CIVIL PROCEDURE

AND LIMITATION
PROJECT
Group-5

Topic:
Lack of Jurisdiction and Irregular Exercise
of Jurisdiction
Sub-topic: Accentuation of Lack of Jurisdiction

Submitted to: Dr. Manoj Sharma

Submitted by: Anshuman Makkar (15043)

 TABLE OF CONTENTS

I. Introduction: .......................................................................................................... 3

II. Jurisdiction: Meaning And Importance ............................................................ 3

III. Who Grants Jurisdiction To A Court? .............................................................. 5

IV. Jurisdiction Of A Civil Court:............................................................................ 6

V. Kinds Of Jurisdiction:.......................................................................................... 8

VI. Lack Of Jurisdiction: ........................................................................................... 9

VII. To Have Jurisdiction And Not To Have Jurisdiction And Effect Thereof:

................................................................................................................................ 13

VIII. Case Analysis: Sushil Kumar Mehta v. Gobind Ram Bohra ..................... 14

IX. Irregular Exercise Of Jurisdiction: .................................................................. 15

X. Absence Of Jurisdiction And Erroneous Exercise Of Jurisdiction ........... 15

XI. Error Within Jurisdiction Of The Court: ........................................................ 17

XII. Error Outside The Jurisdiction Of The Court: .............................................. 18

XIII. Conclusion: .......................................................................................................... 19

XIV. References: .......................................................................................................... 20

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 I. INTRODUCTION:
Ubi Jus Ibi Remedium - "Where there is a right, there is a remedy"

The fundamental principle of English Law that wherever there is a right, there is a
remedy, has been adopted by the Indian legal system. It means, whenever the rights of
a person is infringed or curtailed or the person is stopped by anyone in enjoying the
rights so guaranteed to him, there must be some judicial forum having authority to
adjudicate on the matter and the rights so guaranteed should be restored or
compensated as per the case. To get the rights restored or claiming compensation or
damage sustained, person has to approach the appropriate forum, which has the
authority to adjudicate on the matter and award the relief so sought. So, the forum
must have jurisdiction to deal with that matter. The word jurisdiction is used in
various contexts. It means legal authority, extent of power and limitation on such
powers. It is a term of comprehensive import embarrassing every kind of judicial
action. It means power and authority of the court to hear and determine a judicial
proceeding and power to render particular judgement in question. 1 In other words it is
the right and power of the court to adjudicate the subject matter in a given case.

The nexus between jurisdiction, lacking jurisdiction and irregular exercise of it is that
jurisdiction is the founding basis, while lack of it and irregular exercise of it are
concepts which have evolved over time, owing to the opinion of the courts. In this
project, the concepts of jurisdiction (in detail) and lacking jurisdiction and irregular
exercise of jurisdiction shall be explored (in brief). In the further portions of this
submission, the difference between irregular exercise and lack of jurisdiction shall be
brought out in detail.

II. JURISDICTION: MEANING AND IMPORTANCE

Jurisdiction is a notion which is the core of any litigation. The term can be understood
from both a general as well as legal perspective. Its significance can be gathered in
both a broader as well as narrower sense from which it is defined.

1
Justice B.S. Chauhan, ‘Code of Civil Procedure’, available at http://www.nja.nic.in/16%20CPC.pdf
(last accessed 4 March 2018).

3
The word originates from the Latin terms ‘juris’ and ‘dicto’ which means “I speak the
law”.2 Jurisdiction is also the Latin term for ‘authority to judge or administer
justice’3. .As per Black’s Law Dictionary4 the court’s power to decide a case or issue
a decree can be termed as jurisdiction. It also defines a geographical area within
which the political or judicial authority may be exercised.

The term ‘Jurisdiction’ which is always one of the most important questions of law is
nowhere defined under any stature. The procedural law of India i.e. The Code of Civil
Procedure, 1908 is also silent on it. However, in simple terms, Jurisdiction means the
power to hear and determine a case. It also means the extent of power which is
conferred upon the court by its constitution to try a proceeding.5

As provided in the Hallsbury’s Law of England, “By jurisdiction is meant the

authority by which a court has to decide matters that are litigated before it or to take
cognizance of matters presented to it in a formal way for its decision. The limits of
this authority are imposed by statute or chapter or commission under which the court
is constituted and may be extended or restricted by similar means. If no restrictions or
limitations are imposed the jurisdiction is said to be unlimited. A limitation may be
either as to the kind or nature of the actions or the matters of which a particular court
has cognizance or as to the area over which the jurisdiction extends, or it may partake
of both these characteristics”.

