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JURISDICTION AS A DEFENCE BY – ISHIKA JAIN
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JURISDICTION AS A DEFENCE
AUTHORED BY – ISHIKA JAIN
E-MAIL: ishikajainmrt2000@gmail.com
CONTACT NUMBER: 6395557920
UNIVERSITY/ COLLEGE: O.P. Jindal
Global University
EDUCATIONAL LEVEL: LLB’ batch of 2021
SUIT FOR THE EXPLANATION OF THE
CONCEPT OF JURISDICTION AS A DEFENCE UNDER CODE OF CIVIL PROCEDURE, 1908
MOST RESPECTFULLY SHOWETH:
1.
That the term Jurisdiction is derived from the Latin
words’ “juris” and “dicto”. Jurisdiction refers to the power granted by
the law to a court, commission, or judge to resolve any difference between the
parties, render a decision, or impose an order.[1]
The important issue for the court is jurisdiction, which gets to the heart of
the matter and determines the case's outcome either at the preliminary stage or
on the merits. Any order that was made without the proper legal authority loses
its validity and legal power.[2]
2.
That a Civil Court by the pursuant of Section 9 of
C.P.C can adjudicate a case under their jurisdiction if they fulfil sine quo
non which are, that suit must be civil in nature[3]
and cognizance of the aforementioned suit shall not be expressly or
impliedly barred by the law. [4]
a.
Suit Civil in Nature- The expression encompasses citizen's private
rights and obligations; political and religious issues are not included in that
expression. A lawsuit with caste or religious discrimination as the main issue
is not of a civil character.[5]
However, if the main issue in a lawsuit is of a civil nature (the right to
property or an office) and the adjudication incidentally involves the
resolution of a caste issue or the determination relating to religious rights
and ceremonies, it does not cease to be a civil nature lawsuit[6],
and the civil court's jurisdiction is not suspended. In order to determine the
primary question, which is of a civil nature, the court has jurisdiction to
rule on those issues as well.[7]
b.
Suits Impliedly Barred- When broad
legal principles prohibit a lawsuit, it is referred to as being impliedly
barred. Where a specific remedy is prescribed by a statue, the individual who
demands a remedy is thus denied any other form than that prescribed by the
statue.[8]
Similar to how certain lawsuits, despite being of a civil nature, are excluded
from the jurisdiction of a civil court on the grounds of public policy, where
an act establishes an obligation and enforces its performance in a specific
manner, that performance cannot be enforced in any other manner. A civil judge lacks the jurisdiction to
decide on political disputes.[9]
c.
Suits Expressly Barred- When a
lawsuit is expressly prohibited by any currently in effect law, it is said to
be expressly banned. Every presumption should be made in favour of the civil
court's jurisdiction, and the provisions for excluding a court's jurisdiction
must be strictly construed.[10]
If there is any doubt regarding the ousting of a civil court's jurisdiction,
the court will err on the side of an interpretation that would maintain the jurisdiction.
Similar to when a court of limited jurisdiction prima facie and incidentally
says something, the jurisdiction of a civil court is not barred if the remedy
given by the law is insufficient and all questions cannot be resolved by a
special tribunal.[11]
3.
That the jurisdiction of civil court is divided on the
basis of Territory, Pecuniary and subject-matter jurisdiction.
4.
That, jurisdiction can be challenged on various stages.
The CPC's Section 21 addresses the point where jurisdiction is contested. In Harshad
Chiman Lal Modi v. DLF Universal Ltd. and Anr., reported in AIR 2005 SC 4446,
[12]the
Hon'ble Apex Court considered the jurisdictional challenge and noted that the
jurisdiction of a court can be divided into a number of categories as mentioned
above.
a.
