Jurisdiction of Civil Courts

Meaning: The term 'jurisdiction' is not defined in the Code. It is derived from the Latin word
'juris and 'dicto' which means "I speak by the law'. In Raja Soap Factory v. S.P. Santharaj, AIR
1965 Supreme Court held that:
“jurisdiction means the extent of the authority of a court to hear and determine a cause or a
matter prescribed with reference to the subject matter, pecuniary value and local limits. It is a
power of the court to entertain and decide the matters before it.”

In Official Trustee v. Sachindra Nath, AIR 1969 Supreme Court held that jurisdiction must
include the power to hear and decide the question at issue.

Determination of jurisdiction: Jurisdiction is determined on the basis of averments made in the

plaint. While deciding the jurisdiction the substance of the plaint matters and not the form. So
plaintiff cannot circumvent the provisions of law to invest the court with the jurisdiction.
Courts should look at the substance of the matter. [Bank of Baroda v. Moti Bhai, (1985)
Who will decide the jurisdiction?
Every court is entitled to determine whether it has the jurisdiction to decide a particular
dispute before it or not. Such question must be decided at the commencement of the
proceedings. Supreme Court in M.S. Hasnuddin v. State of Maharashtra, AIR 1979 held that
whenever the jurisdiction of the court is challenged, the court has inherent power to decide the
question of jurisdiction.

Consent and jurisdiction: It is well settled that consent cannot confer nor take away jurisdiction
of the court. It is completely a legislative process [A.R. Antulary v. R.S. Naik, (1988)]. If the
court does not have jurisdiction no amount of waiver, acquiescence or estoppel can create it.
[Modi Entertainment Network v. W.S.G. Cricket Pvt. Ltd., (2003). Similarly when the court has
jurisdiction to decide the dispute, it cannot be taken away by the parties through an agreement.
It must be taken note that it is the legislature which confers or takes away the jurisdiction of
the court.
In Hukam Singh v. Gammon (India) Ltd., AIR 1971 Supreme Court held that if two or more courts have
concurrent jurisdiction then in that case the parties may agree to select one of the courts for adjudicating
the matter.

In Kiran Singh v. Chaman Paswan, AIR 1954 SC 300 Supreme Court held that a defect of jurisdiction goes
to the root of matter and strikes at the authority of the court to pass a decree. Such fundamental defect
cannot be cured by the consent of the parties and judgment or order passed by such court becomes null
and void.
Pecuniary jurisdiction:
Section 2 of the Code provides that the court will have jurisdiction only over those suits, the
amount or value of the subject matter of which does not exceed pecuniary limits of its
jurisdiction. Some court have unlimited pecuniary jurisdiction and others have jurisdiction to
try the suit only up to a particular amount. Section 11 of the Code provides that every suit shall
be instituted in a court of lowest grade competent to try it. It refers to the pecuniary jurisdiction
of the court.

Territorial jurisdiction:
Every court has a certain local limit outside of which it cannot exercise the jurisdiction. These
limits are fixed by statute. For example, High Court has territorial jurisdiction for the whole
territory of the State and Supreme Court has jurisdiction throughout the territory of India.
Sections 12-14 of the Code deals with the territorial jurisdiction of the suit.
Subject matter jurisdiction:
It means different types of suits or subject matters which a court is competent to decide.
Certain courts can decide only a particular subject matter. For example, Insolvency Court can
decide matters relating to insolvency, Family Courts can decide matters relating to matrimonial
disputes only. These courts cannot decide other matters like specific performance, declaration,
partition etc. Decree passed by the court without subject matter jurisdiction is a nullity. It
amounts to inherent lack of jurisdiction. For example, Family Court can only decide matters
relating to family dispute, if the Family Court decides revenue dispute then the decree passed
will be a nullity. Supreme Court in Chiranjilal Srilal Goenka v. Jasjit Singh and Ors., (1993)
observed that decree passed by a court without jurisdiction on the subject matter goes to the
root of the matter. Such decree is a nullity.

Supreme Court in Hiralal v. Kalinath, AIR 1962 SC pointed out that defect of jurisdiction with
respect to pecuniary or territorial jurisdiction does not go to the root of the matter. Decree
passed in such a defect is not a nullity.
Fundamental principle of law is ubi jus ibi remedium i.e. where there is a right there is a
remedy. Accordingly if a person has a right which has been violated then that person can
pursue appropriate remedy to redress the violation of his right.

Section 5 of the Code is legislative manifestation of the maxim ubi jus ibi remedium. It provides
for the jurisdiction of the Civil Court in reference to subject matter. It provides that the court
shall have jurisdiction to try all suits of civil nature excepting the suits of which their
cognizance is either expressly or impliedly barred. Thus, following conditions must be fulfilled
in order to invoke Section 5.
1. The suit must be a civil nature, and
2. The cognizance of such a suit should not have been expressly or impliedly barred.