Jurisdiction hence may be defined to be the power of a court to hear and determine a
cause, to adjudicate and exercise any judicial power in relation to it. It refers to the
right of administering justice by means of law. The notion of jurisdiction is rooted in
territoriality from the point of view of both the court which can properly assert
jurisdiction and from the point of view of the law that should be applied while
deciding the dispute.

A court which has jurisdiction is said to be a competent court. Each country

specifically defines jurisdiction under its legal system which plays a pivotal role in
efficient and effective litigation management. Thus, it can be concluded that

2
C K. Takwani Civil Procedure, Eastern Book Company, Lucknow, 8th edn, 2017, 40.
3
Aiyar Ramanath P, The Law Lexicon, LexisNexis Butterworth’s Wadhwa Nagpur, 2 nd edn 2008.
4
Black’s Law Dictionary, 9th edn, 2009, 927.
5
Raja Soap Factory v. S.P. Shantharaj, A.I.R. 1965 S.C. 1449.

4
 jurisdiction of court means competence, power and authority of court to deal with a
matter placed before it.

III. WHO GRANTS JURISDICTION TO A COURT?

Jurisdiction is granted to a court by the Legislature. The civil courts are of general
jurisdiction but even the existing jurisdiction of a civil court can be restricted or
curtailed by conferring it up on another Court, Tribunal or Authority. For example
Consumer Protection Act, 1986 was enacted by the Legislature to provide for a better
protection of the interests of consumers and for that purpose to make provision for the
establishment of Consumer Councils and other authorities for the settlement of
consumer’s disputes. Under Section 9, three agencies for redressal of consumer
disputes have been established viz., District Forum in each district of a State; State
Commission in each State; and National Commission. The jurisdiction of these
consumer dispute redressal agencies have also been declared under Section 11, 17 and
21 respectively. The matters falling within the jurisdiction of these agencies can be
heard and decided by them only. No other court, including civil court, shall have an
authority over the subject matters on which jurisdiction has been granted then to these
consumer disputes redressal agencies. Thus, the jurisdiction of the civil court stands
restricted. Similarly, Administrative Tribunals have been established under
Administrative Tribunals Act, 1985. The long title of the Act provides that it is “An
Act to provide for the adjudication or trial by Administrative Tribunal of disputes and
complaints with respect to recruitment and conditions of service of persons appointed
to public services and posts in connection with the affairs of Union or of any State or
of any local or other authority within the territory of India or under control of
Government of India or of any Corporation or society owned or controlled by the
Government in pursuance of Article 323-A of the Constitution and for matter
connected therewith or incidental thereto”.6 Thus, the jurisdiction of enumerated
matters has been granted to the Administrative Tribunals thereby curtailing the
jurisdiction of the civil court on these matters. However, the jurisdiction of Supreme
Court and High Courts cannot be taken away by enactment because it is conferred by
Constitution itself and therefore, in order to exclude, curtail or modify their
jurisdiction, amendment of Constitutional provisions would be necessary.

6
Ray Sukumar, The Code of Civil Procedure, Universal Law Publishing, Delhi, 2008.

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IV. JURISDICTION OF A CIVIL COURT:
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 questions 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.].

As mentioned under sec-9 of the Code, the civil courts have jurisdiction to deal with
all matters provided it is a matter of civil nature and it is not expressly or impliedly
barred.

The word civil is not defined in the Code, however as per dictionary meaning it
pertains to the private rights and remedies as distinguished from criminal and
political. The word nature indicates the fundamental quality of a thing or person, its
identity or the essential character. Hence, the suit of civil nature may be understood as
a suit in which the fundamental question for determination, the matters in controversy
primarily relating to the private rights and obligations, not to be related to political or
religious rights and obligations; and if it is so the civil courts have the jurisdiction
provided it is not expressly or impliedly barred.

