LLC
- Dec 15, 2020
- 28 min read

jurisdiction of the court

Anant Construction (P) Ltd. vs Ram Niwas on 3 October, 1994

Chapter Ix of Delhi High Court (Original Side) Rules 1967 deals with interlocutory applications. A perusal of that Chapter reveals emphasis on the counter ( to I.A.), if any, being filed not less than four days before the date of hearing and rejoinder, if any, confined strictly to matters of reply, being filed not less than two days before the date of hearing. The word 'shall' used in the relevant rules qualifies the number of days before which the reply/rejoinder is to be filed. The rules do not contemplate any reply or any rejoinder being filed necessarily to such applications as are capable of being disposed of without reply/rejoinder.

Replication' and 'rejoinder' have well defined meanings. Replication is a pleading by plaintiff in answer to defendant's plea. 'Rejoinder' is a second pleading by defendant in answer to plaintiff's reply i.e. replication. (2) To reach the avowed goal of expeditious disposal, all interlocutory applications are supposed to be disposed of soon on their filing. A delivery of copy or the I.A. to the counsel for opposite party is a notice of application. Reply, if any, may be filed in between, if the time gap was reasonable enough enabling reply being filed . (3) I.As. which do not involve adjudication of substantive rights of parties and/or which do not require investigation or inquiry into facts are not supposed to be contested by filing written reply and certainly not by filing replication. (4) A replication to written statement is not to be filed nor permitted to be filed ordinarily, much less in routine. A replication is permissible in three situations. (i) when required by law; (ii) when a counter claim is raised or set off is pleaded by defendant (iii) when the court directs or permits a replication being filed. (5) Court would direct or permit replication being filed when having scrutinised plaint and written statement the need of plaintiff joining specific pleading to a case specifically and newly raised in written statement is felt. Such a need arises for the plaintiff introducing a plea by way of 'confession and avoidance.' (6) A plaintiff seeking leave of the court has to present before it the proposed replication. On applying its mind the court may grant or refuse the leave. (7) A mere denial of defendant's case by plaintiff needs no replication. The plaintiff can rely on rule of implied or assumed traverse and joinder of issue. (8) Subsequent pleadings are not substitute for amendment in original pleadings. (9) A plea inconsistent with the pleas taken in original pleadings cannot be permitted to be taken in subsequent pleadings. (10) A plea which is foundation of plaintiff's case or essentially a part of causes of action of plaintiff, in absence whereof the suit will be liable to be dismissed or the plaint liable to be rejected cannot be introduced for the first time by way of replication.

Supreme Court of India

Official Trustee, West Bengal & ... vs Sachindra Nath Chatterjee & Anr on 13 December, 1968

jurisdiction may 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 to take cognizance of matters presented in a formal way for its decision. An examination of the cases in the books discloses numerous attempts to define the term 'jurisdiction', which has been stated to be 'the power to hear and determine issues of law and fact', 'the authority by which the judicial officer take cognizance of and 'decide causes'; 'the authority to hear and decide a legal controversy', 'the power to hear and determine the subject matter in controversy between parties to a suit and to adjudicate or exercise any judicial power over them;' 'the power to hear, determine and pronounce judgment on the issues before the Court'; 'the power or authority which is conferred upon a Court by the Legislature to hear and determine causes between parties and to carry the judgments into effect'; 'the power to enquire into the facts, to apply the law, to pronounce the judgment and to carry it into execution. "This jurisdiction of the Court may be qualified or restricted by -a variety of circumstances. Thus, the jurisdiction may have to be considered with reference to place, value and nature of the subject matter. The power of a tribunal may be exercised within defined territorial limits. Its cognizance may be restricted to subject-matters of prescribed value. It may be competent to deal with controversies of a specified character, for instance, testamentary or matrimonial causes, acquisition of lands for public purposes, record of rights as between landlords and tenants. This jurisdiction and jurisdiction of the subject matter is obviously of a fundamental character. Given such jurisdiction, we must be careful to distinguish exercise of jurisdiction from existence of jurisdiction : for fundamentally different are the consequences of failure to comply with statutory requirements in the assumption and in the exercise of jurisdiction. The authority to decide a cause at all and not the decision rendered therein is what makes up jurisdiction; and when there is jurisdiction of the person and subject matter, the decision of all other questions arising in the case is but an exercise of that,jurisdiction. The extent to which the conditions essential for creating and raising the jurisdiction of a Court or the restraints attaching to the mode of exercise of that jurisdiction, should be included in the conception of jurisdiction itself, is sometimes a question of great nicety. We must not thus overlook the cardinal position that in order that jurisdiction may be exercised, there must be a case legally before the Court and a hearing as well as a determination. A judgment pronounced by a court without jurisdiction is void, subject to the well-known reservation that, when the jurisdiction of a Court is challenged, the Court is competent to deter- mine the question of jurisdiction, though the result of the enquiry may be that it has no jurisdiction to deal with the matter brought before it .

