Civil Court and Code of Civil Procedure

3532 words (14 pages) Essay in Commercial Law

02/02/18 Commercial Law Reference this

Last modified: 02/02/18 Author: Law student

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The term ‘Civil Court’ has not been defined in the Code of Civil Procedure, 1908 or in any other law in force in the country. In Ganguli Engineering Limited v. Smt. Sushila Dasi [1] the Calcutta High Court held that “Any Tribunal or functionary exercising ‘judicial functions and, adjudicating disputes not ‘relating to crimes should be taken to be a civil court.” The expression ‘civil court’ includes all courts of civil judicature whose procedure is in essence governed by the Civil Procedure Code [generally] [2] .

Civil Courts try suits of civil nature. In Section 9 of the CPC, the word ‘civil nature’ is wider than the word ‘civil proceeding’. The section would be available in every case where the dispute has the characteristic of affecting one’s rights which are not only civil but of civil nature. [3] The expression ‘civil proceeding’ used under Article 133(1) of the Constitution of India is wide enough to cover any proceeding of a civil nature decided by the High Court, whether in its original appellate or revisional jurisdiction. [4] A proceeding under Article 226 for a writ to bring up a proceeding for consideration must be a civil proceeding, if the original proceeding concerned civil rights. [5]

A civil proceeding would also be one where a person seeks to enforce by appropriate relief the alleged infringement of his civil rights against another person or the State, and if the claim is proved would result in the declaration express or implied of the right claimed and relief such as payment of debt, damages, compensation, delivery of specific property, enforcement of personal rights, determination of status, etc. [6] A civil suit would be an action bought to enforce, redress, or protect a private or civil right. Simply stated it is a non-criminal litigation [7] where in a criminal proceeding may conclude in the imposition of sentences such as death, imprisonment, fine or forfeiture of property, etc. [8]


The term ‘jurisdiction’ is not defined in the Civil Procedure Code, 1908. The word is derived from the Latin terms ‘juris’ and ‘dicto’ which means “I speak by the law”. It is interesting to note that the jurisdiction is always granted by the Legislature but the power to determine the jurisdiction vests in the superior Courts. Two meanings of jurisdiction can be analyzed: (i) The authority or power of a court to entertain and decide on any judicial proceeding, (ii) The area over which the power of a court extends.

By jurisdiction is meant authority by which a Court has to decide matters that are litigated before it, or to take cognizance of matters presented in a formal way for its decisions. The limits of this authority are imposed by Statute or Charters or Commissions under which the Court is instituted and may be extended or restricted by similar means. If no restriction or limitation is 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. [9]

Sometimes jurisdiction is also defined in terms of ‘power’. It is the power of the court to hear and determine a cause, to adjudicate and to exercise judicial power in relation to it and to award the remedies provided by law upon a state of facts proved or admitted and presented to the court in a formal way for its decision. The concept of jurisdiction thus embraces the power to grant the remedies provided by law. [10]

Before a court can 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 is not sufficient that it has come within jurisdiction in relation to the subject matter of the suit. Its jurisdiction must include the power to hear and decide the questions at issue, authority to hear and decide the particular controversy that has arisen between the parties. [11]

The word jurisdiction is an expression which is used in a variety of sense and takes its colour from its context. Whereas the ‘pure’ theory of jurisdiction would reduce jurisdictional control to a vanishing point, the adoption of a narrower meaning might result in a more useful legal concept even though the formal structure of law may lose something of its logical symmetry. At bottom the problem of defining the concept of jurisdiction for the purpose of juridical review has been one of public policy rather than one of logic. [12]

Jurisdiction in its classical concept means the power to hear and determine a dispute, to adjudicate and exercise any judicial power in relation to it; in other words jurisdiction means the authority by which the Court decides a case that is litigated before it or to take cognizance of a matter presented in a formal way for its decision. [13]

Therefore, numerous attempts have been made to define what ‘jurisdiction’ really means and all the views converge to the central meaning that it is the power to hear and determine the “entitlement to enter upon an enquiry into the question”. Regarding this, Lord Denman in R v. Bolton [14] said that the question of jurisdiction is determinable at the commencement, not at the conclusion of an enquiry. Accordingly the tradition school of jurists consistently impressed upon the need of bearing in mind the distinction between existence of jurisdiction and exercise of jurisdiction.

