Legal Provisions of Section 9 of Code of Civil Procedure, 1908 (C.P.C.), India

In order to fall within the purview of the term “of a civil nature” the suit must be for the enforcement of rights and obligations of a citizen and not matters which are purely social. The rights vesting in a person by virtue of being a member of a caste or religious community would not be of a civil nature and the cognizance of the court would be barred to try a suit of such a nature.

But Explanation I to section 9 shows that where a question relating to religious rites or ceremonies is not the principal question in the suit and is only a subsidiary question and that the principal question is of a civil nature, viz., a right to property or to an office, the court has the power to determine the question relating to religious rites or ceremonies to enable it to decide the principal question which is of a civil nature.

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A suit which is thus otherwise of a civil nature is not altered because questions relating to religious rites or ceremonies arise incidentally. As said above, a ‘suit in which the principal question relates to religious rites or ceremonies is not a suit of a civil nature.

But where there has been a violation of a legal right that violation affords a cause of action to the plaintiff and it is immaterial whether he has suffered any pecuniary damages or not. ‘Explanation II, added by the Amendment Act, 1976, further provides that it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.

In view of section 9 of the Code of Civil Procedure, the enquiry of the court should be confined to the dispute of a civil nature. Any dispute which is not of a civil nature should be excluded from consideration. The dispute as to right of worship is one of a civil nature within the meaning of section 9 of the Code and a suit is maintainable for the vindication or determination of such a right.

Section 9 confers the power upon the civil court jurisdiction to try a suit of civil nature. In other words, the civil courts’ power is restricted only to suits and/or disputes of civil nature. In the instant case the plaintiff filed a suit for a declaration that the summons issued by a criminal court was illegal and void and consequently the imposition of fine in two of counts was without authority of law.

The civil court has no jurisdiction to grant such a relief for the simple reason that the proceeding before the magistrate was not a civil proceeding but a proceeding of criminal nature. When the order of the court is directed against a proceeding which is criminal in character then it must be considered to be a criminal proceeding and as such section 9 is a bar to entertain such a suit.

Where statutory enactments only create rights or liabilities without providing for remedies, any person having a grievance that he has been wronged or his right is being affected, can approach the ordinary civil court on the principle of law that where there is a right there is a remedy—ubi jus ibi remedium.

Stage for filing objections:

Objection about absence of jurisdiction of civil court can be raised and entertained at any stage.

Caste question:

A caste question is a question which relates to matters affecting the internal autonomy of the caste and its social relations. Purely caste questions cannot form the subject-matter of a civil suit. The exclusion of a member of a caste from invitation to caste dinners or ceremonies deprives him only of a social privilege and cannot be the basis of a suit of a civil nature for dinner is not a legal but social obligation and is, therefore, not recoverable by means of suit.

Temporary exclusion of some members of a caste from social intercourse with other families on account of infringement of caste rules at the instance of the panchayat is not a matter for consideration for the civil court. So also right to assistance in removal of a dead body, contribution of funds on marriage occasions, and breaches of an agreement to intermarry between members of different sub-castes are not’ questions of civil nature and are accordingly not enforceable.

But where the right of membership and personal character and status of an individual are affected the suit is maintainable as a suit of a civil nature. It falls within the jurisdiction of the civil courts to deal with a caste question where the character of a member has been unjustly injured.

Thus expulsion of a member from the case involves the determination of a legal right and a suit will lie to determine the validity of the expulsion. The right to remain in the community or to exercise the rights and privileges of the members of the community is a civil one. So will also a suit lie for damages for wrongful expulsion. Similarly, a right to inspect accounts of caste property held in trust is enforceable by means of a suit.

A suit by a member of a caste for inspection of accounts and other documents relating to the management of the caste property does not involve a caste question and is maintainable. However, a suit for rendition of accounts of the management of the caste property is different from a suit for mere inspection of accounts and the enforcement of a right sought to be asserted in a suit of former type will interfere with the autonomy of the caste.

Under Constitution Scheduled Caste Order, 1950 benefit of reservation for Scheduled Caste is not available to a person born of Christian parents and his parents were converted prior to his birth and ceased to be members of Scheduled Caste. A civil suit for declaration as to his being member of Scheduled Caste is not maintainable.

Where the President of India under Arts. 341 and 342 of the constitution of India has declared the lists of scheduled tribes and scheduled castes the jurisdiction of Civil Court is barred by necessary implication to make declaration in respect of the caste of a party. Such declaration is conclusive and subject only to amendment by Parliament under Arts. 341(2) and -342(2).

