HomeLegal Columns Ouster of the jurisdiction of the civil court is not to be...

 Ouster of the jurisdiction of the civil court is not to be inferred readily


The rule of law presupposes the right of an aggrieved citizen to approach a Court of law for redress. The modern legislative tendency is to confer more powers on the administration and at the same time to make such powers immune from the review by courts. The reasons which justified the growth of administrative tribunals themselves are said to justify the policy of excluding the jurisdiction of the judiciary. The judiciary is seen reluctant to accept the new policy of the legislature because it is seen in the democratic state, the Court has to extend its hands of protection towards the aggrieved citizens.  It is said that- ‘The proper tribunals for the determination of legal disputes in this country are the courts and they are the only tribunals which by training and experience and assisted by properly qualified advocates , are fitted for the task’ [1]

Jurisdiction can essentially be defined to be the power of a court to hear and determine a cause, to adjudicate and exercise any judicial power in relation to it, in other words, by jurisdiction is meant the authority which a court has to decide matters that are litigated before it or in simple words to take cognizance of matter presented in a formal way for its decision. When the court of law has jurisdiction to decide a dispute, the same cannot be taken away or ousted by the consent of the parties to it. A civil court has got jurisdiction in respect of all civil matters except those of which tribunals are constituted under special statures and such tribunals have limited jurisdiction.[2] Whenever it is said that the jurisdiction of the court of challenged, the court has inherent jurisdiction to decide the said question. The Courts of law are conscious of the fact that they have the social responsibility to ensure that the administration functions according to the rule of law and that adjudicatory authorities are not let to misuse or exceed their powers under the cover of ‘ouster’ clauses. [3]

This article majorly focuses on the initial working of the Code at its very beginning and how over time the Code has evolved to meet the needs of justice.


During the initial working of the Code, there were no remarkable changes in the form of legislative amendments. The Law of Civil Procedure has transformed in India through judicial interpretation. After India attainted its independence and after the adoption of the Constitution of India, judicial administration and constitution of law courts remained unchanged, except in matters such as the establishment of the Supreme Court of India as the apex court, abolition of appeals to the Privy Council, enforcement of fundamental rights through writ petitions. Within ten years of Indian independence, two important amending Acts were enacted on the Code in the years 1951 and 1956 which embodied certain changes necessitated by the provisions of the Constitution and the reorganization of certain states. The code was subsequently amended. The Courts of India have been oscillating between two diametrically opposite stands in handling disputes. Most courts insist on following the text of the statute irrespective of the consequences. It is very rare that one comes across a court preferring a pragmatic outlook. value of the pragmatic approach lies not in definitional accuracy but rather in getting one to consider what is at stake in believing one thing rather than another.

Much can be said vehemently in favour of the legislative policy of excluding judicial intervention. The complexities of the modern industry have forced the state to undertake various welfare measures to protect the needy lot. It is submitted that the very object of the modern welfare state is the welfare of the poor public. The rationale behind the exclusion clause is that in its race to provide with the bare necessities to the poor workers and peasants, the heavy foot of the State may fall on the rights and liberties of some people. Much can be said vehemently in favour of the legislative policy of excluding judicial intervention. It is evident that the legislations made to protect the rights and interests of the weaker sections like workers and tenants, should provide with quick, cheap and effective machinery because these people may not be able to afford to the costly and snail-moving process of justice in the ordinary civil courts Another reason for the creation of administrative tribunals and conferring exclusive jurisdiction is that in certain cases considerable expertise will be required to reach a decision as in the case of fixing fair rent, wages and bonus. The ordinary courts of law are incapable to meet an emergency or some extraordinary situation. In such circumstances the authorities are empowered to take quick preventive action under certain laws.

Section 9 of The Code of Civil Procedure 1908 deals with – 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.[4]