Supreme Court of India

A.R. Antulay vs R.S. Nayak & Anr on 29 April, 1988

The power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away a right of appeal. Parliament alone can do it by law and no Court. whether superior or inferior or both combined can enlarge the jurisdiction of a Court or divest a person of his rights of revision and appeal. See in this connection the observations in M.L. Sethi v. R.P. Kapur (supra) in which Justice Mathew considered Anisminic, [1969] 2 AC 147 and also see Halsbury's Laws of England, 4th Edn. Vol. 10 page 327 at para 720 onwards and also Amnon Rubinstein 'Jurisdiction and Illegality' (1965 Edn. pages 16-50). Reference may also be made to Raja Soap Factory v. S. P. Shantaraj, [1965] 2 SCR 800.

Supreme Court of India

Dhirendra Nath Gorai And Subal ... vs Sudhir Chandra Ghosh And Others on 4 March, 1964

no hard and fast line can be drawn between a nullity and an irregularity; but this much is clear, that an irregularity is a deviation from a rule of law which does not take away the foundation or authority for the proceeding, or apply to its whole operation, whereas a nullity is a proceeding that is taken without any foundation for it, or is so essentially defective as to be of no avail or effect whatever, or is void and incapable of being validated.

"Whether a provision falls under one category or the other is not easy of discernment, but in the ultimate analysis it depends upon the nature, scope and object of a particular provision. A workable test has been laid down by Justice Coleridge in Holmes v. Russell(2), which reads:

"It is difficult sometimes to distinguish between an irregularity and a nullity; but the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection; if he can waive it, it amounts to an irregularity; if he cannot, it is a nullity."A waiver is an intentional relinquishment of a known right but obviously an objection to jurisdiction cannot be waived, for consent cannot give a court jurisdiction where there is none. Even if there is inherent jurisdiction, certain provisions cannot be waived. Maxwell in his book "On the (1) (1908) I.L.R. 35 Cal. 61, 72. (2) [1841] 9 Dowl. 487.

Interpretation of Statutes", 11th Edn., at p. 375, describes the rule thus:

"Another maxim which sanctions the non- observance of a statutory provision is that cuilibet licet renuntiare juri pro se introducto. Everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy."

The same rule is restated in "Craies on Statute Law", 6th Edn., at p. 269, thus :

"As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the court."

Where the court acts without inherent jurisdiction, a party affected cannot by waiver confer jurisdiction on it, which it has not. Where such jurisdiction is not wanting, a directory provision can obviously be waived. But a manda- tory provision can only be waived if it is not conceived in the public interests, but in the interests of the party that waives it. In the present case the executing court had inherent jurisdiction to sell the property.

