An Overview Of The Concept Of Jurisdiction

Jurisdiction is a combination of two Latin words: juris (law) and diction (to speak). The basic question that jurisdiction answers is that which is the appropriate forum that has the power "to speak the law". Black's Law Dictionary defines "jurisdiction" as "A court's power to decide a case or issue a decree." The rationale behind introducing the concept of jurisdiction in law is that a court should be able to try and adjudicate only those matters with which it has some connection or which falls within the territorial or pecuniary limits of its authority. Jurisdiction draws its substance from public international law, conflict of laws, constitutional law and the powers of the executive and legislative branches of government to allocate resources to best serve the needs of its native society.

Jurisdiction of civil courts under Civil Procedure Code, 1908

Section 9 of the Civil Procedure Code, 1908, (hereinafter referred to as C.P.C.) grants power to civil courts to try all civil suits unless barred –

The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature except suits of which their cognizance is either expressly or impliedly barred.

Section 9 only deals with the jurisdiction of the court to try suits. The requisites of instituting a suit must be fulfilled before approaching a civil court. The most important requisites with regards to institution of suits that one must keep in mind are the following:

• Cause of Action-The first requirement which is 'fundamental to the maintainability of a Civil Suit is the existence of a cause of action' as held in Bharat Aluminium Co. v. Kaiser Aluminium Technical services Inc. 2012 (9) SCC 552 - "The cause of action must be live; neither dead nor in the womb." In the same authority, it has been held that cause of action should not be contingent/speculative. If the plaint does not disclose a cause of action, it shall be rejected at the threshold under Order 7 Rule 11(a) C.P.C. It has also been held that suit only for temporary injunction is not maintainable.^[2]
• Right to sue-The general rule is that the presumption would be made in favour of the existence of a right to sue in a court, the exclusion of the same being an exception.^[3] In Ganga Bai v. Vijai Kumar, AIR 1974 SC 1126 it has been held as follows:

"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."

How is the extent of Jurisdiction decided?

In order to determine the jurisdiction of a civil court, the nature of the case, the pecuniary value of the suit, and the territorial limitation of the court needs to be taken into consideration. If the court has all the three, territorial, pecuniary and jurisdiction over the subject matter then to put it simply, the court has the power to deal with that matter.

Pecuniary jurisdiction-

According to Section 15 of the C.P.C. every suit shall be instituted in the court of lowest grade competent to try it. The court of lowest grade which has a jurisdiction with regards to pecuniary value shall have original jurisdiction to deal with the case at first instance.

• Jurisdiction with regards to immovable property-

According to Section 16 of the C.P.C. a suit in respect of immovable property may be instituted before the court within whose territorial jurisdiction the property is situated or in the court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.

Suits for immovable property situate within the jurisdiction of different Courts

If the immovable property is situated within the jurisdiction of different courts, the suit may be instituted in any court within the local limits of whose jurisdiction any portion of the property is situated. However, in respect of the value of the subject-matter of the suit, the entire claim shall be cognizable by such court.^[4]

Place of institution of suit when the jurisdiction of courts is uncertain

When there is uncertainty with regards to the local limits of the jurisdiction of courts, and any of the court is satisfied that there is a ground for uncertainty, then such court may record the statement and may proceed with the case to entertain and dispose of the case. The decree passed by such court will have the same effect as if the property was situated within the local limits of its jurisdiction.

In a case where the court taking the cognizance of case does not record the statement and objection is brought before Appellate or Revisional Court, the Appellate or Revisional Court shall not allow the objections unless it is satisfied that at the time of institution of suit there was no reasonable ground for uncertainty as regards to jurisdiction of the Trial Court and there has been a failure of justice.

Jurisdiction with regards to movable property-

Where a suit is for compensation for wrong done to-

• the person or
• to the movable property,

is instituted, the plaintiff has the liberty to decide whether he/she wishes to institute a suit against the defendant-

• within the local limits of the jurisdiction of the Court where the wrong was done or
• Where the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court. ^[6]

Suits other than the above-mentioned suits shall be instituted where the defendant voluntarily resides, carries on his business or works for personal gain.

The jurisdiction of a civil court with regards to a corporation-

If a corporation has a principal office and also one or more subordinate offices and cause of action arises at a place where it has a subordinate office then only that place will have jurisdiction and not the place where it has its principal office.^[8]

Section 21-

No objection as to pecuniary and territorial jurisdiction shall be allowed by any an Appellate or a Revisional Court unless such objection was taken in the court of first instance before settlement of issues and unless there has been a consequent failure of justice.