Right to religious honour:

A suit does not lie for mere honour or dignity unconnected with fees, profits or emoluments. A suit for declaration and injunction in respect of a right to be carried in a palanquin on certain days through Public Street is not maintainable. Courts will not decide disputes as to precedence or privilege between purely religious functionaries. But civil courts have jurisdiction to entertain a suit for honours if they are claimed as attached inseparably to an office. The right to celebrate the annual festival in a temple is a civil right.

Right to honours unconnected with an office cannot form the subject-matter of a suit.

The plaintiffs sued for declaration of the right to receive prasadam when the image was taken out in procession at a particular festival. It was held that the right claimed was mere dignity attached to any office and, therefore, was not a right of a civil nature and the suit- did not lie.

Right to worship:

A suit to establish the right to worship in a temple according to the worshipper’s belief is a suit of a civil nature. A suit to establish a person’s right to enter a religious place and a suit to restrain the defendant from entering a place of worship are both entertainable, being suits of a civil nature. It is a civil right of every citizen that he should be entitled to carry on his worship in any method he likes so long as he does not, by his performances, affect others injuriously.

Where the plaintiffs claimed to be entitled to enter the temple bareheaded and worship, it was held that the civil court has jurisdiction to entertain it. A right to take part in public worship either in a temple or of a deity while it is being taken out in procession is a civil right, cognizable by a civil court.

Right to take out procession:

The right to take out a procession through the public streets is a civil right, and a suit will lie to enforce such a right in a civil court. But the carrying of any emblem in a procession along the street is not the taking out of a religious procession and a suit to enforce a right to carry it is barred under section 9, C.P.C. A claim to an exclusive right to hold the lighted torch inside the chariot during the festival in a temple does not amount to an offence which could be enforced in a court within the Explanation to S. 9, C.P.C., as there is no corresponding compellable duty.

Other rights of a civil nature:

A suit to declare the election of a candidate as contrary to law is a suit of a civil nature. So also a suit for declaration of the validity of election as municipal commissioner is one of a civil nature cognizable by the civil courts. A suit to set aside an award is also maintainable.

Right to share in offerings:

Right to share in temple offerings is a civil right. A suit by a priest to recover fees received by an unauthorised person is a suit of a civil nature cognizable by a civil court. It is settled law that if a person usurps an office to which another person is entitled and receives the fees of the office, he is bound to account to the rightful owner for them, and the rightful owner may sue the usurper to recover the fees properly payable to him.

This is, however, not the case where payments are merely voluntary, and a suit does not lie to recover voluntary gratuities that may have been received by the usurper. But a claim to officiate as the priest of the deity in a particular temple on the occasion of certain festivals for which the remuneration was payable by the temple is an office of a civil nature within section 9, C.P.C.

Suit in respect of voluntary offerings:

A suit in respect of voluntary offerings, i.e., for recovery of emoluments received by the defendants for officiating as purohits at marriage and other ceremonies conducted by them in the houses of Vysyas belonged to the plaintiff is not maintainable.

Right to religious office:

There can be no office without duties attached to it. The right to hold a certain office in a certain place at certain season of the year confers a legal character. A hereditary priest, however, cannot compel his yajman to accept his service. Right to office of a hereditary priest to which fees are attached is property and a suit is maintainable.

There has, however, been a conflict of decisions between the various High Courts on the question as to whether a suit will lie at the instance of the holder of a religious office for disturbing him in the exercise of his office, which may be discussed as under:

Classes of Religious Office:

Religious office may be divided into two classes: (1) where fees are appurtenant as of right and (2) where no fees are attached but the holder may receive such gratuities as may be paid to him, viz., the office of a pujari. As regards the religious offices where fees are appurtenant as of right, there is no dispute that a suit will lie against an intruder for a declaration that the- office is vested in the plaintiff.

But as regards religious offices where no fees are attached, there is a divergence of opinion in the decisions of different High Courts. According to the Calcutta High Court, it is a suit of a civil nature cognizable by a civil court on the analogy of the definition of “office” in the Explanation to section 9 of the Code.

According to the Madras High Court, a suit does not lie for a religious office to which no fees are attached, as, in their opinion, such a religious office where no fees are attached is not an “office” within the meaning of the section. According to the High Courts of Allahabad and Patna, a right to perform a religious office to which no emoluments are attached cannot be enforced by a civil suit.

The Bombay High Court is of the view that a suit lies for a religious office which is attached to a place though no fees are appurtenant to it, e.g., the office of an officiating priest in a temple, but not where the office is personal in character, e.g., office of a guru.

Guru Simpliciter is not a civil right:

The right to officiate as a priest or as a guru simpliciter is not a civil right and no suit lies to enforce the same. But where it amounts to an office attached to an institution such as a temple, it has been recognised as a civil right. The fact that there are emoluments of a non-gratuitous character payable out of the funds of the institution is relevant, though the absence thereof is not decisive.

