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Introduction
The Code of Civil Procedure, 1908 is an Act to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature. It is an adjective law. It does not take away the rights of any person. This Act is sub-divided into 158 Sections and a Schedule which contains 51 Orders and rules. Further, this Act was enacted to regulate every action of Civil Courts in India. In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time in force. In particular and without prejudice to the generality of the proposition contained in sub-section (1) nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land.
History
The Code of Civil Procedure, 1908 was passed by the Legislature and assent of Governor General of India was given on 21 March 1908. It shall come into force on 1 January 1909. In 1858, The Code on Civil Procedure was introduced, i.e., The Code of Civil Procedure, 1858. In 1877, The Code of Civil Procedure Code, 1877 was introduced which replaced the earlier Act of 1858. In 1882, The Code of Civil Procedure Code, 1882 was introduced. Further in 1908, The Code of Civil Procedure, 1908 was enacted to consolidate and amend the existing laws in India. The Act has been amended various times to fulfil the requirements of time and to meet the challenges of time.
Objectives and Applicability of the Act
The Code of Civil Procedure, 1908 was enacted to regulate the procedure to be followed by Civil Courts. The Code of Civil Procedure, 1908 extends to the whole of India. It extends to the whole of India except-(a) omitted, (b) the State of Nagaland and the tribal areas: Provided that the State Government concerned may, by notification in the Official Gazette, extend the provisions of this Code or any of them to the whole or part of the modifications as may be specified in the notification.
Explanation-In this clause, "tribal areas" means the territories which, immediately before the 21
days of January, 1972 were included in the tribal areas of Assam as referred to in paragraph 20 of the Sixth Schedule to the Constitution. (4) In relation to the Amindivi Islands, and the East Godavari, West Godavari, and Visakhapatnam Agencies in the State of Andhra Pradesh and the Union territory of Lakshadweep, the application of this Code shall be without prejudice to the application of any rule or regulation for the time being in force in such Islands, Agencies or such Union territory, as the case may be, relating to the application of this Code.
Savings-(1) In the absence of any specific provision to the contrary, nothing in this Code shall be
deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time in force.
(2) In particular and without prejudice to the generality of the proposition contained in sub-section (1)
nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or
landlord may have under any law for the time being in force for the recovery of rent of agricultural land
from the produce of such land.
Application of the Code of Revenue Courts-(1) Where any Revenue Courts are governed by the provisions
of this Code in those matters of procedure upon which any special enactment applicable to them is
silent, the State Government may, by notification in the Official Gazette, declare that any portions of
those provisions which are not expressly made applicable by this Code shall not apply to those Courts,
or shall only apply to them with such modifications as the State Government may prescribe.
(2) "Revenue Court" in sub-section (1) means a Court having jurisdiction under any local law to entertain
suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes,
but does not include a Civil Court having original jurisdiction under this Code to try such suits or
proceedings as being suits or proceedings of a civil nature.
List of Amending Acts and Adaptation Orders
1. The Presidency-Towns Insolvency Act, 1909 (Act 3 of 1909)
2. The Code of Civil Procedure (Amendment) Act, 1914 (Act 1 of 1914)
3. The Decentralization Act, 1914 (Act 4 of 1914)
4. The Repealing and Amending Act, 1914 (Act 10 of 1914)
5. The Second Repealing and Amending Act, 1914 (Act 17 of 1914)
6. The Amending Act, 1916 (Act 13 of 1916)
7. The Repealing and Amending Act, 1917 (Act 24 of 1917)
8. The Repealing and Amending Act, 1919 (Act 18 of 1919)
9. The Code of Civil Procedure (Amendment) Act, 1920 (Act 24 of 1920)
10. The Indian Limitation and Code of Civil Procedure (Amendment) Act, 1920 (Act 26 of 1920)
11. The Devolution Act, 1920 (Act 38 of 1920)
12. The Code of Civil Procedure (Amendment) Act, 1921 (Act 3 of 1921)
