Jurisdiction : General discussion

  1. Jurisdiction (from the Latin ius, iuris meaning "law" and dicere meaning "to speak") is the practical authority granted to a court or tribunal to administer justice within a defined field of responsibility, e.g., income tax law, and a defined territory say West Bengal.
  2. A "forum" means in the context a place, State or a Country with a distinct system of law or under the authority of a particular Court. Thus the State of West Bengal is a forum in so far as it is under the authority of the Calcutta High Court. India is a forum on an international plane as it has its own legal system.
  3. A Court of "Natural jurisdiction" is the Court of a place that has some connection or nexus to the dispute.
  4. Primarily there can be three different kind of jurisdictions namely (a) subject matter, (b) pecuniary and (c) territorial
  5. The CPC Rules apply only when the parties and the subject matter of the dispute is entirely Indian. If one of the parties is non-Indian entity then an Indian Court will have to apply conflict of law principles to decide whether to exercise jurisdiction or not.
  6. Parties are allowed to contractually choose a jurisdiction where they can decide their disputes.
  7. The choice can be exclusive (i.e only the stated forum would exercise jurisdiction to the exclusion of others) or non-exclusive ( i.e a preference in favour of the forum) in both cases the Court would ordinarily give effect to the choice.
  8. An order without jurisdiction is a nullity. But this doesnot apply to territorial or pecuniary jurisdiction, which are considered mere technical matters.( Hiralal v Kali Nath AIR 1962 SC 199)
  9. Under s.21 of the CPC the jurisdictional challenge has to be taken at the earliest possible opportunity before the issues are settled, or they shall become barred unless a failure of justice can be shown.

B. Subject matter jurisdiction

Eg: s.8 of the Family Court Act 1984

8. Exclusion of jurisdiction and pending proceedings - Where a Family Court has been established for any area -

S.l7(2) of Industrial Disputes Act, 1947

"Subject to provisions of section 17-A, the award published under sub section (I) shall be final and shall not be called in question in any manner whatsoever...."

S.34 of Recovery of Debts Due to Financial Institutions Act 1993

"34. Act to have over-riding effect.—(1) Save as provided under subsection (2), the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act...."

S.5 of the Arbitration & Conciliation Act 1996

Extent of judicial intervention. - Notwithstanding anything contained in any other law for the time being in force, in matter governed by this Part, no judicial authority shall intervene except where so provided in this Part

s. 24 of the Consumer Protection Act 1986

" 24. Finality of orders. - Every order of a District Forum, the State Commission or the National Commission shall, if no appeal has been preferred against such order under the provisions of this Act, be final"

Section 29 of National Green Tribunal Act 2010

29 Bar of jurisdiction. -

(1) With effect from the date of establishment of the Tribunal under this Act, no civil court shall have jurisdiction to entertain any appeal in respect of any matter, which the Tribunal is empowered to determine under its appellate jurisdiction. (2) No civil court shall have jurisdiction to settle dispute or entertain any question relating to any claim for granting any relief or compensation or restitution of property damaged or environment damaged which may be adjudicated upon by the Tribunal, and no injunction in respect of any action taken or to be taken by or before the Tribunal in respect of the settlement of such dispute or any such claim for granting any relief or compensation or restitution of property damaged or environment shall be granted by the civil court..

