September 17, 2021

Section 9 of Civil Procedure Code

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Introduction

The Civil Procedure Code, 1908 is a procedural law which deals with civil laws and wrongs which are civil in nature. This code is bifurcated in two- the first part has 158 sections and the second contains the first schedule which has 51 orders and rules. It was enacted on 21st march 1908 and commenced on 1st January 1909. The CPC is the subject matter of concurrent list i.e. it can be considered both by union and state governments. In the year 2002, the Code of Civil Procedure was significantly amended. The main goal of the amendment to the code was to ensure that civil cases authorized by the Act were resolved quickly. The Code of Civil Procedure, 1908 was further amended in the year 2016 and 2018 respectively.

SECTION 9 OF CIVIL PROCEDURE CODE, 1908

According to this section the court has the authority to try all suits that are civil in nature except suits which are expressly or impliedly barred. This is further explained in two parts:

  1. “A 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.”
  2. “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.”

A civil court has the power to hear all matters only under two conditions:

  • The suit must be of a civil nature
  • The cognizance of the said suit should not have been barred expressly or impliedly.

Section 9 of the Civil Procedure Code prohibits civil courts from exercising jurisdiction. The section, on the other hand, is open to interpretation by the courts and has been read in a fairly tight sense in order to broaden the civil court’s jurisdiction as much as possible. Many statutes, including the CPC, expressly bar jurisdiction in specific lawsuits. The implied bar on civil court cognizance has generally been observed in circumstances when it is against public policy or if the statute in question provides a specific and exhaustive remedy. Even though a civil complaint is expressly or implicitly excluded under section 9 of the CPC, a civil court retains jurisdiction for administrative justice objectives such as fairness and natural justice, etc.

Case Laws Relating to Section 9 Cpc

Dhulabhai vs State of MP (1968)

FACTS- The appellants were tobacco merchants with a business in Ujjain, where they bought and sold tobacco for eating, smoking, and making bidis. They got their tobacco locally or imported it from neighboring states.

On May 1, 1950, a law known as the Madhya Bharat Sales Tax Act (Act 30 of 1950) went into effect in Madhya Pradesh.

According to section 3 of the act, every dealer whose sales or supplies of products surpassed 12,000 in the preceding year was required to pay sales taxes solely. The tax was a single point tax under section 5, and the government was required to identify the point of sale at which the tax was payable, i.e. how much a person should sell in order to pay taxes.

The section also set the minimum and maximum tax rates, leaving it up to the government to announce the actual rate; that is, the tax rate was not set, but the minimum and maximum rates were.

On April 30, 1950, May 22, 1950, October 24, 1950, and January 21, 1954, the government published a series of notifications. As noted above, all of these notifications placed taxes on tobacco at various rates; however, the tax was not collected at the rates stated above.

In Madhya Pradesh, there was no tax on tobacco sales or purchases. The tax was collected in various amounts from the appellant for different quarters by the authorities.

The appellant served notices under Section 80 of the Civil Procedure Code, which says that no litigation may be brought against a government or public officer in his official position until a two-month notice period has passed.

JUDGMENT

  • • When a state mandates that orders be final, civil courts with jurisdiction are prohibited from handling the case. Such prohibitions are inapplicable in cases where the fundamental rules of judicial procedure have been disobeyed.
  • When there is an express bar of the court’s jurisdiction, a review of the bar of a jurisdiction scheme of a specific statute to discover an appropriate remedy is required, but this is not required for sustaining civil court jurisdiction.
  • It considers the terms of specific acts as an ultra-virus, and the tribunal’s ruling is not subject to review or appeal by the High Court.
  • When the terms are declared illegal or the constitutionality of any word is called into question. Then a writ of certiorari on the ground of reimbursement may be filed, but no compensation for the suit is required.
  • Prohibitions of the jurisdiction cannot take place until these provisions are inferred by the court.

The Secretary Of State for India vs. Mask And Co.

FACTS- Betel-nuts had been imported by sea from Java to Pondicherry and then by rail to Panruti by the respondents. Duty-boiled betel-nuts were considered to be the consignment in question on the basis of tariff values contrary to the claim of the respondent to be considered as raw betel-nuts liable to duty ad valorem. The Collector dismissed an appeal against this judgement, and the Government of India validated the Collector’s decision in Revision. The respondents subsequently brought a civil lawsuit trying to recoup their overpayment. The subordinate judge decided that the court had no competence to proceed. The High Court granted an appeal against this ruling, and the subordinate judge was told to decide the case on the merits. The appeal to the Privy Council was directed against the High Court’s verdict. The appellant claimed that the Assistant Collector’s decision was a “decision or order passed by an Officer of Customs” within the meaning of Section 188 of the Sea Customs Act, which was one of the provisions incorporated in the Land Customs Act, under which the duties levied were regulated, and that the Collector of Customs’ decision on appeal, which had been confirmed on revision, was a “decision or order passed by an Officer of Customs” within the meaning of Section 188. Alternatively, it was argued that the power of appeal granted by Section 188 constituted a procedure distinct from that in the civil courts, and that because the respondents had chosen to proceed under Section 188, they were bound by that choice and so barred from resorting to the Civil Courts. The respondents, on the other hand, claimed that the Section 188 decisions or orders only applied to Section 182 adjudications.

