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A PROJECT REPORT ON – “ALL CIVIL SUITS ARE COGNIZABLE UNLESS

BARRED”
MANIPAL UNIVERSITY JAIPUR

UNDER SUPERVISION OF:- SUBMITTED BY:-


Dr. SONY KULSHRESTHA KARTIK KATTA
ASSOCIATE PROFESSOR 151301042
CERTIFICATE

This is to certify that Mr. Kartik Katta student of B.A.LL.B (Hons.), Seventh Semester, School of
Law, Manipal University Jaipur has completed the project work entitled “All Civil Suits are
Cognizable unless Barred”, under my supervision and guidance.
It is further certify that the candidate has made sincere efforts for the completion of the project
work.

SUPERVISOR NAME

(Dr. Sony Kulshrestha)


Associate Professor
ACKNOWLEDGEMENT

I express deep sense of gratitude and indebtness to our teacher Dr. Sony Kulshrestha under whose
guidance valuable suggestions, constant encouragement and kind supervision the present project
was carried out. I am also grateful to college and faculty of law for their feedback and for keeping
us on schedule.
I also wish my sincere thanks to my friends who helped directly or indirectly by giving their
valuable suggestions.

Kartik Katta
Table of Contents
INTRODUCTION .......................................................................................................................... 5
What does section 9 of CPC say? ................................................................................................... 5
Which suit would be of civil nature? .............................................................................................. 6
What does the word ‘Civil’ mean in legal language? ..................................................................... 6
Civil action ...................................................................................................................................... 6
‘’Civil action’’, ‘’Civil suit’’, Civil case’ – Meaning. .................................................................... 7
Civil Rights ..................................................................................................................................... 7
Is a ‘Right of worship’ civil nature? ............................................................................................... 7
Difference between ‘Civil nature’ and ‘Civil proceeding’. ............................................................ 8
Whether Civil Courts jurisdiction to entertain a suit is barred or not? ........................................... 8
Whether the jurisdiction of the Civil Court would be deemed excluded by implication or not? ... 9
‘All civil suits are cognizable unless barred’ .................................................................................. 9
Difference between the right of suit and the right of appeal ......................................................... 10
Scope of Section 9 of CPC to entertain a labour dispute. ............................................................. 10
Presumption is to be drawn under section 9 of CPC .................................................................... 11
Wakf property – Point of jurisdiction ........................................................................................... 11
Principles regarding exclusion of jurisdiction of the Civil Court ................................................. 11
BIBLIOGRAPHY ......................................................................................................................... 14
INTRODUCTION

I would like to discuss some interesting points as to the scope of section 9 of the Code of Civil
Procedure,1908 (CPC) in this article. “One of the basic principles of law is that every right, has a
remedy. Ubi Jus ibi remedium is the well known maxim. The Hon’ble Bench of five Judges in
P.D. Shamdasani v. Central Bank of India, (B) , it was held that violation of rights of property by
a private individual is not within the Purview of these Articles, therefore, a person whose rights of
property are infringed by a private individual must seek his remedy under the ordinary law and not
under Article 32. Every civil suit is cognizable unless it is barred, there is an inherent right in every
person to bring a suit of civil nature and unless the suit is barred by statute one may, at one’s peril,
bring a suit of one’s choice. (Somasundaram vs Liyakat Ali And Another: 1997 (1) CTC 4 ). The
well-settled rule in this regard is that the Civil Courts have the jurisdiction to try all suits of civil
nature except those entertainment whereof is expressly or impliedly barred. The jurisdiction of
Civil Courts to try suits of civil nature is very expansive. (Ramesh Gobindram (Dead) Through …
vs Sugra Humayun Mirza Wakf (2010))[1].

Section 9 of CPC obviously postulates among other things the barring of the jurisdiction of the
civil courts by Legislatures with respect to particular classes of suits of a civil nature, and the
statute-book abounds in instances in which the jurisdiction of the civil courts is barred under Acts
passed by the Central and Provincial Legislatures. the British Par- liament-while enacting that Act
was fully aware of the existing legislative practice obtaining in this country as well as of the fact
that the provisions in question were sometimes necessary and therefore it empowered the Central
and Provincial Legislatures to make them under entry 53 of List I and entry 2 of List II,
respectively. (The State Of Tripura vs The Province Of East Bengalunion: 1951 AIR 69, 1951
SCR 51. “In Arbind Kumar Singh v. Nand Kishore Prasad & another, , it was held to extend to all
proceedings which directly affect civil rights’. The dictionary meaning of the word ‘proceedings’
is ‘the institution of a legal action’, ‘any step taken in a legal action.

