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Critical analysis of concept of exclusion and inclusion of civil jurisdiction

Every matter that is presented to the court has to be adjudicated, there is not a single court to hear all the matters out, so the question arises that which matter shall be adjudicated by which court? In this research paper we shall be understanding how it is decided and what are the various jurisdictions of courts and apply that knowledge to understand the concept of exclusion and inclusion of civil jurisdiction and critically analyze it.

Firstly, what is jurisdiction? Jurisdiction means authority�, in simple words jurisdiction means the authority of a court to judge a case and give judgement, the details have also been given by the Calcutta High Court in the case of Hriday Nath Roy V. Ram Chandra[1]. There are various basis to determine jurisdictions that are, fiscal value, geographical boundaries and subject matter. So those were the jurisdictions of a court in brief, now coming to the main point, understanding the principle of exclusion and inclusion of Civil Jurisdiction[2].

According to the section 9 of Civil Procedure Code the court has the jurisdiction except for the ones that are expressly or impliedly barred. it is a presumption that every civil suit should be heard in a civil court and unless any law says contrary and in case there exists a rejection of jurisdiction of civil court, the following shall come under the exclusion of civil jurisdiction. Mostly all the cases can be tried by the civil courts that are of civil nature however in certain cases we have certain tribunals established that are responsible for adjudicating on specific cases as the guidelines have been given under the case of Dhulabhai V. State of MP[3], when a statute provides the finality of delivering a judgement on a matter then the use of civil courts must be prohibited[4].

The following is done with the intention to benefit the masses or for public welfare. Not every citizen can afford to approach the civil court nor does every citizen has the resources to fight a case in civil court nor do they have the knowledge, time limit is another issue, civil courts take a lot of time to adjudicate an issue and for such matters tribunals have been established.

The rationale apart from welfare of citizens who do not have enough resources to approach civil court is that there are certain issues that require advocates that are properly fitted for a task and are specially qualified for it, as was also stated in the case of Lee V. Women's Guild of Great Britain.[5]  Since ordinary courts are not able to always meet the certain expertise needed  and in case of certain emergency situations where certain decisions have to be taken quickly, exclusion of jurisdiction is quite helpful. [6]

The following provisions of the administrative tribunals have been quite helpful as these have been introduced by the 42nd amendment as it introduced a Chapter 14 a that made provisions for such tribunals with the objective of delivering more efficient and expeditious justice delivery system, these were established as per article 324A. Here an important question can arise that whether giving the legislature the power to form tribunals to adjudicate particular matter goes against the principle of horizontal division of power? We shall be critically evaluating and understanding the following in the later parts of the research paper and understand the very thin line that exists between exclusion and inclusion of civil jurisdiction.

The matter of debate lies whether if exclusion of civil jurisdiction of Civil Courts fair or not and in this research paper we shall be going upon all the aspects of it taking into consideration talking about advantages of tribunals over court and analyzing it. We shall be studying it through various landmark cases and judgements taken by the court and taking into consideration two case studies during the past year, first one shall be with respect to the recent notification of NCLT empowering it to entertain a suit with a minimum threshold of Rs 1 crore and the farmers employment and protection agreement on price assurance and farm services act that has been very controversial and is in the spotlight due to the protest as it excludes the jurisdiction of Civil Court to try the case and shall be differentiating between the provisions of both of them in order to clear the thin line that exists between the power of a court to try a case with a tribunal present and the exclusion of jurisdiction of a court to try a case because a separate body has been formed to adjudicate the matter.

Research Objectives
  1. To understand the jurisdictions of the Civil Court
  2. To know the meaning and functions of a tribunal
  3. To understand the difference between a court and a tribunal
  4. To critically analyze the advantages and disadvantages of tribunals over civil court

Research Questions
  1. Under section 9 of CPC what types of cases cannot be tried in a civil court based on subject matter and what types of subject matters are exclusively barred under section 9 of CPC?
  2. What should be the test to determine to what types of cases under the civil jurisdictions?
  3. What are some of the advantages of tribunals over courts?
  4. Has the principle of exclusion of civil jurisdiction been of advantage to common man?

