Introduction to Civil Procedure Code 1908: Free Notes
Section 9 of Code of Civil Procedure 1908
“Courts to try all civil suits unless barred”
The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation. -A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
What is Suit of civil nature?
When the key concern is the enforcement of a civil right, the action is suit of a civil nature.
The term covers a citizen’s private rights and duties. Unless the key issue involves caste or religion, then it does not have a civil character.
The Supreme Court has laid down the rule that “the plea of absence of jurisdiction can be raised and entertained at any stage.”
There is no definition of a civil suit in any Act. However, Explanation I make it clear that the suit in which the principal question relates to a civil right is a civil suit.
In Sanker Naryan Potti v K Sreedevi, the Apex Court held “It is obvious that in all types of civil disputes civil courts have inherent jurisdiction as per Section 9 of the CPC unless a part of that jurisdiction is carved out from such jurisdiction, expressly or by necessary implication, by any statutory provision and conferred on any other tribunal or authority.”
The current position regarding the jurisdiction of Civil Courts is that they have inherent jurisdiction to hear into civil matters unless it is expressly or implied excluded by a statute. The Supreme Court has held that “the burden of proof for the exclusion of the jurisdiction of the court is on the party contending it.”
Jurisdiction of Courts
The Code of Civil Procedure did not expound jurisdiction. Simply put, the power of the court to settle the matter can be defined as Jurisdiction. The court of law invoked ‘Ubi jus Ibi Remedium,’ an old legal maxim that means where there is a right, there is remedy. In order to deal with it, the judicial forum must have competence (jurisdiction). Therefore, where the offense is committed, jurisdiction usually lies.
Jurisdiction is determined mainly on the grounds of:
- Fiscal value;
- Geographical boundaries of a court;
- The subject matter of court.
Conditions to decide Jurisdiction: A Civil court has jurisdiction to decide a suit if two requirements are fulfilled:
- The suit must be of a civil nature.
- The cognizance of such a suit should not have been expressly or impliedly barred.
Types of Jurisdiction
- Territorial Jurisdiction
- Pecuniary Jurisdiction
- Jurisdiction as to the Subject Matter
- Original/Appellate Jurisdiction
- Exclusive and concurrent Jurisdiction
- General and special Jurisdiction
- Equitable and Legal Jurisdiction
In Balawwa v. Hasanabi, that the jurisdiction of the Civil Court is ousted in respect of a tribunal created by a statute only so far as the reliefs that could be granted by the tribunal in question.
The High Court at Allahabad in certain cases held that “a suit is barred of jurisdiction by the Civil Courts only if the cognizance of the entire suit is barred.” This means that if a particular suit occurs, a part of which is not typically to be heard by the Civil Court due to overt or implicit exclusion, it is not valid that the whole suit would be excluded. Because the other points of law or relief sought are beyond the court, or even outside the special tribunal established under the Act, the civil court’s jurisdiction is not dismissed and thus still has inherent jurisdiction to pursue the claim.
In Res Judicata’s case, a matter once settled cannot be taken up again, either in the same court or in another court. That is why it is often referred to as ‘preclusion of litigation’ because it precludes or forbids additional claims after the final judgment. This is a common law procedure intended to prohibit the court from re-litigating disputes against the same parties.
Res Judicata’s philosophy derives from the “Res judicata per veritate acciputer” maxim. Res Judicata’s definition originated from the English Common Law system, which was derived from the underlying principle of judicial economy and consistency. This has been translated from the common law into the Civil Procedure Code, which was subsequently incorporated as a whole by the Indian legal system.
Main aim behind Res Judicata
- Injustice to the parties in a case allegedly settled by having a judgment closed and precluding any further arguments
- Unnecessary allocation of time at trial
- Multiplying judgments as additional statements will result in several different judgments on the same issue, leading to confusion
- Recovery of defendant’s damages twice for the same injury
Applications of res judicata
- The res judicata doctrine can be applied even at the following stage of the same proceedings. In the case of Y.B. Patil v. Y.L.Patil, the court held that, once an order has been issued in the course of the trial, it is definitive and will thus be binding on the parties at all future stages of the process.
- This doctrine can extend to co-defendants, too. In the case of Mahaboob Sahab v Syed Ismail, the court held that the following four conditions for applying res judicata must be satisfied:
- Conflicts of interest may occur between the defendants concerned.
- These disputes must be resolved in order to offer relief to the complainant
- The eventually to be settled on issues between the defendants.
- The need for co-defendants and relevant parties to the suit;
- Furthermore, this doctrine can even be extended to co-applicants. In the case of Iftekhar Ahmed v. Syed Meharban Ali, the court held that res judicata would apply if the following four conditions are satisfied:
- there must be a conflict of interest between the co-plaintiffs
- it must be necessary to decide such conflicts, in order to give relief to the plaintiff
- the questions between the plaintiffs to be finally decided.
Section 10 addresses the Sub-Judice Doctrine of Res. ‘Res‘ means a matter or a lawsuit and Sub-Judice means (under judgment) pending. This means, in accordance with the two, that Res Sub-Judice’s law covers a matter awaiting judicial inquiry. In other words, this provision applies when a matter for adjudication purposes is already pending before a competent court Section 10 of the CPC deals with the stay of civil suits.
