TABLE OF CONTENTS

Abstract ...................................................................................................... 2

Introduction ............................................................................................... 2

Rationale behind exclusion of jurisdiction of Court ................................. 3

Scope of power of exclusion under section 9 of CPC .............................. 3

Mode of exercise of power of exclusion ................................................... 5

Company Law ......................................................................................... 5

Arbitration............................................................................................... 6

Labour disputes....................................................................................... 6

Taxation .................................................................................................. 7

Conclusion ................................................................................................. 7

References ................................................................................................. 8
 ABSTRACT
Jurisdiction means the power or the authority of the court to hear and determine a cause
or a matter. Civil Courts have a wide jurisdiction in case of civil matters and has an
inherent jurisdiction with respect to the same. Section 9 of the Code of Civil Procedure is
both a negative and a positive provision and enables exclusion of the jurisdiction of civil
courts. The same becomes important because of increasing administrative involvement in
every sphere of functioning in a welfare state and the resulting need for administrative
adjudication. However, the court has laid down safeguard to ensure bona fide exercise of
this power and limit its scope. Furthermore, the threshold is different for different category
of legislation based on their objective and the scheme of operation.

INTRODUCTION
The term “jurisdiction” has not been defined in the Code of Civil Procedure (hereinafter the Code).
Etymologically, speaking the word jurisdiction is derived from Latin words “juris” and “dicto”
which literally means “I speak by the law”.1 However, in the technical sense it means the extent
of the authority of a court to administer justice with respect to subject matter, pecuniary limits and
territorial limits.2 Thus, it is related with the competency of a Court to try a case.

With respect to Civil Courts it’s establishing Acts, i.e. the Civil Courts Act of each state (for
instance Bombay Civil Courts Act, 1869 for Maharashtra, Madhya Pradesh Civil Courts Act, 1958
for Madhya Pradesh etc.) define its pecuniary and territorial jurisdiction. As such they have
inherent jurisdiction to try all civil suits.3 The same also finds mention in Section 9 of the Code.
Section 9 states that the civil courts have the jurisdiction to try all suits of a civil nature except
4
suits whose cognizance is expressly or impliedly barred. Hence, Section 9 defines the subject
matter jurisdiction of the civil court, however at the same time it limits the same. It empowers the
legislation to oust the jurisdiction of civil courts. This essay examines the rationale behind granting

1
C.K. Takwani, Civil Procedure Code with Limitation Act, 1963, Eastern Book Company
2
Official Trustee of W.B. V Sachindra AIR 1962 SC 1621
3
See- Section 151, Code of Civil Procedure, 1908 which recognizes the inherent power of the Court to render complete
justice
4
Section 9, Code of Civil Procedure, 1908
the legislation such power. It also deals with the way such power is exercised and the scope of this
power.

RATIONALE BEHIND EXCLUSION OF JURISDICTION OF COURT

After independence India with the advent of welfare state, administrative adjudication became
indispensible. The reason behind the same was that in light of multifarious function of the
government in a large number of fields the government might trample the rights of certain
individuals, the elaborate and costly system of decision provided by litigation in the courts of law
seemed to be inadequate to address these wrongs. Another reason for the creation of administrative
tribunals and conferring exclusive jurisdiction is that in certain cases considerable expertise will
be required to reach a decision as in the case of fixing fair rent, wages and bonus. The ordinary
courts of law are incapable to meet an emergency or some extraordinary situation and hence
administrative tribunals provide a quick remedy.