What does section 9 of CPC say?

From a bare reading of Section 9 C.P.C. it is clear that the civil courts subject to provisions
contained in the code have jurisdiction to try all the suits of civil nature except the suit of which
cognizance is either expressly or impliedly barred. Thus it is clear that it is a suit of civil nature,
which is cognizable by the civil court unless its cognizance is either expressly or impliedly barred.
As a necessary corollary to this it follows that a court cannot entertain a suit which is not of civil
nature.

Which suit would be of civil nature?

The explanations appended to Section 9 CPC. throw some light to find out approximate answer to
this question.. The Explanation (I) makes it clear that a suit which the right of property or an office
is contested is a suit of civil nature notwithstanding that such right may depend entirely on decision
of questions as to religious rites or ceremonies. The Explanation (II) makes it further clear 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.

What does the word ‘Civil’ mean in legal language?

The word ‘civil’ is derived from the Latin word ‘civis’ meaning a citizen. The word ‘civil’ when
used as an adjective to ‘law has been defined in the shorter Oxford Dictionary as ‘pertaining to the
private rights and remedies of a citizen as distinguished from criminal. political etc.’ “Civil. In
legal language the word “Civil” has various significations. In contradictions to “barbarous” or
“savage” the term may be used to indicate a state of society reduced to order and regular
government; in contradiction to “criminal”, it indicates the private rights and remedies of men as
members of the community, in contrast to those which are public and relate to the government; it
also relates to rights and remedies sought by action or suit distinct from criminal proceedings and
concerns the rights of and wrongs to individuals considered as private persons, in contradistinction
to criminal or that which concerns the while Political society, the community , state, government:
as, civil action, case, code, court, damage, injury, proceedings, procedure, process, remedy.

Civil action

A personal action which is instituted to compel payment, or the doing of some other thing which
is purely civil. It is an action which deals with acts which constitute an infringement or privation
of the private or civil rights belonging to individuals, civil actions: “All legal proceedings partaking
of the nature of a suit and designed to determine the rights of private parties”. The phrase “civil
actions” is used as opposed to criminal actions. The phrase. “civil action” includes actions of law,
suit in chancery, proceedings in admiralty, and all other judicial controversies in which rights of
property are involved, whether between parties, or such parties and the government, it is used in
contradistinction to prosecutions for crime. The precise meaning of the descriptive term “civil
actions” must however be judged by its connections and the manner in which it is used in any
particular case.

‘’Civil action’’, ‘’Civil suit’’, Civil case’ – Meaning.

The words “civil action” or “‘civil suit” or a “civil case” mean more or less the same-thing, and is
a proceeding in a Court of justice by one party against another for the enforcement or protection
of a private right, or for the redress or protection of a private wrong.(37 Fed. 497.) A proceeding
in a court of justice by one party against another for the enforcement or protection of a private
right, or for the redress or prevention of a private wrong (S.43 IPC.) “Civil and civil nature. The
word “civil” according to dictionary means “relating to the citizen as an individual”. The word
‘nature’ has been defined as “the fundamental qualities of a person or thing, identity or essential
character, sort kind, character”. The word civil nature is wider than the word “civil proceeding.”

Civil Rights

“Civil rights are those which appertain to citizenship and which may be enforced or redressed by
a civil action.

Is a ‘Right of worship’ civil nature?

In Nar Hari Shastri and Ors. v. Shri Badnnath Tempte Committee, the Hon ‘ble Apex Court has
held that a suit for statutory right of worship is a suit of civil nature. In Mohd. Wasi and Anr. v.
Bachnan Sahib and Ors., Special Bench, the Hon’ble Allahabad High Court held that the right of
worship is a civil right . As is held in the case of Disst. Council Of United Basel Mission church
& Ors vs Salvador Nicholas Mathias & Ors: 1988 SCR (2) 737, 1988 SCC (2) 3, dispute as to the
right of worship was oneof a civil nature within the meaning of section 9 of the Code of Civil
Procedure and a suit was maintainable for the vindication or determination of such a right.
Difference between ‘Civil nature’ and ‘Civil proceeding’.