The concept of jurisdiction under section 9 was explained by Supreme Court in Rev.
P.M.A. Metropolitan v. Moran Mar Marthoma,7 the Court stated:

1. Phraseology used in the section is both positive and negative,

2. The earlier part opens the door widely and latter debars the entry of those which are
expressly or impliedly barred.

3. The two explanation, one from the inception and the second added in 1976 reflects
the legislative intentions.

7
A.I.R. 1995 S.C. 2001.

6
4. That those religious matters in which rights of the property or the office is involved
irrespective of the fact whether any fee is attached to the office or not is a matter of
civil nature and the civil court is competent to try such suit.

5. Each word and expression casts an obligation on the court to exercise jurisdiction
for enforcement of rights.

6. The word ‘shall’ makes it mandatory.

7. No Court can refuse to entertain a suit if it is of the description mentioned in the

section.

However, the court cannot try any suit if its cognizance is either expressly or
impliedly barred. A Suit is said to be expressly barred if it is barred by any enactment
for the time being in force. It is open to the legislature to bar the jurisdiction of civil
court with respect to a particular class of suit keeping itself within the ambit of power
conferred on it by the Constitution of India.

The development of the tribunal has taken away the jurisdiction of the civil court with
respect to the subject matter allotted to that tribunal on the first stage, however if any
question of law so raised, or any provision of the act which has so created the tribunal
that can be looked into by the civil court. Thus, matters falling within the exclusive
jurisdiction of the Revenue Courts or under the Code of Criminal Procedure or
matters dealt with by special tribunals under the relevant statutes, e.g. by Industrial
Tribunal, Cooperative Tribunal, Income Tax Tribunal, Motor Accident Claims
Tribunal, etc., are expressly barred from the cognizance of the Civil Courts.8

A suit is said to be impliedly barred when it is barred by the general principle of law.
In fact, certain suits, though of a civil nature, are barred from the cognizance of a civil
court on the ground of public policy. The principle underlying is that a court ought not
to countenance matters which are injurious to and against the public weal. Thus, no
suit shall lie for recovery of costs incurred in a criminal prosecution or for
enforcement of a right upon a contract hit by Section 23 of the Indian Contract Act,
1872; or against any judge for acts done in the course of his duties, etc.

8
A.N. Saha, Civil Procedure Code, Premier Publishing Company, Allahabad, 6th edn, 2004.

7
V. KINDS OF JURISDICTION:
Jurisdiction of a court may be classified under the following categories:9

1. Civil and Criminal jurisdiction

Civil jurisdiction is that which concerns and deals with dispute of a “civil nature”.
Criminal jurisdiction, on the other hand, relates to crimes and punishes offenders.

2. Territorial or local jurisdiction

Every Court has its own local or territorial limits beyond which it cannot exercise
its jurisdiction. These limits are fixed by the Government. The District Judge has
to exercise jurisdiction within his district and not out-side it. The High Court has
jurisdiction over the territory of a State within which it is situate and not beyond
it. Again, a court has no jurisdiction to try a suit for immovable property situated
beyond its local limits.

3. Pecuniary Jurisdiction

The Code provides that a court will have jurisdiction only over those suits the
amount or value of the subject-matter of which does not exceed the pecuniary
limits of its jurisdiction.10 Some courts have unlimited pecuniary jurisdiction, e.g.
High Courts and DISTRICT Courts have no pecuniary limitations. But there are
other courts having jurisdiction to try suits up to a particular amount. Thus, a
Presidency Small Causes Court cannot entertain a suit in which the amount
claimed exceeds Rs 1000.

4. Jurisdiction as to subject-matter
Different courts have been empowered to decide different types of suits certain
courts are precluded from entertaining certain suits. Thus, a Presidency Small
Causes Court has no jurisdiction to try suits for specific performance of contract,
partition of immovable property, foreclosure or redemption of a mortgage, etc.
Similarly, in respect of testamentary matters, divorce cases, probate proceedings,
insolvency proceedings, etc., only the District Judge or Civil Judge (Senior
Division) has jurisdiction.

9
C.K. Takwani, Civil Procedure, Eastern Book Company, Lucknow, 2017.
10
The Civil Procedure Code 1908, §6.

8
 5. Original and appellate jurisdiction

Original jurisdiction is jurisdiction inherent in, or conferred upon, a court of first

instance. In the exercise of that jurisdiction, a court of first instance decides suits,
petitions or applications. Appellate jurisdiction is the power or authority conferred
upon a superior court to re-hear by way of appeal, revision, etc., of causes which
have been tried and decided by courts of original jurisdiction.