JUDGMENT

The landmark judgement delivered by the Privy Council ruled that jurisdiction cannot be determined only on the basis of inferences. The court should have sole jurisdiction over the case. It further concluded that, even if jurisdiction has been overtly or implicitly waived, the court has the authority to hear arguments on the merits of the case.

State of A.P. v. Majeti Laxmi Kanth Rao 2000

The Supreme Court established a standard to evaluate whether the Civil Courts are excluded from jurisdiction. To begin, the legislative intent to bar the litigation must be established. It could be stated explicitly or impliedly. The court must determine and derive the reasons for the civil courts’ exclusion, as well as the justification for it, but the justification is not subject to judicial scrutiny. After the reasons have been satisfied, the court must determine whether the provision that prohibits the jurisdiction provides for an alternative remedy. The alternative remedy must include functions similar to civil courts, such as the ability to issue orders. In the event that no other remedy is available, the civil court’s jurisdiction cannot be ruled out.

In this case the Supreme Court established two criteria for determining whether a civil court’s jurisdiction should be excluded.

  1. There should be a legislative intent to limit the civil court’s jurisdiction. It could be either directly or indirectly, but there must be solid justifications for the suit’s exclusion.
  2. There should be an alternative remedy open to the claimant if the civil court’s jurisdiction cannot be avoided.

Hasham Abbas vs Ussman Abbas

The main issue that the court debated was the legal standing of a judgement rendered by a court whose jurisdiction had been expressly or impliedly limited by a statute. The Supreme Court ruled that any judgement made by a court that lacked jurisdiction was coram non judice, and hence was null and void. The principle of estoppel, waiver or even res judicata will not be applicable over such decision passed by the court which did not have jurisdiction over the matter.

  • The following broad concepts relating to civil court jurisdiction arise from numerous Supreme Court decisions:
  • A civil court has jurisdiction to try all civil matters unless its cognizance is expressly or impliedly barred.
  • Consent cannot provide or take away a court’s jurisdiction.
  • A decree issued by a court that lacks jurisdiction is null and void, and its validity can be challenged at any point of the proceedings, including execution and collateral processes.
  • There is a distinction to be made between a lack of jurisdiction and its improper exercise.
  • Every court has the inherent authority to decide on its own jurisdiction.
  • A court’s jurisdiction is based on the allegations contained in a plaint, not on the defense’s written declaration.
  • The essence of a case, not its form, is significant in determining a court’s jurisdiction.
  • Every presumption should be formed in favor of a civil court’s jurisdiction.
  • A statute removing a court’s jurisdiction must be strictly read.
  • The party asserting the exclusion of a court’s jurisdiction bears the burden of proof.
  • Even though a civil court’s jurisdiction is limited, it can nonetheless evaluate whether an act’s requirements have been followed or whether an order was issued in violation of the law.

Amendment in Section 9

Section 9 of the civil procedure code was amended by (Maharashtra Amendment) Act, 1970 which inserted section 9A. The Code can be altered by state legislatures because it appears under Entry 13 of the Concurrent List in the Seventh Schedule of the Constitution of India. In exercising its rights, Maharashtra introduced Section 9A to the Civil Procedure Code. However, the Code of Civil Procedure (Amendment) Act, 1976, by Parliament, changed the Code significantly in 1976. All changes adopted by state legislatures prior to the commencement of the Amendment Act were repealed to the extent of their conflict with the Amendment Act under Section 97 of the aforementioned Amendment. As a result, in compliance with Article 254(2) of the Indian Constitution, the State Legislature re-enacted Section 9A as the Code of Civil Procedure (Maharashtra Amendment) Act, 1977, with the President’s assent.

Conclusion

Hence it can be concluded that section 9 of CPC lays down the jurisdiction of the court. To consider Section 9 of the Civil Procedure Code, a civil court must first try a specific case. Excluding two constraints of the case, which are civil in nature and imply or express a barrier, every case can be tried. When the plaintiff fails to comply with the types of jurisdiction, the court has the option to dismiss the action.

Refrences

  • https://www.mondaq.com/india/constitutional-administrative-law/750618/reversing-an-old-folly-section-9a-of-civil-procedure-code-1908
  • https://blog.ipleaders.in/concept-inherent-jurisdiction-section-9-civil-procedure-code-1908/
  • https://blog.ipleaders.in/civil-procedure-codes-application-cyberspace/
  • https://www.lawnn.com/jurisdiction-of-civil-courts/
  • http://www.legalservicesindia.com/article/508/Jurisdiction-Of-Civil-Court-Under-Civil-Procedure-Code.html
  • https://en.wikipedia.org/

Author- Pranav Maheshwari (BVP New Law College, Pune)

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