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Ouster Clauses and Jurisdiction of Civil Courts

SUBMITTED FOR THE PURPOSE OF INTERNAL ASSESSMENT


CIVIL PROCEDURE CODE
SECOND SEMESTER
LL.B. (HONS.) IN INTELLECTUAL PROPERTY LAW

RGSOIPL – IIT KHARAGPUR

SUBMITTED BY

Saurabh Soundankar

Roll No.: 17IP63035


Contents

Jurisdiction: Meaning and Scope ............................................................................................................ 3

Types of Jurisdiction ........................................................................................................................... 3

Jurisdiction of Civil Courts ..................................................................................................................... 3

Conditions ........................................................................................................................................... 4

Who may decide ................................................................................................................................. 5

Presumption as to jurisdiction ............................................................................................................. 5

Burden of proof ................................................................................................................................... 6

Finality Clause: Meaning and Scope ...................................................................................................... 6

A Valid Ouster Jurisdictional Clause ...................................................................................................... 6

Ouster of Jurisdiction of Civil Courts by Statutes .................................................................................. 7


Jurisdiction: Meaning and Scope
The Civil Procedure Code does not define the term “jurisdiction” as such. The word jurisdiction
is formulated from Latin terms “juris” and “dicto” which means “I speak by law”.
Jurisdiction in simple terms means, the power or authority of court to hear and decide upon a
particular matter or cause. It is the power to entertain, deal with, adjudicate and exercise any
judicial power in relation to a suit, an action, a petition, or other proceedings. Put in other
words, by jurisdiction is meant the authority which a court has to decide matters that are
litigated before it or to take cognizance of matters presented in a formal way for its decision.
Jurisdiction of the court cannot be taken away by consent of the parties, neither it can be
conferred by such manner. Creation or Enlargement of jurisdiction comes under purview of
legislative power.
For deciding jurisdictions averments made in the plaint are material. When the jurisdiction of
the court is challenged, the court has inherent jurisdiction to decide upon such question.

Types of Jurisdiction
Following are some of the categories of the jurisdiction of a court:

• Civil and Criminal Jurisdiction:


Civil jurisdiction is that which deals with suits of “civil nature” and whereas criminal
jurisdiction deals with crimes and punishes offenders.
• Territorial or Local Jurisdiction:
Every court has local or territorial limits beyond which it cannot exercise its
jurisdiction. Such limits are determined by the Government.
• Pecuniary Jurisdiction:
Section 6 of the Civil Procedure Code provides that a court will have jurisdiction only
over those suits the amount or value of the subject matter of which doesn’t limit the
pecuniary limits of its jurisdiction.
• Jurisdictions as to subject-matter:
Different types of courts have been empowered to try different types of suits.
• Original and Appellate Jurisdiction:
Original jurisdiction is jurisdiction inherent in, or conferred upon court of first instance.
Appellate jurisdiction is the power conferred upon superior courts to re-hear the matter
by way of appeal which have been tried and decided by inferior courts.

Jurisdiction of Civil Courts


Section 9 of Civil Procedure Code provides that a civil court has jurisdiction to try all suits of
civil nature unless they are barred either expressly or impliedly. Section 9 reads as follows:
9. Courts to try all civil suits unless barred. - The Courts shall (subject to the provisions
herein contained) have jurisdiction to try all Suits of a civil nature excepting suits of which
their cognizance is either expressly or impliedly barred.
Explanation I.—As suit in which the right to property or to an office is contested is a suit of a
civil nature, notwithstanding that such right may depend entirely on the decision of questions
as to religious rites or ceremonies.
Explanation Il—For the purposes of this section, 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.

