes Act, civil courts would have no jurisdiction. The same would be the
case with respect to disputes under acts that may be considered as being parallel to
the Industrial Disputes Act such as the Employment (Standing Orders) Act especially
when these acts do not provide for a mechanism for dispute resolution.