There may be offices without emoluments at all. The crucial test in determining whether a claim to purohitship or priesthood of a temple is a claim to an office or not is whether there are duties attached to purohitship which are enforceable by law, custom or usage, whether by deprivation or other temporal sanction.

Right to officiate as purohit and guru:

A claim to officiate as the priest of the deity in a particular temple on the occasion of certain festivals for which the remuneration was payable by the temple is an office of a civil nature within section 9, C.P.C. But a claim to be declared the guru of the archakas of a temple is not a claim to an office of a civil nature.

Right to Secular Office:

Where the plaintiff’s services are honorary and gratuitous and there is no question of any contract, a civil court has no jurisdiction. A suit by an honorary lecturer to compel delivery of lectures by him is not maintainable, for there is no injury to the personal right of the lecturer on account of no arrangement having been made by the university for the delivery of lectures.

A suit will also not lie at the instance of a dismissed honorary secretary of an association which has the power to alter the rules at any moment. A suit, however, by one director against the other directors of a limited company to restrain the latter from preventing him from acting as such is maintainable.

The Civil Court has jurisdiction to decide the dispute relating to qualification for becoming member of the Indian Olympics Association. The appeal pending in the Civil Court against the declaratory decree cannot be ordered to be transferred to the Arbitration Board which was deciding the dispute as to membership qualification, etc. The Supreme Court directed that the Civil Court should decide the appeal after taking into consideration the award of the Arbitration Board or other contentions raised by the parties.

Company:

If a company terminates the appointment of the managing agents by an ordinary resolution contrary to the articles of association, the matter is not merely concerning the internal management of the company and the civil court can grant a declaration to the effect that the resolution is invalid.

Similarly, where the managing agents of a public utility company (limited) dismiss certain clerks without the consent of the Board of Directors, a suit by the latter for a declaration that the powers of the managing agents to dismiss the clerks were subject to the control of the Board of Directors and that the dismissal was illegal and improper is a suit of a civil nature cognizable by the civil courts.

But a suit by a railway guard not selected by the selection board for promotion from grade II to grade III for a declaration that he is entitled to all the privileges, rights and emoluments of grade III, inasmuch as the act of the railway department in not appointing him to the rank of grade III is against law and departmental rules and ultra vires is not maintainable.

It is not for the courts to make appointments and when promotions are made by superior officers by selection on seniority or fitness or on both, it is open to the plaintiff to appeal to the authorities higher than the selection boards, if there is any.

Wrongful Dismissal:

The plaintiff appellant filed a suit in the trial court alleging certain unjustifiable and illegal actions on the part of his employer, the respondent. It was held by Supreme Court that the main reliefs asked for by him were such that when granted they would amount to specific performance of the contract of service and therefore they could not be granted.

There are a number of decisions of the Supreme Court to that effect, to wit—(1) Dr. S. Dutt v. University of Delhi, (2) S.R. Tiwari v. District Board, Agra; and (3) Indian Airlines Corporation v. Sukhdev Rai, Reference may also be made in this connection to the decision of the Supreme Court in Premier Automobiles Ltd. v. Kamlakar Shantaram.

But then, in the alternative, the appellant had also prayed for awarding compensation to him. And reading the plaint as a whole, it can legitimately be culled out that he made out a case, whether it was right on fact or not, that is a different question, that he was wrongfully dismissed from service. This relief could be granted by the civil court, if it was found that the plaintiff’s case was true.

Executive authority:

The civil court has power to entertain a suit in which the question is whether the executive authority has acted ultra vires. A.R Inam Abolition and conversion into Ryotwari Act (37/56) impliedly bars the jurisdiction of civil court. The plaintiff was holding land belonging to Math. The suit for declaration of title to Inam land is barred.

The pre-existing right, title and interest are extinguished. A new grant of ryotwari patta became conclusive with overriding effect over any other law. The holder of land became entitled to freehold ryotwari patta without any obligation to render service.

Where cinema building was let out with furniture, fixtures and some equipments. The intention of parties was for using the building as cinema theatre and not as a lease for running cinema business. The civil suit for eviction is not maintainable as tenant was protected by Karnataka Rent Control Act (22 of 1961).

Civil suit for damages against Electricity Board for laying high power transmission lines through construction of the plaintiff without his consent is not barred.

The civil court has no jurisdiction to entertain civil suit for permanent injunction restraining Electricity Board from collection and recovering inaccurate bills. The aggrieved consumer has a remedy under the Electricity Act and instructions issued by the Board in this regard. The authorities have to entertain the complaint and pass reasoned orders thereon.

