Jurisdiction of Civil Court
JURISDICTION OF CIVIL COURT
In modern days, in almost every legal systems the civil disputes are resolved by the courts of civil jurisdiction. As a rule, the civil courts can take cognizance of every controversy of civil nature as the court of ultimate jurisdiction but there are some recognized exceptions to this general rule which is to be discussed through this work.
SECTION 9 OF THE CODE OF CIVIL PROCEDURE, 1908:
Section 9 The Code of Civil Procedure, 1908 confers jurisdiction over the civil courts to adjudicate upon all suits of civil nature, except such suits the cognizance of which is either expressly or impliedly barred. In other words whenever the object of the proceedings is the enforcement of civil rights, a civil court would have jurisdiction to entertain the suit unless the cognizance of the same is barred through a legislative instrument.
The legislature, both Federal and Provincial, has placed bar on the exercise of jurisdiction of the civil courts through number of Acts, Ordinances and other legislative instruments. For example, section 172 of the West Pakistan Land Revenue Act, 1967 has placed embargo over the powers of civil court to adjudicate upon any matter in which the powers of adjudication has been given to the revenue authorities and same is the case of section 36 of the Colonization of Government Lands (Punjab) Act, 1912. Almost all the special tribunals has been given exclusive jurisdiction by the legislature to decide the matters fall within their domain and, as a rule, their decisions / actions are immune from scrutiny by the civil courts, but there are certain exceptions to this general rule.
As per the different judicial pronouncement on the subject, it has been established that the law requires the civil court to be jealous about their jurisdiction and it should not give away its right to hear and adjudicate upon the case of civil nature unless there is a clear bar imposed by the legislature.
In the leading decision of Secretary of State v. Mask & Co. (67 I.A. 222) the Privy Council observed:
€it is settled law that the exclusion of the jurisdiction of the civil court is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied€.
In Radha Kishan v. Ludhiyana Municipality 1963 AIR 1547, 1964 SCR (2) 273 it was held:
€under section 9 of the civil procedure code the court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. A statute, therefore, expressly or by necessary implication can bar the jurisdiction of civil courts in respect of a particular matter. The mere conferment of special jurisdiction on a tribunal in respect of the said matter does not in itself exclude the jurisdiction of civil courts. The statute may specifically provide for ousting the jurisdiction of civil courts; even if there was no such specific exclusion, if it creates liability not existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the remedy could be had. Even in such cases, the civil court's jurisdiction is not completely ousted.€
Now I discuss the situations when the civil court may take cognizance of any matter notwithstanding the bar of jurisdiction.
MALACE AND MALA FIDE ATTRIBUTED TO THE FUNCTIONARIES ACTING UNDER SPECIAL LAWS:
In €Gul Shah and others Vs. Hafiz Ghulam Muhammad and others€ (2009 SCMR 1058) the honorable Supreme Court of Pakistan has held that:
€Admittedly, under section 14 of Act XIII, 1975 the jurisdiction of Civil Court is ousted / barred, but the jurisdiction is barred in ordinary cases and when malice and mala fide is attributed to the official respondents, then the Civil Courts are the Courts of ultimate jurisdiction and they can decide the matter in accordance with law.€
In another case titled €University of Punjab Vs. Miss Wajuha Arooj€ (2008 SCMR 1577) the august Supreme Court held that:
€Where the action or order passed by the public officer, tribunal or authorities is within the four corners of jurisdiction, the Civil Court cannot entertain the lis. But where the order passed or act done was void, or without jurisdiction, or mala fide, or in excess of jurisdiction, or otherwise not in accordance with law, or based on fraud, the civil Courts would have jurisdiction to interfere with the same.€
It is abundantly clear now that the Civil Courts can take cognizance of the matter irrespective of the barring clause in the special enactment, if the order or action is not qualified upon the criteria laid down by the Apex Court in the above mentioned cases.
WHEN SERIOUS QUESTION OF FACT IS INVOLVED IN THE CONTROVERSY:
There may be another situation when the Civil Court can take cognizance of the matter, notwithstanding the barring clause in the special law. In a case wherein serious question of facts are involved for the determination of which framing of issues and recording of evidence is necessary and the special tribunal has not been given such powers, then the civil court has the power to adjudicate upon the matter as the special tribunal has no power to effectively decide the fate of the matter in issue.