Munsiffs Courts, Courts of Civil Judges, Small Cause Courts are having original
jurisdiction only, while District Courts, High Courts have original as well as
appellate jurisdiction.

6. Exclusive and concurrent jurisdiction

Exclusive jurisdiction is that which offers sole power on one court or tribunal to
try, deal with and decide a case. No other court or authority can render a
judgement or give a decision in the case or class of cases.

Concurrent or co-ordinate jurisdiction is jurisdiction which may be exercised by

different courts or authorities between the same parties, at the same time and over
the same subject-matter. It is, therefore, open to a litigant to invoke jurisdiction of
any of such court or authority.

7. General and special jurisdiction

General jurisdiction extends to all cases comprised within a class or classes of

causes. Special or limited jurisdiction, on the other hand, is jurisdiction which is
confined to special, particular or limited causes.

8. Legal and equitable jurisdiction

Legal jurisdiction is a jurisdiction exercised by Common Law Courts in England,

while equitable jurisdiction is a jurisdiction exercised by Equity Courts. Courts in
India are courts of both, law and equity.

VI. LACK OF JURISDICTION:

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A practical definition of ‘Lack of jurisdiction’ can be said to be: the circumstance
wherein a case is outside the purview of a court by the virtue of any reason which
renders the matter wholly outside its jurisdiction.
In Hira Lal Patni v. Kali Nath11, the concept of lack of jurisdiction was explained in
the following words:

“The validity of a decree can be challenged in execution proceedings only

on the ground that the court which passed the decree was lacking in
inherent jurisdiction in the sense that it could not have seisin of the case
because the subject matter was wholly foreign to its jurisdiction or that
the defendant was dead at the time the suit had been instituted or decree
passed, or some such other ground which could have the effect of
rendering the court entirely lacking in jurisdiction in respect of the
subject matter of the suit or over the parties to it.”

As a general principle if a court has got no jurisdiction to try and decide a suit, it
cannot be conferred jurisdiction by consent, either express or implied (e.g. by absence
of objection at appropriate time). A decree without jurisdiction is nullity and may be
questioned at any stage including execution or even in collateral proceedings vide
Kiran Singh v. Chaman Paswan,12 (followed in innumerable authorities by the
Supreme Court the latest being Foreshore Co-operative Housing Society Limited v.
Praveen D. Desai (Dead) AIR 2015 SC 2006). In para 6 of Kiran Singh it was held as
follows:-

“it is a fundamental principle well established that a decree passed by a

court without jurisdiction is a nullity and that its invalidity could be set up
whenever and wherever it is sought to be enforced or relied upon, even at
the stage of execution and even in collateral proceedings. A defect of
jurisdiction, whether it is pecuniary or territorial or whether, it is in
respect of the subject – matter of action, strikes at the very authority of the
court to pass any decree, and such a defect cannot be cured even by
consent of parties.”

11
1962 A.I.R. 199.
12
A.I.R. 1954 S.C. 340.

10
However it was further held in paras 6 and 7 of Kiran Singh that lack of pecuniary
jurisdiction is an exception to the general principle in view of section 11 of Court
Fees Act and a decree suffering from such defect is not to be treated as, what it would
be but for the section, null and void. Same exception applies to lack of territorial
jurisdiction in view of section 21 C.P.C. .

In Chief Engineer Hydel Project v. Ravinder Nath,13 order of termination of service of

a workman was set aside in a suit whose decree was affirmed in First Appeal by ADJ
and in Second Appeal by High Court. It was argued for the first time before the
Supreme Court in SLP that civil court had no jurisdiction to decide the dispute and
only labour Court had the jurisdiction with respect thereto. The Supreme Court
permitted the argument to be raised and accepted the same.

