Suits of Civil Nature: Section 9 Civil Procedure Code, 1908

Abstract

This article will talk about section 9 of Civil Procedure Code, 1908. This section helps to understand the jurisdiction of civil courts in India and dig deeper into the understanding of matters which are of civil nature. The article will cover several case laws which are related to deciding the jurisdiction of civil courts and correcting the dilemma that occurs in the minds of people.

A common man might not be able to distinguish, much and also does not know the different types of specialized courts established in India for different matters for e.g., there are consumer courts, family court, debt recovery tribunals and many other different tribunals and courts. So, such matters despite of being of civil nature can not be tried by the civil courts due to the baring of civil courts in trying such matters.

So, this article will help finding out why such things have been done and will act as a guide in understanding jurisdictions and courts and the matters that can be tried by them with the help of relevant different provisions mentioned in the Indian statutes and also how court themselves have developed in establishing their jurisdictions via different case laws.

Key Terms: consumer courts, family court, debt recovery tribunals, jurisdiction, Bar, dilemma.

Introduction

Starting with explaining section 9 of CPC, which reads as follows:

“The civil courts of India have the power to try all civil matters except suits which are expressly or impliedly bared” We can see that civil court has two conditions based on which they can decide whether they can or cannot try that matter:

First condition: that the suit must be of a civil nature.

Second condition: that the matter must not be bared by some other law from being tried in a civil court[1].

Further section 9 also provides with some explanation as follows:

If the main question arising out of the suit is related to decision of property as in to whom does the office or the property belong but depends on the question of decision of religious rites or ceremonies, does not mean that civil court now cannot try that matter because a question of determination of religion has been involved. This does not Bar the civil court from deciding the property matter.

Another explanation is in furtherance of explanation 1, that it is also immaterial that whether or not the office in question has some fee attached to it or whether or not it is attached to a place.

Explaining Suits of Civil Nature

All civil suits do not necessarily amount that they are also suit of civil nature. The code does not provide anything further in explanation it is on the courts to decide whether a matter of civil nature or not. In the case of Bhatia coop. housing society vs. D C Patel, AIR 1953 SC, the court said that civil court has inherent power to decide its own jurisdiction. Civil suits are determined on the basis that whether they decide private rights of a person, private rights can be explained by giving some examples related to it, which are usually handled by court such as: right to property, right to worship, right to share in offerings, damages for civil wrongs, specific performance of contracts, damages for breach of contracts, specific relief, restitution of conjugal rights, for rent, for wrongful dismissal of salaries, etc. such suits are examples of civil nature suit.

 In PMA Metropolitan vs. MM Marthoma[2] the supreme court in explanation off section 9 observed that: this section an be divided into two parts; one part is that the court can not deny to conduct any matter which is related to civil rights, it is their duty to take all the matters which re listed under the section but the second part it clearly creates a negating factor under this section which creates prohibitions by introducing the Bar on the court from trying the matters which re out of its jurisdictions due to a bar imposed on the court by other section some examples to explain it would be suit related to religious rights, related to dignity, related to caste etc. these matters are not criminal but yet not of civil nature, so section 9 Bar civil courts from this jurisdiction as explained by the court[3].

The decision that whether a suit is to be under the jurisdiction of the civil court is totally decided by the court it is the inherent power of the court to decide the jurisdiction, and it should be presumed in a positive manner at first i.e., it should not straight thought of in a way that certain matter will not be handled by the court instead it should be presumed that it is under the jurisdiction of the court unless it is expressly or impliedly bared by any statute it should be taken under the consideration of the said civil court.

Jurisdiction

Secretary of state vs. mask and company[4]

In this case the court said that decision of jurisdiction should not be hurriedly running towards rejection of a matter, it should be given a chance, unless it is totally based on explicit Bar by any provision implied or express, but even if the court has been bared by the provision form trying a matter then too it still has the power and jurisdiction to look into that matter and check whether there is violation of any provision of a statute or if any tribunal has wrongfully decided a matter.

Radha Kishan vs Ludhiyana Municipality[5]

In this case the court rightfully observed that section 9 of the CPC helps understand the jurisdiction of the civil courts by creating difference in what shall be under the jurisdiction of a civil court and what not. Even though some provisions have been excluded by the section from the jurisdiction and has created special tribunals for them does not necessarily imply that civil court cannot look in that matter at all.

The remedy that has been given by a statute for the grievance redressal of an aggrieved party must be provided by the civil court or the special tribunal established for it. The civil court can always decide on the violation of provision done by the tribunals so that it always keep a check on wrong use of their powers if exists.

Chandram Tukaram vs municipal Corporation[6]

In this case the supreme court said that if legislature has made tribunals for some specific disputes then it is just and fair and the procedure that re followed by the civil court to resolve disputes are very lengthy whereas the industrial tribunals (the question here was referred for industrial disputes) have wide and sufficient powers to handle matters like that and so it is right to solve industrial disputes vi industrial tribunals.

Premier automobiles vs K S wadke[7]

This case was also related to industrial tribunals and establishing dispute to be industrial or not. The court laid down some guidelines to be observed while resolving industrial tribunals:

The court said that the dispute is to be resolved by the industrial tribunal only of it is relate to industrial dispute otherwise it shall be resolved by the civil court.

