Jurisdiction of Civil Courts

"Expressly barred." A statute says in terms that no civil court shall have jurisdiction over this class of case. That is the easy version, though even there the bar is not absolute, as Dhulabhai shows.

"Impliedly barred." No section says so, but the scheme of the Act shows Parliament meant the special forum to be the only one, typically by creating a complete machinery with its own remedies and appeals.

"Subject to the provisions contained herein." Section 9 gives jurisdiction over the subject matter. It does not tell you which particular court. That is [Place of Suing], sections 15 to 20, and pecuniary and territorial limits come from other statutes.

Kinds of jurisdiction

The syllabus topic says "jurisdiction and its kind", so know the four, and know which of them a defect in is fatal.

Subject-matter jurisdiction. Whether this class of court can hear this kind of case at all. A small causes court cannot try a title suit.

Pecuniary jurisdiction. Whether the value of the suit is within this court's limit. Section 15 requires the suit to be filed in the court of the lowest grade competent to try it.

Territorial jurisdiction. Whether the cause of action or the property or the defendant falls within this court's local limits. Sections 16 to 20.

Original and appellate jurisdiction. Whether the court is hearing the matter first, or on appeal from another.

The distinction that carries marks: a defect in subject-matter jurisdiction is inherent and goes to the root, so the decree is a nullity and can be attacked at any time. Defects in pecuniary or territorial jurisdiction are treated far more leniently, and are largely cured by section 21 unless they caused a failure of justice. That is dealt with in [Objections to Jurisdiction].

The leading case

Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78, decided by a bench presided over by Hidayatullah CJ.

Facts. The appellants were tobacco dealers doing business in Ujjain. Under notifications issued by the State Government under the Madhya Bharat Sales Tax Act 1950, sales tax was levied on them and collected. They said the levy was unconstitutional, being contrary to the prohibition in Article 301, and filed civil suits for a refund of the tax paid. The State answered that the Sales Tax Act provided its own machinery and that the civil court's jurisdiction was therefore excluded.

Held. The Court laid down principles governing when a statute excludes the civil court, of which these are the ones an answer must carry. Where a statute gives finality to the orders of a special tribunal, the civil court's jurisdiction is excluded if the statute provides an adequate remedy to do what a civil court would normally do in a suit. Even then, exclusion does not cover cases where the provisions of the particular Act have not been complied with, or where the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. Where there is an express bar, the scheme of the Act and the adequacy of the remedies it provides are relevant, but not decisive, in deciding whether the civil court survives.

Why it matters here. It converts the phrase "expressly or impliedly barred" into something a student can actually apply. The question is never simply "does the statute say no civil court". It is whether the special forum can give the same relief, and whether it stayed within the Act and within basic judicial procedure. Where it did not, the civil court comes back.

A worked example

Rekha runs a shop in Bhandup. The municipal authority levies a charge on her under a State Act which sets up a tribunal to hear objections and says the tribunal's decision "shall be final". Rekha wants to sue in the City Civil Court to recover what she has paid.

Step one, is it a suit of a civil nature? Yes. It concerns money and property rights, and nothing about it is religious or purely political.

Step two, is there an express bar? The Act gives finality to the tribunal's orders, which points towards exclusion.

Step three, apply Dhulabhai. Does the Act provide an adequate remedy that does what a civil court would do, that is, can the tribunal order a refund? If it can, the civil court is excluded and Rekha must go to the tribunal. If the Act gives no power to refund, the civil suit survives, because a finality clause only excludes the civil court to the extent the statute actually replaces it.

Step four, the exceptions. Even if the remedy is adequate, Rekha can come to the civil court if the authority acted outside the Act, or if the tribunal ignored the fundamental principles of judicial procedure, for instance by deciding without hearing her.

Change one fact. Suppose Rekha's complaint is that the levy itself is unconstitutional. A tribunal created by the same Act is generally in no position to hold its parent Act invalid, which is one of the situations in which the civil court's jurisdiction is not taken away.