That When it comes to territorial and pecuniary
jurisdiction, objection to such jurisdiction must be made as soon as feasible
and, in any case, at or before resolution of issues. The law is clear that if
such an objection is not made as soon as possible, it cannot be permitted to be
made at a later time. [13]However,
subject matter jurisdiction is entirely separate and is based on a different
foundation. A court cannot take up a cause or matter if it lacks jurisdiction
over the subject of the lawsuit due to any restrictions imposed by a
legislation, charter, or commission.[14]
b.
That An order issued by a court without jurisdiction is
void, and its invalidity may be established whenever and wherever it is
attempted to be enforced or relied upon, including during execution and during
collateral procedures.[15] A
jurisdictional defect undermines the court's ability to issue any decree, and
it cannot be corrected—not even with the parties' agreement.[16]
c.
That In Chief Engineer Hydel Project v. Ravinder
Nath, reported in AIR 2008 SC 1315, [17]the
Supreme Court made the observation that once the original decree itself has
been found to be without jurisdiction and subject to the doctrine of coram
non judice, it would not be appropriate to uphold the same on the basis
that the jurisdictional challenge was not raised at the initial, First
Appellate, or Second Appellate stage.[18]
5.
That Jurisdiction face challenges as a Preliminary
issue, which are as follows:
a.
That When it seems from the assertion in the plaint
that the litigation is banned by any statute, Order 7 Rule 11(d)
requires that the plaint be dismissed. According to paragraph 13 of Ramesh
B. Desai v. Bipin Vadilal Mehta (AIR 2006 SC 3672), [19]this
argument is known as a demurrer. However, in this regard, only the allegations
in the plaint are to be taken into account, and neither the written statement
of the defendant nor any applications made by the defendant, nor any evidence
presented by the defendant, are to be taken into account. In Bhau Ram v.
Janak Singh, AIR 2012 SC 3023,[20]
paragraph 8, the Honourable Supreme Court made the following ruling:
The law has been established by this court in a number of instances
that while examining an application under order VII Rule 11 C.P.C., the court
must look at the allegations in the plaint and ignore the defendant's pleas in
its written statement. [21]
b.
That According to Section 9A of the CPC, if any of the
parties to the suit object to the Court's jurisdiction to hear the case at the
hearing of any application for granting or setting aside an order granting any
interim relief, the Court shall proceed to decide the jurisdictional question
as a preliminary issue at the hearing of such application before granting or
setting aside the order granting the interim relief. [22]It
states that any such application must be considered and resolved by the Court
as quickly as possible and cannot, under any circumstances, be postponed until
the hearing of the lawsuit. The legal rules in Section 9A's Subsection (2) give
the Court the authority to offer any temporary relief it deems necessary while
it decides the preliminary question of jurisdiction.[23]
c.
That According to Vaish Aggarwal Panchayat v.
Inder Kumar (AIR 2015 SC 3357), [24]this
question is a mixed question of law and fact that necessitates consideration of
an earlier judgement and pleading. As a result, the plaint cannot be rejected
on this basis in accordance with Order 7 Rule 11.(d).
d.
That Order 7 Rule 11(d) states that a complaint may
be dismissed at any time throughout a lawsuit, including after the resolution
of all problems. Vithalbhai Pvt. Ltd. v. Union of India AIR 2005
SC 1891, [25]which
cites Samar Singh v. Kedar Nath SAIR 1987 SC 1926[26]
at para. 19, is quoted below:- This Court held in Samar Singh v. Kedar
Nath, AIR 1987 SC 1929: 1987 Supp. SCC 663 [27]that
the right to summarily reject granted by Order 7 Rule 11 of the Code of Civil
Procedure can be exercised at the beginning of the proceedings and is also
available, in the absence of any statutory restrictions, to be exercised at any
stage of subsequent proceedings. Although the court has the right to evaluate
the maintainability of a claim at a later time, the court has also emphasised
the need of making a preliminary objection as soon as practicable.[28]
e.