Tenancy Law:

S. 2 (as amended by fifth Act w.e.f. 20.4.76) of Goa, Daman and Diu Agricultural Tenancy Act, 1964 ousts the jurisdiction of civil court. The decree passed for eviction of tenant from land used for growing coconut trees is liable to be set aside.

The claim in civil suit was with reference to covenant entered between ex-rulers which was an Act of State. Such civil suit is barred by Article 363 of the Constitution of India.

Legislative Competence:

Civil Court has no jurisdiction to determine the validity of notification under S. 4 and declaration under S. 6 of the Land Acquisition Act. This can only be done by the High Court in judicial review under Art. 226 of the Constitution of India.

Brij Jijmani right:

Brij Jijmani right is a heritable property and is in some cases transferable. An action by a legal heir of a Panda for declaration of his right to inheritance and for an injunction restraining the defendants from interfering with the plaintiff’s right and for recovery of possession of the pilgrim’s bahis, is one of a civil nature and maintainable in the civil court.

The right of yajman vritti is not in the nature of an easement. Both yajman vritti and man vritti are offerings to a purohit by a devout Hindu on the occasion of his officiating at religious ceremonies and functions. A man vritti, however, differs in this respect that the relation between a yajman and purohit is casual or temporary.

There is no fixity of character and in consequence it is not a heritable asset. But Yajman vritti creates a permanent relation, which is regarded as heritable property. The right of yajman vritti being a right in property is heritable and in consequence is also divisible.

The right being property on the death of the parties to an agreement to divide the income, the agreement does not come to an end. Therefore a suit for declaration of a right to share the income derived from the yajman vritti is of a civil nature and is maintainable.

Suits expressly or impliedly barred:

The jurisdiction of civil courts is expressly barred when there is some enactment or rule of law precluding them from taking cognizance of a suit. They are suits barred by the Guardians and Wards Act, awards under the Co-operative Societies Act, etc.

Suits barred on grounds of public policy:

They are suits the cognizance of which is impliedly barred on the grounds of public or State policy. Suits by a witness to recover money agreed to be paid to him in consideration of his giving evidence, suits on agreements void on grounds of public policy, e.g., rent of lodgings knowingly let to a prostitute, suits to enforce an agreement to suppress a criminal prosecution, suits based on illegal or unlawful contracts, etc. are not maintainable. So is also a suit for damages against a judicial officer for acts done in good faith and in discharge of his official duty not maintainable unless he acts illegally and without due care and caution.

Suits for restitution, of conjugal rights by a Christian:

Where the partners are Christians, a decree for restitution of conjugal rights can be granted under the provisions of a special statute, viz., the Indian Divorce Act, 1869, governing the procedure by the District Court or, the High Court on the petition of the husband or wife. The general remedy of a suit in the ordinary civil courts as provided by section 9; C.P.C. is impliedly barred by the Indian Divorce Act.

Arbitration matters:

Sections 60 and 69 of Delhi Co-operative Societies Act, do not bar an application for reference of dispute to arbitration as per agreement with contractor for construction work.

Disputes between Employer and Employee:

The principles with regard to jurisdiction of civil court in relation to dispute between employer and employee can be summarised as under. Where reliefs are claimed on the basis of the general law of contract, a suit is not barred even though such a dispute may also be an “industrial dispute” under Industrial Disputes Act.

In case of violation of standing orders an employee may approach either before the forums created by Industrial Disputes Act or the Civil Court. But where dispute involves recognition, observance or enforcement of any rights or obligations created by the Industrial Disputes Act or ‘sister-enactments to it’ such as Industrial Employment (Standing Orders) Act, 1946, the only remedy is to approach the forums created by the Industrial Disputes Act.

Remedies provided by the Industrial Disputes Act are equally effective and more speedy, inexpensive, -informal and unincumbered by the plethore of procedural laws and appeals on appeals and revisions applicable to civil courts. Supreme Court advised for legislative change to enable a workman to approach the Labour Court/Industrial Tribunal directly without the requirement of a reference by the Government.

Validity of Ex-communication:

The civil courts are competent to decide on the validity of the ex-communication. A church is formed by the voluntary association of individuals. And the churches in the Commonwealth are voluntary body organised on a consensual basis—their rights apart from statutes will be protected by the courts and their discipline enforced exactly as in the case of any other voluntary body whose existence is legally recognised.

Therefore, all religious bodies are regarded by courts of law in the same position in respect of the protection of their rights and the sanction given to their respective organisations. It is farther settled that discipline of a church cannot affect any person except by express sanction of the civil power or by the voluntary submission of the particular person.