A Maharashtra point our readers need

Until recently Maharashtra had its own section 9A, inserted into the Code in its application to this State. It required a court, where jurisdiction was challenged, to decide that issue as a preliminary issue before granting or continuing interim relief.

Section 9A was deleted by the Code of Civil Procedure (Maharashtra Amendment) Act 2018, Maharashtra Act 61 of 2018. The saving provisions that came with the deletion say that where consideration of a preliminary issue framed under section 9A was pending when the amendment commenced, that issue is deemed to be an issue framed under Order XIV and is to be decided along with all the other issues at the final disposal of the suit; and that pending revisional proceedings challenging a decision upholding jurisdiction stand abated.

Why this is in the book. Every student reading this will practise in Maharashtra, and a good deal of older material still describes section 9A as live law. It is not. The current position here is the ordinary one: jurisdiction is an issue like any other, framed under Order XIV, unless the court thinks fit to try it as a preliminary issue in the ordinary way.

What it does not mean

Section 9 does not tell you which court to file in. It answers whether a civil court can hear this kind of case at all. Which particular court is sections 15 to 20.

A finality clause is not the end of the argument. Dhulabhai is the answer to that.

"Civil nature" is not decided by the questions the court must answer along the way. Explanation I settles that: a contested right to property or office is civil even if the answer turns entirely on a religious question.

An implied bar is not inferred from the mere existence of a tribunal. It requires a scheme showing the special forum was meant to be exclusive, with adequate remedies.

Quick revision

Section 9: all suits of a civil nature, except where cognizance is expressly or impliedly barred. The burden is on the party asserting the bar.

Explanation I: a contested right to property or office is civil even if it depends entirely on religious questions. Explanation II: it does not matter that the office carries no fees or is not attached to a place.

Kinds: subject-matter, pecuniary, territorial, original and appellate. A subject-matter defect is inherent and makes the decree a nullity; pecuniary and territorial defects are largely cured by section 21.

Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78: finality excludes the civil court only where the statute gives an adequate remedy, and never where the Act was not complied with or the tribunal ignored fundamental principles of judicial procedure.

Maharashtra: section 9A is deleted, by Maharashtra Act 61 of 2018.

Test yourself

1. State section 9 in two sentences. Courts have jurisdiction to try all suits of a civil nature, subject to the provisions of the Code, except suits of which their cognizance is expressly or impliedly barred. The burden of showing the bar lies on the party who asserts it.

2. A suit turns entirely on whether a religious ceremony was validly performed, but the relief claimed is a right to an office. Is it a suit of a civil nature? Yes. Explanation I to section 9 provides that a suit in which the right to property or to an office is contested is of a civil nature notwithstanding that the right may depend entirely on the decision of questions as to religious rites or ceremonies, and Explanation II adds that it is immaterial whether fees attach to the office.

3. A statute says a tribunal's decision "shall be final". Does that always exclude the civil court? No. Following Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78, exclusion follows only if the statute provides an adequate remedy to do what a civil court would normally do, and even then the civil court is not excluded where the provisions of the Act have not been complied with or the tribunal has not acted in conformity with the fundamental principles of judicial procedure.

4. Name the kinds of jurisdiction and say which defect is fatal. Subject-matter, pecuniary, territorial, and original as against appellate. A defect in subject-matter jurisdiction is inherent and makes the decree a nullity. Defects as to the place of suing or pecuniary limits are largely cured by section 21 unless there has been a consequent failure of justice.

5. What is the position of section 9A in Maharashtra? It has been deleted, by the Code of Civil Procedure (Maharashtra Amendment) Act 2018, Maharashtra Act 61 of 2018. Issues of jurisdiction pending as preliminary issues under it are deemed to be issues framed under Order XIV and are decided with the other issues at the final disposal of the suit.