If the dispute is related to rights or liabilities of a party and those rights or liabilities are ,mentioned in the general provisions of the law that is it is mentioned in any other act then the industrial despite act and it is not completely under the dispute for the industrial tribunal and the civil court can also adjudicate over such matters and it will be on the discretion of the party or the suitor that which court does he want to choose i.e., it be either the civil court as there are common law violations of rights and liabilities and the other the industrial tribunal because the dispute even if contains violations of general provisions of law but has industrial dispute in relation so it could be industrial tribunal as well.

Noe of the dispute solely contains the question rising out of the act itself and does not contain the violation of rights and liabilities under the general provisions of law as stated above then it shall be adjudicated according to what is govern in the act only. Means the suitor and the parties does not have the discretion of choosing the court or the tribunal.

Dulabhai vs. State of Madhya Pradesh [8]

This case was related to exclusion of jurisdiction of cases, as in when civil courts does not have the power to adjudicate and in what cases it has the power to adjudicate. This case was related to deciding the powers of different authorities with relevance to taxing statutes that how much power does the civil court has in deciding matters related to taxing when different bodies have been established by the statutes for resolving taxing disputes such as excessive tax deduction or wrong tax deductions, rebate etc.

The court in laying down its first exclusion observed that the civil court does not have to adjudicate where the acts have specifically formed tribunals for it and there is a simple question of law which was obvious that the civil court would have done in such a case, and it was a clear remedy provided in the act. But when the tribunals are faced with a question where the proper provisions for the matter are not provided in the act for it or where the tribunals did not adjudicate rightfully based on the rights and the acts provisions then the civil court adjudication cannot be stopped.

When the statutory provision specifically bars the jurisdiction of a court it does not amount complete bar the court can still look into the acts and the provisions to find out the remedies even though it cannot adjudicate.

If the question arises against the act itself i.e., if the act seems to be ultra vires and violation of any other provision then such decision of ultra vires of act cannot be decided by the tribunals established under the act. Tribunals function to determine the remedies for rights and liabilities given in that act only. So, their scope is limited to the act provisions, and they cannot even decide if an act is going ultra vires. The tribunals do not possess the requisite power with them of amending an act.

When the constitutionality of an act has to be challenged the party can file a civil suit but they have an option that instead of filling a civil suit for the validity of the constitutionality of the act or of the provision provided in the act they can just file for claim of some remedies they want for their grieve to be cured, in the mentioned tribunal according to the provision laid in the act for such remedy if available for the party.

When the question is not related to constitutionality but is instead related to correct assessment then a suit does not lie where there is an authority established for the same and the provision of the act sustains that the order of the authority will be final if correct but if the tax collected is in excess of the mount of which it should have been collected and not authority is established for the correctness of the excessively collected tax then the aggrieved party may file a civil suit for refund of the excessive collection of the tax and civil court may adjudicate in such matter where there is not authority established for the purpose of any act.

The civil courts have the power to examination of the orders passed and of the examination of the statutes and its provisions.

Conclusion

While concluding the main observation made after reding the article is that civil court jurisdiction is though wide but gets limited after forming of specialized tribunals which somewhere was necessary to be formed as it is a well-known fact that most of the courts are overburdened with caseload s and so to release some of the pressure tribunals were needed also so that timely and redly conclusion and solutions of disputes could be arrived at the formation was necessary.

The next observation is that the parties and the tribunals should not arrive at the point so fast that the jurisdiction of civil court does not exist at all, they should start it by a positive concession considering always the fact that at first the civil court can solve dispute and should not hurriedly be on a conclusion that the court cannot resolve it.

References

  1. Ramachandran, R. Lawmanns Supreme Court Digest on Civil Procedure Code, 1908. Kamal Publishers, 2019.
  2. PMA Metropolitan vs. MM Marthoma, 1995 AIR 2001, 1995 SCC Supl. (4) 286
  3. Goel, Shivam. “10 Fundamental Principles: The Code of Civil Procedure, 1908.” SSRN Electronic Journal, 2018, doi:10.2139/ssrn.3306307.
  4. Secretary of state vs. mask and company, (1940) 42 BOMLR 767
  5. Radha Kishan vs Ludhiyana Municipality, 1963 AIR 1547, 1964 SCR (2) 273
  6. Chandram Tukaram vs municipal Corporation, 2002 AIR 4852
  7. Premier automobiles vs K S wadke, 1975 AIR 2238, 1976 SCR (1) 427
  8. Dulabhai vs. State of Madhya Pradesh, 1969 AIR 78, 1968 SCR (3) 662

[1] Ramachandran, R. Lawmanns Supreme Court Digest on Civil Procedure Code, 1908. Kamal Publishers, 2019.

[2] PMA Metropolitan vs. MM Marthoma, 1995 AIR 2001, 1995 SCC Supl. (4) 286

[3] Goel, Shivam. “10 Fundamental Principles: The Code of Civil Procedure, 1908.” SSRN Electronic Journal, 2018, doi:10.2139/ssrn.3306307.

[4] Secretary of state vs. mask and company, (1940) 42 BOMLR 767

[5]Radha Kishan vs Ludhiyana Municipality, 1963 AIR 1547, 1964 SCR (2) 273

[6] Chandram Tukaram vs municipal Corporation, 2002 AIR 4852

[7]Premier automobiles vs K S wadke, 1975 AIR 2238, 1976 SCR (1) 427

[8] Dulabhai vs. State of Madhya Pradesh, 1969 AIR 78, 1968 SCR (3) 662

Author– Aditee Arya (Guru Gobind Singh Indraprastha University)


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