But for purposes of enforcing discipline within a church religious body may constitute a tribunal to determine whether its rules have been violated by any other members or not and what will be the consequence of that violation.

In such case the tribunals so constituted are not in any sense courts, they derive no authority from the statutes and they have no power of their own to enforce their sentence.

Their decisions are given effect to by the courts as decisions of the arbitrators whose jurisdiction rests entirely on the agreement of the parties. Consequently, if any member of such body has been injured as to his rights in any matter of mixed spiritual and temporal character the courts of law will, on due complaint being made, inquire into the laws and rules of the tribunal or authority which has inflicted the injury and will ascertain whether any sentence pronounced was regularly pronounced by competent authority, and will give such redress as justice demands.

Suit by Hindu wife for perpetual injunction restraining her husband from contracting second marriage:

A suit brought by a Hindu wife for an injunction perpetually restraining her Hindu husband from contracting a second marriage falls within section 9, C.P.C., and is cognizable by a civil court. It is plain that the suit is of a civil nature. Its cognizance is not expressly or impliedly barred by any provisions in the Hindu Marriage Act. The suit is clearly permitted by section 54 (new S. 38), Specific Relief Act.

The plaintiff when she seeks the injunction in her suit is seeking the prevention of the breach of an obligation created by section 5(i), Hindu Marriage Act in her favour and, therefore, entitled to seek that injunction under section 54 (new S. 38), Specific Relief Act. The expression ‘obligation’ occurring in the first paragraph of section 54 (new S. 38), Specific Relief Act, has wide import and it is not necessary that it should be an obligation arising out of contract.

Jurisdiction of a Court:

The jurisdiction of a court to entertain a suit is to be determined by the allegations made in the plaint and not by the result of the suit.

Section 9, C.P.C., read with Article 25 of the Constitution of India confers jurisdiction on civil courts to try all civil suits unless barred. The religious right being, the right to practise, preach believe and profess a particular faith and dispute about religious office is a civil dispute relating to rights which may be religious in nature but are civil in consequences. Law provides for one forum that is the civil court, for adjudication of civil rights or rights of civil nature for its citizens including Christians, Hindus, Muslims, Sikh, Budhs, Jainis or Parsees.

One of the basic principles of law is that every right has a remedy. Ubi jus ibi remedium is the well-known maxim. Every civil suit is cognizable unless it is barred. “There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one’s peril, bring a suit of one’s choice.

It is no answer to a suit, however frivolous the claim, that the law confers no such right to sue. The expansive nature of the section is demonstrated by use of phraseology both positive and negative. The earlier part opens the door widely and latter debars entry to only those which are expressly or impliedly barred.

The two explanations, one existing from inception and the latter added in 1976 bring out clearly the legislative intention of extending operation of the section to such religious matters where right to property or office is involved irrespective of whether any fee is attached to the office or not. The language used is simple but explicit and clear.

It is structured on the basic principle of a civilised jurisprudence that absence of machinery for enforcement of right renders it nugatory. The heading which is normally key to the section brings out unequivocally that all civil suits are cognizable unless barred. What is meant by it is explained further by widening the ambit of the section by use of the word ‘shall’ and the expression ‘all suits of a civil nature’ unless ‘expressly or impliedly barred’.

Jurisdiction of a quasi-judicial tribunal:

Jurisdiction means authority to decide. Whenever a judicial or quasi-judicial tribunal is empowered to enquire into a question of law or fact for the purpose of giving a decision on it, its findings thereon cannot be impeached collaterally or on an application for certiorari but are binding until reversed on appeal.

Where a quasi-judicial authority has jurisdiction to decide a matter, it does not lose its jurisdiction by coming to a wrong conclusion, whether it is wrong in law or in fact. The question whether a tribunal has jurisdiction depends not on the truth or falsehood of the facts into which it has to enquire, or upon the correctness of its findings on these facts, but upon their nature, and it is determinable “at the commencement, not at the conclusion, of the inquiry”.

Jurisdiction of civil court:

Where the right claimed is not purely a creature of a statute, but is a common law right and the statute entrusting the special tribunal with certain disputes relating to the right does not expressly oust the jurisdiction of the civil court wholly and the language of the statute does not in unmistakable terms make out that the right must only be exercised or enforced in a manner provided by the statute, the jurisdiction will not be barred.

Also, where the statute does not provide any special machinery for the determination of any particular right recognised or provided by the statute recourse to the civil court for the assertion and determination of the right should be and, therefore, would be available. It is a general principle of law that where there is a right there must be a remedy; ubi jus ibi remedium.