This traditional school always presses that the authority to decide a cause at all and not the decision rendered is what makes up jurisdiction. [15] The decision of a Court whether right or wrong has nothing to do with jurisdiction which is to be decided at the initial stage and to be ensured that the Court has jurisdiction to decide the matter all throughout the case. [16]

Since conferring jurisdiction is a legislative function, in the leading case of A.R.Antulay v. R.S. Nayak, the Supreme Court stated that, “This Court, by its directions, could not confer jurisdiction on the High Court of Bombay to try any case for which it did not possess….” [17] . Therefore, it is well known that consent cannot confer nor take away jurisdiction of a court.

Where the Court has jurisdiction, neither consent, nor waiver, nor estoppel, nor acquiescence can oust it. An agreement to oust absolutely the jurisdiction of a competent court is void because it is against public policy by the principle Ex dolo malo non oritur action. But when two or more courts have jurisdiction to entertain a suit, an agreement by the parties to submit to the jurisdiction of any one of such court to the exclusion of the rest is valid, binding and enforceable. [18]

Also it is well-settled that for deciding the jurisdiction of a civil court, the averments made in the plaint are material. To put it differently, the jurisdiction of a civil court should normally be decided on the basis of the case out forward by the plaintiff in his plaint and not by the defendant in his written statement. [19]

The jurisdiction of a court, tribunal or authority may depend upon the fulfilment of certain conditions or upon existence of a particular fact. This is called jurisdictional fact. The existence of such a preliminary or collateral fact is a condition precedent to the assumption of jurisdiction by the authority. If it exists, the authority has jurisdiction and it can act. If the authority wrongly assumes existence of such fact, a writ of certiorari can be issued. [20]

Whether a court has jurisdiction or not has to be decided with reference to the initial assumption of jurisdiction by that court. The question depends on the truth or falsehood of the facts into which it has to enquire, or upon the correctness of its findings on these facts, but upon their nature, and it is determinable “at the commencement and not at the conclusion of the enquiry.” [21] Therefore, whenever the jurisdiction of a court is challenged, that court has the inherent jurisdiction to decide the said question. [22]


Jurisdiction of a Court may be classified under the following categories [23] :

Civil and Criminal Jurisdiction: Civil jurisdiction is that which concerns and deals with disputes of ‘civil nature’. Criminal Jurisdiction on the other hand relates to crimes and punishments of offenders, etc.

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. For example, a learned District Judge has to exercise jurisdiction within his district. Again, a court has no jurisdiction to try a suit for immoveable property situated beyond its local limits.

Pecuniary jurisdiction: The Civil Procedure Code, 1908 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. [24] Some courts have unlimited pecuniary jurisdiction, e.g., High Courts and District Courts have no pecuniary limitations. But for example,in West Bengal Courts of civil judge junior division have limited pecuniary jurisdiction but courts of civil judge senior division have unlimited pecuniary jurisdiction. [25]

Jurisdiction as to subject-matter: Different courts have been empowered to decide different types of suits. Certain courts are precluded from entertaining certain suits. For example, a Presidency Small Causes Court has no jurisdiction to try suits for partition of immoveable property, while only the District Judge or Civil Judge (Senior Division) can hear suits in respect of testamentary matters. [26]

Original and appellate jurisdiction: Original jurisdiction is 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 by courts of original jurisdiction.

Munsiff Courts, Courts of Civil Judges, Small Cause Courts have original jurisdiction only while District Courts, High Courts and the Supreme Court have original as well as appellate jurisdiction.

Exclusive and concurrent jurisdiction: Exclusive jurisdiction is that which confers sole power on one court or tribunal to try a case. No other court or authority can render a judgment 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 litigant to invoke jurisdiction of any such court or authority. [27]

General and special jurisdiction: General jurisdiction extends to all cases comprised within a class or classes of causes. While special or limited jurisdiction is jurisdiction which is confined to special, particular or limited causes.

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

Municipal or foreign jurisdiction: Municipal or domestic jurisdiction is a jurisdiction exercised by municipal courts i.e., courts in a country. Foreign jurisdiction means jurisdiction exercised by a court in a foreign country. A judgment rendered or decision given by a foreign court is a ‘foreign judgment’.