SCOPE OF POWER OF EXCLUSION UNDER SECTION 9 OF CPC

Section 9 of the Code has several important aspects, as already mentioned above on one hand it
gives guidance as to subject matter jurisdiction of civil courts on the other hand it provides for
exclusion of the same. To understand when the jurisdiction of court can be excluded it becomes
pertinent to understand what the term ‘civil nature’ entails. Under the Code the courts have given
a wide interpretation to this term and subsequently it inter alia includes suits by government servant
for arrears of salary5, suit for dissolution of marriage6, suits for the determination of right of
worship7 or right of burial8 or right under a contract9 etc.
However, the Section also provides for exclusion of the jurisdiction of civil court; this can be done
by two ways either expressly or impliedly. In the first case statute provides for the exclusion in
express terms without giving room for any doubt. This includes some standard clauses like no
“proceeding/ order/ decision/ act under this act shall be called in question in any court of law”10,

5
State of Bihar v. Abdul Majid, AIR 1954 SC 245
6
Rajeswar Reddy v. Lakshmi Bai, (1964) 2 Andh WR 142
7
Nar Hari v. B.N. Temple Committee, AIR 1952 SC 245
8
Jang Bhadur v. Wazir Khan, AIR 1930 Oudh 54
9
Pratabmull v. K.C. Sethia, AIR 1960 Cal 702
10
See- Section 13,Consumer Protection Act, 1986 ; Section 163,The Kerala Municipality Act 1994; Section 8,The
Foreigners Act, 1946, S.39 of the Travancore-Cochin Nurses and Midwives Act. 1953, S.12 of the Kerala Restriction
on Cutting and Destruction of Valuable Trees Act, 1974 etc.
such a clause is called an ouster clause. Another variation of the same which seeks to exclude
jurisdiction of the civil court is called finality clause; the same is worded as, “order shall be final
and shall not be called in question in any court of law.”11
As against this there are suits which are barred by general principle of law, such as suits relating
to acts of state and public policy. Supreme Court has interpreted the term ‘act of state’ in a number
of cases12 in all these cases the court defined act of state as an act done or adopted by state in its
sovereign capacity and done in the ordinary course of law lead to the exclusion of jurisdiction of
civil court. Apart from that where an act sets up a special hierarchy of tribunals to adjudicate upon
the rights and obligation created by the said act but does not provide for an express exclusion of
jurisdiction of civil courts the same stand impliedly excluded.
However, as already mentioned above Civil courts have an inherent jurisdiction to decide civil
matters corollary to this right individuals have a right to approach these court for adjudication of
civil dispute and hence the exclusion of jurisdiction of civil courts is not lightly taken. The burden
of proof is on the person who is alleges that the civil court does not have jurisdiction to prove the
same. Moreover, especially where implied exclusion is pleaded the court is not quick to accept the
plea of exclusion.13 In such a case the court applies a twofold test to determine whether the Statue
excludes the jurisdiction of the civil court or not. Accordingly, the court would first consider
whether the statue expressly provides for such exclusion or inevitably lead to that inference.
Secondly, it ascertain if it provides an adequate and satisfactory remedy to a party14
There are cases where dual remedy exists both in common law and in special statue as well, for
instance in the case of wrongful dismissal of a workman, he can seek a redressal under either
Industrial disputes Act or Contract Act, however one remedy excludes the other.15 In the English
law case Wolverhampton New Water Works Co. Vs Hawesford16 Willes, J. enumerated three types
of scenarios which might take place when the jurisdiction of civil court is excludes. it is- 1) when
there is a liability existing in common law which is only remedied by the statute with a special
form of remedy: thus unless the statute contains words expressly excluding the common law