Supreme Court of India

Kiran Singh And Others vs Chaman Paswan And Others on 14 April, 1954

It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be' determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was coram non judice, and that its judgment and decree would be nullities. Now section 99, of the Civil Procedure Code, in the opening words of the section is significant. That section, while providing that no decree shall be reversed or varied in appeal on account of the defects mentioned therein when they do not affect the merits of the case, excepts from its operation defects of jurisdiction. Section 99 therefore gives no protection to decrees passed on merits, when the Courts which passed them lacked jurisdiction as a result of over-valuation or undervaluation. It is with a view to avoid this result that section 11 was enacted. It provides that objections to the jurisdiction of a Court based on over-valuation or under-valuation shall not be entertained by an appellate Court except in the manner and to the extent mentioned in the section. It is a self-contained provision complete in itself, and no objection to jurisdiction based on over-valuation or under-valuation can be raised otherwise than in accordance with it. With reference to objections relating to territorial jurisdiction, section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional Court, unless there was a consequent failure of justice. It is the same principle that has been adopted in section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying sections 21 and 99 of the Civil Procedure Code and section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the Legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits, The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under section 11 of the Suits Valuation Act. We have now to see whether the appellants have suffered any prejudice by reason of the under-valuation. They were. the plaintiffs in the action. They valued the suit at Rs. 2,950. The defendants raised no objection to the jurisdiction of the Court at any time. When the plaintiffs lost the suit after an elaborate trial, it is they who appealed to the District Court as they were bound to, on their valuation. Even there, the defendants took no objection to the jurisdiction of the District Court to hear the appeal. When the decision went on the merits against the plaintiffs, they preferred S. A. No. 1152 of 1946 to the High Court of Patna, and if the Stamp Reporter had not raised the objection to the valuation and to the Court-fee paid, the plaintiffs would not have challenged the jurisdiction of the District Court to hear the appeal. It would be an unfortunate state of the law, if the plaintiffs who initiated proceedings in a Court of their own choice could subsequently turn round and question its jurisdiction on the ground of an error in valuation which was their own. If the law were that the decree of a Court which would have had no jurisdiction over the suit or appeal but for the over-valuation or undervaluation should be treated as a nullity, then of course, they would not be estopped from setting up want of jurisdiction in the Court by the fact of their having themselves invoked it.That, however, is not the position under section 1 1 of the Suits Valuation Act.

Supreme Court of India

Abdulla Bin Ali And Ors. vs Galappa And Ors. on 1 February, 1985

There is no denying the fact that the allegations made in the plaint decide the forum. The jurisdiction does not depend upon the defence taken by the defendants in the written statement. On a reading of the plaint as a whole it is evident that the plaintiffs-appellants had filed the suit giving rise to the present appeal treating the defendants as trespassers as they denied the title of the plaintiffs-appellants. Now a suit against the trespasser would lie only in the civil court and not in the revenue court

Supreme Court of India

Raizada Topandas & Anr vs M/S. Gorakhram Gokalchand on 22 April, 1963

The plaintiff chooses his forum and files his suit. If he establishes the correctness of his facts he will get his relief from the forum chosen: If ... he frames his suit in a manner not warranted by the facts, and goes for his relief to a court which cannot grant him relief on the true facts, he will have his suit dismissed. Then there will be no question of returning the plaint for presentation to the proper court, for the plaint, as framed, would not justify the other kind of court to grant him the relief............... ... If it is found, on a trial on the merits so far as this issue of jurisdiction goes, that the facts alleged by the plaintiff are not true and the facts alleged by the defendants are true, and that the case is not cognizable by the court, there will be two kinds of orders to be passed. If the jurisdiction is only one relating to territorial limits or pecuniary limits, the plaint will be ordered to be returned for presentation to the proper court. If, on the other hand, it is found that, having regard to the nature of the suit, it not Cognizable by the class of court to which the court belongs, the plaintiff's suit will have to be dismissed in its entirety."

Supreme Court of India

Bhatia Co-Operative ... vs D. C. Patel on 5 November, 1952

The question at once arises as to who is to decide this point in controversy (question of jurisdiction). It is well settled that a Civil Court has inherent power to decide the question of its own jurisdiction, although, as a result of its enquiry, it may turn out that it has no jurisdiction over the suit

Dhulabhai v. state of MP 1969 AIR SC 78

following principles relating to exclusion of jurisdiction of civil courts:

(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. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

(2) Where 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.

Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.

(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. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.

(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.

Supreme Court of India

Premier Automobiles Ltd vs Kamlekar Shantaram Wadke .. on 26 August, 1975To sum up, the principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute may be stated thus :

(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil court.

(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the Civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in particular remedy.

(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.

(4) If the right which is sought to be enforced is a right created under the Act such as Chapter VA then the remedy for its enforcement is either section 33C or the raising of an industrial dispute, as the case may be.

Supreme Court of India

A.B.C. Laminart Pvt. Ltd. & Anr vs A.P. Agencies, Salem on 13 March, 1989

Parties cannot by contract oust the ordinary courts fr om their jurisdiction. They can, of course, agree to lea ve questions of law, as well as questions of fact, to t he decision of the domestic tribunal. They can, indeed, ma ke the tribunal the final arbiter on questions of fact, b ut they cannot make it the final arbiter on questions of la w.

They cannot prevent its decisions being examined by t he courts. If parties should seek, by agreement, to take t he law out of the hands of the courts and put it into the han ds of a private tribunal, without any recourse at all to t he courts in cases of error of law, then the agreement is to that extent contrary to public policy and void."

Under section 23 of the Indian Contract Act the consideration or object of an agreement is lawful, unless it is opposed to public policy. Every agreement of which t he object or consideration is unlawful is void. Hence there c an be no doubt that an agreement to oust absolutely the jurisdiction of the Court will be unlawful and void being again st the public policy. Ex dolo malo non oritur actio.

The first case where the Supreme Court had an occasion to deal with the question of choice of place of suing by agreement of parties is the most frequently cited case of

HAKAM SINGH VS M/SGAMMON (INDIA) LTD., AIR 1971 S.C. 740, (1971) 1 SCC 286

dated the 8th of January 1971. In that case the terms and condition of a written tender for a construction work contained an arbitration clause as also a clause known in common parlance as

an ouster clause in the following words :

“ Notwithstanding the place where the work under the

contract is to be executed, it is mutually understood and

agreed by and between the parties hereto that the

contract shall be deemed to have been entered into by

the parties concerned in the City of Bombay and the

Court of law in the City of Bombay alone shall have

jurisdiction to adjudicate thereon.”

Disputes having arisen between the parties ignoring the ouster clause as above Hakam Singh filed a petition under Section 20 of the Indian Arbitration Act 1940 before the Court of

Subordinate Judge Varanasi. M/S Gammon (India) objected to the jurisdiction of the Varanasi Court relying on the ouster clause. The Trial Court held that the entire cause of action had arisen at Varanasi and that the parties could not by agreement confer jurisdiction on the Courts at Bombay which they did not otherwise possess. The High Court set aside the order of the Trial Court holding that under the general law the courts in Bombay had jurisdiction, that the covenant in the agreement is binding between the parties and the Courts at Bombay alone had jurisdiction and the Trial Court at Varanasi could not entertain the petition. The petition was directed to be returned for presentation to the proper Court. The Supreme Court fully concurred with the decision of the High Court.

The Supreme Court held thus :

“It is not open to the parties by agreement to confer by

their agreement jurisdiction on a court which it does not

possess under the Code. But where two courts or more

have under the Code of Civil Procedure jurisdiction to

try a suit or proceeding an agreement between the

parties that the dispute between them shall be tried in

one of such courts is not contrary to public policy. Such

an agreement does not contravene S.28 of the Contract

Act.”

in Modi Entertainment Network and Anr. v. W.S.G. Cricket PTE. Ltd. , it was held:

In regard to jurisdiction of courts under the Code of Civil Procedure(CPC) over a subject-matter one or more courts may have jurisdiction to deal with it having regard to the location of immovable property, place of residence or work of a defendant or place where cause of action has arisen. Where only one court has jurisdiction it is said to have exclusive jurisdiction; where more courts than one have jurisdiction over a subject-matter, they are called courts of available or natural jurisdiction. The growing global commercial activities gave rise to the practice of the parties to a contract agreeing beforehand to approach for resolution of their disputes there under, to either any of the available courts of natural jurisdiction and thereby create an exclusive or non-exclusive jurisdiction in one of the available forums or to have the disputes resolved by a foreign court of their choice as a neutral forum according to the law applicable to that court. It is a well-settled principle that by agreement the parties cannot confer jurisdiction, where none exists, on a court to which CPC applies, but this principle does not apply when the parties agree to submit to the exclusive or non-exclusive jurisdiction of a foreign court; indeed in such cases the English courts do permit invoking their jurisdiction. Thus, it is clear that the parties to a contract may agree to have their disputes resolved by a foreign court termed as a "neutral court" or "court of choice" creating exclusive or non-exclusive jurisdiction in it.

It was further held:

It is a question of interpretation, governed by the proper law of the contract, whether a jurisdiction clause is exclusive or non-exclusive, or whether the claim which is the subject-matter of the action falls within its terms. If there is no express choice of the proper law of the contract, the law of the country of the chosen court will usually, but not invariably, be the proper law.

In Man Roland Druckimachinen AG v. Multicolour Offset Ltd. and Anr. , it was held:

Undoubtedly, when the parties have agreed on a particular forum, the courts will enforce such agreement. This is not because of a lack or ouster of its own jurisdiction by reason of consensual conferment of jurisdiction on another court, but because the court will not be party to a breach of an agreement. Such an agreement is not contrary to public policy nor does it contravene Section 28 or Section 23 of the Contract Act. This has been held in Hakam Singh v. Gammon (India) Ltd. , A.B.C. Laminart (P) Ltd. v. A.P. Agencies and Modi Entertainment Network v. W.S.G. Cricket Pte. Ltd. . The decision of the Delhi High Court in Rajendra Sethia v. Punjab National Bank relied on by the Commission which holds to the contrary is, therefore, clearly erroneous.

in Harshad Chiman Lal Modi v. DLF Universal and Anr. while quoting Halsbury's Laws of England, (4th edition), Reissue, Vol. 10; para 317; it was held:

Consent and waiver. Where, by reason of any limitation imposed by statute, charter or commission, a court is without jurisdiction to entertain any particular claim or matter, neither the acquiescence nor the express consent of the parties can confer jurisdiction upon the court, nor can consent give a court jurisdiction if a condition which goes to the jurisdiction has not been performed or fulfillled. Where the court has jurisdiction over the particular subject matter of the claim or the particular parties and the only objection is whether, in Page 2831 the circumstances of the case, the court ought to exercise jurisdiction, the parties may agree to give jurisdiction in their particular case; or a defendant by entering an appearance without protest, or by taking steps in the proceedings, may waive his right to object to the court taking cognizance of the proceedings. No appearance or answer, however, can give jurisdiction to a limited court, nor can a private individual impose on a judge the jurisdiction or duty to adjudicate on a matter. A statute limiting the jurisdiction of a court may contain provisions enabling the parties to extend the jurisdiction by consent.

It was further held:

It is, no doubt true, as submitted by Ms. Malhotra that where two or more courts have jurisdiction to entertain a suit, parties may be agreement submit to the jurisdiction of one court to the exclusion of the other court or courts. Such agreement is not hit by Section 28 of the Contract Act, 1872, nor such a contract can be said to be against public policy. It is legal, valid and enforceable.

In A.B.C. Laminart Pvt. Ltd. and Anr. v. A.P. Agencies, Salem , it was held:

From the foregoing decisions it can be reasonably deduced that where such an ouster clause occurs, it is pertinent to see whether there is ouster of jurisdiction of other courts. When the clause is clear, unambiguous and specific accepted notions of contract would bind the parties and unless the absence of ad idem can be shown, the other courts should avoid exercising jurisdiction. As regards construction of the ouster clause when words like 'alone', 'only', 'exclusive' and the like have been used there may be no difficulty. Even without such words in appropriate cases the maxim 'expressio unius est exclusio alterius' - expression of one is the exclusion of another - may be applied. What is an appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another. When certain jurisdiction is specified in a contract an intention to exclude all others from its operation may in such cases be inferred. It has therefore to be properly construed.

