Jurisdiction Flashcards
General principals relating to jurisdiction
1.* Section 9 relates to the maxim ubi jus ibi remedium Section 9 opens the gateway into CBC and Doug.Open the way of justice *
2. Section 9 imbibes the rule of plenary jurisdiction which means that every Court shall start with presumption upon filing of a suit that it has jurisdiction to try the suit unless there is a manifest lack of jurisdiction, the word shall has been you with signifies that that the said jurisdiction is mandatory
3.* does it is implicit that every Court has the inherent jurisdiction upon suits of civil nature and every individual therefore have an inherent ride to file a suit of civil nature in any Civil Court however there are restrictions of p** such in head and power and in her Android no and reasonable restriction can be improve the bonds of restriction have to be found CPC or any other law the burden of proof of the lack of Jesus election of the court would lie upon the defendant who have today’s an objection and that regard it is that same court which will decide whether it has to be jurisdiction or not
Suits of civil nature
Civil suit Where some private civil legal rights has been violate then such suit will be called civil suit.
By using civil nature it is intended to give expensive interpretation to civil suit
Civil suit means a suit and which civil legal right of a person a person is involved and a claim is for a relief upon a violation of that right it is a pure civil suit when only the Civil legal rights are an issue however they will may be a suit and which more than one issue are involved and some of them delete to pure civil right and some relate pure religious or social issue in such a case the suit will be a pure civil suit Rada it have to be examine whether the issue pertaining to Civil legal right is dominant issue or not if it is then it will be called suit of civil nature
SC described the theory of the jurisdiction of civil courts undersection 9 of the Code of Civil Procedure in PMA Metropolitan Vs M.M.Marthoma the Supreme Court observed that:
1. The phrases used in section 9 has a positive and negative intent.
2. The original part has a broader sense as it includes all the problems of civil nature; on the other hand, the latter part has a wider sense as it refuses the topic, which is impliedly or expressly barred.
3. The he two reasons mentioned in Section 9 reveals the legislativepurposes.It designated duty on the court to perform the jurisdiction for theimplementation of private rightsNo court has the benefit to refuse the matter which introducesunder this sectionIt is necessary to take the knowledge of matter because the word“shall” is used, which means that it is a compulsory section.
Express and implied bar
Bar of jurisdiction is of two types
1. Under cpc
2. Under other law (express or implied)
- Under cpc
These provisions are covered in sec 9 cpc under phrase subject to provisions herein contained these provisions in CPC provide for an Express bar upon jurisdiction of court for example Res judicata, o2r2, o22r9, o23r3a etc - Under other laws
Express bar apart from CPC there are certain other laws which provide for Express bar of jurisdiction of Civil Court there may be a special statute which provides for the law relating to the particular matter and it also provide for a special Tribunal which has been created to decide dispute pertaining to that law, the statute may expressly declare that the Tribunal will have exclusive jurisdiction to try matters relating to that you in such a case since exclusive jurisdiction is given to Tribunal other Civil Court will not have jurisdiction to try suit even if word only has not be used from the language of statute it appears unequally that the intention is to confer exclusive reduction to court then the other Civil Court will not have the jurisdiction. Such clause will give exclusive jurisdiction to court is called finality clause
Implied bar if there is no expression or any exclusive jurisdiction but from the broad language of statute, its purpose, terms of reference of that Tribunal etc. it can be infered that the intention is to give exclusive reduction to that court then also others Civil Court will not have jurisdiction it is called implied bar
united India insurance co ltd v Ajay sinha 2008 sc it was held that whenever principal of exclusion of jurisdiction of Civil Court is provided it has to be given a strict interpretation the general presumption is that the court where suit has been file does have jurisdiction and therefore any rule which excludes jurisdiction of court will have to be given a strict interpretation
Dhulabhai v state of m.p 1968 sc it was held that in following situation despite the express bar upon jurisdiction of other courts the ordinary Civil Court will have jurisdiction:-
When the statute itself is Ultra vires the Tribunal also therefore will be Ultra vires
the statute is not ultra vires but the Tribunal has violated Express provision of statute
the Tribunal has not violated any express provisions as such, but it has grossly violated principles of natural justice
the Tribunal and statue do not provide for adequate remedies therefore the remedy which is not provided will have to go to ordinary Civil Court
Dhulabhai v state of m.p
Following principles relating to exclusion ofjurisdiction of civil courts:
1. When a statute provides finality to the orders of particular tribunals,the civil court jurisdiction must be kept to be prohibited. Such aprovision does not eliminate those cases where the terms of the act have not complied with fundamental laws of judicial method.