13. The Civil Procedure (Amendment) Act, 1922 (Act 9 of 1922)
14. The Repealing and Amending Act, 1923 (Act 11 of 1923)
15. The Code of Civil Procedure (Amendment) Act 1923 (Act 26 of 1923)
16. The Code of Civil Procedure (Second Amendment) Act, 1923 (Act 29 of 1923)
17. The Code of Civil Procedure (Amendment) Act, 1925 (Act 20 of 1925)
18. The Legislative Members Exemption Act, 1925 (Act 23 of 1925)
19. The Oudh Courts (Supplementary) Act, 1925 (Act 32 of 1925)
20. The Small Cause Courts (Attachment of Immovable Property) Act, 1926(Act 1 of 1926)
21. The Code of Civil Procedure (Amendment) Act, 1926 (Act 6 of 1926)
22. The Code of Civil Procedure (Second Amendment) Act, 1926 (Act 22 of 1926)
23. The Negotiable Instruments (Interest) Act, 1926 (Act 30 of 1926)
24. The Sind Courts (Supplementary) Act, 1926 (Act 34 of 1926)
25. The Repealing and Amending Act, 1927 (Act 10 of 1927)
- The Repealing and Amending Act, 1978 (Act 38 of 1978)
- The Delegated Legislation Provisions (Amendment) Act, 1983
- The Repealing and Amending Act, 1988 (Act 19 of 1988)
- The Benami Transaction (Prohibition) Act, 1988 (Act 45 of 1988)
- The Code of Civil Procedure (Amendment) Act, 1999 (Act 46 of 1999)
- The Code of Civil Procedure (Amendment) Act, 2002 (Act 22 of 2002)
- The Factoring Regulation Act, 2011 (Act 12 of 2012)
- The Commercial Courts Act, 2015 (Act 4 of 2016) (w.r.e.f. 23-10-2015)
- The Jammu and Kashmir Reorganisation Act, 2019 (Act 34 of 2019)
- (^) The Parliament can amend the sections in the Code of Civil Procedure.
- (^) Plea of res judicata has to be specifically raised.
- (^) Principle of res judicata is a species of the principle of estoppel.
- (^) Principle of res judicata is that a cause of action may not be relitigated once it has been judged on the merits.
- (^) Principle of res judicata based on public policy and private interest.
- (^) Principle of res judicata applies to execution proceedings.
- (^) By using the doctrine of res judicata court prevents injustice to the parties of a case supposedly finished but perhaps also or mostly a way of avoiding unnecessary waste of resources in the court system.
- (^) Res Judicata means the matter is already judged.
- (^) Res subjudice means stay of suit or under judgement.
- (^) Res subjudice bars to the trial of a suit.
- (^) Provision of Res Judicata and Res subjudice are mandatory.
- (^) There are five types of writs-habeas corpus, mandamus, prohibition, quo warranto and certiorari.
- (^) The writ of habeas corpus is maintainable before the High Court if the detention is illegal.
- (^) Principle of res judicata is not applicable in Writ of Habeas Corpus.
- (^) A decree may be executed either by the court which passed it or to which it is sent.
- (^) All saleable properties are liable to attachment and sale in execution of the decree.
- (^) Court may issue a commission to examine witnesses, to make a local investigation, to adjust accounts, to make the partition, to hold an investigation, to conduct sale, to perform a ministerial act.
- (^) Civil court cannot issue a commission to execute a decree.
- (^) Caveat shall not remain in force after the expiry of ninety days.
- (^) Caveat petition is used by a person who holds a strong fear or uneasiness that some or the other case against him/her is going to be filed in a court of law regarding any manner.
- (^) Misjoinder of parties and causes of action in a suit is technically called multifariousness.
- (^) Every Pleading shall contain material facts and not evidence.
- (^) Amendment of pleadings shall be allowed to bring or to clarify all matters in issue before the
Court.
- (^) Plaint contains the written statement of the plaintiff's claim.
- (^) Written statement means a pleading for defence or answer by the defendant of plaintiff's suit.
- (^) Set-off means a claim by the defendant against the plaintiff or a plea in defence available to the
defendant.
- (^) Counter-claim means a claim made by the defendant in a suit against the plaintiff.
- (^) Ex parte decree is a decree passed by the court in the absence of the defendant or it is a decree
passed against a defendant in absentia.
- (^) Representative suit is a suit filed against one or more persons on behalf of themselves and others
having the same interest in the suit.
- (^) 'De novo' means a "new trial".
- (^) Each Party shall bear its own expenses means parties are not entitled to cost from each other.
- (^) Abatement of the suit is the premature ending of a suit before final adjudication.
- (^) Garnishee order is a common form of enforcing a judgement debt against a creditor to recover
money.