In National Thermal Power Corporation v. Singer Company and Ors. , it was held:

Dicey & Morris in The Conflict of Laws, 11th edn., Vol. II ('Dicey') refer to the 'proper law of a contract' thus:

Rule 180 - The term 'proper law of a contract' means the system of law by which the parties intended the contract to be governed, or, where their intention is neither expressed nor to be inferred from the circumstances, the system of law with which the transaction has its closest and most real connection.

The expression 'proper law of a contract' refers to the legal system by which the parties to the contract intended their contract to be governed. If their intention is expressly stated or if it can be clearly inferred from the contract itself or its surrounding circumstances, such intention determines the proper law of the contract. In the words of Lord Herschell, L.C.:

...In this case, as in all such cases, the whole of the contract must be looked at, and the contract must be regulated by the intention of the parties as appearing from the contract. It is perfectly competent to those who, under such circumstances as I have indicated, are entering into a contract, to indicate by the terms which they employ which system of law they intend to be applied to the construction of the contract, and to the determination of the rights arising out of the contract.

Supreme Court of India

State Of Andhra Pradesh vs Manjeti Laxmi Kantha Rao (D) By ... on 4 April, 2000

The normal rule of law is that civil courts have jurisdiction to try all suits of civil nature except those of which cognizance by them is either expressly or impliedly excluded as provided under Section 9 of the Code of Civil Procedure but such exclusion is not readily inferred and the presumption to be drawn must be in favour of the existence rather than exclusion of jurisdiction of the civil courts to try civil suit. The test adopted in examining such a question is (i) whether the legislative intent to exclude arises explicitly or by necessary implication, and (ii) whether the statute in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order made under it. In Dhulabhai & Ors. vs. The State of Madhya Pradesh & Anr., 1968 (3) SCR 662, it was noticed that where a statute gives finality to the orders of the special tribunals jurisdiction of the civil courts must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit and such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

SHRIRAM CITY UNION FINANCE CORPORAT ION LTD. Vs. RAMA MISHRA

(2002) 9 SCC 613, AIR 2002 S.C. 2402 where the validity of a suit filed at Bhubaneswar in the teeth of an ouster clause limiting jurisdiction to Courts in Calcutta only fell for determination.

HAKAM SINGH (Supra) was followed and developing the law,

further THE Supreme Court spoke thus :-

“We have to keep in mind that there is difference between inherent lack of jurisdiction of any court on account of some statute and the other where parties through agreement bind

themselves to have their dispute decided by any one of the Courts having jurisdiction. Thus the question is not whether the Orissa Courts have the jurisdiction to decide the

respondent’s suit but whether the respondent could have invoked the jurisdiction of that Court in view of the aforesaid clause 34. A party is bound either by provision of the Constitution, statutory provisions or any rule or under terms of any contract which is not against the public policy

…………………………. In case parties under their own agreement expressly agree that their dispute shall be tried by only one of them then the parties can file the suit in that court alone to which they have so agreed…………… Once parties bound themselves as such it is not open for them to choose a

different jurisdiction as in this case by filing a suit at Bhubaneswar. Such a suit would be in violation of the said agreement. For the said reasons we have no hesitation to hold that the suit filed by the respondent in the Civil Court at Bubaneswar would not be valid, in view of the

agreement…………………”

Finally, it was held that in view of clause 34 of the agreement there it is the courts at Calcutta alone which would be competent court to adjudicate the dispute between the parties.

(viii) CHEEMA ENTERPRISES Vs. M/S MAYUR ENTERPRISES, 2001 (6) SUPREME 303 decided on the 29th of March 2001 is the next decision of the Supreme Court where an ouster clause reading “all disputes are subject to Kashipur jurisdiction” proved ineffective to oust the jurisdiction of other competent courts. The ouster clause there was held to be on all fours with the ouster clause in A.B.C. LAMINART (Supra) met with similar interpretation.