Conditions
Following are the two conditions which are needed to be satisfied by a civil court to try a suit:
a) The suit must be of civil nature; and
b) The cognizance of such a suit should not have been expressly or impliedly barred.

a) Suits of civil nature


i. Meaning: - The word “civil: has not been defined in the Civil Procedure Code. The
dictionary meaning1 of the word “civil” pertains to private rights and remedies of a
citizen as different from criminal. The word “nature” has been defined as “the
fundamental qualities of a person or thing”. Thus, a suit is of a civil nature if
principle question therein relates to determination of civil right and enforcement
thereof. Hence, it is the subject-matter of a suit which determines whether a
particular suit is of civil nature or not.
ii. Nature and scope: - The expression “suit of a civil nature” covers private rights
and corresponding obligations of citizen, whereas political or religious questions
are not covered under the expression. But if the principal question in a suit is of
civil nature, such as determination of right to office or property, and the adjudication
incidentally involves the determination relating to religious rites or ceremonies, it
doesn’t cease to be a suit of civil nature and in such a case jurisdiction of a civil
court is not barred. Explanation II has been added through Amendment Act of 1976
to answer divergence of judicial opinion as to where a suit relating to a religious
office to which no fees or emoluments were attached can be said to be suit of civil
nature.
iii. Illustrations for suit of civil nature are following:
o Suits relating to rights to property
o Suits relating to rights of worship
o Suits relating to taking out of religious processions
o Suits for specific performance of contracts or damages for breach of contract
o Suits for restitution of conjugal rights
o Suits against wrongful dismissal from service and for salaries
iv. Illustrations for suits not of civil nature:
o Suits involving principally caste questions
o Suits involving purely religious rites or ceremonies
o Suits against expulsions from caste

1
Black's Law Dictionary, https://thelawdictionary.org/civil/
b) Cognizance not barred
i. Suits expressly barred: - A suit is “expressly barred” when it is barred by any
enactment for the time being in force. Competent legislation exercising power
within its legislative field and not contravening any provision of the Constitution,
can bar jurisdiction of civil court in relation to particular class of suits within suits
of civil nature. Such clauses are otherwise known as exclusion of jurisdiction clause
or ouster clause.
In the case of State of Tamil Nadu v. Ramalinga Samigal Madam2 it was held that
matters falling within exclusive jurisdiction of Revenue Courts or under the Code
of Criminal Procedure or matters dealt with by special tribunals under respective
statutes, e.g. by Election Tribunal, Income Tax Tribunal, Motor Accidents Claim
Tribunal etc. are expressly barred from cognizance of civil courts. But if the remedy
available under such statute is not adequate and all questions cannot be decided by
special tribunal, the jurisdiction of civil court is not barred. Therefore, scope and
extent of remedies available in tribunal proceedings should be carefully analysed
for choosing the redressal forum.
ii. Suits impliedly barred: - A suit is impliedly barred when it is barred by general
principles of law and equity. When a specific adequate remedy is given by a statute
or statute provides detailed machinery for enforcement of rights, it thereby deprives
the person who insists upon any other remedy than given by statute.
Cognizance of certain suits of civil nature is barred on the ground of public policy.
In the case of Sitaram Kashiram Konda v. Pigment Cakes Mfg. Co3 it was held that
the principle underlying is that a court ought not to countenance matters which are
injurious to and against the public weal. Thus, no suit shall lie for enforcement of
right under a contract which is barred by Section 23 of Indian Contract Act, 1872
or against any judge for acts done in course of his duties. Civil courts have no
jurisdiction to adjudicate upon questions of purely political nature.

Who may decide


Civil court has inherent power to decide upon question of its own jurisdiction although at the
end of such inquiry it may turn out that it has no jurisdiction to entertain that suit.

Presumption as to jurisdiction
Every endeavour should be made in favour of presumption of jurisdiction of civil court. The
exclusion jurisdiction of civil court shall not be readily inferred unless the relevant statute
contains any express provision to that effect or leads to necessary and inevitable implication of
that nature.

2
1986 AIR 794
3
1980 AIR 16
Burden of proof
It is well settled that it is the party who seeks to oust the jurisdiction of civil court to establish
it. It is equally well settled that a statute ousting the jurisdiction of a civil court must be strictly
construed. Wherever such contention is raised it has to be dealt by keeping in mind the words
used in the statute, scheme of such provisions in the statue and object and purpose of their
enactment.