That Regarding the bar of limitation, it has been
decided that order 7 rule 11(d) C.P.C. cannot be used unless it is clear from
reading the petition that it is blocked by limitation. According to the ruling
in Fatehji & Company v. L.M. Nagpal AIR 2015 SC 2301,[29]
the suit for the specific performance of a sale agreement was time-barred by
limitation when the plaint was read in its entirety and all of the accusations
assumed to be true. In overturning the High Court's decision, it was determined
that the trial court had properly dismissed the complaint in accordance with
order 7 rule 11(d) C.P.C.[30]
f.
That The
question of jurisdiction must therefore be resolved as a preliminary point or
issue, even though O. 14 R. 2 is not required by Order 7 Rule 11(d),[31]
if it does not call for the production of any evidence or an investigation of
the relevant facts. However, even after gathering and weighing the pertinent
material, such a question may be decided as a preliminary one under Order 14
Rule 2. But whereas Order 7 Rule 11 is required, this activity is optional.[32]
g.
That The plaint must be rejected if it does not
disclose a cause of action, according to order 7 rule 11(a).[33]
There are significant differences between failing to state a cause of action,
which may be decided after hearing the evidence, and failing to state a cause
of action, which must be determined only by reading the plaint.[34]
h.
That Order 14 Rule 2(2) prohibits the resolution of
factual disputes. Major S.S. Khanna v. Brig. F.J. Dillon, AIR 1964 SC 497[35],
the honourable Supreme Court held in paragraph 18 that "Normally
every dispute in a lawsuit should be attempted by the Court: not to do so,
particularly when the conclusion on issues even of law depends on the decision
of issues of fact, would result in lop-sided trial of the suit."
Even though order 14 rule 2(2) states that examination of evidence is not
prohibited, decisions on issues of fact are since order 7 rule 11 governs the
entirety of the filed. The contrast is that, when deciding a legal question as
a preliminary matter, order 14 rule 2(2) permits consideration of evidence that
is not denied or, ordinarily, cannot be denied. [36]Let's
say that a complaint makes no mention of prior litigation involving the same
parties and a similar cause of action. With certified copies of the pleadings
and verdicts from the former litigation, the defendant argues that the lawsuit
is precluded by res judicata or order 9 rule 9. Due to the absence of the bar,
the plaint cannot be rejected in accordance with order 7 rule 11(d). [37]
i.
That However, under order 14 rule 2(2), the issue of
bar framed on the defendant's plea may be considered as a preliminary issue
after considering the evidence presented by the defendant in the form of
certified copies, unless the plaintiff contests the accuracy of the same.
Similar to order 14 rule 2(2)[38],
evidence provided by parties or their representatives in accordance with order
10 rule 2 may be used at this stage. Similar to order 10, rule 2, evidence from
parties or their representatives may also be considered at order 14 rule 2(2).
In reality, such a declaration might be taken into account even at the order 7
rule 11. [39]
6.
While discussing the provisions of section 9 of the
CPC, the Hon'ble Supreme Court in the case of Dhulabhai, etc. v. State
of Madhya Pradesh and others reported in A.I.R. 1969 S.C. 78 [40](Constitutional
Bench) established the following law:
a.
Where the statute gives an expiration to the orders of
the special tribunals, the Civil Court's jurisdiction shall be held to be
excluded if there is a sufficient remedy to do exactly what the Civil Courts
typically do in a suit. However, this clause does not apply to situations in which
a specific Act's requirements have not been followed or a statutory tribunal
has not acted in accordance with the basic tenets of judicial procedure.[41]
b.
Examining the design of the specific Act to determine
whether the remedies offered are adequate or sufficient may be significant in
cases where the court's authority is expressly barred, although doing so will
not necessarily support that decision.[42]
c.
When there is no stated exclusion, it is necessary to
examine the remedies and the structure of the specific Act to ascertain the
intent, and the outcome of the investigation may be significant. In the latter
case, it is important to determine whether the statute establishes a special
right or liability, stipulates how the right or liability will be determined,
and further stipulates that all issues relating to the right or liability in
question will be decided by the tribunals thus established. It is also
important to determine whether the statute specifies any remedies that would
typically be associated with actions in civil courts.[43]
d.