M/S HANIL ERA TEXT ILES LTD. Vs M/S PUROMAT IC FILTERS (P) LTD., (2004) 4 SCC 671, AIR 2004 S.C. 2432 decided on the 16th of April 2004 is the next Supreme Court decision dealing with the

ouster clause. The purchase order there contained the ouster clause providing that “any legal proceeding arising out of the order shall be subject to the jurisdiction of the Courts in Mumbai”. Despite this the suit was filed before the District Judge, Delhi where also part of the cause of action undoubtedly arose. The defendant applied under Order VII Rule 10 of the Code to have the plaint returned but failed both before the Trial Court and the Delhi High Court. The Supreme

Court followed HAKAM SINGH (Supra), A.B.C. LAMINART (Supra) and reversed the holdings of the Trial Court and the Delhi High Court. Despite the absence of exclusionary words like “only” “alone”

etc as indicated in ABC LIMINART (Supra) the Supreme Court considering all the circumstances held that the ouster clause indicates “clear intention to confine the jurisdiction of the courts in

Bombay to the exclusion of all other courts”. The Supreme Court further held that “The Court of Additional District Judge, Delhi had, therefore, no territorial jurisdiction to try the suit”. The plaint was ordered to be returned for presentation before competent Court at Bombay.

On the 19th of April 2004 the judgment in MAN ROLAND DRUCKIMACHINEN AG Vs. MULT I COLOUR OFFSET LTD. AND ANOTHER, (2004) 7 SCC 447 was delivered by the Supreme Court

where occurs the following :-

“9. Undoubtedly, when parties have agreed on a particular forum, the Courts will enforce such agreement. This is not because of a lack or ouster of its own jurisdiction by reason of

consensual conferment of jurisdiction on another court but because the court will not be a party to a breach of an agreement. Such an agreement is not contrary to public policy nor does it contravene Section 28 or Section 23 of the Contract Act. This has been held in HAKAM SINGH Vs.

GAMMON (INDIA) LTD., ABC LAMINART (P) LTD. Vs. A.P.

AGENCIES …………….” 10. …………… The principle we have outlined in the previous

paragraph is applicable to a situation where the Court is called upon to enforce rights arising under a contract whichcontains such a jurisdictional clause.”

NEW MOGA TRANSPORT CO. Vs. UNITED INDIA INSURANCE CO. LTD. (2004) 4 SCC 677

The intention of the parties can be culled out from use of the

expressions ‘only’ , ‘alone’, ‘exclusive’ and the like with

reference to a particular Court. But the intention to exclude a

Court’s jurisdiction should be reflected in clear, unambiguous,

explicit and specific terms. In such a case only the accepted

notions of contract would bind the parties. The first appellate

Court was justified in holding that it is only the Court at

Udaipur which had jurisdiction to try the suit.”

Gauhati High Court (judgment was upheld by Supreme Court on 29 march 2001)

Cheema Enterprises vs Mayur Enterprises on 12 September, 1997

"14. The following principles emerge, on the basis of what has been stated above, on the question as to when such an agreement would oust the jurisdiction of a competent Court ;

(a) The agreement must be clear and unambiguous.

(b) Any one sided declaration will not do in this regard.

(d) Plea of waiver, if taken, shall also have to be examined.

(e) The Court which is mentioned in the agreement must be one which has jurisdiction de hors the agreement to entertain the matter (Hakam Singh makes this aspect very clear).

(f) The agreement will not be an absolute bar to the jurisdiction, but while trying to uphold the solemnity of the contract, the Court will see if there are countervailing oppressive circumstances.

(g) A revisional Court will not interfere with the matter unless there is failure of justice.