- (^) Indigent person is one who is not possessed of sufficient amounts (other than property exempt
from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by law for the plaintiff in such a suit.
- (^) Injunction is a Judicial Remedy prohibiting persons from doing a specified act.
- (^) An appeal in the form of a memorandum is signed by the party to the case or his advocate.
- (^) The second appeal can be filed even against an ex parte decree/judgement of the first appellate
court, if the case involves a substantial question of law.
- (^) Receiver is an independent and impartial person who is appointed by the court to administer/
manage, that is, to protect and preserve a disputed property involved in a suit.
- (^) Receiver is an officer of the courts.
- (^) CPC provides for granting of temporary injunction which may be granted where the defendant is
about to commit a breach of contract, or other injury of any kind.
The Code of Civil Procedure is a consolidated code of procedure to be followed by civil courts. It was
observed in Prem Lota Nahata versus Chandi Prasad of Sikaria, (2007) 2 sec 551, the code consolidates
and amends the laws relating to the procedure of the courts of civil judicature. No doubt it also deals with certain substantive rights. But its essential object is to consolidate the law relating to civil procedure.
Application of the code
It extends to the whole of India, except the state of Nagaland and other Tribal Areas.
Scheme the code
The code can be divided into two parts: (i) The body of the code containing 158 sections, and (ii) The First schedule, containing 51 orders, rules and forms. It is to be noted that the sections deal with the provisions of a substantive nature, laying down the general principles of jurisdiction while the first schedule relates to the procedure and the method, manner and mode in which the jurisdiction may be exercised.
In Vareed Jacob versus Sosamma Geevarghese, (2004) 6 sec 378, it was held that the sections and the
rules must be read together and harmoniously constructed, but if the rules are inconsistent with the sections, the latter will prevail. The court considered the scheme of the code as a whole and observed that amendments made by High Courts in the Rules contained in the (First) Schedule, also became part of the code for all purposes "as if enacted is the Code".
Retrospective operation: The code is a procedural law and an adjective law which prescribes the
procedure for the enforcement of rights, liabilities and obligations of the state as well as of citizens and makes the procedure simple, expeditious and inexpensive. It is a well-settled principle of interpretation of Statutes that procedural laws are always retrospective in nature unless there are good reasons to the contrary. Their provisions will apply to proceedings already commenced at the time of their enactment. The reason is that no one can have a vested right in forms of procedure. The code of civil procedure is not retrospective in the procedure.
Definitions
Decree - [Section 2(2)]
The adjudication of a court of law may be divided into two classes: (a) Decree (b) Order. In order that a decision of the court may be a "decree", the following elements must be present (i) There must be an adjudication. (ii) Such adjudication must have been done in a suit. (iii) It must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit, (iv) Such determination must be of conclusive nature, and (v) There must be a formal expression of such adjudication.
Adjudication: There must be a judicial determination of the matter in dispute. Such judicial determination
must be done by a court. Thus, an order passed by an officer who is not a court is not a decree. It
can be said that a decision on a matter of an administrative nature, or an order dismissing a suit for default of appearance, or dismissal of an appeal for want of prosecution is not a decree as there is no
adjudication (Deep Chand versus Land Acquisition officer, Al R 1994 SC 1901)
Suit: The expression suit is not defined in the code. It means a civil proceeding which is instituted by filing a plaint in a civil court. A proceeding which does not commence with a plaint is not a suit.