  1. The subject matter jurisdiction of the CPC is given in the s.9 of the CPC that allows it to try all suits of civil nature unless expressly or impliedly excluded.
  2. The Supreme Court in Dhulabhai v State of MP has laid down the principles/tests for exclusion of the jurisdiction of the civil courts in the following terms
    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.
    2. If 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.
    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.
    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.
  3. Thus exclusion of the jurisdiction of the court is enabled by 9 , but the actual exclusion has to arise out of another statute. Some examples of such exclusion are :-
    1. no district court or any subordinate civil court referred to in sub-section (1) of section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section;
    2. no magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974);
    3. every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) -
      1. which is pending immediately before the establishment of such Family Court before any district court or subordinate court referred to in that sub-section or, as the case may be, before any magistrate under the said Code; and
      2. which would have been required to be instituted or taken before such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall stand transferred to such Family Court on the date on which it is established.
  4. Thus generally speaking the jurisdiction of the civil court is excluded inter-alia in (a) arbitration matters except as under the Arbitration & Conciliation Act 1996, (b) recovery of debts due to banks, (c) enforcement of security interest, (d) consumer protection , (e) industrial and labour disputes, (f) service matters, (g) revenue matters, (h) company law matters.
  5. The civil court system has a hiererachy of courts given in s.3 of the CPC .At the top of the hierarchy lies the High Court that enjoys revisionary power of the civil courts as well as supervisory power u/Art 227 of the Constitution. The tribunal system on the other hand frequently has its own hierarchy whereby the High Court is excluded. The structure is as follows CPC Juridiction
  6. The Judges in the Tribunal may or may not be a Judicial Officer.
  7. The fragmentation of civil cause of action in many different tribunals is known as "Tribunalisation"
  8. The fragmentation of the subject matter jurisdiction in the civil justice system means that it is possible to follow parallel remedies in different tribunals and courts arising out of the same underlying disputes. EG: Party "A" might be suing a neighbouring factory X for violation of his easementary rights in civil court while pursuing a complaint against X in NGT for noise pollution. Party "A" may be suing party "B" the husband for divorce at the same time filing an action in the Company Law Board for oppression and mismanagement in company X where Company X is the family business of "B" and where she is a Director.
  9. Do the Rules of CPC cease to apply when the jurisdiction of the civil court is excluded ?
    1. Most statutes setting up Tribunals set out their own rules (e.g Consumer Protection Rules 1987, Family Court Rules set up by various State Governments etc)However since none of these can approach the comprehensiveness of CPC, it is sued as a default rule.
    2. Also though the CPC applies only to suits of civil nature but the extent of exclusion is dependent upon the construction of the statute setting up the court or tribunal.
    3. Sometimes the statute setting up the tribunal itself confers the powers of the civil court (i.e. powers under CPC) to the tribunal.( e.g s.22(2) of the DRT Act )
    4. In any case the CPC rules are based on equity, natural justice and not mere mechanical contraptions, the principles inherent in these rules can be used even when CPC itself is not applicable, even if CPC itself is not.Gulabchand Chhotalal Parikh Vs. State of Gujarat; AIR 1965 SC 1153.

C. Pecuniary Jurisdiction

  1. The CPC itself does not provide the pecuniary jurisdiction of the civil courts. It merely requires all civil actions to be started from the lowest court capable of taking cognizance of it.(s.15 CPC).
  2. For the purposes of pecuniary jurisdiction the suit is valued prima-facie. i.e to say if somebody has valued his immovable property at Rs 50,000/- where the jurisdictional limit is 100,000/- the Court can still find the real value of the property to be 150,000/- and give relief accordingly.

Territorial Jurisdiction when the parties and the subject matter is entirely situated in India

