GENERAL PRINCIPLE AND ITS EXCEPTION UNDER SECTION 9:  COGNIZANCE:  SUITS EXPRESSLY BARRED : SUITS IMPLIEDLY BARRED

Jurisdiction is the practical authority granted to a formally constituted legal body or a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility.

In this context, Section 9 of the Civil Procedure Code (CPC) 1908 deals with the jurisdiction of civil courts in Pakistan. It provides that civil courts shall (subject to the provisions contained in the Code) have jurisdiction to try all suits of a civil nature, except suits of which their cognizance is either expressly or impliedly barred.

RELEVANT PROVISIONS

• Section 9 of C.P.C. 1908

GENERAL PRINCIPLE AND ITS EXCEPTION UNDER SECTION 9

The general rule is:

“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.”

EXPOSITION OF THE PRINCIPLE

A civil court has jurisdiction to try a suit if two conditions are fulfilled:

1. The suit must be of a civil nature; and

2. The cognizance of such a suit must not be expressly or impliedly barred.

1. SUIT OF A CIVIL NATURE

The first requirement is that the suit must be of a civil nature. The word “civil” has not been specifically defined in the CPC. However, a suit is considered to be of a civil nature if the principal question involved pertains to the determination or enforcement of a civil right.

Case Law: PLD 1975 SC 625
"Any proceedings which involve the assertion or enforcement of a civil right in civil proceedings."

The expression “suit of a civil nature” includes matters concerning private rights and obligations of a citizen.

2. COGNIZANCE SHOULD NOT BE EXPRESSLY OR IMPLIEDLY BARRED

As noted above, a litigant having a grievance of a civil nature has a right to institute a suit unless its cognizance is barred either expressly or impliedly.

SUITS EXPRESSLY BARRED

A suit is expressly barred when a statutory enactment explicitly restricts the jurisdiction of civil courts. It is well settled that every presumption should be made in favor of civil court jurisdiction, and any exclusion must be strictly construed.

Examples:

• Section 11 & 12 CPC – The doctrine of res judicata expressly bars a second suit on the same cause of action.

• Section 12(1) CPC – Bars a suit where the plaintiff is precluded by rules in the First Schedule from instituting a further suit regarding the same cause of action.

• Order 2, Rule 2 CPC – Bars a suit where the plaintiff, having the right to sue, relinquishes part of the claim.

• Section 12(2) CPC – Bars a suit to challenge a decree or order on grounds of fraud, misrepresentation, or lack of jurisdiction; the remedy is via an application, not a separate suit.

Further, matters falling within the exclusive jurisdiction of special tribunals (such as revenue courts, industrial tribunals, rent tribunals, tax tribunals, cooperative tribunals, etc.) are expressly barred from the jurisdiction of civil courts.

However, if the remedy provided by a statute is not adequate, or if all questions cannot be addressed by the special tribunal, civil court jurisdiction is not barred.

Also, when a court of limited jurisdiction makes incidental findings, a civil court may still have the authority to finally adjudicate the matter.

SUITS IMPLIEDLY BARRED

A suit is impliedly barred when it is excluded by general principles of law, even if there is no express provision barring it.

When a statute provides a specific remedy, the principle is that the party must seek only that remedy and not resort to a civil court. If an act creates an obligation and also provides the means of enforcing it, the party must follow that path only.

Certain suits, though civil in nature, are barred on grounds of public policy. Courts should not entertain matters injurious to public interest or contrary to the public good.

Examples of suits that are impliedly barred:

• Suit for recovery of costs incurred in criminal prosecution

• Suit for enforcement of a contract barred under Section 23 of the Indian Contract Act, 1872

• Suit against a judge for acts performed in the course of official duties

CONCLUSION

Section 9 of the CPC lays down a broad and inclusive principle that civil courts have jurisdiction over all civil matters, subject to express or implied exclusions. The courts interpret this section in favor of maintaining their jurisdiction unless clearly barred by law.

Thus, the jurisdiction of civil courts is extensive but not unlimited. Where the law specifically or implicitly provides an alternative remedy, the civil courts are ousted. Yet, adequacy of the alternative remedy and complete redressal of grievance are vital considerations in determining whether the jurisdiction of the civil court has been barred.