(Pandurang Ramchandra versus Shantibai Ramchandra, 1989 Supp (2) sec 627). However, it may be
noted that under certain enactments, specific provisions have been made to treat applications as suits, e.g., the Hindu Marriage Act, The Arbitration and Conciliation Act, The Guardian and Wards Act, etc. They are statutory suits and the decisions given there under are, therefore, decrees. Therefore, a proceeding which does not commence with a plaint and which is not treated as a suit under any Act, cannot be said to be a "suit" under the Code also, and the decision given therein cannot be said to be decree under Section 2(2) of the Code. Rights of the parties in controversy: The adjudication must have determined the rights of the parties with regard to all or any of the matters to be in controversy in the suit. The expression "rights of parties" means substantive rights and not merely procedural rights. It means rights of the parties
inter-se in the subject-matter of the suit and include general rights such as those relating to status,
limitation, jurisdiction, frame of the suit, accounts, etc. which if decided must have a general effect on proceedings in the suit. Matter in controversy in the suit: It would cover any question relating to: (a) the character and the status of a party suing, (b) jurisdiction of court, (c) maintainability of suit, (d) other preliminary matter which necessitates adjudication before a suit is enquired into. However, interlocutory orders on matters of procedure which do not decide the substantive rights of the parties are not decrees. Similarly, it does not include proceedings preliminary to the institution of a suit. Conclusive Determination: In order to constitute a decree, the rights of parties with regard to any of the matters in controversy/dispute in the suit must be conclusively determined. A decision of a court in order to be a decree must be of conclusive nature, that is the decision must be one which is complete and final as regards the Court which passes it and not subject to terms and conditions. The decision of the court determining the rights of parties should be the final one in respect of any or all controversial issues. The decree may conclusively determine the rights of parties although it may not completely dispose of the suit. A decree becomes final in two ways: (a) where decree so far as regards court the passing it completely disposes of the suit. (b) where time to file an appeal has expired without filing appeal or the matter is decided by the highest court. Formal expression of Adjudication: A decree is essentially a formal expression of adjudication by the court. An adjudication must be expressed in a formal manner without formal expression, there can be no decree. An order is a formal expression of a decision of a civil court but it differs from a decree in the sense that a decree conclusively determines the rights of the parties with regard to all or any of the matters in controversy in a suit but an order does not.
Deemed Decree: An adjudication which though not fulfills the requirements of Section 2(2) cannot be decree, however by legal fiction certain orders are deemed to be decree. It is to be noted that certain orders passed or made in the execution proceeding under Order XXI are deemed to be "decrees" under the Code. These are.
(a) Adjudication of claims to, or objection to attachment of property (Order XXI, Rule 58);
(b) Adjudication of an application under Rule 98 or 100 of Order XXI.
1. Rejection of Plaintiff: In State of Rajasthan versus Rajpal Singh Chauhan, 2011 sec Online Raj 2709, it was held that Section 2(2) of the code specifically provides that a rejection of a plaint shall be deemed to be a decree. The rejection of a plaint must be one authorised by the code. If it is not under the code, the rejection will amount to a decree. It was further held that an order returning a plaint or a memorandum of appeal to be presented to the proper court is also not a decree. The reason is that such an order does not negate the right of a plaintiff or appellant and is not a decision on the rights of the parties. 2. Restitution: Determination of a question within Section 144. The definition of the term "Decree" stipulates that the determination of any question under Section 144 shall be deemed to be a decree. It provides that when the court determines any question on an application for restitution under Section 144, the same is deemed to be a decree. However, every order under Section 144 is not a decree. It is necessary that such orders must have decided the rights of parties with regards to the matters in controversy in proceedings under that section. 3. Judgement: Section 2(9) defines judgement. It means the statement given by a judge on the grounds of a decree or order.
Essential
(i) There should be a statement for the grounds of decision.
(ii) Every judgement other than that Court of a small cause should contain
(a) a concise statement of the case, (b) the points for determination, (c) the decision thereon, (d) the reasons for such a decision. Judgement contemplates the stage prior to passing of a decree or an order, and after the pronouncement of judgement the decree follows. Section 33 states that after the case has been heard, the court shall pronounce judgement, and on such a judgement a decree shall follow. After the judgement is pronounced, it is imperative that a decree must follow judgement.
Nature
- (^) It is the final decision of the court informing the parties and the whole world the decision arrived at.
- (^) It is the application of law to the facts of the case and the legal determination of the rights of the parties before the court.
- (^) It decides the dispute in its totality without leaving anything to be resolved. The Supreme Court in Balraj Taneja versus Sunil Madan, AIR 1999 SC 3381 observed that "whether it is a case which is contested by the defendants by filing a written statement or a case which proceeds ex-parte and is ultimately decided as an ex-parte case, or is a case in which written statement is not
filed and that the case is decided under Order 8, Rule 10, the Court has to write a judgement which must be in conformity with the provisions of the code or atleast set out the reasoning by which the controversy is resolved.