Of course, where a right is created by statute and a special tribunal or forum is provided for its assertion and enforcement the ordinary civil court would have no jurisdiction to entertain disputes. As in every case where the question of the exclusion of the civil court’s jurisdiction is pleaded, the matter has to be considered in the light of the word use in the statutory provision on which the exclusion is rested.

The civil court has jurisdiction to examine whether action or decision of an administrative authority was intra vires the relevant rules even if the rules are in the nature of administrative or departmental instructions.

Civil suit is not excluded where the fundamental principles of procedure are not followed by the Tribunals constituted under the land reform laws.

The civil court has jurisdiction to see whether the decision of authorities granting patta is fraudulent or spurious.

“The ecclesiastical law of England is as much the law of the land as any other part of the law”. (Halsbury’s Laws of England, Vol. 14, para.139). There was no such law in our country. The ecclesiastical courts are peculiar to England. The Parliament was aware of it. That is why it added Explanation I to section 9 of the Civil Procedure Code.

It obviates any ambiguity by making it clear that where even right to an office is contested then it would be a suit of a civil nature even though that right may entirely depend on the decision of a question as to religious rites or ceremonies. Explanation II widens it further to even those offices to which no fees are attached. Therefore, it was visualised from the inception that a suit in which the right to property or religious office was involved it would be a suit of civil nature.

The expansive nature of section 9 is demonstrated by use of the phraseology with positive and negative. The earlier part opens the door widely and the latter debars entry to only those which are expressly or impliedly barred.

The two explanations, one existing from inception and the latter added in 1976, bring out clearly the legislative intentions of extending operation of the section to such religious matters where right to property or office is involved irrespective of whether any fee is attached to the office or not.

The language used is simple but explicit and clear. It is structured on the basic principle of a civilised jurisprudence that absence of machinery for enforcement of right renders it nugatory. The heading which is normally key to the section brings out unequivocally that all civil suits are cognizable unless barred.

What is meant by it is explained further by widening the ambit of the section by use of the word ‘shall’ and the expression ‘all suits of a civil nature’ unless expressly or impliedly barred. Each word and expression casts an obligation on the Court to exercise jurisdiction for enforcement of right.

The word ‘shall’ makes it mandatory. No court can refuse to entertain a suit if it is of description mentioned in the section. That is amplified by use of the expression ‘all suits of civil nature’. The words ‘civil nature’ are wider than the words ‘civil proceeding’. The section would, therefore, 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.

Civil Suit for restraining State to interfere with possession of party or to denotify acquisition under S. 48 of Land Acquisition Act (1894) is barred. Where Tax Recovery Officer had not proceeded to recover tax under the provisions of the I.T. Act, the auction sale of property by Executive Court is not barred under the I.T. Rules.

Jurisdiction of Civil Court impliedly barred:

It will be noticed from the provisions contained in Section 9 of the Code of Civil Procedure 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 the jurisdiction of a Civil Court is barred, e.g., 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 of appeal as contained in the Punjab Municipal Act which is the subject matter of the present case. Section 86 of the 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, C.P.C. against filing a civil suit.

Civil Court jurisdiction not completely ousted by Companies Act:

The dispute between the parties was eminently a civil dispute and not a dispute under the provisions of the Companies Act. Section 9 of the Code of Civil Procedure confers jurisdiction upon the Civil Courts to determine all disputes of civil nature unless the same is barred under statute either expressly or by necessary implication.

Bar of jurisdiction of a Civil Court is not to be readily inferred. A provision seeking to bar jurisdiction of Civil Court requires strict interpretation. The Court, it is well-settled, would normally lean in favour of construction, which would uphold retention of jurisdiction of the Civil Court. The burden of proof in this behalf shall be on the party who asserts that the Civil Court’s jurisdiction is ousted.

Issuance of Writ of Prohibition against Civil Court only in rarest of rare case:

The Supreme Court and the High Courts have power to issue writs, including a writ of prohibition. A writ of prohibition is normally issued only when the inferior Court or Tribunal: (a) proceeds to act without or in excess of jurisdiction, (b) proceeds to act in violation of rules of natural justice, (c) proceeds to act under law which is itself ultra vires or unconstitutional, or (d) proceeds to act in contravention of fundamental rights.

The principles which govern exercise of such power must be strictly observed. A writ of prohibition must be issued only in rarest of rare cases. Judicial disciplines of the highest order has to be exercised whilst issuing such writs. It must be remembered that the writ jurisdiction is original jurisdiction distinct from appellate jurisdiction.

An appeal cannot be allowed to be disguised in the form of a writ. In other words, this power cannot be allowed to be used “as a clock of an appeal in disguise.” Lax use of such a power would impair the dignity and integrity to the subordinate Court and could also lead to chaotic consequences. It would undermine the confidence of the subordinate Court.