Research Methodology
In order to make this paper Doctrinal Method of research has been used as various books were referred to such as the bare act of CPC and other than that online library portals were also used such as EBC readers to get all the required information needed. Various commentaries on CPC were referred to that depicted a fair interpretation of the bare act and judgements of various cases were studied.

Civil Jurisdictions under section 9
The first and the most important thing which we should know before understanding the civil jurisdiction is that the civil court has the jurisdiction to try all suits of civil nature unless they are barred, this means the 2 conditions that need to be fulfilled is that firstly the case should be of civil nature and not of criminal nature and secondly it should not be exclusively barred from the jurisdiction of the civil courts by any legislation or law.[7]

Section 9 of CPC talks about what types of cases the court shall be allowed to entertain and what types of cases it cannot because their cognizance might be expressly of impliedly barred, we shall be studying each condition required under section 9 separately for a better understanding.

Civil Nature of the suit
It is very essential that the suit before the Civil court is of civil nature, generally the suits are of civil and criminal nature and the civil court is barred from hearing cases that are not of civil nature, now the question arises that what is civil nature�? the word civil nature� has nowhere been defined in the CPC but if we refer to any dictionary, we can understand it deals with private rights and remedies regarding the same.

It is to be noted here that if the principal question in a suit is relating to a religion or caste then it is not a suit of civil nature but if the principal question is of civil nature for example, it can be right to property, then it does not cease to be a suit of civil nature even though religion plays an important role[8], hence identifying the principal question is very important in such cases.

Regarding religious matters there was also a divergence of judicial opinion that if there is no fees and the suit is dealing with a religious office then will it be of civil nature of not? However the explanation 2 added in the year 1976 clarifies this issue and it was stated that the operation of this section shall be extended to religious matters relating to property irrespective of fees is included or not. Hence we can state that political and religious matters might lie under the dictionary definition if civil nature� but purely political and religious matters do not constitute the civil nature of the suite.[9]

Suits dealing with right to property, right of worship, right to shares in offerings, specific performance, taking out religious possessions, dissolution of marriage, rent and info on accounts are all of civil nature, as we can see by understanding the examples that the religion might be a subject but it is the principal question that decides if it is of civil nature. For further clarity we shall also look at some suits where the principal question is relating to religion or caste it includes suits involving casted based questions, suits for upholding honor or dignity, suits against expulsion of caste. By studying the following we can determine what suit is of a civil nature and can be heard in a civil court.

Expressly or impliedly barred suits
If the first condition is satisfied, that certainly doesn't mean that it can be within the jurisdiction of the civil court, the suit may be expressly or impliedly barred that means the civil court shall not be entitled to hear the case.

Expressly Barred Suits
Suits can be of various types, we have discussed how civil courts are barred from entertaining cases that are of a civil nature like any criminal offence but we should also understand there are many civil suits that cannot be entertained in the civil courts and the reason is there are certain specific tribunals that deal with them, it is to be noted that mere creation of a tribunal for a specific purpose doesn't mean that the case that comes under the jurisdiction  of the tribunal cannot be heard in the civil court, if the case is expressly barred by the cognizance or there is a legislation or a law that explicitly barres the jurisdiction of the civil court to hear it only then it shall be barred from entertaining it. There are various tribunals that are made specially to hear cases on certain matters and hence the jurisdiction of civil court is expressly barred e.g. the rent tribunal, electricity tribunal, election tribunals etc.[10]
We shall understand it using an example, recently in North India there were several farmers protests regarding 3 legislations out of which one was:
The farmers (employment and protection agreement) on price assurance and farm services act.

Under chapter 4 and clause 9 of the same act it is stated:
No civil Court shall have jurisdiction to entertain any suit or proceedings in respect of any dispute which a Sub-Divisional Authority or the Appellate Authority is empowered by or under this Act to decide and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any rules made thereunder�[11] here we can see that the civil courts have been expressly barred from hearing cases related to agriculture and a separate committee has been formed that will include the SDM and the jurisdiction lies with that committee.