Every order is not judgement
An order passed by an appellate court calling for a finding on an issue framed by it in an appeal is not a judgement, nor is a direction to pass a final decree after the deficit court- fees are paid, nor an order summarily dismissing an appeal or a revision. [V Gokul versus State of Gujarat, (1996) ILR Cri, 1189]
''Pronouncing Judgement''
In Cellular Operators Association of India versus Union of India, Al R 2003 SC 899,it was held that before pronouncing judgement, the court has to apply its mind to arrive at the conclusion whether there is any cause to modify or remit the award. It was further held that the phrase "pronounce judgement" would itself indicate judicial determination by reasoned order for arriving at the conclusion that decree in terms of the award be passed. Furthermore, Order XX Rule 4(2) of the code in terms provides the "judgement" shall contain a concise statement of case, the points for determination the decision thereon, and the reasons for such decision. This is the antithesis to pronouncement of non-speaking orders.
Difference between Judgement, Order and Decree
Basic (i) Definition
(ii) Formal Expression
(iii) Stage
(iv) Finality
Judgement Decree Order Section 2(9)- It means Section 2(2)- It means Section 2(14)- It means a statement given by a judge on grounds of a decree or order.
expression of an adjudication which conclusively determines the parties with respect to all or any of the matters in controversy.
the formal expression of any decision of any decision of a civil court which is not a decree.
Statement is to be given by the judge
No statement needs to No statements need to be given by the judge in be given by the Judge only in the judgement and he records the reason for arriving at a particular conclusion in judgement.
the decree.
It is the declaration by Decree is an operative a judge of his intention part of the judgement. as to the final result of a suit based on reasoning.
It is always final. Decree may be party final or partly preliminary.
in order.
Order denotes the daily updates in the case.
Order is always final.
Section 2(6) defines foreign Judgement as "the judgement" of foreign courts." Thus, those judicial decisions which have been delivered by the courts of other countries are foreign judgements. The Supreme Court in Union of India versus Naveen Jindal, (2004) 2 sec 510, held that although the interpretation of the Constitution of India should be primarily based on materials available in India, relevant rules of other countries can be looked into for guidance.
Legal Representative: Section 2(11)
Legal Representative denotes the classes of persons on whom the status of a representative is fastened by reason of the death of a person whose estate they are held to represent.
Thus, under Section 2(11), the following categories of persons can be allowed to represent the estate of the deceased person for the purpose of pending proceedings before the Court:- (a) who represents without title- Legal Representative includes a person who represents the estate of the deceased person even without title either as executor or administrator in possession of the estate of the deceased. The executors/administrators are legal representatives, though they have no beneficial interest and may not be the heir of the deceased.
(b) who intermeddles with the estate-
Legal Representative includes any person, even a stranger who has no interest in the property and who is not a beneficial owner thereof but who intermeddles with the estate of the deceased i.e. who may be in actual possession of the deceased's estate without clearing any title for himself. (c) On whom the state devolves- A person in possession is a representative of the Estate. But a legal representative need not necessarily be in possession of any property of the deceased. Mere Right of possession of the estate of the deceased is sufficient. All that is necessary is that he should be the person on whom the estate would devolve on the death of the party suing or sued.
Mesne Profits: Section 2 (12)
In Mohadei versus Kaliji Birajman, 1969 All LJ 896, the court observed that the Mesne Profits means those profits which a person in wrongful possession of such property either actually received or might have received with due diligence. It is not always necessary that there should be a proof of actual receipt. "Mesne Profits" of the property means those profits which the person in wrongful possession of such property actually received or might with ordinary due diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession. In Kishen Kumar Narandas versus Purushottam Mathuradas, (2006)2 Civil Court Cases 600 (Born), it was opined that for entitling him to grant mesne profits, the plaintiff must lead evidence to prove what would be compensation the defendant might have received with due diligence for his wrongful possession. Where the plaintiff did not lead any evidence, it was held that he was not entitled to claim mesne profits.
Court to try suits unless barred: Section 9
Section 9 states that the court shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature except suit of which their cognizance is expressly or impliedly barred.
The jurisdiction of the courts to try all suits of civil nature is very expansive as is evident from bare
reading of section 9 of the code. This is because of the principle ubi }us ibi remedium (where there is
a right, there is a remedy). It is only where cognizance of a specified type of suit is barred by a statute either expressly or impliedly that the jurisdiction of civil court would be ousted to entertain such a suit. The general principle is that a statute excluding the jurisdiction of the civil court should be construed
strictly. Section 9 of the code is an enforcement fundamental principle of law laid down in maxim ubi
}us ibi remedium. A litigant, thus having a grievance of a civil nature has a right to institute a suit in a
competent civil court unless its cognizance is either expressly or impliedly barred by any Statute. It is to be noted that civil court being a court of plenary jurisdiction has the power to determine its jurisdiction upon considering averments made in the plaint but that does not mean that the plaintiff can circumvent provisions of the law in order to invest jurisdiction on a civil court which it may not otherwise possess.