Jurisdiction of Civil Court to try suit for Pujariki rights of performing Puja:

Where the cause of action had arisen when respondents had obstructed appellants in performing puja in temple and had taken away articles. Relief claimed were for declaration that appellants were wahiwat pujaris and had pujariki rights of performing puja. Consequential decree for injunction restraining respondents was also claimed. Held, that as question required adjudication had not expressly come within the purview of Act, i.e., no declaration regarding existence or otherwise of trust or trust property was claimed, hence jurisdiction of Civil Court was not ousted. The fact that application was pending before the Assistant Charity ^Commissioner for registration of temple and its property as public trust was irrelevant.

Tenancy Laws:

Under S. 14 of Andhra Pradesh (Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act (1956) the jurisdiction of the civil court to determine the genuineness of patta granted by authorities to avoid granting of fraudulent or Mrurious patta?

S. 43 of Tamil Nadu Minor Inam (Abolition and Conversion into Ryotwari) Act (1963) does not exclude the jurisdiction of civil court to adjudicate title of parties in case of Ryotwari Patta.

Land reform laws create new rights and remedies under the Act. The Tribunals enquire into the rival claims and appeal is provided against the order of the primary authority. The right and remedy is made conclusive under the Act and finality is given to orders passed under the Act.

The jurisdiction of civil court stands excluded by necessary implication. The civil court cannot unsettle the patta which had become final in the decree. Civil suit lies where fundamental principles of procedure are not followed by the tribunals constituted under the land reform laws.

The jurisdiction of civil court to determine the status of the tenancy is not barred in cases where civil suit was pending on or before coming into force of Amending Act of 1969 amending Kerala Land Reforms Act (1 of 1964).

S. 46 of Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 provides that the proceedings initiated under the provisions of the Act can only be challenged in the manner provided there under and which provides the right of revision and right of appeal.

The suit by major daughters of Bhoomidhar for declaration that order declaring suit land as surplus land was illegal, is not maintainable. The jurisdiction of civil court has been barred to challenge any question settled or decision made or matter dealt with by the competent authority under the Act.

Under section 43 of Pepsu Tenancy and Agricultural Lands Act (13 of 1955) the decision of the collector with regard to possession of land is final. The civil court has no jurisdiction in the matter.

Revenue Matter:

Legality of entries made in revenue records can be decided by the revenue authorities under provisions of U.P. Zamindari and Land Reforms Act (1951). Civil Court has no jurisdiction to decide the legality of entries made in revenue records.

Tenancy Laws:

Section 36-B of Bombay Prevention of Fragmentation and Consolidation of Holdings Act (62 of 1947) expressly bars the jurisdiction of civil court. The competent authority under the Act held sale transaction as valid. Civil Court was a first appellate court and thus cannot go behind the order passed by the competent authority.

Suit does not become non-maintainable because the change of identity of suit lands in the course of consolidation proceedings. Consolidation proceedings only substitute one property for other.

S. 26(l) (b) of Haryana Ceiling on Land Holdings Act (26 of 1972) expressly bars the jurisdiction of civil court for challenging allotment of surplus lands by Government and provides the forum to decide such matters.

The scheme of the Land Acquisition Act is complete in itself and thereby the jurisdiction of the civil court to take cognizance of the cases arising under the Land Acquisition Act, by necessary implication, stood barred. The civil court thereby is devoid of jurisdiction to give declaration on the invalidity of the procedure contemplated under the Act.

The only right an aggrieved person has is to approach the constitutional Courts, viz., the High Court and the Supreme Court under their plenary power under Articles 226 and 136 respectively with self-imposed restrictions on their exercise of extraordinary power. Barring thereof, there is no power to the civil court.

Service Matter:

When relevant Service Rules neither expressly nor by implication take away jurisdiction of civil court to deal with service and matter was litigated in civil court for more than five years, it is not proper to hold in second appeal that the civil court has no jurisdiction.

Eviction—Public Premises:

Civil suit challenging eviction proceedings initiated under the provisions of Karnataka Public Premises (Eviction of unauthorised occupants) Act (32 of 1974) is barred. The question of unauthorised occupancy can be determined only by estate officer under the said Act and aggrieved person against such determination has remedy under the said Act by way of appeal.

Land Acquisition:

Land Acquisition Act provides a special procedure for adjudication of objections and jurisdiction of civil courts is barred unless the procedure prescribed in Ss. 18, 19, 20 and 31 of the Land Acquisition are complied with and adhered to.

Jurisdiction of civil court to take cognizance in cases arising under Land Acquisition Act is barred.