In Hasham Abbas Sayyad v. Usman Abbas Sayyad14 ( relied upon in Chief Engineer,
supra) after passing of preliminary decree in a partition suit an application for sale of
the property in dispute was filed whereupon the property was sold through auction.
Neither final decree had been passed nor even proceedings for the same had been
initiated. The Supreme Court held that the sale was nullity as it could take place only
in execution of final decree which had not even been passed and that the final decree
if passed would have been appealable. Para 21 is quoted below:

“The core question is as to whether an order passed by a person lacking

inherent jurisdiction would be a nullity. It will be so. The principles of
estoppel, waiver and acquiescence or even resjudicata which are
procedural in nature would have no application in a case where an order
has been passed by the Tribunal/ Court which has no authority in that
behalf. Any order passed by a court without jurisdiction would be coram
non judice being a nullity, the same ordinarily should not be given effect
to. (see Chief Justice of Andhra Pradesh and another v. L.V.A. Dikshitulu
and others, AIR 1979 SC 193 & M.D. Army Welfare Housing
Organization v. Sumangal Services (P) Ltd. (2004) 8 SCC 619).”

Cases of lack of jurisdiction may broadly be divided into three categories:

13
A.I.R. 2008 S.C. 1315.
14
A.I.R. 2007 S.C. 1077.

11
The first is of pecuniary and territorial jurisdiction. Such defect is not absolutely fatal
and as per section 21 C.P.C. if objection is not raised at the earliest opportunity and
there has not been failure of justice then lack of pecuniary or territorial jurisdiction
will not vitiate the decree.

The next is of that type regarding which objection may be raised at late stage of the
suit or even for the first time in appeal (e.g. bar of limitation) but not in execution or
collateral proceedings (Ittyavira Mathai v. Varkey Varkey,15 and Bhawarlal Bhandari
v. M/s. Universal Heavy Mechanical Lifting Enterprises16, referred in Balvant (2004),
). The distinction has aptly been described in first sentence of para 11 of Dhurandhar
Prasad, 2001, as follows:

“In the case of Ittyavira Mathai v. Varkey Varkey and another, AIR 1964
SC 907, the question which fell for consideration before this Court was if
a Court, having jurisdiction over the parties to the suit and subject matter
thereof passes a decree in a suit which was barred by time, such a decree
would come within the realm of nullity and the Court answered the
question in the negative holding that such a decree cannot be treated to be
nullity but at the highest be treated to be an illegal decree.”

The third type of jurisdictional defect, which may be described as jurisdictional defect
of highest order, is such which renders the decree nullity and liable to be questioned
even in execution or collateral proceedings. It is termed as lacking jurisdiction over
the subject matter, lacking competence of the Court to try the case or inherent lack of
jurisdiction.

Para 23 of Hasham Abbas17, is quoted below:-

“We may, however hasten to add that a distinction must be made between
a decree passed by a court which has no territorial or pecuniary
jurisdiction in the light of Section 21 of the C.P.C.; and a decree passed
by a court having no jurisdiction in regard to the subject matter of the
suit. Whereas in the former case, the appellate court may not interfere

15
A.I.R. 1964 S.C. 907.
16
A.I.R. 1999 S.C. 246.
17
Hasham Abbas Sayyad v. Usman Abbas Sayyad & Ors, (2007) 2 S.C.C. 355.

12
 with the decree unless prejudice is shown, ordinarily the second category
of the cases would be interfered with.”

Sometimes the distinction between the aforesaid types of defects in jurisdiction is

rather thin.

Regarding jurisdiction if there is change of law during pendency of suit (or appeal), it
will have to be taken into consideration. In Lachmeshwar Prasad v. Keshwar Lal18
and Pasupuleti Venkateswarlu v. Motor & General Traders,19 it has been held that
change in law as well as material change in facts shall be taken note of even by the
Highest Court. Whenever special Tribunal or Court is constituted provision for
transfer of pending suits (or appeals) is made e.g. in Administrative Tribunal Act,
Armed Forces Tribunal Act, Recovery of debts Due to Banks etc. Act. Similarly when
pecuniary limit of jurisdiction is enhanced provision for transfer of pending cases is
made. Conversely if Court had no jurisdiction when suit was instituted but due to
change in law it acquires jurisdiction at the stage of trial, hearing or disposal, then it
will have to decide the suit on merit vide Sudhir G. Angur v. M. Sanjeev20. Same
principle will apply to applications including revisions vide Shiv Shakti Coop.
Housing Society, Nagpur v. M/s. Swaraj Developers21. However right of appeal,
which is a vested right, as available on date of institution of suit, cannot be curtailed
by change of law vide Videocon International v. Securities & Exchange Board of
India22.