The ouster of jurisdiction is limited to matters which are by or under the Act required to be settled, decided or dealt with by the Land Tribunal or the Appellate Authority. This means that a dispute which cannot be decided by the statutory authorities constituted by the Act can be decided by the Civil Court under S 9 of the C.P.C.[5]  In Hatti v. Sunder Singh [6]the Supreme Court was considering the bar of Civil Court’s jurisdiction to entertain a suit under Section 185 (1) of the Delhi Land Reforms Act (Act 8 of 1954) in which the rights were settled by the revenue authorities. In that case, ‘H’ was declared Bhumidar of some land belonging to the respondent ‘5’, under Section 13 of the Delhi Land Reforms Act. The respondent brought a suit in the civil court claiming three reliefs. The first relief was for a declaration that the declaration granted in favour of H was wrong, illegal and without jurisdiction. The second relief was that ‘B’ was entitled to Bhumidar right and the third was for possession of the land. The trial Court held that the jurisdiction of the Civil Court was not barred, in spite of Section 185 of the Delhi Land Reforms Act. This decree was upheld by the District Judge and in second appeal by the High Court. The above observations help the respondent in the case in the submission made that in spite of statutory ouster of jurisdiction of the Civil Court, there can still be matters open for the Civil Court to decide if it is shown that such Jurisdiction has not been taken away. The next case that has to be considered is the decision of the Supreme Court in Noor Mohd. Khan v. Fakirappa [7]. The Supreme Court was considering the scope of Sections 132 and 133 of the Karna-taka Land Reforms Act, Act X of 1962, and the Civil Court’s jurisdiction to decide questions covered by these two sections. The Supreme Court had to consider the question of ouster of jurisdiction of Civil Courts in this case. In that case, the provisions of three Acts fell for consideration at the hands of the Supreme Court, namely, the Bombay Act, the Mysore Act and the Karnataka Act. The learned Judge addressed himself to the question whether a dispute involving fraud was a matter which could be exclusively settled, decided or dealt with by the statutory authorities, to use the expression contained in Section 125 (2) of the Act. The learned Judge observed in that case that the appellant’s counsel was not in a position to place before him the particular provision in Act I of 1964 which enabled the authorities constituted under the Act to adjudicate a dispute of the nature urged before him. The discussion was wound up with the observation that “since the suit raises question which cannot be adjudicated by the statutory authorities, the ouster of jurisdiction provided in Sub-section (1) would not apply to the instant suit.”

In the case The National Starch And Chemicals vs Weikfield Products Co. (India)[8], there is no difficulty to find the Courts at Trivandrum and Courts at Poona have got jurisdiction to try the suit. The Court below, which found that the suit has to be instituted at Poona and that Trivandrum Courts cannot entertain the suit also found that the Courts at Poona and Trivandrum have got jurisdiction. The Courts below found that the ouster of jurisdiction of Courts at Trivandrum happened because of the agreement between the parties. So the only question that has to be considered is whether there is a clear and unambiguous agreement whereby the parties agreed that the Courts at Poona alone can entertain the suit where by agreement the parties have excluded the jurisdiction of Courts at Trivandrum for the settlement of the dispute. As I said earlier, the parties are bound by the agreement, so the only question which this Court has to consider is what is the nature of the term of the agreement concerning the ouster of jurisdiction of a Court, which normally can entertain the suit by the terms of the agreement.[9]

The constitution bench in a leading case of Dhulabhai v State of Madhya Pradesh & Anr, AIR 1969 SC 78 examined the question as to how the exclusion of jurisdiction of Civil Court in the context of express or implied bar created in any special law should be decided. Their lordships examined the question in the context of Section 9 of the Code of Civil Procedure , 1908 and the bar created in special law.


A judgement passed by a Court of Law without jurisdiction is ultra vires or illegal which cannot be enforced. The Civil Court has jurisdiction to entertain a suit of civil nature except when it’s cognizance is expressly barred or barred by necessary implications. Civil Court has jurisdiction to examine whether tribunal or quasi-judicial or statutory authority acted within their jurisdiction. The general rule that stands is that if the Hon’ble Court that renders a judgement suffers from the want of jurisdiction, then the Court’s judgement is nullity and may be ignored.

[1] Lee v. Women’s Guide of Great Britian (1982) 1 All ;. E.R. 1175, 1188

[2] Code of Civil Procedure Commentary

[3] Mani’s ‘civil jurisdiction’, (Kamal Publishers, New Delhi)

[4] The Code of Civil Procedure 1908 Bare Act

[5] Vellappan vs Peter Thomas on 23 January, 1979

[6] (AIR 1971 SC 2320)

[7] (AIR 1978 SC 1217)

[8] AIR 1990 Ker 291

Law Wire Team
Law Wire Teamhttps://lawwire.in/
Law Wire Team attempts to delve into pertinent (and sometimes not immediately pertinent) questions regarding socio-politics, Law and their interesting matrix.


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