Section 10 states that no court will proceed with the trial of any case in which the matter in question is specifically and significantly in dispute in a previously instituted case between the same parties and the Court in which the previously instituted lawsuit is pending is qualified to grant the requested relief.
The rule applies to the trial of a suit and not to its body. It also does not prohibit a Court from issuing temporary orders, such as granting an injunction or stay, naming a receiver. Nevertheless, it does refer to appeals and updates.
Difference between Res Judicata and Res Sub-Judice
Res Sub Judice bars trial of a suit which is pending decision in a previously instituted suit and it is applied to a matter pending trial. Whereas, Res Judicata bars the trial of a suit or an issue which has been decided in a former suit and is applied to a matter adjudicated upon.
Under section 2(6) of the CPC a foreign judgment is defined as a judgment of a foreign court. Under section 2(5) of the CPC, a foreign court means a court located outside India and not constituted or continued by the Central Government authority.
A foreign decree is defined in Explanation II of section 44A of the CPC as “Decision” referring to a superior court means any decision or judgment of that court in which a sum of money is payable, not a sum payable in respect of taxes or other charges of a similar nature or in respect of a fine or other penalty, but in no case does it include an arbitral award, even if that award is enforced.
A foreign judgment or decree on any matter adjudicated by it should be conclusive. The test for the finality of a foreign judgment or decree is set out in section 13 of the CPC which states that a foreign judgment shall be conclusive, provided
- It has not been pronounced by a court of competent jurisdiction;
- It has not been given on the merits of the case;
- It appears, on the face of the proceedings, to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable;
- The proceedings in which the judgment was obtained are opposed to natural justice;
- It has been obtained by fraud;
- It sustains a claim founded on a breach of any law in force in India.
Ways for the enforcement of a foreign Judgement
- Foreign decree of a reciprocating territory be executed as an Indian decree
- Filing a suit in case of decrees from non-reciprocating territories
In Marine Geotechnics LLC v/s Coastal Marine Construction & Engineering Ltd., the Bombay High Court observed that in case of a decree from a non-reciprocating foreign territory, the decree holder should file, in a domestic Indian court of competent jurisdiction, a suit on that foreign decree or on the original, underlying cause of action, or both.
Place of Suing
There are three kinds of jurisdiction to determine the place of suing –
- Pecuniary jurisdictions
- Territorial jurisdictions
- Subject matter jurisdiction
Pecuniary Jurisdiction – The object of this Section 15 CPC is to prevent overburdening of suits by the higher courts. Section 15 is a code of procedure, and not a rule of law. And it stipulates that a case is instituted in the lowest-grade court, it does not evict the jurisdiction of the higher-grade courts which they hold under the Act constituting them, hence, does not apply in the exercise of original civil jurisdiction.
Allahabad High Court in Radha Charan Das v. Mohini Behari, held that the court-fee payable and the valuation for the purpose of jurisdiction must be determined on the basis of allegations made and relief claimed in the suit. Defence in the written statement has no relevance for such determination.
Territorial Jurisdiction – Section 16 CPC states that the suit related to immovable property shall be instituted where such immovable property is situated.
It talks about the suit institution regarding-
- Recovery with or without profit or rent of immovable property
- Immovable property partition
- Determining any interest or privilege in immovable property
- Recovery for all the above-mentioned reasons of movable property under attachment or distrain.
If the claim is brought for relief or compensation for wrong done to immovable property owned by a defendant or any other person on the defendant’s behalf, where the relief may be sought by his personal attendance, then suits can be instituted in a court within the jurisdiction of which:
- The property is situated in, or
- The defendant is knowingly living or carrying on business or in person for profit.
As far as Section 17 of CPC is concerned, Cases where the immovable property falls within the territorial boundaries of the jurisdiction of different courts.
If the suit is brought to seek compensation or relief for the mistake made to immovable property within the jurisdiction of two or more courts, the suit can be brought in any court under the jurisdiction of which a portion of the property is located. Yet in view of the importance of the suit’s subject-matter, such court accepts the entire lawsuit.
In Section 18 CPC A location in an agency where judicial authority is unclear if there is doubt regarding the local limits of court jurisdiction, and all of the courts have confirmed that there is a cause for confusion, record the argument and will continue with the case to entertain and dispose of the case. The judgment passed by such court would have the same effect as if the land were within the territorial limits of their jurisdiction.
In a case in which the court which accepts the case does not record the argument and the appeal is brought before the Appellate or Revisional Court, the Appellate or Revisional Court shall not accept the appeals unless it is satisfied that there was no fair ground for doubt as to the jurisdiction of the Court at the time of the suit, and that there was a lack of justice.
Section 19 talks about Suits with regard to movable property – Where a suit is for redress for the wrong done to the individual or to movable property, where the wrong has been done within the local boundaries of the jurisdiction of one court and the defendant lives, or carries on business, or works for benefit, within the local boundaries of the jurisdiction of another court, the suit can be brought by the plaintiff’s choice in either case.
 (2000) 9 SCC 272
 AIR 1977 SC 392
 1974 AIR 749
 2014 (2) Bom CR 769
 AIR 1975 All 368
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