Ouster Of Civil Court Jurisdiction: SC Reiterates Tests Formulated In 1968 Constitution Bench Judgment [Read Judgment]

Section 9 of the Code of Civil Procedure empowers the Courts to try all civil suits unless barred. It states that the Courts shall (subject to the provisions therein contained) have jurisdiction to try all Suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The tests to be adopted while considering a question as to ouster of civil court jurisdiction, was summarized in 1968 itself by a Constitution bench of the Supreme Court in Dhulabhai vs The State Of Madhya Pradesh AIR 1969 SC 78.

Recently, the Supreme Court in M. Hariharasudhan vs. R. Karmegam, reiterated the principles stated in this constitution bench judgment. The issue considered by the bench comprising of Justice Mohan M. Shantanagoudar and Justice Ajay Rastogi was whether the suit for damages is maintainable in light of the Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992, which depends on whether the Act excludes the jurisdiction of the civil court.

The bench referred to these principles stated in Dhulabhai-

1. Where the statute gives a finality to the orders of the special tribunals the Civil Courts' 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.

In the instant case, the bench examined the scheme of the Act and held that it does not stand in place of and preclude a claim for damages under the common law as may fall for determination before a civil court in a civil suit

The court particularly noted Section 14 of the Act which is Saving provision which reads:—The provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being in force and nothing contained herein shall exempt any person from any proceeding by way of investigation or otherwise which might, apart from this Act, be instituted against him. It observed that this is similar to Section 3 of the Consumer Protection Act, 1986. Taking note of judgments which dealt with this provision of Consumer Protection Act, the bench observed:

There is no doubt in our minds that a similar proposition holds the field even with respect to the Act at hand. Section 14 of the Act, being in addition to and not in derogation of the provisions of other laws in force, permits an aggrieved person to approach the civil court for relief if he so desires, instead of availing of the remedy envisaged under Section 10 of the Act. Clearly, a claim for compensation under the Act is only in the nature of an additional remedy which may be pursued in place of filing a civil suit for the same relief... Moreover, it is clear that since a claim for compensation under Section 10 may only be determined by way of summary proceedings, it does not stand as a complete substitute to the remedies that may be pursued in a civil court and determined through a full-fledged trial, even though certain powers of the civil court are conferred upon the prescribed authority determining a claim for compensation under the Act. 

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