VII. TO HAVE JURISDICTION AND NOT TO HAVE JURISDICTION AND

EFFECT THEREOF:
If the court is vested with the power or authority to try and adjudicate upon a cause, it
is said “to have jurisdiction over the matter”. Otherwise it is said “to have no
jurisdiction over the matter”. A suit is not maintainable in a court which is not vested
with the jurisdiction to try the subject matter of the suit. If a court not having
jurisdiction over the matter in a suit ventures to hear and decide such suit and passes a
decree, that decree is void. It is thus necessary that the courts exercise their power to

18
A.I.R. 1941 F.C. 5.
19
A.I.R. 1975 S.C. 1409.
20
A.I.R. 2006 S.C. 351.
21
A.I.R. 2003 S.C. 2434.
22
A.I.R. 2015 S.C. 1042.

13
 adjudicate upon a cause, within their domain or jurisdiction prescribed by the
Legislature. If they step out of it, the judgement pronounced by them shall be of no
consequence. In nut shell, the lack of jurisdiction makes the orders and decision ultra
vires, null and void.

VIII. CASE ANALYSIS: SUSHIL KUMAR MEHTA V. GOBIND RAM BOHRA23

Facts: In this case, the respondent filed a suit (before senior sub-judge) for the
ejection of the appellant and also the arrears due to his non-payment of rent. The
decision to the suit was given ex parte. The application under Order 9, Rule 13 C.P.C.
to set aside the ex parte decree was dismissed and was confirmed on appeal and later
in revision by the High Court. When the respondent came for execution of ejectment
decision the appellant objected that according to him the Controller under the Act was
the competent authority regarding claims for ejectment and by necessary implication,
the civil Court was divested of jurisdiction to take cognisance and pass a decree for
ejectment. That objection was overruled on a further revision to the High Court also
filed.

Simultaneously the appellant had also filed a writ petition under article 227 of the
Constitution which was also dismissed. The plaintiff then filed an appeal by special
leave to the Supreme Court.

Issues: Whether the civil court lacked inherent jurisdiction to take cognizance of the
cause and to pass a decree of ejectment therein?

Whether the doctrine of res-judicata applies to a case of a decree of nullity?

Judgement: A question relating to jurisdiction of a court or interpretation of

provisions of a statute cannot be deemed to have been finally determined by an
erroneous decision of a court. Therefore the doctrine of res judicata does not apply to
a case of a decree of nullity. If the court inherently lacks jurisdiction consent cannot
confer jurisdiction. Where certain statutory rights in welfare legislation are created,
the doctrine of waiver also does not apply to case of decree where the court inherently
lacks jurisdiction. Therefore in the instant case, though the decree was passed and the
jurisdiction of the court was gone into an issue at the ex parte trial, the decision

23
Sushil Kumar Metha v. Gobind Ram Bohra, 1990 S.C.C. 1 193.

14
 thereunder is a nullity and does not bing the appellant. Therefore it does not operate as
res judicata.

IX. IRREGULAR EXERCISE OF JURISDICTION:

Irregular exercise of jurisdiction occurs when the by rendering an erroneous decision,
fails to exercise the jurisdiction vested in it. This does not always result in the nullity
of a decree as passing an erroneous decision is well within the authority vested in a
court which presumably has inherent jurisdiction. In Mathai v. Varkey24, the court has
opined that an erroneous decision is a defect which can only be cured through the
procedures mentioned in the Code of Civil Procedure, 1908, and does not make the
decree so passed a nullity.

X. ABSENCE OF JURISDICTION AND ERRONEOUS EXERCISE OF

JURISDICTION
What is absence of jurisdiction and erroneous exercise of jurisdiction?

The former strikes at the root of the exercise and want of jurisdiction may vitiate the
proceedings rendering them and the orders passed therein a nullity. On the other hand,
an error either of fact or law, in the exercise of jurisdiction, by a Court or Tribunal,
which enjoys inherent jurisdiction to try a matter, will not vitiate the legality and
validity of the proceedings unless they are set aside as per the procedure laid down
under the law.25 Examples are where a court decress a suit even though it is time-
barred or where a tax is imposed as a result of an incorrect interpretation of law. In
Balvant N. Viswamitra v. Yadav Sadashiv,26 it was contended that the decree passed
by the Court was a nullity since the suit was time barred. Negativing the contention,
the Supreme Court observed:

“If the suit was barred by time and yet the Court decreed it, the Court
would be committing an illegality and therefore the aggrieved party would
be entitled to have the decree set aside by preferring an appeal against it.
But it is well-settled that a Court having jurisdiction over the subject-
matter of the suit and over parties thereto, though bound to decide right

24
[1964] 1 S.C.R. 495.
25
Iridium India Telecom v. Motorola Incorporated, AIR 2011 SC 20; Remdeo Chauhan v. Bani Kant
Das, A.I.R. 2011 S.C. 615.
26
A.I.R. 2004 S.C. 4377.