In NDMC versus Satish Chand, Al R 2003 SC 3181, it was held that a bar to file a civil suit may be express
or implied. An express bar is where a statute itself contains a provision that jurisdiction of civil court is barred, for example, the bar contained in Section 293 of the Income Tax Act, 1961. An implied bar may raise when a statute provides a special remedy to an aggrieved party like a right to appeal as contained in the Punjab Municipal Act which is the subject matter of the present case. Section 86 of the said Act restrains a party from challenging assessment and levy of tax in any manner other than as provided under the Act. A provision like this is the implied bar envisaged in Section 9 of the Code Civil Procedure, 1908 against filing a civil suit. It is to be noted that the question of jurisdiction is a pure question of law and needs to be adjudicated only on the basis of statutory provisions.
In Saraswatibai Trimbak Gaikwad versus Danwdar D Motiwale, AIR 2002 SC 1568, it was held that the
civil court does not have jurisdiction to decide matters which are required to be dealt with by the tribunal created under the statute.
Exclusion of Jurisdiction
In Dhulabaiversus State of Madhya Pradesh, AIR 1969 SC 78- The following propositions of law regarding
the exclusion of jurisdiction of civil court have been laid down.
(1) Where the Statute gives a finality to the orders of the special tribunal, the civil court's jurisdiction
must be held to be excluded if there is adequate remedy to do what the civil court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act would not have been complied with or the Statutory tribunal has not acted in conformity with the fundamental principle of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but it is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of remedies and the scheme of the 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 the statute creates a special right or a liability and provide 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 the tribunals so constituted, and whether remedies normally associated with actions in civil courts are by the said statute or not.
(iii) Suit for upholding mere dignity or honour,
(iv) Suits for recovery of voluntary offerings or payments
(v) Suits involving purely religious rites or ceremonies.
Suits expressly barred: A suit is said to be "expressly barred" when it is barred by any enactment for
the time being in force [Gurucharan Singh versus Kamla Singh, (1976) 2 sec 152]. 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 the jurisdiction of a civil
court, the court will lean to an interpretation which would maintain the jurisdiction [Dhulabai versus
State of Madhya Pradesh, AIR 1969 SC 78].
Thus, the matter falling within the exclusive jurisdiction of revenue courts, or the Code of Criminal
Procedure, 1973, Motor Accident Claim Tribunal, Election Tribunal, Income Tax Tribunal, etc. are expressly
barred from the cognizance of civil court. But if the remedy provided by statute is not adequate and
all questions cannot be decided 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. [State of Tamil Nadu versus Ramalinga
Samigal Madam, (1985) sec (4) 10]
Suits Impliedly Barred: A suit is said to be impliedly barred when it is barred by general principles of
law. When a Specific remedy is given by the 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 [Premier Automobiles Ltd versus Kamlekar Shantaram Wadke, (1976) 1 sec 496]. No suit shall
lie for recovery of costs incurred in a criminal prosecution or for enforcement of a right upon for a
contract hit by Section 23 of the Indian contract Act.
Jurisdiction of Civil Court
In Most Rev. P.M.A Metropolitan versus Moran Mar Marthoma, (1995) sec Sup (4) 286, it was held that
the fundamental principle of English Law that wherever there is a right, there is remedy (ubi jus ibi
remedium) has been adopted by the Indian system also. It was further held that right and remedy
are the two sides of the same coin and they cannot be separated from each other. It was held that a
litigant having a grievance of civil nature has a right to institute a civil suit in a competent civil court
unless its cognizance is either expressly or impliedly barred by any statute.
Jurisdiction of court means the extent of the authority of a court to administer justice prescribed with
reference to the subject-matter, pecuniary value and local limit. It is a well-settled law that consent
cannot take away jurisdiction of a court.
In AR Antulay versus RS Nayak, (1988) 2 sec 602,the Supreme Court observed that "the power to create
or to enlarge jurisdiction is legislative in character, so also the power to confer or to take away a right of appeal. Parliament alone can do it by Law and no court, whether superior or inferior or both combined, can enlarge the jurisdiction of a court or divest a person of his rights of revision and appeal."