D.1 For Immovable Property
  1. There can be five kind of suits regarding immovable property namely (a) suits for recovery of immovable property , (b) suits for partition of immovable property, (c) ) suits for redemption, sale or foreclosure of mortgage or any other kind of charge on immovable property, (d) ) suits for determination of any right or interest in immovable property, (e) suits for torts on immovable property. In all cases the general rule is that the suit shall have to be on the place where the property is situated. (s.16).
  2. In case the property is situated in the jurisdiction of more than one Court or where it is not possible to say with certainty in whose jurisdiction the property is situated then both the Courts will have territorial jurisdiction over the matter. ( s.17 & 18 of the CPC).
D2. Movable Property & Compensation for wrong (s.19)
  1. A suit for wrong to movable property or person may be brought at the option of the plaintiff either at the place where the wrong is committed or where the defendant resides, carries on business or works for gain.
  2. Where such wrongs consists of a series of acts, a suit can be filed at any place where any of the acts have been committed.
  3. The illustrations are self-explanatory:-
    1. A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in Delhi.
    2. A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A either in Calcutta or in Delhi.
D3.Other Suits
  1. Section 20 provides that for all cases not covered by foregoing rules the plaintiff at his option may sue at the following places.
    1. Where the cause of action wholly or partly arise
    2. Where the defendant resides , or carries on business or personally works for gain
    3. Where there are two or more defendants , any of them resides or carries on business or personally works for gain that in case (a) either the leave of the court is obtained or ; (b) the defendants do not carry on business or personally work for gain at that place acqusceinece in that institution.
  2. The illustrations to this section are self explanatory:-
    1. A is a tradesman in Calcutta, B carries on business in Delhi. B, by his agent in Calcutta, buys goods of A and requests A to deliver them to the East Indian Railway Company. A delivers the goods accordingly in Calcutta.A may sue B for the price of the goods either in Calcutta, where the cause of action has arisen, or in Delhi, where B carries on business.
    2. A resides at Simla, B at Calcutta and C at Delhi. A, B and C being together at Benaras, B and C make a joint promissory note payable on demand, and deliver it to A. A may sue B and C at Benaras, where the cause of action arose. He may also sue them at Calcutta, where B resides, or at Delhi, where C resides; but in each of these cases, if the non-resident defendant objects, the suit cannot proceed without the leave of the Court.
D4. Choice of Court and Forum shopping.
  1. The parties may contractually choose a Court among two or more Courts that have natural jurisdiction over the matter.
  2. Whether the " forum selection" or "jurisdiction selection clause" is an exclusive or non-exclusive clause depends upon the construction of the contract and the semantics. The clause need not mention the expression "exclusive"Swastik Gas v. Indian Oil Corporation Limited( 2013) 9 SCC 32 + ABC Laminart v. A.P. Agencies(1989) 2 SCC 163
  3. When multiple Courts have the jurisdiction over the matter the parties often tend to access the Court that would give them the maximum procedural advantage even if its connection to the matter is slim. Such vexatious and opportunistic legislation is known as "forum shopping". The Supreme Court has repeatedly decried the practice.( Morgan Stanley v Karthik Das (1994) 4 SCC 711.
D5. Territorial Jurisdiction when one of the parties is non Indian or the subject matter is not present in India

Consider this illustration

Red is an Indian company and Blue is an US company. They enter into a contract for supply of Californian apples to Red. The contract was signed in Singapore and payment is made through a Singaporean bank.

In case of a contractual breach where can Red or Blue commence a legal action ?

What happens if Red commences an action before an Indian Court and Blue approach a Court in the US ?