15
 may decide wrong; and that even though it decided wrong it would not be
doing something which it has no jurisdiction to do. If the party aggrieved
does not take appropriate steps to have that error corrected, the
erroneous decree will hold good and will not be open to challenge on the
basis of being a nullity.”

The question which frequently arises is: What is the distinction between the absence
of jurisdiction and erroneous exercise of jurisdiction? Absence of jurisdiction and
erroneous exercise of jurisdiction are not liable to be intermixed.27 The difficulty has
arisen because the word “jurisdiction” is an expression which is used in a variety of
senses and takes its colour from its context. If there was an entitlement to enter upon
an inquiry into the question, any subsequent error can only be regarded as an error
within the jurisdiction. In R. v. Bolton,28 the question of jurisdiction is determinable at
the commencement and not at the conclusion of the enquiry. The landmark decision in
Anisminic Ltd. v. Foreign Compensation Commission,29 however, has changed the
legal position considerably. The said decision virtually assimilated the distinction
between lack of jurisdiction and erroneous exercise thereof. However, in Budhia v.
Gopinath,30 the Supreme Court stated:

“A distinction has to be drawn between lack of jurisdiction and a mere

error in exercise of jurisdiction. The former strikes at the very root of the
exercise and want of jurisdiction may vitiate the proceedings rendering
them and the orders passed therein a nullity. A mere error in exercise of
jurisdiction does not vitiate the legality and validity of the proceedings
and the orders passed thereon unless set aside in the manner known to
law by laying a challenge subject to the law of limitation.”

There is always a distinction between want of jurisdiction and irregular exercise of it.
In the case Amrit Bhikaji Kale v. Kashinath Janardhan Tarade31, it is held that

27
Surya Agroils Ltd. v. Union of India, 1995 (59) ECR 444 (MP).
28
(1841) 1 Q.B. 66.
29
(1969) 1 All ER 208.
30
A.I.R. 1999 S.C. 2089.
31
A.I.R. 1983 S.C. 643.

16
 “if there is inherent lack of jurisdiction, the decree passed by a Civil
Court is a nullity, and that nullity can be set up in any collateral
proceedings.”

However, if a Court has jurisdiction but it is irregularly exercised, the defect does not
go to the root of the matter, and the error, if any, in exercising the jurisdiction can be
remedied in appeal or revision and when there is no such remedy or is not availed of,
the decision is final.

XI. ERROR WITHIN JURISDICTION OF THE COURT:

In the case of Official Trustee, West Bengal v. Sachindra Nath Chatterjee,32 the
Hon'ble Supreme Court observed that, before a court could be held to have
jurisdiction to decide a particular matter it must not only have jurisdiction to try the
suit brought but must also have the authority to pass the orders sought for. It was not
sufficient that, it had some jurisdiction in relation to the subject matter of the suit. Its
jurisdiction must include the power to hear and decide the questions at issue, the
authority to hear and decide the particular controversy that had arisen between the
parties. This aspect of the matter was reviewed by the Hon'ble Supreme Court in the
case of M.L. Sethi v. R.P. Kapur33.

It is observed, “The dicta of the majority of the House of Lords in the case R. v.
Bolton would show the extent to which 'lack' and 'excess' of jurisdiction have been
assimilated or, in other words the extent to which we have moved away from the
traditional concept of 'jurisdiction'. The effect of the dicta in that case is to reduce the
difference between jurisdictional error and error of law within jurisdiction almost to
vanishing point. The practical effect of the decision is that, any error of law can be
reckoned as jurisdictional. This comes perilously close to saying that there is
jurisdiction if the decision is right in law but none if it is wrong.