A claim that a specific Act's provisions are excess
vires cannot be made before a tribunal established by that Act. Even the High
Court is not permitted to address that issue about a revision or referral from
the Tribunals' ruling.[44]
e.
A lawsuit is open when a section has already been ruled
unlawful or when the constitutionality of any provision is being contested. If
the claim is unquestionably made within the time frame established by the
Limitation Act, a writ of certiorari may contain a directive for repayment;
however, this is not a required remedy to take the place of a lawsuit.[45]
f.
A civil lawsuit is barred if the authorities'
directives are deemed to be binding or there is an express restriction in the
relevant Act, regardless of whether there are any questions regarding the
accuracy of the assessment or its validity. In any scenario, it is necessary to
review the particular Act's scheme because it is a pertinent question.[46]
g.
If none of the aforementioned circumstances hold true,
it is difficult to conclude that the Civil Court's jurisdiction is excluded. In
Abdul Gafur v. State of Uttarakhand 2008 (10) SCC 97[47],
in which the parties sought the assistance of the Civil Court, the Hon. Supreme
Court made the observation that, in accordance with section 9 CPC, the Civil
Courts have inherent jurisdiction over all types of civil disputes unless a
portion of that jurisdiction is expressly or necessary impliedly subtracted by
any statutory provision and granted to another Tribunal or Authority.
Therefore, the law grants everyone the inherent right to file a civil lawsuit
of their choosing, at their own risk, regardless of how meritless the claim may
be.[48]
7.
Presumption as to jurisdiction is as such that ,when
determining whether a civil court has the authority to hear a case or not, it
is important to keep in mind that there should always be a presumption in
favour of the civil court's jurisdiction. Unless the relevant statute contains
an express provision to that effect or results in a necessary and inevitable
implication of the nature, the exclusion of jurisdiction of a civil court to
entertain civil cases should not be easily inferred.[49]
[1] Abdul
Waheed Khan v. Bhawani, AIR I966 SC 1718 at p. 1719: (1966) 3 SCR 617; Brij Rai
Singh v. Laxman Singh, AIR 1961 SC 149 at p. 152: (1961) I SCR 6I6; Most Rev.
P.M.A. Metropolitan v. Moran Mar Marthoma, 1995 Supp (4) SCC 286 at p. 318.
[2] Ganga Bai
v. Vijay Kumar, (1974) 2 SCC 393 at p. 397; Most Rev. P.M.A. Metropolitan v.
Moran Mar Marthoma, 1995 Supp (4) SCC 286 at p. 318.
[3] Concise
Oxford English Dictionary (2002) at p. 768; P.R. Aiyar, Advanced Law Lexicon
(2005) Vol. III at pp. 2527-30; Justice C.K. Thakker, Encyclopaedic Law Lexicon
(2009) Vol.I at pp. 2500-04.
[4] Official
Trustee v. Sachindra Nath, AIR I969 SC 823 at p. 827: (1969) 3 SCR 92; Ujjam
Bai v. State of U.P., AIR 1962 SC 1621 at p. 1629: (1963) I SCR 778; Raja Soap
Factory v. S.P. Shantharai, AIR 1965 SC 1449: (1965) 2 SCR 800.
[5] Raja Soap
Factory v. S.P. Shantharaj, AIR 1965 SC 1449: (1965) 2 SCR 800.
[6] Concise Oxford
Dictionary (I990) at p. 206; see also, S.A.L. Narayan v. Ishwarlal, AIR I965 SC
I8I8 at p. I823: (I966) I SCR I90; Ramesh v. Gendalal Motilal Patni, AIR 1966
SC 1445: (1966) 3 SCR 198; Arbind Kumar v. Nand Kishore, AIR 1968 SC 1227:
(I968) 3 SCR 322.