The word 'shall' makes it mandatory. No court can refuse to exercise the jurisdiction if the
conditions mentioned in the section are fulfilled. Supreme Court in Abdul Gafur v. State of
Uttrakhand, 2008 (11) observed that under Section 5 every person has an inherent right to file a
suit if conditions of Section 5 are met.
Suits of Civil Nature

The term 'civil' is not defined in the Code. According to the dictionary meaning, it pertains to
private rights and remedies of a citizen as distinguished from criminal, political, religious, etc.
In Most Rev. P.M.A. Metropolitan v. Moran Mar Marthonia, 1995 Supp. (4) Supreme Court held
that the expression 'civil nature' is wider than the expression 'civil proceedings'. Thus, a suit is
of civil nature if the principal question therein relates to the determination of a civil right and
its enforcement. The section would be available in every case where the dispute has the
characteristic of affecting one's rights which are not only civil but of civil nature. The subject
matter of the suit and not the status of parties determine whether the suit is of civil nature or
not.

Nature and Scope: The expression 'suits of civil nature' will cover private rights and obligations
of a citizen. Political and religious questions are not covered by that expression e.g. suits
relating to right to property, damages for civil wrong, etc. are of civil nature.
Explanation I of Section 5 lays down that a suit in which a right to property or to an office is
contested is a suit of civil nature notwithstanding that such right may depend entirely on the
decision of questions as to religious rites or ceremonies.
Political or religious questions are not covered in the expression 'suits of civil nature'. A suit in
which principal question relates to caste or religion is not a suit of civil nature. But if the
adjudication of matter incidentally involves the determination relating to caste or political
question then it does not cease to be a suit of civil nature.

Explanation II of Section 5 [added by Amendment Act of 1532] lays down that a suit relating to
an office is maintainable whether or not any fees is attached to the office or whether or not it is
attached to a particular place.
Bar to jurisdiction:
Court has jurisdiction to try suits of civil nature unless the jurisdiction has been expressly or
impliedly taken away. Legislature is competent to divest a court from the jurisdiction and
confer jurisdiction to another court. Therefore, it may happen the suit is of civil nature but the
legislature has taken away jurisdiction from the civil court and vested it in a special court. In
that case that special court will have jurisdiction to try the suit.

For example, matrimomial disputes (divorce, judicial separation, nullity of marriage and alike)
are disputes of civil nature but the suit cannot be filed in ordinary civil courts because the
legislature has enacted Family Courts for that purpose. Despite being a suit of civil nature the
matter is to be adjudicated by Family Court and not ordinary civil court.

Bar contemplated by Section 5 is of two types:-Express bar and Implied bar

Express bar: Suit is said to be expressly barred when it is barred by any enactment for the time
being in force. It is open to the legislature to bar jurisdiction of civil courts with respect to a
particular class of matters. Thus, matters falling within exclusive jurisdiction of Industrial
Tribunal, Income Tax Tribunal, Moto Accidents Tribunal etc are expressly barred from the
jurisdiction of the civil court.

Implied bar: A suit is said to be impliedly barred when it is barred by general principles of law,
or on grounds of public policy. When a specific remedy is given in a statute, it deprives the
person from instituting a civil suit. Certain suits are also barred on the basis of public policy.
Presumption of jurisdiction:
In Dhulabhai v. State of Madhya Pradesh, AIR 1525 SC 1314 Supreme Court held that every
presumption should be made in favour of jurisdiction of the court and the provision of
exclusion of jurisdiction must be strictly construed. Courts will always lean to the
interpretation which would maintain the jurisdiction of the court. The party who doubts the
jurisdiction of the court has to prove that the court has no jurisdiction. Exclusion of jurisdiction
must be clear.

Principle of exclusion of jurisdiction: In Dhulabhai v. State of Madhya Pradesh, AIR 1525 SC

1314 Supreme Court laid down the following guidelines regarding exclusion of jurisdiction of
civil courts:-
1. If the statute gives finality to the orders of special tribunal, civil court's jurisdiction must be
heldto be excluded if there is adequate remedy to do what civil courts would normally do in
a suit.
2. Where there is no express exclusion of the jurisdiction of the court the examination of
efficacy of remedies must be made by analyzing the scheme of the Act. It is important to see
whether the statute provides for determination of all rights and remedies provided in the
statute.
3. Challenge to the provisions of a particular Act as ultra vires cannot be brought before the
tribunals constituted under the Act.
0. Where the Act contains no machinery for refund of tax collected, a suit lies.
1. An exclusion of jurisdiction of court is not readily inferred unless these conditions apply.
Suits of civil nature
• Suits relating to rights to properties.
• Suits for accounts.
• Suits for damages for civil wrong.
• Suits for dissolution of marriage, restitution of conjugal rights.
• Suits for breach of contract.
• Suits relating to office
• Suits relating to right of worship.
• Suits for contribution.
• Suits respecting temple and other religious properties.
• Suits relating to partnership.
• Suits relating to religious or other procession.
• Suits relating to right of franchise.
• Suits relating to right of burial.
• Suit for office and fee attached to religious office.
• Suit about right to specific relief.
• Suit to enforce right of privacy based on custom