, A. B. C. Laminar Pvt. Ltd. v. A. P. Agencies, Salem and he relied on paragraph 18 of the judgment where the case of Hakam Singh was considered wherein it was pointed out by the Supreme Court that objection based on jurisdiction is a matter which parties could waive and it is in this sense if such jurisdiction is exercised by the Court it does not go to the core of it so as to make the resultant judgment a nullity. Thereafter, the following observation was made at page 1245 (of AIR):

"Thus it is now a settled principle that where there may be two or more competent Courts which can entertain a suit consequent upon a part of the cause of action having arisen there within, if the parties to the contract agreed to vest jurisdiction in one such Court to try the dispute which might arise as between themselves the agreement would be valid. If such a contract is clear, unambiguous and explicit and not vague it is not hit by Sections 23 and 28 of the Contract Act. This cannot be understood as parties contracting against the statute. Mercantile law and practice permit such agreements."

The Supreme Court has pointed out that the contract must be unambiguous and explicit and not vague as pointed out by the trial Court and as found by this Court in the eye of law there is no such contract between the parties. So, the question of interference does not arise. In paragraph 22 of the judgment it has been pointed out as follows :

"In the clause 'any dispute arising out of this sale shall be subject to kaira jurisdiction' ex facie we do not find exclusionary words like 'exclusive', 'alone', 'only' and the like. Can the maxim 'expressio unius est exclusio alterius' be applied under the facts and circumstances of the case? The order of confirmation is of no assistance. The other general terms and conditions are also not indicative of exclusion of other jurisdictions. Under the facts and circumstances of the case we hold that while connecting factor with kaira jurisdiction was ensured by fixing the situs of the contract within Kaira, other jurisdictions having connecting factors were not clearly, unambiguously and explicitly excluded. That being the position it could not be said that the jurisdiction of the Court at Salem which Court otherwise had jurisdiction under law through connecting factor of delivery of goods there at was expressly excluded. We accordingly find no error or infirmity in the impugned judgment of the High Court."

Delhi High Court

Arunesh Punetha vs Boston Scientific Corporation ... on 25 August, 2005

It is a settled rule of law that the plea of rejection of plaint is founded on the "PLEA OF DEMURRER". A person raising such plea in law has to take the facts as stated by the opponent as correct. Despite tentative admission of such correctness, the plaint does not disclose a complete or even partial cause of action or the relief claimed is barred by law and thus, the plaint is liable to be rejected within the provisions of Order 7 Rule 11 of the Code of Civil Procedure. Plain language of this rule shows that for determination of an application under this provision, the Court has to look into the plaint. This concept has been extended by judicial pronouncement of various courts so as to take within its ambit even the documents filed by the plaintiff Along with plaint or subsequent thereto but prior to the hearing of such application. It would be more so where the documents have been referred to in the plaint itself. But the defense raised by the defendants in his written statement or the documents filed along therewith certainly falls beyond the zone of consideration, where an application for rejection of a plaint is being considered by the Court. The language of the rules does not admit any scope for doubt that the written statement filed by the defendant cannot be referred or relied upon by the applicants for decision of such application. Whether the plaint discloses any cause of action or not, is a question found on the basic cause of action pleaded by the plaintiff in his plaint. It must thus necessarily be construed that language of Rule 1 is circumscribed by the limitation or reading the plaint at best with its supporting documents. A Full Bench of this Court in the case of Harnam Singh v. Surjit Singh, , held as under:-

It is well settled that a cause of action means every fact which, if traversed, would be necessary for the plaintiff to prove in order to support the right to a judgment in his favor. In other words, it is a bundle of facts which taken with the law applicable to him gives the plaintiff a right to relief against the tenant. Negatively it does not comprise the evidence necessary to prove the bundle of facts and equally has no relation whatsoever to the defense, which may be set up by the defendant nor does it depend on the character of the relief prayed for by the plaintiff.

Delhi High Court

New Holland Tractors (India) Pvt. ... vs Raja Industrial Works And Ors. on 8 September, 2005

5. Reference can also be made to the judgment of Supreme Court in Liverpool & London S.P. & I. Association Ltd. v. M.v. Sea Success I and another , wherein the Supreme Court held as under:-

139. Whether a plaint discloses a cause of action or not is essentially a question of act. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.

02. Jurisdiction of the court

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jurisdiction of the court

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