In €Muhammad Khan and others Vs. Province of Punjab and others€ (2007 SCMR 1169) the honorable Supreme Court held:
€It is well settled by now that €a purely administrative officer, who is empowered to pass an order if certain circumstances exist, has no jurisdiction to determine those circumstances and the objective existence of those circumstances is an essential condition of the validity of his order. In respect of every order passed by him, the court can make an enquiry and if it finds that all the circumstances needed for passing the order were not present, it will declare the order to be void€¦€¦€¦€¦ So far as special judicial tribunals are concerned they are given jurisdiction to determine certain fact but they are not judges of the facts which are the foundation of their jurisdiction nor can they define the limits of their own jurisdiction.€
WHEN AGGRIEVED PERSON BECOMES REMEDY LESS:
Almost all the special laws provide mechanism for assailing the order of the authority before the next higher authority. For instance, as per section 82D of the Banking Companies Ordinance, 1962 the Banking Mohtasib has been given authority to decide the complaint filed against any bank or its employee. The order of the Banking Mohtasib, as per section 82E (4) of the same Act, can be appealed against before the Governor State Bank within 30 days of the passing of the order by the Mohtasib. There may be a situation that the appellate authority is not available or is not appointed, then, what would be the remedy available to the aggrieved party if he feels aggrieved with the order and wants to challenge the same?
This same situation came under discussion in case titled €All Pakistan Textile Mills Association Vs. Federation of Pakistan€ (PLD 2009 Lahore 494) before the honorable Lahore High Court and the court held that:
€In the present case, Association of Textile Manufacturers, subject to its locus standi undoubtedly had a right of appeal under the statute, which was the most sacred right, however, if for any reason the forum of appeal had not been established enabling the exercise of such valuable right, the right, could not be allowed to be frustrated or stultified, for the lapse on part of the Federal Government as it was the fundamental principle of law that the rights and the remedies of the parties could not be left in vacuum, thus, in the situation the Association (Subject to its locus standi) shall have an independent right to challenge any such order under Art. 199 of the Constitution, if it had been passed by a forum which could be construed
In modern days, in almost every legal systems the civil disputes are resolved by the courts of civil jurisdiction. As a rule, the civil courts can take cognizance of every controversy of civil nature as the court of ultimate jurisdiction but there are some recognized exceptions to this general rule which is to be discussed through this work.
SECTION 9 OF THE CODE OF CIVIL PROCEDURE, 1908:
Section 9 The Code of Civil Procedure, 1908 confers jurisdiction over the civil courts to adjudicate upon all suits of civil nature, except such suits the cognizance of which is either expressly or impliedly barred. In other words whenever the object of the proceedings is the enforcement of civil rights, a civil court would have jurisdiction to entertain the suit unless the cognizance of the same is barred through a legislative instrument.
The legislature, both Federal and Provincial, has placed bar on the exercise of jurisdiction of the civil courts through number of Acts, Ordinances and other legislative instruments. For example, section 172 of the West Pakistan Land Revenue Act, 1967 has placed embargo over the powers of civil court to adjudicate upon any matter in which the powers of adjudication has been given to the revenue authorities and same is the case of section 36 of the Colonization of Government Lands (Punjab) Act, 1912. Almost all the special tribunals has been given exclusive jurisdiction by the legislature to decide the matters fall within their domain and, as a rule, their decisions / actions are immune from scrutiny by the civil courts, but there are certain exceptions to this general rule.
As per the different judicial pronouncement on the subject, it has been established that the law requires the civil court to be jealous about their jurisdiction and it should not give away its right to hear and adjudicate upon the case of civil nature unless there is a clear bar imposed by the legislature.
In the leading decision of Secretary of State v. Mask & Co. (67 I.A. 222) the Privy Council observed:
€it is settled law that the exclusion of the jurisdiction of the civil court is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied€.