Who determines as to the jurisdiction of the court and on what criteria?
It is well settled that it is the "civil court itself who determines its jurisdiction. The civil court has
inherent power to decide the question whether it has jurisdiction to entertain, deal with and decide the
matter which has come before it. The question whether a Court has jurisdiction or not, has to be raised
before and decided by the same court but with a presumption in favor of existence of its jurisdiction.
The Supreme Court in Official Trustee versus Sachindra, Al R 1969 SC 823, laid down the following
principles with regard to determination of jurisdiction of a court:-
(a) a Court can be held to have jurisdiction to decide a particular matter if the court is competent to
by the suit and at the same time it has jurisdiction to pass the order sought;
(b) Jurisdiction of a court must include the power to hear and decide the question in issue.
It is also well-settled that the basis to determine jurisdiction of a Civil Court is the averments made
in the plant. The jurisdiction of a court should normally be decided on the basis of pleadings of the
plaintiff i.e. on the basis of the case put forward by the plaintiff in the plaint and not upon the defence
taken by the defendant in written statement.
Objection as to jurisdiction of the court
Any objection as to jurisdiction must be raised by the defendant at the first/earliest available opportunity.
The reason is two-fold:-
(a) Firstly,^ if the defendant succeeds in satisfying the court that it is not vested with the jurisdiction
to entertain the suit, the court shall not proceed with the matter and there shall be no need for
the defendant to contest the matter on merits.
(b) Secondly,^ where the jurisdiction of the trial court is not questioned before the trial court passes a
decree which is impugned before the superior court, such superior court may refuse to entertain
the plea of jurisdiction of trial court.
In Ramesh Chand versus Anil Panjwani, Al R 2003 SC 2508, the Supreme Court held that an objection
as to exclusion of civil court's jurisdictions for availability of alternative forum should be taken before
the trial court and at the earliest, failing which the higher court may refuse to entertain the plea in the
absence of proof of prejudice.
Territorial or Local
Jurisdiction
Pecuniary Jurisdiction
Pecuniary
Jurisdiction
Kinds of Jurisdiction
Writ Jurisdiction Jurisdiction over
the Subject-Matter
Original and
Appellate
Jurisdiction
The jurisdiction of the court to entertain, deal with and decide a suit may be limited by a variety of
circumstances, and the first thing which is to be determined is the "place of suing".
Place of Suing - Pecuniary Jurisdiction (Section 15)
Section 15 reads: "Courts in which suits to be instituted - Every suit shall be instituted in the court of
the lowest grade competent to try it."
Section 15 has two ingredients
(a) the court must be of the lowest grade, i.e., it must be inferior in the hierarchy of the exiting courts,
(b) Such a court must be competent to try the suit.
The object underlying this provision is twofold:
(a) to see that the courts of higher grades shall not be overburdened with suits; and
(b) to afford convenience to the parties and witnesses who may be examined in such suits.
In Konthan Kesavan versus Varkey Thomman, Al R 1964 Ker 206, it was held that the rule laid down
in section 15 of the code is a rule of the procedure and does not affect the jurisdiction of the court.
Section 17 provides for:
(a) A choice to the plaintiff as to forum for instituting the suit,
(b) Section 17 is applicable where several properties are situated in different districts or the same property extends over several districts. It can be concluded that when there is one cause of action and the basis of plaintiff's claim is the same in all the claims against the various defendants, one joint suit in respect of all the immovable properties, whether situated within the jurisdiction of that court or within the jurisdiction different of courts can be taken cognizance of provided that part of the property lies within the territorial jurisdiction and the total claim is within its pecuniary jurisdiction.
Section 18: Place of suing where local limits of the jurisdiction of courts are uncertain
Section 18 is attracted where the jurisdiction cannot be determined due to uncertainty. While invoking Section 18, the plaintiff shall have to convince the court about unsure jurisdiction. The court shall proceed to entertain and try a suit relating to the property of uncertain jurisdiction only when it is satisfied that there are reasonable grounds for such alleged uncertainty of jurisdiction.
