Q: Civil Courts have Jurisdiction to try all suits of Civil Nature unless their jurisdiction is barred. Comment?

Ans:

Introduction:

            The issue of jurisdiction is the ever expanding question of jurisprudence. The concept of jurisdiction is very important in law, because the courts get the power, and authority to inquire into facts, apply the law and decide judgment only if it has jurisdiction. Section 9 of C.P.C provides generally the maximum extent of jurisdiction of the Civil Courts.

Meaning of Jurisdiction:

            The term jurisdiction may be defined as under.

Jurisdiction refers to the (legal) authority to administer justice in accordance with means by law and subject to the limitations imposed by law.

Relevant Provisions:

            Following are the relevant provisions of C.P.C regarding jurisdiction of Civil Courts.

·         Section 9 of C.P.C

Cross reference:

·         Sec 6, 2(2) and 15 to 25 C.P.C

·         Sec 151 C.P.C

·         Order 7 rule 10, 11 C.P.C

Kinds of Jurisdiction:

            Following are kinds of jurisdiction.

·         Subject matters jurisdiction.

·         Pecuniary Jurisdiction.

·         Territorial Jurisdiction.

·         Personal Jurisdiction.

Jurisdiction conferred upon Civil Courts u/s 9:

            Civil Courts have jurisdiction to try all suits of Civil nature i.e. suits which involves the assertion or enforcement of a civil right.

Suit involving right to property or office:

            According to explanation to sec.9 all suits involving right to property or office are suits of civil nature, except those which only involves a decision on question as to religious rites or ceremonies.

Rational Basis of Sec.9:

            Sec.9 is based on the following maxim.

            UBI JUS IBI REMEDIUM

            (Where there is a right there is a remedy)

Determination of Jurisdiction:

            Under Section 151, Civil Courts have inherent powers to decide the question of their own jurisdiction.

Bar upon Jurisdiction of Civil Courts:

            Acceding to C.P.C following bars are created upon the jurisdiction of Civil Courts.

·         Absolute Bars

·         Conditional Bars

·         Special Bars

·         Absolute Bars:

Following are the absolute bars as discussed in C.P.C.

·                     Res Sub Judice u/s 10: Section 10 prevents subsequent courts to try a suit in which the matter directly and substantially in issue, also directly and substantially in issue, in a former suit between the same parties, under the same matters.

·                     Res Judicata: Where there is a judgment inter parties, it will prevent a fresh suit between them regarding the same matters.

·                     Questions to be determined by court executing decree u/s 47: All questions arising between the parties to the suit in the decree was passed, shall be determined by the court executing decree and not by a separate suit.

·                     Restitution u/s 144: No suit shall be instituted for the purpose of obtaining any restitution or other relief, which could be obtained by application.

·                     Suit to include the whole claim u/order 2 rule 2: Every suit shall include the whole of claim, but where a plaintiff omits to sue in respect of or intentionally relinquishes any portion of his claim, shall not afterwards sue in respect of the portion omitted or relinquished.

·                     Decree against Plaintiff by default bars fresh suit u/order 9 rule 9: Where a suit is dismissed, due to the default of plaintiff, then the plaintiff is precluded from bringing, a fresh suit in respect of the same cause of action.

·                     An insolvent Person u/ord 22 rule 9: An insolvent person barred from filing a suit.

·                     Withdraw of suit or Abandonment of part of claim u/ord 23 rule 1: At any time after the institution of a suit, the plaintiff may withdraw his suit or abandon part of his claim, as against all or any of the defendants; no fresh suit can be instituted on the same subject matter or claim, as has been withdrawn.

·         Conditional Bars:

      Following are the conditional bars upon the jurisdiction of the court.

·                     Suit by Alien u/s 83: Alien (Foreigner) residing Pakistan, can only sue in the court of Pakistan, when they get the permission from the Federal Government.

·                     Suit by Foreign States u/s 84: A foreign state may sue in any court of Pakistan if it has been recognized by the Federal Government.

·         Special Bars:

     Following is special bar upon the jurisdiction of Civil Courts.

·                     Suit for breach of trust u/s 92: In case of any breach of any express or constructive trust, created for the public purposes of a charitable or religious nature, a suit can be filed by the Advocate General or two or more person having an interest in the trust and having obtained the consent in writing of the advocate.

·                     Suits of which cognizance is expressly or impliedly barred: Besides the bars contained in the provisions of C.P.C the cognizance of some suits are barred either expressly or impliedly under other laws.

·         Express Bars: Express Bars means, Bars under express enactment of statute. Following are the express bars upon the jurisdiction of Civil Courts.

·                     Criminal Matters: Jurisdiction of Civil Courts is barred in respect of matters pending before criminal courts or already adjudicated upon, by such courts but it will not be barred, when the proceeding before the criminal course and without jurisdiction.

·                      Revenue Matters: Revenue matters within the exclusive jurisdiction of revenue courts. The jurisdiction of civil courts barred, only up to the extent, specifically provided for into the revenue law.

·                      Family Matters: Family matters are within the jurisdiction of family courts and jurisdiction of Civil Court is barred in respect of such matters.

·         Implied Bar:

     Section 9 of C.P.C recognizes the doctrine of implied bar of jurisdiction. Following are the implied bars on jurisdiction of Civil Courts.

·                     Act of State: An act of state, in an act done or adopted by a state in its sovereign capacity. The jurisdiction of Civil Courts impliedly barred when the subject matter of the suit is an, act of state. However, it is for the Civil Courts to determine whether a particular action is an act of state or not.

·                     Public Policy: The jurisdiction of Civil Courts is impliedly barred on the ground of public policy i.e. suits regarding matters which are injurious to public welfare. For example suits in respect of privileged statements.

·                     Special Tribunals: If a statute creates a right or liability, not existing in common law, and also establishes a special tribunal for the enforcement of such a right, then jurisdiction of Civil Courts is barred, except when special tribunal is in its very nature a forum of summary remedy.

Effect of Exclusion of Jurisdiction u/s 9:

                  Exclusion of jurisdiction of Civil Courts not to be readily inferred, but must be explicitly expressed or clearly implied, where jurisdiction was excluded even then Civil Courts would have jurisdiction to examine cases where provisions of the Act had not been complied with or statutory tribunal had not acted in conformity with fundamental principles of judicial procedure.

Conclusion:

In the conclusion we can say that by virtue of Sec.9 C.P.C Civil Courts having jurisdiction to determine all suits of civil nature. The jurisdiction of Civil Courts cannot be ultimate, because the provisions of C.P.C bars jurisdiction of certain cases itself and there are other bars also under laws and thus curtail the jurisdiction of the courts. The term jurisdiction itself means the limit, under which the court gets the power and authority to administer justice.