Impliedly Barred Suits
Sometimes what happens is that certain suits are barred from the jurisdictions of the civil court by the general principals of law, a person may be deprived of the right to approach a civil court when a specific remedy is granted to him by a statute, if an act creates an obligation that is enforced in a certain manner[12], then the same shall not be enforced by any other way because a person cannot claim the remedy as per the act and be eligible to approach the court.

Some suits are also barred from being entertained in the civil courts in spite of being of civil nature because they may go against public policy. "the principal underlying is that a court ought not to countenance matters which are injurious to and against public will"�[13]

It is also very important to understand that the civil court always has the power to examine the act or its provisions that bars its jurisdictions in whatever way and if the civil court finds the provisions arbitrary, mala fide or ultra vires then it has the power to decide the matter

Courts and Tribunals
Since we have studied chapter 2.2.1 how special tribunals are made to entertain certain types of suits and the jurisdiction of civil courts is expressly barred, it is very essential to understand what exactly is the difference between a civil court and a tribunal before we further analyse it.

Tribunals mean a specific body constituted to adjudicate matters on a particular issue, these may be constituted by an act and are very different from courts. The procedure of how a tribunal functions may vary since these are not governed by a specific code like the civil courts. The rationale of having tribunals is that sometimes special knowledge in certain matters is required and specially constituting a tribunal for the following serves the purpose. If an act expressly barres the jurisdiction from civil court and states that it has to be tried in a specific tribunal then the power to hear the dispute lies with that tribunal only and it is not within the jurisdictions of supreme court as we can see in the the farmers (employment and protection agreement) on price assurance and farm services act[14] where the power has been given to a SDM and civil courts jurisdiction has been barred.

 On the other hand, courts get their power from a proper code of procedure, system of functioning is mostly uniform and it is presumed that every civil case can be tried in a civil court unless the contrary is proved that is unlike in the case of tribunals. It is to be noted that constitution of a specific tribunal doesn't always makes the jurisdiction of civil court expressly barred, it is possible that a matter can be tried in a Civil court as well as a tribunal for example in 2020 Insolvency and Bankruptcy Board of India passed a notification that enhanced the minimum threshold of cases from 1 lakhs to 1 crore to be entertained in the National Company Law Tribunal[15] however it did not make the following cases expressly barred from the jurisdiction of the civil courts, hence it is always explicitly mentioned in the act whenever the jurisdiction of a civil court is being barred due to constitution of a tribunal
Both courts and tribunals are given judicial power but tribunals give judgements on specific types of cases such as agriculture, electricity etc while rest of the cases are dealt in civil courts.

Test to Determine Civil Jurisdiction and Limits to Exclusion of Civil Jurisdiction
In order to test the civil jurisdiction, the most important thing is to check with section 9 of CPC and make sure that the suit is of a civil nature and not expressly or impliedly barred, the following have been already elaborated under chapter 2 of this research paper.

It is also essential to keep in mind the presumption of jurisdiction and a very important point with regard to that is every assumption has to be made in the support of jurisdiction of the suit until the contrary can be proved by applying a specific law or while analysing the subject matter. The burden of proof also lies on the party that wants to get the suit dismissed[16], in case of any doubt regarding the jurisdiction the final decision always rests with the court.

In the case of State of Andhra Pradesh V. Manjeti Laxmi Kantha Rao[17] the supreme court presented an analysis on elimination of civil jurisdiction, the court held that legislative intent has to be impliedly or directly proved to remove the jurisdiction, there has to be an examination of the cause and the provisions of the legislation and if the courts find that the suit may be barred but there is no alternative remedy available then the jurisdiction of the civil court cannot be eliminated. Also in another important case law of Balawwa V. Hasanbi[18] it was held that even though the case may be barred to be tried in a certain tribunal the civil court can decide on some of the issues of the case, the complete suit may not be barred from the jurisdiction depending upon facts of the case.

In order to understand the essentials of tests relating to determining civil jurisdiction we can also study the judgement of case of Dhulabhai V. State of Madhya Pradesh[19]. When the statute prohibits finality to a particular tribunal then the jurisdiction of civil court has to be eliminated, there has to be a check that if the civil jurisdiction is barred then adequate or sufficient remedy is available, the court should also check the act or the legislation passed as it should not be arbitrary in nature or ultra vires in any sense.
Hence we can understand the conditions of the test that the suit must fulfil in order to lie under civil jurisdiction by also understanding the principals of expulsions of civil jurisdictions.