In Radha Kishan v. Ludhiyana Municipality 1963 AIR 1547, 1964 SCR (2) 273 it was held:
€under section 9 of the civil procedure code the court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. A statute, therefore, expressly or by necessary implication can bar the jurisdiction of civil courts in respect of a particular matter. The mere conferment of special jurisdiction on a tribunal in respect of the said matter does not in itself exclude the jurisdiction of civil courts. The statute may specifically provide for ousting the jurisdiction of civil courts; even if there was no such specific exclusion, if it creates liability not existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the remedy could be had. Even in such cases, the civil court's jurisdiction is not completely ousted.€
Now I discuss the situations when the civil court may take cognizance of any matter notwithstanding the bar of jurisdiction.
MALACE AND MALA FIDE ATTRIBUTED TO THE FUNCTIONARIES ACTING UNDER SPECIAL LAWS:
In €Gul Shah and others Vs. Hafiz Ghulam Muhammad and others€ (2009 SCMR 1058) the honorable Supreme Court of Pakistan has held that:
€Admittedly, under section 14 of Act XIII, 1975 the jurisdiction of Civil Court is ousted / barred, but the jurisdiction is barred in ordinary cases and when malice and mala fide is attributed to the official respondents, then the Civil Courts are the Courts of ultimate jurisdiction and they can decide the matter in accordance with law.€
In another case titled €University of Punjab Vs. Miss Wajuha Arooj€ (2008 SCMR 1577) the august Supreme Court held that:
€Where the action or order passed by the public officer, tribunal or authorities is within the four corners of jurisdiction, the Civil Court cannot entertain the lis. But where the order passed or act done was void, or without jurisdiction, or mala fide, or in excess of jurisdiction, or otherwise not in accordance with law, or based on fraud, the civil Courts would have jurisdiction to interfere with the same.€
It is abundantly clear now that the Civil Courts can take cognizance of the matter irrespective of the barring clause in the special enactment, if the order or action is not qualified upon the criteria laid down by the Apex Court in the above mentioned cases.
WHEN SERIOUS QUESTION OF FACT IS INVOLVED IN THE CONTROVERSY:
There may be another situation when the Civil Court can take cognizance of the matter, notwithstanding the barring clause in the special law. In a case wherein serious question of facts are involved for the determination of which framing of issues and recording of evidence is necessary and the special tribunal has not been given such powers, then the civil court has the power to adjudicate upon the matter as the special tribunal has no power to effectively decide the fate of the matter in issue.
In €Muhammad Khan and others Vs. Province of Punjab and others€ (2007 SCMR 1169) the honorable Supreme Court held:
€It is well settled by now that €a purely administrative officer, who is empowered to pass an order if certain circumstances exist, has no jurisdiction to determine those circumstances and the objective existence of those circumstances is an essential condition of the validity of his order. In respect of every order passed by him, the court can make an enquiry and if it finds that all the circumstances needed for passing the order were not present, it will declare the order to be void€¦€¦€¦€¦ So far as special judicial tribunals are concerned they are given jurisdiction to determine certain fact but they are not judges of the facts which are the foundation of their jurisdiction nor can they define the limits of their own jurisdiction.€
WHEN AGGRIEVED PERSON BECOMES REMEDY LESS:
Almost all the special laws provide mechanism for assailing the order of the authority before the next higher authority. For instance, as per section 82D of the Banking Companies Ordinance, 1962 the Banking Mohtasib has been given authority to decide the complaint filed against any bank or its employee. The order of the Banking Mohtasib, as per section 82E (4) of the same Act, can be appealed against before the Governor State Bank within 30 days of the passing of the order by the Mohtasib. There may be a situation that the appellate authority is not available or is not appointed, then, what would be the remedy available to the aggrieved party if he feels aggrieved with the order and wants to challenge the same?
This same situation came under discussion in case titled €All Pakistan Textile Mills Association Vs. Federation of Pakistan€ (PLD 2009 Lahore 494) before the honorable Lahore High Court and the court held that:
€In the present case, Association of Textile Manufacturers, subject to its locus standi undoubtedly had a right of appeal under the statute, which was the most sacred right, however, if for any reason the forum of appeal had not been established enabling the exercise of such valuable right, the right, could not be allowed to be frustrated or stultified, for the lapse on part of the Federal Government as it was the fundamental principle of law that the rights and the remedies of the parties could not be left in vacuum, thus, in the situation the Association (Subject to its locus standi) shall have an independent right to challenge any such order under Art. 199 of the Constitution, if it had been passed by a forum which could be construed
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