Expounding and Expanding jurisdiction: Expounding jurisdiction means to define, clarify and explain jurisdiction. Expanding jurisdiction means to expand, enlarge or extend the jurisdiction. It is the duty of the court to expound its jurisdiction. It is, however, not proper for the court to expand its jurisdiction. [28]

Jurisdiction relating to place of suing:

According to section 15 of Civil Procedure Code, 1908, every suit shall be instituted in the court of lowest grade competent to try it. The rule laid down in this section is a rule of procedure and does not affect the jurisdiction of the court. Hence a decree passed by a court of a higher grade cannot be said to be without jurisdiction. [29] It is merely an irregularity covered by Section 99 of the Code and the decree passed by the court is not a nullity. [30]

The object of this Section is to ensure that the higher judiciary s not overburdened with suits and to afford convenience to the parties and witnesses who may be examined in such suits. [31]

Subject to pecuniary or other statutory limitations suits relating to land or other immoveable property such as recovery of immoveable property, partition of immoveable property, foreclosure, sale or redemption of a mortgage upon immoveable property; determination of any other right or interest in any immoveable property; compensation for wrong to immoveable property are instituted in the Court within the local limits of whose jurisdiction the property is situated [Section 16].

Section 16 recognises a well-established British principle that action against ‘res’ or property should be brought only in the forum where the ‘res’ is situate. [32] This section ensures that a court has no jurisdiction over a matter in regard to which it cannot give effective judgment. [33]

Where a suit relating to immoveable property is situated within the jurisdiction of different courts, the suit may be instituted within the local limits of whose jurisdiction any portion of the property is situated [Section 17].

According to Section 18 of Civil Procedure Code, 1908 where it is uncertain as to the local limits of which court any immoveable property is situated, any of those courts may if satisfied that there ground for uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to that property.

A suit for compensation for wrong done to a person or to a moveable property, if the wrong was done within the territorial jurisdiction of one court and the defendant resides or carries on business or works personally for gain within the territorial limits of the jurisdiction of another court, the suit may be instituted in either of the courts at the option of the plaintiff [Section 19].

Subject to the limitations aforesaid, every suit shall be instituted in a court within the territorial limits of which the defendants or each of the defendants at the time of the institution of the suit reside or carry on business or personally work for gain [Section 20(a)]. Furthermore, if there is more than one defendant, then the suit can be instituted with the leave of the court at the place where any of the defendants at the time of the commencement of the suit, reside or carry on business or personally work for gain [Section 20(b)]. Alternatively, such suits can be instituted where the cause of action wholly or in part arises [Section 20(c)]. From its very wording it can be seen that this is a residuary section. [34]

According to Section 21 of the Civil Procedure Code, 1908 no objection as to the place of suing or no objection as to the objection as to the objection of a court with reference to its pecuniary jurisdiction shall be allowed by any appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice.

No suit shall lie challenging the validity of a decree passed in a former suit between the same parties on any ground based on an objection as to the place suing [Section 21A] [35] .

Under Section 120 of Civil Procedure Code, 1908 the provisions of Section 16,17 and 20 do not apply to the High Court in the exercise of its original civil jurisdiction.

Jurisdiction of the Calcutta High Court and of the Bombay High Court to entertain suits under its ordinary original civil jurisdiction is determined by Clause 12 of the respective Letter’s Patent of the Calcutta High Court and Bombay High Court. [36]

Under Clause 12 of the Letter’s Patent in the case of suits of land or other immoveable property, the High Court has jurisdiction if such land or property is situated wholly within jurisdiction and in case leave of the court is obtained (which should be specifically granted by the court), situated in part. In all other cases, where the cause of action has arisen wholly within jurisdiction or where the leave of the court is obtained in part, or where the defendant resides or carries on business or personally works for gain. Cause of action means the entire bundle of facts which the plaintiff must prove in order to succeed. [37]


Conferring jurisdiction is a legislative function. Exercise of jurisdiction is the Court’s function. Even enquiry into the existence of jurisdiction is also for the Courts to decide. Jurisdiction should not be confused with a decision. Even if a competent court has jurisdiction, it may decide a case rightly or wrongly which can be challenged only in appeal on the grounds of its correctness and validity and not on the grounds as to jurisdiction.

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