In the case R.N. Mitra v. Angurbala34, it is observed in paragraph No.8, - In a case of

this nature, in my opinion, even though there has been much refinement on the
concept of jurisdiction, a common sense point of view has to be approached. Judged
from that point of view, in my opinion, in a case where a suitor has contended that the

32
AIR 1969 SC 823
33
AIR 1972 SC 2379.
34
AIR 1976 Cal 217

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 claim was beyond Rs.50,000/- in such a situation unless it can be said that the claim
ex facie was illegal, this court would have jurisdiction to try that contention. An
erroneous finding in deciding that contention or finding contrary to any provisions of
law would not, in my opinion, amount to excess of jurisdiction. In the instant case, the
issue of jurisdiction was specifically raised before the learned Judge and was
negatived. In the aforesaid view of the matter, I am of the opinion that the decree was
not a nullity.

XII. ERROR OUTSIDE THE JURISDICTION OF THE COURT:

If a Court has no jurisdiction of the subject of an action, a judgment rendered therein
does not adjudicate anything. It does not bind the parties, nor can it thereafter be made
the foundation of any right. It is a mere nullity without life or vigour. The infirmity
appearing upon its face, its validity can be assailed on appeal or by motion to set it
aside in the court which rendered it, or by objection to it when an effort is made to use
it as evidence in any other proceeding to establish a right. If a trial court does not have
subject matter jurisdiction and, therefore, has no power to entertain the proceedings or
decide a question, an appellate Court lacks jurisdiction to review or evaluate an
evidentiary determination for an act outside the jurisdiction of the court whose
judgment or order is appealed.

A jurisdictional error arises where a decision maker has accept the authority or power
conferred upon him. A violation of power or jurisdiction may arise in different way
including ignoring of relevant material, relying on irrelevant material, breaching
natural justice of fraud. A fact finding error can be a jurisdictional error. There is a
jurisdictional error if a decision maker makes the decision outside the limits of the
functions and powers conferred, or does something which he/she lacks power to do.

An error within the jurisdiction does not cause decision for proceeding to be void or
nullity. The decision is liable to be set aside by appeal, if the statue has creating right
to appeal against the decision or by certiorari writ for error of law on the face of
record, if there is another court which jurisdiction to issue that writ. An error out of
jurisdiction causes proceeding or order to be invalid. Such error can be corrected by
statutory appeal, or by judicial review.

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XIII. CONCLUSION:
A civil Court has jurisdiction to try all suits of civil nature unless their cognizance is
barred either expressly or impliedly. A suit in which the right to property or to an
office is contested, is a suit of a civil nature, notwithstanding that such a right may
depend entirely on the decision of a question as to religious rights or ceremonies.
Consent can neither confer nor take way jurisdiction of a Court. Agreements
conferring jurisdiction, are however, valid and does not exclude jurisdiction of a
Court, but right of a party to file a suit before such Court as decided upon. A decree
passed by a Court within jurisdiction is nullity and the validity thereof can be
challenged at any stage of the proceedings, in execution proceedings or 18 even in
collateral proceedings. Thus, facet of jurisdiction in civil matters is very intrinsic and
it is key question for the Court which goes to the root of the case and decide the fate
of matter either at preliminary stage or on merit.

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REFERENCES:

BOOKS

 C.K. Takwani, Civil Procedure, Eastern Book Company, Lucknow, 2017.

 D.N. Mathur, Code of Civil Procedure, Central Law Publications, Delhi, 2009.
 Jatindra Kumar Das, Code of Civil Procedure, PHI Learning, Delhi, 2014.
 Mulla, Code of Civil Procedure, Universal Publishing Company, Delhi.
 P.K. Majumdar and R.P. Kataria, Commentary on the Code of Civil Procedure,
Universal Publishing Company, Delhi.

ARTICLES:

 G.P. Singh, Law of Civil Procedure, The Indian Law Institute, 1996, available at
www.ili.ac.in.
 Justice S.U. Khan, Jurisdition of Civil Courts and its Bar, Judicial Training and
Research Institute, 2016, available at http://itjr.nic.in/article_chairman2.pdf.
 K.Srinivasa Rao, Jurisdiction of Courts, availaible at
http://ecourts.gov.in/sites/default/files/Jurisdiction.pdf.

WEBSITES REFERRED:

 Maharashtra Judicial Academy, http://mja.gov.in/Site/Home/Index.aspx.

 National Judicial Academy, http://www.nja.nic.in/16%20CPC.pdf.

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