11
See- S.17(2) of Industrial Disputes Act, 1947, S.28 of the Thiruppuvaram payment (Abolition) Act, 1969 etc.
12
See- Thakur Amar Singh v. State of Rajasthan, AIR 1955 SC 504; Dalmia Dadri Cement Co. v. Commr of Income
Tax AIR 1958 SC 1041; State of Saurashtra V. Memin Haji AIR 1959 SC 1383
13
Secretary of State V. Mask & Co., A.I.R. (1940) P.C.105, 110.
14
Ram Swarup V Shikarchand AIR 1966 SC 893, Kamla Singh Ltd Vs state of Bombay AIR 1965 SC 1942
15
Bishwanath Das v. Ramesh Chandra (1978) ILR 2 Cut 500
16
(1859) 27 L.J.C.P 242
remedy, the Plaintiff has his election of proceedings either under the statute or at common law; (2)
then there is the second class which consists of those cases in which a statute has created a liability,
but has given no special remedy for it; thus the party may adopt an action of debt or other remedy
at common law to enforce it; (3) the third class is where a statute creates a liability not existing at
common law, and gives also a particular remedy for enforcing. With respect to that class it has
always been held that the party must adopt the form of remedy given by the statute. This case was
also cited by Supreme Court in the landmark case of Dulabhai vs State of Madhya Pradesh17. In
this case there was a suit for declaration that the M.P. Sales Tax Act. 1950 was unconstitutional
and for refund of the amount illegally collected. The Sales Tax Act had provided for tax on tobacco
imported from other states but exempted indigenous tobacco and thus contravened Art.30(a).
There was express exclusion of civil court's jurisdiction. It was held that when an assessment was
based on an unconstitutional provision, the civil court had jurisdiction to look into the matter. It
was also held that apart from legality, the correctness of the assessment had to be decided by the
authority itself under the Act and the civil Court would has no jurisdiction in that regard.
Additionally, the court also referred to a number of other judgments and laid down the law with
regard to tribunals and exclusion of the jurisdiction of the court. It reiterated the observation in
Wolverhampton New Water Works Co18 it further added that where the provision is declared
unconstitutional or constitutionality challenged then the suit before a civil court is open, where tax
collected is in excess of the constitutional limit then a suit lies before a civil court and correctness
of assessment cannot be questioned before a civil court. These seven observations then become
the cornerstone of the courts’ approach to ouster clauses and they used these conditions to
determine whether the jurisdiction of the court has been validly excluded or not.

MODE OF EXERCISE OF POWER OF EXCLUSION

This part discusses the exercise of the power of exclusion of court’s jurisdiction in four fields of-
Company Law Matters, Labour Disputes, Arbitration & Taxation.

Company Law
There has always been a difference of opinion as to whether civil courts have jurisdiction over
company law matter, the reason for this being that 1956 Act did not expressly bar the jurisdiction

17
AIR 1969 SC 78
18
Supra note 16
of civil court. However, this has been remedied by the 2013 Act and Section 430 expressly bars
the jurisdiction of civil courts. Furthermore, the NCLT is at par with the civil court and the NCLAT
with the High Court as an appeal against the order of NCALT lie to Supreme Court. This
amendment reflects the judicial attitude on this issue uptil now. In Maharaja Exports and Another
v. Apparels Exports Promotional Council 19 the Delhi High Court examined the scheme of the act
and held that the jurisdiction of civil courts is impliedly barred. In Dwarka Prasad Agarwal v.
Ramesh Chandra Agarwal20 the court made similar observation
However, in CDS Financial Services (Mauritius) Limited Vs. BPL Communications Limited and
ors21 the court held that in proceedings against oppression and mismanagement the jurisdiction of
civil court is not excluded with respect to other contractual remedy. In h same vein in Greeneline
Transit System Pvt. Ltd. v. Secy Cum Commissioner22 the court observed that when a breach of
the provision of the shareholder’s agreement between the parties is involved along with other acts
of oppression and mismanagement, the Civil Court may exercise their jurisdiction.

Arbitration
In the past couple of years there has been a tremendous growth in India with respect to arbitration,
more and more commercial contracts tend to rely on arbitration clause in their contract. Recently,
the Supreme Court in a trendsetting judgment in Indian Drugs & Pharmaceuticals Ltd. v. Ambika
Ent23 answered the long standing question as to whether the civil court can entertain a dispute
which is referable to arbitration in terms of Section8 of the Arbitration and Conciliation Act, 1996.
The court answered in negative. It observed that where the party approaches the civil court and
arbitration clause is put forth as a bar to the jurisdiction the civil court has the power to decide
whether an agreement exists and if the agreement exists then it has to refer the dispute to
arbitration. The reason being Section 8 of Arbitration Act being a special law would prevail over
Section 9 of the Code.