[7] Most Rev.
P.M.A. Metropolitan v. Moran Mar Marthoma, 1995 Supp (4) SCC 286 at pp. 3I8-19.
[8]
Explanation. 1 to Section 9.
[9] Sinha
Ramanuja V. Ranga Ramanuja, AIR 1961 SC 1720: (1962) 2 SCR 509. SO. 1995 Supp
(4) SCC 286: AIR 1995 SC 2001.
[10] Ibid, at
pp. 318-19 (SCC): at PP. 2022-23 (AIR).
[11] Sinha
Ramanuja v. Ranga Ramanuja, AIR I96I SC 1720 at p. 1724: (1962) 2 SCR
[12] Harshad
Chiman Lal Modi v. DLF Universal Ltd. and Anr., reported in AIR 2005 SC 4446
[13] Supra
[14] Supra
[15] Supra, n.
60; see also, Indian Airlines Corpn. v. Sukhdeo Rat, (1971) 2 SCC 192; Sideren,
Pigment Cakes & Chemicals Mfg. Co., (1979) 4 SCC 12; Mulla, Code of Civil
Proceden (2007), Vol. 1 at pp. 136-38.
[16] Ramkanya
Bai v. Jagdish, (2011) 7 SCC 452: (2011) 3 SCC (Civ) 736
[17] Chief
Engineer Hydel Project v. Ravinder Nath, reported in AIR 2008 SC 1315,
[18] Analysis
drawn from supra
[20] Supra 19
[22] Antulay
v. R.S. Nayak, (I988) 2 SCC 602
[23] Ehors
adminissrassien, se, Authors Lectures on Adminstratie dan, (soz) Lecture 7;
Authors Administrative Law (2012) Chap. 8.
[34] Analysis
drawn from aforementioned
[36] Supra 35
[37]
Annamanaidu, (I974) 1 SCC 567 at pp. 578-79; Gurbax Singh v. Financial Commr.,
1991 Supp (1) SCC 167 at p. 175
[38] Ramkanya
Bai v. Jagdish, (2011) 7 SCC 452: (2011) 3 SCC (Civ) 736; Bhanwar Lal v.
Rajasthan Board of Muslim Wakt, (2014) 16 SCC sI: (2015) 3 SCC (Civ) 432; Vimal
Kishor Shah v. Jayesh Dinesh Shah, (2016) 8 SCC 788: (2016) 4 SCC (Civ) 303.
[39] Firm Seth
Radha Kishan v. Administrator, Municipal Committee, Ludhiana, AIR 1963 SC 1547:
(I964) 2 SCR 273 Ittyavira Mathai Mathai v. Varkey Varkey, AIR I964 SC 907: (1964)
I SCR 495
[40]
Dhulabhai, etc. v. State of Madhya Pradesh and others reported in A.I.R. 1969
S.C. 78
[41] AIR 1969
5C 78: (1968 3 SCR 662.
[42] Ail a Pr
se se. For detalia discustion, Be carlo, State of W. B. v. Dand Mantosh, 12 SCC
543. Ehors adminissrassien, se, Authors Lectures on Adminstratie dan, (soz)
Lecture 7; Authors Administrative Law (2012) Chap. 8
[43] Sinha
Ramanuja v. Ranga Ramanuja, AIR 196I SC 1720: (I962) 2 SCR 509
[44] Jabalpur
Corp, (7977) 2 SCC 472; South Delhi Municipal Corp. v. Today Home infrastructure
(P) Ltd., (2020)
[45] Dhulabhai
v. State of M. P., AIR I969 SC 78: (1968) 3 SCR 662
[46] Dhulabhai
v. State of M. P., AIR I969 SC 78: (1968) 3 SCR 662
Article Information
JURISDICTION AS A DEFENCE BY – ISHIKA JAIN
Authors: ISHIKA JAIN
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/14
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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