2. When there is an express bar of jurisdiction of the court, anexamination of a scheme of a particular act to find the adequacy orsufficiency of remedies provided may be important but this is notcrucial for maintaining the jurisdiction of a civil court
3. It examines the terms of a specific act as ultra vires cannot bebrought before tribunals constituted under the act. Even the HighCourt cannot go for revision or reference from the decision of thetribunal.
4. When the terms are already stated illegal or declared theconstitutionality of any terms is to be challenged, then a suit isopen. A writ of certiorari may introduce a direction to refund but it isnot a necessary remedy to compensate a suit.
5. When the particular Act includes no method for a return of taxcollected in excess of constitutional goals, a suit lies.
6. Prohibition of the jurisdiction of a civil court is not ready to beinferred unless the conditions above set down apply.
Exclusive jurisdiction
Section 9 of The Code of Civil Procedure, 1908 states that all courts shall have jurisdiction to try all suits of civil nature unless the jurisdiction is expressly or impliedly barred. The CPC, through Section 20, lays down the various jurisdiction of the Courts where a suit can be instituted; such Courts may be in the jurisdiction of the defendants’ residence or place of business or jurisdiction of the place where the cause of action wholly or partially arises.
With a view of convenience and minimising legal costs for the parties, The Indian Contract Act gives the parties an extent of liberty to limit legal proceedings to one place and forum. This is done by expressly including a valid “Exclusive Jurisdiction” clause in the Contract
Hakam Singh v. Gammon India Ltd (1971), the Supreme Court stated that when two courts had the jurisdiction to entertain a dispute, a choice of one by agreement would not amount to restraint of legal proceedings or violate public policy, under sections 28 and 23 of the Contract Act respectively. However, by agreement, the parties could not confer jurisdiction on a court that would otherwise not have jurisdiction in law to adjudicate the dispute in question.
In Indus Mobile Distribution Case, the supreme court stated that in cases where the parties include an exclusive jurisdiction clause in an arbitration agreement designating a particular place as the seat of the arbitration, the Court in whose jurisdiction the seat of the arbitration falls would have sole jurisdiction to entertain petitions in respective of non-arbitral issues arising out of the agreement, to the exclusion of any other Courts. Once the parties have decided a particular place as the juridical seat or legal place of arbitration, then the courts of that place alone would have jurisdiction over the arbitration.
In M/S Swastik Gases Pvt. Ltd v. Indian Oil Corp. Ltd, the Supreme Court held that the very explicit mention of a jurisdiction clause in an agreement makes the intention of the parties clear.
However, in A.B.C. Laminart Pvt. Ltd. & Anr v. A.P. Agencies Salem, the contract clause clearly stated that if any dispute arises out of the contract, then courts of Kaira shall have the jurisdiction to deliberate upon the matter. In this case, the plaintiff filed the suit in the Court of Salem, and the Madras High Court upheld the suit stating that it was valid since the contract was partly performed in Salem. The question of Kaira’s jurisdiction was again challenged before the Supreme Court, wherein the court upheld the validity of the Madras HC judgement. The Court held that jurisdictions other than Kaira, having a connection with the contract, were not excluded by the use of specific words. The general terms of the agreement also do not indicate the exclusion of other jurisdictions