Finality Clause: Meaning and Scope


In general, the statute provides for a provision for appeal or revision against the order passed
by administrative officer before the statutory authority or administrative tribunal. However, in
certain enactments legislature intentionally excludes such provisions for appeal or revision by
incorporating phrases which are known as finality clause for interests of smooth administration
of justice. The process is called as statutory finality.
Finality clause provides that the decision is declared to be final for the purpose of law and such
decision is binding on parties. Whereas ouster clause ousts the jurisdiction of the civil court
with respect to certain specified matters.
These are more often incorporated in administrative Acts wherein statute provides that the
decision of administrative body constituted under such Act is final and conclusive. No appeal,
revision or reference against such decision of the tribunal is then maintainable. The jurisdiction
of civil court is ousted.
Examples of finality clause:

• “shall be final”
• “shall be final and conclusive”
• “shall not be appealable”
• “shall not be called in question in any court”
• “shall not be questioned in any legal proceedings whatsoever”

A Valid Ouster Jurisdictional Clause


In Dhulabhai v. The State of Madhya Pradesh4 court observed that:
(1) “Where the statute gives a finality to the orders of the special tribunals the Civil Courts'
jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil
Courts would normally do in a suit. Such provision, however, does not exclude those
cases where the provisions of the particular Act have not been complied with or the
statutory tribunal has not acted in conformity with the fundamental principles of
judicial procedure.”

4
1969 AIR 78
(2) “Challenge to the provisions of the particular Act as ultra vires cannot be brought
before Tribunals constituted under that Act.”
Indian judiciary has embraced the basic structure doctrine which provides that certain basic
features of the constitution may not be amended. In the case of Minerva Mills v. Union of India5
the honourable Supreme Court regarded judicial review as a basic feature. Observation of the
Court is as follows:
“The power of the judicial review is an integral part of our constitutional system and without
it, there will be no Government of Laws and the rule of law would become a teasing illusion
and a promise of unreality. If there is one feature of our Constitution which, more than any
other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the
power of judicial review and it is unquestionably a part of the basic structure of the
Constitution.”
Hence power of judicial review may not be abrogated either through ordinary legislation or
through Constitutional amendment.
In L. Chandra Kumar v. Union of India6 court observed that:
(1) The Clause 2(d) of Article 323-A and Clause 3(d) of Article 323-B, to the extent they
exclude the jurisdiction of the High-Courts and the Supreme Court under Articles
226/227 and 32 of the Constitution, are unconstitutional.
(2) The Section 28 of the Administrative Tribunals Act, 1985 and the “exclusion of
jurisdiction” clauses in all other legislations enacted under the aegis of Articles 323-A
and 323-B would, to the extent that they exclude the jurisdiction of the High-Courts
(under Articles 226 and 227) and the Supreme Court (under Article 32) would be ultra-
vires the Constitution.
(3) Jurisdiction conferred upon the HCs and the SC u/A 226 and 32 respectively is a part
of the inviolable basic structure of the Constitution.
(4) No Constitutional prohibition on the Tribunals in performing a supplemental role as
opposed to a ‘substitutional’ role.
(5) Tribunals can also examine the Constitutional Validity of various statutes and rules
(para 91) However, Tribunals not competent to examine the validity of the very Act
under which they have been instituted.
(6) However, decisions of the Tribunals are subject to scrutiny by a division- bench of the
respective HC Setting up of nodal agency under the Ministry of Law for overseeing the
work of the Tribunals.

Ouster of Jurisdiction of Civil Courts by Statutes


Following are the examples of ouster/ finality clause:
a) Section 170 in The Representation of the People Act, 1951

5
AIR 1980 SC 1789
6
AIR 1997 SC 1125
170. Jurisdiction of civil courts barred. —No civil court shall have jurisdiction to
question the legality of any action taken or of any decision given by the returning officer
or by any other person appointed under this Act in connection with an election.

b) Section 93 in The Trade Marks Act, 1999


93. Bar of jurisdiction of courts, etc.—No court or other authority shall have or, be
entitled to, exercise any jurisdiction, powers or authority in relation to the matters
referred to in sub-section (1) of section 91.

c) Section 15 in The Telecom Regulatory Authority of India Act, 1997


15. Civil court not to have jurisdiction. —No civil court shall have jurisdiction to
entertain any suit or proceeding in respect of any matter which the Appellate Tribunal
is empowered by or under this Act to determine and no injunction shall be granted by
any court or other authority in respect of any action taken or to be taken in pursuance
of any power conferred by or under this Act.