ALL CIVIL SUITS ARE COGNIZABLE UNLESS BARRED

INTRODUCTORY:-

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?

Answer:– 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? 

Answer:– 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?

Answer:- 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.

What do you mean ‘Civil action’?

Answer:- “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.

Answer:– 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.”

What are Civil rights?

Answer:-  “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?

Answer:– 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’.

Answer:- 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.

How to know whether Civil Courts jurisdiction to entertain a suit is barred or not?

Answer:- 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.”

How can we know whether the jurisdiction of the Civil Court would be deemed excluded by implication or not?

Answer:- 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’- Explain succinctly.

Answer:- 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’.

What is the difference between the right of suit and the right of appeal?

Answer:-  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.”

Discuss the scope of section 9 of CPC to entertain a labour dispute.

Answer:- 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.

What presumption is to be drawn under section 9 of CPC?

Answer:- 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:-

Answer:- 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].

What are the principles regarding exclusion of jurisdiction of the civil Court?

Answer:- 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.

-x-

[1]  See Somasundaram vs Liyakat Ali And Another: 1997 (1) CTC 4;

Smt. Ganga Bai v. Vijay Kumar and Others;

Sri Vedagiri Lakshmi Narsimha Swami Temple v. Induru Pattabhirami Reddi,

1967 AIR 781, 1967 SCR (1) 280,

[2] See rulings:  Rajasthan SRTC v. Bal Mukund Bairwa(2), (2009) 4 SCC 299.

Pabbojan Tea Co. Ltd. v. Dy. Commr (1968) 1 SCR 260,

Ramesh Chand Ardawatiya v. Anil Panjwani AIR 2003 SC 2508,

Dhulabhai v. State of M.P. (1968) 3 SCR 662,