Throughout the research paper we learned a lot about the jurisdictions of civil court by studying section 9 and some other essential provisions through various case laws that also helped us determine how to test the jurisdiction of the suit. We understood the meaning of civil nature� of the suit that is a necessary condition that needs to be fulfilled to get a matter heard in a civil court while also understanding the importance of principal question� that needs to be identified in order to understand whether a suit is of a civil nature or not. The principle of exclusion and inclusion of civil jurisdiction plays a significant role in determine the jurisdiction of a civil court however the main question lies that has it made the process of adjudication more efficient or has it only burdened the common man by depriving him of his rights to approach the civil court[20].

The author is of the opinion that it is fair that special tribunals exist in order to determine specific types of cases because of two reasons. First being that certain cases may require certain special knowledge that might not be available to a common judge of a civil court and hence establishment of a separate tribunal can make the process more efficient for example the National Green Tribunal. Secondly it resolves the disputes of priority quickly for example the National Company Law Tribunal.

While excluding the jurisdiction of a civil court, the analysis of the act that does the same and whether it is arbitrary in nature is also subject to decision by the civil court and helps preventing injustice. We must understand that any act or law that deprives a Civil Court of its jurisdiction can have loopholes that might not necessarily be addressed by the civil court but on the brighter side this significantly makes our judiciary much more efficient since it takes the burden off the civil courts and tribunals can efficiently adjudicate on cases since they are specialised in certain fields. Hence the author concludes that this system of exclusion and inclusion of civil jurisdiction is of advantage to common man.

  1. Hriday Nath Roy V. Ram Chandra AIR 1921 Cal 34
  2. Yihan, Goh, The Jurisdiction to reopen Criminal Cases: A Consideration of the Criminal Statutary and Inherent Jurisdiction of the Singapore Court of Appeal,14 Singapore Journal of Legal Studies, 395(2008).
  3. Dhulabhai V. State of MP 1969 AIR 78
  4. Julia Hornle, The Conundrum of Internet Jurisdiction and How US Law Has Influence the Jurisdiction Analysis in India, 14 INDIAN J. L. & TECH. 183 (2018).
  5. Lee V. Women's Guild of Great Britain (1952) 1 All E.R. 1175, 1188
  6. Florey, Katherine, Beyond Uniqueness: Reimagining Tribal Courts' Jurisdiction, 101 California Law Review, 1499 (2013
  7. J. H. Bakewell, Civil Procedure in India , 21 L. Q. REV. 55 (1905).
  8. The Administration of Civil Justice in India, 44 ALLAHABAD L.J. 5 (1946).
  9. Nisar Ahmed, Jurisdiction of Civil Court and Effect of Valuation of Claim, 2 J.L. & Soc'y 1 (1983).
  10. Abdul Karim Khan, On the Conflict of Jurisdiction between Civil and Revenue Courts, 3 ALLAHABAD L.J. 249 (1906).
  11. The farmers (employment and protection agreement) on price assurance and farm services act, 2020
  12. Pandit Thakur Prasad Dubey, Sections 8, 9 and 10 of Act 13 of 1940, 40 ALLAHABAD L.J. 26 (1942
  13. Julia Hornle, The Conundrum of Internet Jurisdiction and How US Law Has Influence the Jurisdiction Analysis in India, 14 INDIAN J. L. & TECH. 183 (2018).
  14. Ministry of Corporate Affairs, (March 2020),
  15. Durga Charan Banerji, Finality of the Award and of the Decree Passed upon the Award, 4 ALLAHABAD L.J. 1 (1907).
  16. Andhra Pradesh V. Manjeti Laxmi Kantha Rao AIR 2000 SC 2220
  17. Balawwa V. Hasanbi (2000) 9 SCC 272
  18. Dhulabhai V. State of Madhya Pradesh 1969 AIR 78
  19. Samuel Maxwell, Alfred Russell's Objections to a Code of Civil Procedure, 2 MICH L. J. 367 (1893).

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