A perusal of the plaint indicates that the plaintiff has challenged the execution of sale deed of agricultural land on the ground that the sale deed has been executed by the mother without obtaining permission of the District Judge. Sub-section (3) of section 8 of the Hindu Minority and Guardianship Act provides that in disposal of immovable property by natural guardian, in contravention of sub-section (1) or sub-section (2) the same is voidable at the instance of the minor or any person claiming under him. In view of the said provision the sale deed, at the most, on this ground can be treated only a voidable document and as for voidable document it is only the civil court and not the revenue court, has jurisdiction to grant relief of cancellation of the sale-deed.

The Supreme Court in the case of Abdulla Bin Ali and others v. Galappa and others, reported in has held that the jurisdiction of the, court has to be decided on the allegations made in the plaint and not on the allegations made in the written statement.

The order passed by the trial court as well as by the revisional court holding that in view of the pleadings in the written statement denying the title of the plaintiff, the case was triable by the Munsif and not by the Judge, Small Causes, is, therefore, not legally tenable. The trial court shall return the plaint for presentation before the competent court.

Where the court does not have jurisdiction on a subject, it cannot usurp it on the ground that the party involved is Gram Panchayat and the amount involved is small.

The mortgaged property was later on declared evacuee property and custodian sold it. Suit for recovery of mortgage amount by mortgage pending in civil court is maintainable as custodian was divested of administration of evacuee property by sale in favour of purchaser.

Substance of relief and not its form:

It is the substance of the relief which matters and not its form. The phrase “relating to recovery of possession” in S. 41(1) of the Presidency Small Cause Courts Act (15 of 1882) is comprehensive in nature.

It takes in its sweep any suit for injunction restraining licensor from effecting forcible recovery of possession from licensee. Such suit would lie within the exclusive jurisdiction of the Small Cause Court and jurisdiction of the City Civil Court is barred.

Employees’ State Insurance Act (34 of 1948) by S. 75 expressly confers jurisdiction on E.S.I, court to decide whether and to what extent benefits available under Medical Rules were advantageous. Such dispute can be adjudicated by E.S.I, court and not civil court.

Second application for issue of temporary injunction filed under changed circumstances not barred by res Judicata:

Order of temporary injunction was capable of ‘being altered or varied on prima facie proof of new situation that may have emerged subsequently. Second application for issue of temporary injunction filed under changed circumstances was not barred by res Judicata.

Applicability of res Judicata of industrial adjudication:

Where dispute was raised about termination of services of temporary workman by way of writ petition. High Court had passed reasoned order on merits and after contested hearing. Held that as that order had become final, hence, re-agitation of same issue before Labour Court was barred by res Judicata. Moreover, the “lesser relief’ of reinstatement which was subject-matter of industrial dispute had already been claimed by the respondent-workman in writ petition.

Earlier decree would operate as res Judicata in subsequent suit:

In a suit for declaration, of adverse possession, assertion by defendant of possession being adverse to the knowledge of plaintiff for a period of 12 years and above was necessary.

On non-acceptance of adverse possession in earlier suit, fresh suit was filed on same cause of action. Held, that permissive possession before dismissal of that suit and as such earlier decree will operate as res Judicata in subsequent suit.

Applicability of bar of res Judicata:

Where for recovery of loan by Co-operative Bank, recovery certificate was issued under the Maharashtra Co-operative Societies Act. Challenge to execution proceedings was made by debtors by filing writ petition.

But such petition was rejected by single Judge of High Court and matter was not taken before the Divisional Bench. Held that such issue raised once again by filing revision petition under Maharashtra Co-operative Societies Act was barred by res Judicata,

Subsequent suit on same cause of action not barred by res Judicata:

Where suit was dismissed due to default under C.P.C. Order IX, Rule 8. It was held that subsequent suit on same cause of action was not barred by res Judicata because earlier suit had not been decided on merits.

Res Judicata not applicable on application for redemption of mortgage:

Where application for redemption of mortgage had been dismissed by the Collector under Sections 11 and 12 of Redemption of Mortgage (Punjab) Act, 1913. Held, that principle of res Judicata will not be applicable in suit for redemption of mortgage.

Plea of res Judicata has to be founded on proof of certain facts:

The plea of res Judicata is founded on proof of certain facts and then by applying the law to the facts so found. It is, therefore, necessary that the foundation for the plea must be laid in the pleadings and then issues must be framed and tried. A plea not properly raised in the pleadings or in issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal.

Plea of res Judicata has to be substantiated by producing copies of pleadings, issues and judgments in the previous case:

Not only the plea has to be taken, it has to be substantiated by producing the copies of the pleadings, issues and judgments in the previous case. May be in a given case only copy of judgment in previous suit is filed in proof of plea of res Judicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof.

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