The following three conditions ought to have been fulfilled in order to raise an objection with regards to the competency of court-

• objection to jurisdiction shall be taken before the trial court,
• It must be taken at or before settlement of issues and
• There should have been consequent failure of justice.

The third condition comes into picture only if the suit has been decided on merit. If objection is decided as preliminary issue then the question of failure of justice is immaterial.

If the court holds that it has got no jurisdiction then, instead of dismissing the suit on that count, plaint should be returned for filing before appropriate court. (As per O. 7 R. 10).

Bar created by CPC, 1908

Section 9 C.P.C. itself limits the jurisdiction of the Courts by making it subject to its provisions. The said provisions illustrated below for the sake of convenience-

Section 11

Res judicata - No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Section 12

Bar to further suit- Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.

Under Section 21A it is provided that a decree cannot be challenged through another suit on the ground that the court which passed the disputed decree had no territorial (including pecuniary) jurisdiction.

Section 47(1)

All questions arising between the parties to the suit in which the decree was passed or their representative and relating to the execution discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit.

Order 2, Rule 2, C.P.C. provides that if part of the claim or some relief flowing from the cause of action is not claimed in the suit, it cannot be claimed through another suit.

Order 9, Rule 8 makes it obligatory upon the court to dismiss the suit if the defendant appears and the plaintiff does not appear. Thereafter Order 9 Rule 9 (1) provides that:-

―Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action.

Order 23 Rule 1(4) of CPC bars fresh suit in case of abandonment of earlier suit or its withdrawal without permission to institute fresh suit.-

―Rule 1(4). Where the plaintiff-

• abandons any suit or part of claim under sub-rule (1), or
• withdraws from a suit or part of a claim without the permission referred to in sub-rule (3) he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject – matter or such part of the claim.

Order 23 Rule 3-A of the C.P.C. provides that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.

Jurisdictional Clause in Contracts-

Section 28 of the Indian Contract Act, 1872, states that Agreements in restraint of legal proceedings are void. It further states that every agreement, —

• by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights; or
• which extinguishes the rights of any party thereto, or discharges any party thereto, from any liability, under or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing his rights, is void to that extent.

As per section 28 of the Indian Contract Act, parties cannot by private agreement confer upon a court jurisdiction which it does not possess, nor can they divest a court of jurisdiction which it possesses under the ordinary law.^[11]An agreement purporting to oust the jurisdiction of the courts is illegal and void on grounds of public policy.

Where, thus, two courts have jurisdiction to try a case, there is nothing contrary to law in an agreement between parties that disputes between them should be tried at the one court rather than the other.^[13] However, it is specifically forbidden that an agreement cannot confer jurisdiction on the court which has no jurisdiction at all to entertain such suit.

In the case of Raigarh jute and Textile Mills Ltd v New Haryana Transport Co 1994 MPLJ 626 it was stated that parties by mutual agreement choosing one out of several courts having jurisdiction to try the suit, is not against public policy.

Parties can be bound to an agreement containing a clause conferring exclusive jurisdiction on certain courts, if by their conduct subsequent to such selection, it can be shown that the parties intended to give effect to the contract. The exception being where despite such a clause and a consensus to act by it, the cause of action arose wholly and overwhelmingly in another jurisdiction and second, it would be oppressive to drag the parties to their chosen forum having regard to other factors.

Conclusion

It is imperative to understand the concept of jurisdiction since a misinterpretation of the provisions can lead to increase in costs and time spent in litigation at the least. Further, while choosing a court/tribunal/forum for adjudication of disputes parties must keep in mind that jurisdiction of a court cannot be created vide a contract between parties when such jurisdiction does not exist in law. Furthermore, although parties can choose to grant exclusive jurisdiction to one of the several courts that have jurisdiction to try the dispute the exception to its enforcement would be that despite such a clause and a consensus to act by it, the cause of action arose wholly and overwhelmingly in another jurisdiction and that it would be oppressive to drag the parties to their chosen forum having regard to other factors.

The author is an Advocate, the co-author is an intern and both are associated with the chamber of Mr. Amit Karkhanis, Advocate, Bombay High Court. Views are personal.