  1. Rules 16-20 applies only to India because the CPC itself applies only to India. Thus it cannot solve this conundrum
  2. Two ways to determine this either apply the doctrine of (a) Lis alibi pendens., or (b)Forum Conviens.
  3. Lis-alibi pendens (Consider this)
    1. Crt A in country X is sesised of a matter.
    2. Court B in a country Y would respect the court A and not decide the matter based on the principle of comity.
    3. This rule is followed primarily in civil law jurisdictions.
    4. Lis alibi pendens is triggered " factual basis of the claim and the laws are same with view to obtain the same outcome". This is not a formal test , and technical and procedural rules cannot be used to defeat the outcome.Gubisch Maschinefabrik v Palumbo (1987) ECR 4861
  4. The rule of Lis-alibi pendens is similar to the section 10 only that it operates when the matter involves the Courts of two different countries.
  5. The Forum Convenines rule dictates that the most appropriate forum must exercise jurisdiction. This if one of the parties has approached a foreign Court while the other is before the Court of this country. The Courts in India will apply the FC test to determine what forum would most conveniently decide the dispute. In FC which case has been filed earlier is irrelevant.
  6. The FC rule originates in admiralty.
  7. The desire of FNC Flows from
    1. Avoid multiplicity of proceedings
    2. Factors like economic strength of the parties
    3. To be applied pursuant to a court which has more natural jurisdiction
    4. Balance of convenience is not the sole criterion.
  8. The factors to be weighed in to apply the FC test are the following (Gulf Oil v Gilbert 330 US 501):-
    1. Location of witness, evidence etc
    2. Whether overwhelming hardship is caused to the defendant
    3. Adequacy of alternative remedy
    4. Expeditious use of judicial resources
    5. Choice of applicable law
    6. Public policy (public policy should not be outsourced)
    7. Vexatious motive, oppressive litigation
    8. Jurisprudential developments.
  9. When a Court exercises jurisdiction under the FC rule it also prevents the other party from proceeding in either litigation or arbitration in another jurisdiction through an anti-suit injunction.
  10. An anti-suit injunction is issued under the inherent powers of the Court and it forbids the party from proceeding with a foreign litigation, but it places no prohibition on the foreign Court.
  11. The Indian principles of Indian law for forum selection clauses, FC tests and anti-suit injunction has been succinctly stated in the case of Modi Entertainment v WSG Cricket 2003 AIR SCW 733
    1. In exercising discretion to grant an anti-suit injunction the court must be satisfied of the following aspects: -(a) the defendant, against whom injunction is sought, is amenable to the personal jurisdiction of the court; (b) if the injunction is declined the ends of justice will be defeated and injustice will be perpetuated; and (c) the principle of comity - respect for the court in which the commencement or continuance of action/proceeding is sought to be restrained - must be borne in mind;
    2. in a case where more forums than one are available, the Court in exercise of its discretion to grant anti-suit injunction will examine as to which is the appropriate forum (forum conveniens) having regard to the convenience of the parties and may grant anti-suit injunction in regard to proceedings which are oppressive or vexatious or in a forum non-conveniens;
    3. Where jurisdiction of a court is invoked on the basis of jurisdiction clause in a contract, the recitals therein in regard to exclusive or non-exclusive jurisdiction of the court of choice of the parties are not determinative but are relevant factors and when a question arises as to the nature of jurisdiction agreed to between the parties the court has to decide the same on a true interpretation of the contract on the facts and in the circumstances of each case;
    4. a court of natural jurisdiction will not normally grant anti-suit injunction against a defendant before it where parties have agreed to submit to the exclusive jurisdiction of a court including a foreign court, a forum of their choice in regard to the commencement or continuance of proceedings in the court of choice, save in an exceptional case for good and sufficient reasons, with a view to prevent injustice in circumstances such as which permit a contracting party to be relieved of the burden of the contract; or since the date of the contract the circumstances or subsequent events have made it impossible for the party seeking injunction to prosecute the case in the court of choice because the essence of the jurisdiction of the court does not exist or because of a vis major or force majeure and the like;
    5. where parties have agreed, under a non- exclusive jurisdiction clause, to approach a neutral foreign forum and be governed by the law applicable to it for the resolution of their disputes arising under the contract, ordinarily no anti- suit injunction will be granted in regard to proceedings in such a forum conveniens and favoured forum as it shall be presumed that the parties have thought over their convenience and all other relevant factors before submitting to non-exclusive jurisdiction of the court of their choice which cannot be treated just an alternative forum;>
    6. a party to the contract containing jurisdiction clause cannot normally be prevented from approaching the court of choice of the parties as it would amount to aiding breach of the contract; yet when one of the partiesjurisdiction clause approaches the court of choice in which exclusive or non- exclusive jurisdiction is created, the proceedings in that court cannot per se be treated as vexatious or oppressive nor can the court be said to be forum non-conveniens; and
    7. the burden of establishing that the forum of choice is a forum nonconveniens or the proceedings therein are oppressive or vexatious would be on the party so contending to aver and prove the same.
  12. The FC rule has no applicability in two civil suits in India where the strict application of s.10 will stay the suit that has been filed later. However the FC analysis may be of application when two writ proceedings are pending in two High Courts in India.

LawpreneurzDetails of lecture

Sr No. Topics
Lecture 1 Introduction
Lecture 2 Jurisdiction
Lecture 3 Summons And Pleadings
Lecture 4 Trial
Lecture 5 Interim Reliefs
Lecture 6 Final Reliefs,Decree and Judgment
Lecture 7 Appeal,Review,Revision
Lecture 8 Execution & Foreign Judgment

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Shipra DhankerTopper for Delhi Judicial Services 2019