Whether the Civil Court has jurisdiction to try all type of cases of civil nature? How to draft the application under section 9 of CPC ?
Section 9 of The Code of Civil Procedure, 1908.
Under the Code of Civil Procedure 1908, a Civil Court
has jurisdiction to try all suits of a Civil nature unless they are barred.
Section 9 of the Code of Civil Procedure, 1908 reads as under:-
“ 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 – 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 question as to religious
rites or ceremonies.
Explanation II – 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.”
Commentary on Section 9
A Civil Court has jurisdiction to try a suit only if
the following two conditions are satisfied:-
a. The suit must be of a Civil nature;
and
b. The cognizance of such a suit
should not have been expressly or impliedly barred.
The suit must be of a Civil nature: Suits may be
divided into two classes-
1. Those of a Civil nature; and
2. Those not of a Civil nature.
It is only the first type of suits in which a Civil
Court has got jurisdiction. A Civil Court has no jurisdiction to try suits
which are not of a Civil nature.
When a suit is of a Civil Nature
A suit is of a Civil nature if the principal
question therein relates to a Civil or legal right. Explanation I to
the section specifies that if the principal or only question relating to
religious rites or ceremonies, then the suit is not of a Civil nature. However
when 1) a caste question or a question relating to religious rites or
ceremonies is not the principal question in the suit, but is merely a
subsidiary question, and 2) the principal question is of a Civil nature for
example a question as to any right to property or to an office or to any other
Civil right and 3) the principal question, which is of a Civil nature,
cannot be determined without deciding
the caste question or the question relating to religious rites or ceremonies,
then the Court has power to decide the caste question relating to religious rites
or ceremonies, to enable to decide the principal question. It is upon this
principle that Explanation I to this Section is based.
Suits of Civil Nature( Illustration)
The following are suits of a Civil nature:-
1. Suits relating to rights to
property;
2. Suits relating to rights of
worship;
3. Suits relating to taking out of
religious procession;
4. Suits relating to right to share in
offerings;
5. Suits for damages for Civil Wrong;
6. Suits for specific performance of
Contracts or for damages for breach of Contracts;
7. Suits for specific reliefs;
8. Suits for restitution of Conjugal
rights;
9. Suits for dissolution of marriages;
10. Suits for rents;
11. Suits for or on accounts;
12. Suits for rights of franchise;
13. Suits for rights to hereditary
offices;
14. Suits for rights
to Yajmanvrities;
15. Suits against wrongful
dismissal from service and for salaries; etc.
Suits not of Civil nature: Illustrations
The following suits are not suits of a Civil nature:-
1. Suits involving principally caste
questions;
2. Suits involving purely religious
rites or ceremonies;
3. Suits for upholding mere dignity or
honor;
4. Suits for recovery of voluntary
payment or offerings;
5. Suits against expulsions from
caste; etc.
Cognizance not barred
The cognizance of the civil suit should not be barred either
expressly or impliedly. A suit is said to be expressly barred if the
legislation in express terms says so. It is said to be impliedly barred if a
statute creates a new offence or a new right and prescribe a particular penalty
or special remedy.
a. Suits expressly barred:-
When a statute excludes the ordinary jurisdiction of a
Civil Court by express terms then it is said to be the express bar on
jurisdiction. For example:- Section 145 of the Electricity Act, 2003 expressly
bars the jurisdiction of the Civil Court by stating that “ No Civil Court shall
have jurisdiction to entertain any suit or proceeding in respect of any matter
which an assessing officer referred to in Section 126 or an appellate authority
referred to in Section 127 or the adjudicating officer appointed under this Act
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”
But if the remedy provided by a special statute is not
adequate and all questions cannot be decided by a special tribunal, then the
jurisdiction of a Civil Court is not barred. [ State of T.N. Vs. Ramalinga
Samigal AIR 1986 SC 794]
b. Suits impliedly barred
The statute may specifically provide for ouster of the
jurisdiction of Civil Courts on certain matters. But in the absence of any such
specific exclusion, the ouster of jurisdiction can be inferred if :-
i) a statute creates a special right or a
liability;
ii) The statute constitutes special Tribunal for
determination of that right and liability;
iii) The
statute lays down that the questions about the said right and liability shall
be determined by the Tribunals so constituted.
In other words, where a statute provides a particular
remedy in a particular way, then the remedy has to be sought in that forum in
that particular manner only. Thus, the jurisdiction of all other forums is
considered to have been excluded. Such a bar on jurisdiction is said to be “
implied bar.”
Who may decide the Jurisdiction of the Court
It is well settled that a Civil Court has inherent
power to decide its own Jurisdiction. [ A.R. Antulay vs. R.S. Nayak, (1988) 2
SCC 62 at p. 701]
Presumption as to exercise of Jurisdiction
IN THE COURT OF CIVIL
JUDGE SENIOR DIVISION, KAPURTHALA
ABC VERSUS XYZ
….Plaintiff/Respondent
…Defendant/Applicant
Subject: Application
under section 9 of CPC r.w.s 34 of SARFAESI ACT, 2002 for dismissal of the case
for the lack of Jurisdiction.
Respected Sir,
MOST RESPECTFULLY SHOWETH:-
1. That the above noted suit is pending before this
Hon’ble Court and the same is fixed for today.
2. That the plaintiff has filed the present suit for
permanent injunction for restraining the applicant/defendant which is a
Nationalized Bank from making any recovery from the plaintiff by taking
possession and auction of his property mentioned in the plaint.
3. That the plaintiff has concealed all material facts
from this Hon’ble Court. As a matter of fact the plaintiff has raised a loan of
Rs.5,00,000/- for agricultural purpose and for that he mortgaged his land in
favour of the applicant/defendant by way of simple mortgage to secure the
recovery of the above said amount with interest.
4. That the plaintiff has committed breach of
conditions and has defaulted in repayment of regular installments and huge
amount has accumulated against him and therefore no alternative is left with
the applicant defendant to take appropriate action against the plaintiff for
recovery of the amount due from the plaintiff under SARFAESI ACT, 2002.
5. That under Section 34 of SARFAESI ACT,2002 it is
provided as:
“No Civil Court shall have jurisdiction to entertain
any suit or proceeding in respect of any matter which a Debt Recovery Tribunal
or 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 or under the Recovery of Debt due to Bank and Financial Institutions Act,
1993 (51 of 1993).”
6. That the applicant/defendant has already issued
notice to the plaintiff and has initiated action under the above noted act and
this fact has been concealed by the plaintiff from this Hon’ble Court.
Therefore, the plaintiff is not entitled to any equitable relief of injunction as
sought by him.
7. That since this Hon’ble Court has no jurisdiction
to entertain and adjudicate upon the dispute in question, therefore no useful purpose
will be served by continuing the present suit and in the interest of justice
and equity the present suit is liable to be dismissed at this stage itself.
8. That moreover the interest of the plaintiff will
not be prejudiced in dismissal of the present case since appropriate remedy is available
to him under the Act of 2002.
PRAYER:
IN VIEW OF THE ABOVE STATED SUBMISSIONS, it is hereby
most respectfully prayed:
a. that the suit filed by the plaintiff may kindly be
dismissed since this Hon’ble Court has no jurisdiction to try and entertain the
present suit being barred under the said Act of 2002.
b. to pass any other further order which this Hon’ble
Court may deem fit and proper in the interest of justice and equity.
Place :Kapurthala
Date:
Applicant
Through Counsel
Name
and Enrolment no. of Counsel.
Verification:
Verified that the contents of this application are
true and correct and nothing has been falsely stated therein.
Verified at Kapurthala
Verified on……….
…..Applicant
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