Labour disputes
Labour Courts and Tribunals are governed by the provisions of the Industrial Disputes Act. The
various other authorities under different enactments are mostly government servants working

19
1986 (60) CC 353
20
(2003) 117 Com cases 206 (Sc): (2003) 4 Comp LJ 385
21
(2004) 121 Comp Cases 375
22
C.M. (M) No. 490/2012
23
(2008) AIHC 619
under the control of the State Secretariat who are all mostly quasi judicial authorities. In some
enactments appeals are provided from those authorities to the concerned Principal District Judges
and in some cases to the High Court either by way of revision or as an appeal. In the landmark
case of Premier Automobiles Limited V Kamalakar Shantharam Wadke24 Supreme Court has set
out the principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute.
These observations were based on the rulings in Wolverhampton New Water Works Co25 and
Dulabhai case26. Subsequently the court held that if the dispute is not an industrial dispute, nor
does it relate to enforcement of any other right under the Act, the remedy lies only in the Civil
Court; if the dispute is an industrial dispute arising out of a right or liability under the general or
common law and not under the Act, the jurisdiction of the civil Court is alternative, leaving it to
the election of the suitor concerned to choose his remedy for the relief which is competent to be
granted in a particular remedy. Finally, if the industrial dispute relates to the enforcement of a right
or an obligation created under the Act, then the only remedy available to the suitor is to seek
adjudication under the Act. This observation was also reiterated in another landmark case on the
same point namely Rajasthan SRTC v. Krishna Kant.27 The case for industrial disputes is important
because it lays down the law with respect to other social welfare legislations like Tenancy Laws,
Consumer Protection Act etc.

Taxation
In general, there is bar to civil courts dealing with matters affecting government revenue. As
already mentioned in the Dulabhai case where a revenue statue provides for a person, aggrieved
by an assessment a particular forum and a particular remedy then the same has to be resorted and
the jurisdiction of civil court would like excluded. Civil Court only can evaluate whether the
tribunal has jurisdiction and if it is acting within the limits of its jurisdiction. It cannot enter into
the question of correctness of the decision.

CONCLUSION
The inherent power doctrine gives wide powers to civil courts with respect to civil matters.
However, it is necessary that in the interest of expediency and public interest that the same is

24
AIR 1975 S.C.2238
25
Supra note 16
26
Supra note 17
27
(1995) 5 SCC 75
excluded. However, as already illustrated above excluding jurisdiction of civil courts & conferring
it on authorities or Tribunals should be strictly construed.28 The principles with regard to the
exclusion of the court’s jurisdiction both expressly as well as impliedly are well established. These
principles still remain relevant in today’s day and age because the court has widened its application
especially in the field of commercial law where a need of expert bodies capable of speedy
adjudication was felt ex- NCLT, SEBI etc. At the same time the basic structure doctrine and the
remedy under Article 226 and 227 ensure that these administrative authorities do not becomes
despots.

REFERENCES
1. Books
 C.K. Takwani, Civil Procedure Code with Limitation Act, 1963, Eastern Book
Company
 Vinay Kumar Gupta, Mulla’s Code of Civil Procedure, Lexis Nexis Butterworths
Wadhwa
 MP Jain, Code of Civil Procedure, Lexis Nexis Butterworths Wadhwa
 MP Jain, Administrative Law, Lexis Nexis
2. Websites
 IndianKanoon.org
 Lawctopus.com
 Academia.edu
 iPleaders.com
3. Databases
 SCC
 Manupatra
 SSRN

28
Reiterated recently in United India Ins. v. Ajay Sinha, (2008) 7 SCC 454