Civil nature:- No Court can refuse to entertain a suit if it is of description mentioned in the
Section. That is amplified by use of expression, ‘ all suits of civil nature’. The word ‘civil’
according to dictionary means, ‘relating to the citizen as an individual; civil rights. In Black’s
Legal Dictionary it is defined as, ‘ relating to provide rights and remedies sought by civil actions
as contrasted with criminal proceedings’. In law it is understood as an antonym of criminal.
Historically the two broad classifications were civil and criminal .Revenue tax and company etc.
were added to it later. But they too pertain to the larger family of ‘civil’. There is thus no doubt
about the width of the word ‘civil’. Its width has been stretched further by using ” the word nature;
along with it. The word ‘nature’ has been defined as ‘the fundamental qualities of a person or
thing; identity or essential character; sort; kind: character.’ It is thus wider in content.

Civil proceedings:- In Article 133 of the Constitution an appeal lies to this Court against any
judgment, decree or order in a ‘civil proceeding’. The expression came up for construction in
S.A.L. Narayan Row v. Iswarlal Brtagwandas, . The Constitution Bench held ‘a proceeding’ for
relief against infringement of civil right of a person is a civil proceeding’. In Arbind Kumar Singh
v. Nand Kishore Prasad, ‘ it was held to extend to all proceedings which directly affect civil rights.’
The dictionary meaning of the word ‘proceedings’ is the institution of a legal action. ‘ any step
taken in a legal action.

The word ‘civil nature’ is wider than the word ‘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.

Whether Civil Courts jurisdiction to entertain a suit is barred or not?

The principles relating to section 9 of the Code of Civil Procedure are now well settled and have
been explained by the Apex Court from time to time. In Firm I.S. Chetty & Sons v. State of Andhra
Pradesh, 1964 AIR 322, 1964 SCR (1) 752, the Constitution Bench of the Hon’ble Supreme Court
thus held :
“……..In dealing with the question whether Civil Courts jurisdiction to entertain a suit is barred
or not, it is necessary to bear in mind the fact that there is a general presumption that there must
be a remedy in the ordinary civil courts to a citizen claiming that an amount has been recovered
from him illegally and that such a remedy can be held to be barred only on a very clear and
unmistakable indications to the contrary. The exclusion of the jurisdiction of Civil Courts to
entertain civil causes will not be assumed unless the relevant statute contains an express provision
to that effect, or leads to a necessary and inevitable implication to that nature. The mere fact that
a special statute provides for certain remedies may not by itself necessarily exclude the jurisdiction
of the civil courts to deal with a case brought before it in respect of some of the matters covered
by the said statute.”

Whether the jurisdiction of the Civil Court would be deemed excluded by


implication or not?

The Hon’ble Supreme Court in the matter of State of Kerala v. N. Ramaswami Iyer and Sons held
that where the legislature sets up a special tribunal to determine questions relating to rights or
liabilities which are the creation of a statute, the jurisdiction of the Civil Court would be deemed
excluded by implication.

‘All civil suits are cognizable unless barred’

The language used in section 9 of CPC 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
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 expression, ‘all suits of civil nature’.
Difference between the right of suit and the right of appeal

In Smt. Ganga Bai v. Vijay Kumar and Ors., Reported in , while drawing distinction between the
maintainability of civil suit and appeal in para 15 of the decision the Hon’ble Apex Court held held
as under:-

“15. There is a basic distinction between the right of suit and the right of appeal. 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, howsoever frivolous
the claim that the law confers no such right to sue. A suit for its maintainability requires no
authority of law and it is enough that no statute bars the suit. But the position in regard to appeals
is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its
maintainability must have ‘the clear authority of law. That explains why the right of appeal is
described as a creature of statute.”

Scope of Section 9 of CPC to entertain a labour dispute.

In Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke,( 1975 AIR 2238, 1976 SCR (1) 427)
, their Lordships considered in detail the scope of Section 9 of the Code of Civil Procedure and
also the jurisdiction of the civil Court to entertain a labour dispute. In that decision that law to was
summarized thus : “The principles applicable to the jurisdiction of the civil Court in relation to an
industrial dispute may be stated thus :

(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right
under the Act the remedy lies only in the Civil Court.

(2) If the dispute is an industrial dispute arising out of a right or liability under the general or
common law and not under the Act, the jurisdiction of the Civil Court is alternative leaving it to
the election of the suitor concerned to choose his remedy for the relief which is competent to be
granted in a particular remedy.
(3) If the industrial dispute relates, to the enforcement of a right or an obligation created under the
Act, then the only remedy available to the suitor is to get an adjudication under the Act.

(4) If the right which is sought to be enforced is is a right created under the Act such as Chapter
V-A then the remedy for its enforcement is either Section 33C or the raising of an industrial
dispute, as the case may be.

Presumption is to be drawn under section 9 of CPC

In Rajasthan SRTC v. Bal Mukund Bairwa, (2009) 4 SCC 299, a three-Judge Bench of the Hon’ble
Suprem Court observed:

“There is a presumption that a civil court has jurisdiction. Ouster of civil court’s jurisdiction is not
to be readily inferred. A person taking a plea contra must establish the same. Even in a case where
jurisdiction of a civil court is sought to be barred under a statute, the civil court can exercise its
jurisdiction in respect of some matters particularly when the statutory authority or tribunal acts
without jurisdiction.”

Wakf property – Point of jurisdiction

The exclusion of the jurisdiction of the Civil Courts to adjudicate upon disputes whether a
particular property specified in the wakf list is or is not a wakf property or whether a wakf specified
in list is a Shia wakf or a Sunni wakf is clear and presents no difficulty whatsoever. The difficulty,
however, arises on account of the fact that apart from Section 6(5) which bars the jurisdiction of
the Civil Courts to determine matters referred to in Section 6(1), Section 85 of the Act also bars
the jurisdiction of the Civil Courts to entertain any legal proceedings in respect of any dispute,
question or matter relating to a wakf property. If we go through the following rulings, a clear idea
as to point of jurisdiction on wakf property would be known[2].

Principles regarding exclusion of jurisdiction of the Civil Court

The principles regarding exclusion of jurisdiction of the civil Court have been succinctly laid down
by the Constitution Bench of the Apex Court in Dhulabhai etc. v. State of Madhya Pradesh and
another, and after detailed consideration of the entire case law and the object and scope of section
9 of the Code of Civil Procedure, the Supreme Court summarized the principles of law in para 32
of the report, inter alia, as under :

“32. Neither of the two cases of Firm of Illuri Subayya, or Kamla Mills, can be said to run counter
to the series of cases earlier noticed. The result of this inquiry into the diverse views expressed in
this Court may be stated as follows:

(1) Where the statute gives a finality to the orders of the special tribunals the civil Court’s
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.

(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 is not decisive to sustain the jurisdiction of the civil Court.

Where there is no express exclusion the examination of the 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 provides 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 prescribed by the said statute or not.

(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before
Tribunals constituted under that Act. Even the High Court cannot go into that question on a
revision or reference from the decision of the Tribunals.

(4) When a provision is already declared unconstitutional or the constitutionality of any provision
is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the
claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy
to replace a suit.

(5) Where the particular Act contains no machinery for refund of tax collected in excess of
constitutional limits or illegally collected a suit lies.

(6) Questions of the correctness of the assessment apart from its constitutionality are for the
decision of the authorities and a civil suit does not lie if the orders of the authorities are declared
to be final or there is an express prohibition in the particular Act. In either case the scheme of the
particular Act must be examined because it is a relevant enquiry.

(7) An exclusion of the jurisdiction of the civil Court is not readily to be inferred unless the
conditions above set down apply.
BIBLIOGRAPHY

1. Civil Procedure code with Limitation Act, 1963 by C.K. Takwani, Eastern Book Company.
2. Civil Procedure Code Bare Act, Universal Publication.