Ingredients of Section 18(1)
(a) There must be an allegation as to uncertainty of the territorial jurisdiction of courts,
(b) The court must be satisfied that there is ground for the alleged uncertainty,
(c) The court must record a statement as to uncertain jurisdiction and thereupon proceed to entertain and dispose of any suit relating to such immovable property,
(d) The decree passed by such court shall be legal and valid and shall have the same effect as if the property was situated within the local limits of tis jurisdiction,
(e) Before entertain a suit, the court must satisfy itself whether it has pecuniary jurisdiction as to subject-matter, if it has, then only it should proceed further otherwise not, because this section only allows territorial jurisdiction and not pecuniary jurisdiction and in the absence of such the court is not competent to pass a decree on such a suit. [Proviso to Section 18(1)]
Section 18(2) - Ingredients
Where a statement as to uncertainty of jurisdiction is not recorded and a decree is passed and such decree is challenged on the ground that it was passed without jurisdiction then appellate or revisional Court shall not allow such objection unless:
(i) it appears that no reasonable uncertainty existed at that time of suit;
(ii) such objection is taken in the court the first instance; and
(iii) there has been a failure of justice in consequence thereof.
Section 19 - Suits for wrongs to person or movable:
The section follows the maxim "mobilia sequuntur personam': i.e., movable property follows the person.
- (^) Section 19 is a special provision and applies to suits for compensation for wrongs to a person or to movable property.
- (^) It provides a proper forum for bringing a suit for damages for such wrongs.
- (^) Suits for compensation for wrong person or movable property, may be done to person or property, may be brought at the option of the plaintiff either at the place where:
(i) the wrong is committed, or
(ii) the defendant resides, or
(iii) the defendant carries on business, or
(iv) the defendant personally works for gain.
- (^) This section does not apply to torts committed beyond the limits of India. Such cases fall within the
ambit of Section 20 [Govindan Nair versus Achutha Menon, (1915) ILR 39 Mad 443]
Section 20:- Other suits to be instituted where defendant resides or Cause of Action arises
Section 20 is a general provision covering all personal actions (i.e. relating to person or movable
property) and as the opening words state, it is subject to the provisions of Sections 16-19. Such
personal actions shall be instituted in a court within whose local jurisdiction-
(a) the defendant actually resides or carries on business, or.
(b) any of the defendants (where there are more than one) actually resides or carry on business, or
(c) the cause of part, action, wholly or in part, rises
In Sudha Kaushik versus Umesh Prasad Kaushik, AIR 2005 Guj 244, it was held that, in a matrimonial
petition filed under the Hindu Marriage Act, 1955, the jurisdiction of the court is to be decided with
reference to Section 19 of the Act, and not by reference to Section 20 of the Code of Civil Procedure,
1908. It was further held that where any of the conditions under section 19 of the Hindu Marriage Act,
1955 is satisfied within the jurisdiction of more than one court, Section 20 of the code may be attracted.
Jurisdiction of court by consent
- (^) Parties cannot by agreement confer jurisdiction on court which it does not possess under the code
[Hakam versus Gammon, 1971 SCR (3) 314].
- (^) When both parties are foreign, with part of the cause of action in a foreign country and a forum
selection clause with that foreign place as the chosen forum, well-settled principles of international
law also require the court in India to relinquish jurisdiction in favour of the chosen forum.
In ABC Laminart Private Ltd versus AP Agencies, Salem [1989 SCR (2) 1], it was observed that under
Section 20(c) of the code of civil procedure, 1908, subject to the limitation stated there before, every
suit shall be instituted in a court within the local limits of whose jurisdiction the cause of action,
wholly or in part arises. In Nanak Chand versus TT. Electricity supply Co. AIR 1975 Mad 103, the division
Bench of Madras High Court observed that competency of a court to try an action goes to the root of
the matter and when such is not competency found, it has no jurisdiction at all to try the case. It was
further held that where the objection based on jurisdiction is a matter which parties could waive and
it is in the sense if such jurisdiction is exercised by courts, it does not go to the core of it also as it
makes the resultant judgement a nullity. It was thus settled that principle where there may be two or
more competent courts which can entertain a suit consequent up or the part of the cause of action
having arisen there within, if the parties to contract agreed to vest jurisdiction in one such court to try
the dispute which might arise as between themselves the agreement would be different.
Objections to jurisdiction - Section 21
The object underlying Section 21 is to protect honest litigants and to avoid harassment to plaintiffs
who have bona-fide and in good faith initiated proceeding in a court which is later on found to be
wanting in jurisdiction. Dishonest litigants cannot take advantage of this provision (ONGC versus Utpal
Kumar Basu, (1994) 4 sec 711). It is to be noted that under Section 21(1), no objection as to the place
