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    Thursday, 25 February 2016

    Jurisdiction of Civil Courts

    1. Introduction
    The concept of jurisdiction is very important in law, because the courts get the power, and authority, to inquire into facts, apply the law and decide judgment only, if it has jurisdiction. Section 9 of CPC provides generally the maximum extent of jurisdiction of the civil court. The term jurisdiction itself means the limit, under which the court gets the power and authority to administer the justice, so it cannot be ultimate. Civil courts are courts of ultimate jurisdiction in a sense, that the ultimate decision with regard to civil matters, not within the jurisdiction of other courts, will be that of civil courts.

    2. Relevant Provisions
    Section 9 of CPC (Civil Procedure code)

    Cross Reference
    i. Section 6, (2) and 15 to 25 CPC
    ii. Section 151 of CPC
    iii. Order 7 Rule 10, 11 of CPC

    3. Meaning of Jurisdiction
    The term jurisdiction may be defined as under
    Jurisdiction refers to the (legal) authority to administer justice in accordance with means provided by law and subject to the limitations imposed by law”.

    4. Kinds of Jurisdiction

    There are following kinds of jurisdiction
    i. Subject matter jurisdiction
    ii. Pecuniary Jurisdiction
    iii. Territorial Jurisdiction
    iv. Personal Jurisdiction

    5. Jurisdiction conferred upon civil Courts
    Civil courts have jurisdiction, to try all suits, of civil nature i.e, Suits which involves the assertion or enforcement of a civil right.

    i. Suit involving right to property or office
    According to explanation to section 9, all suits involving right to properly or office, are suits of civil nature, except those, which only involves a decision on question as to religious rites or ceremonies.

    7. Determination of Jurisdiction
    Under section 151, civil courts have inherent power to decide the question of their own jurisdiction.

    8. Limitation / Bars upon jurisdiction of Civil Courts under CPC
    Under CPC following limitations are created upon the jurisdiction of civil courts.
    i. Absolute Bars.
    ii. Conditional Bars
    iii. Special bars

    I. Absolute Bars
    Following are the absolute bars as discuss in CPC

    i. Res Sub-Judice under Section 10
    Section 10, prevents a subsequent Court, to try a suit in which the matter directly and substantially in issue, is also directly and substantially in issue, in a former suit between the same, parties, under the same title and such suit is pending.

    ii. Res Judicata under section 11
    Where there is a judgment inters parties, it will prevent a fresh suit between them regarding the same matters.

    iii. Questions to be determined by court executing decree under section 47
    All question arising, between the parties to the suit in which the decree was passed, shall be determined by the court executing decree, and not by a separate suit.

    iv. Restitution under section 144
    No suit shall be instituted, for the purpose of obtaining any restitution or other relief, which could be obtained by application.

    v. Suit to include the whole claim under order 2 Rule 2
    Every suit shall include the whole of claim, but where a plaintiff omits to sue, in respect of, or intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

    vi. Decree against Plaintiff by default bars fresh suit under Order 9 Rule 9
    Where a suit is dismissed, due to the default of the plaintiff, then the plaintiff is precluded from bringing a fresh suit, in respect of the same cause of action.

    vii. An insolvent Person under order 22 Rule 9
    An insolvent person is barred from filling a suit.

    viii. Withdraw of suit or Abandonment of Part of claim under order 23 Rule 1
    At any time, after the institution of a suit, the plaintiff may withdraw his suit, or abandon part of this claim, as against all or any of the defendants. No fresh suit can be instituted on the same subject matter or claim, as has been withdrawn or abandoned.

    II) Conditional Bars
    Following are the conditional bars, upon the jurisdiction of the civil courts.

    i. Suit by Alien under section 83
    Alien residing in Pakistan, can only sue in the court of Pakistan, when they get the permission, from the Federal government.

    ii. Suit by Foreign states under section 84
    A foreign state, may sue in any court in Pakistan, if it has been recognized by the Federal government.

    III) Special Bar
    Following are the special bars upon the jurisdiction of civil courts

    i. Suit for Breach of trust under section 92
    In case of any breach of an express of constructive trust, created for the public purposes, of a charitable or religious nature, a suit can be filed by the Advocate general, or two or more person having an interest in the trust, and having obtained the consent in writing, of the Advocate general.

    9. Suits of which cognizance is expressly or impliedly barred
    Besides, the bars contained in the provisions of CPC the cognizance of some suits are barred either expressly or impliedly under other laws.

    I) Express bars
    Express bars means, bars under express enactment of statute, Criminal, Revenue and Family matters are the express bars upon the jurisdiction of civil courts.

    II) Implied Bars
    Section 9 of CPC recognizers the doctrine of implied bar of jurisdiction, the Act of state, public policy and special tribunals are the implied bars on jurisdiction of Civil Courts.

    10. Effect of exclusion of jurisdiction under section 9
    Exclusion of jurisdiction of civil courts not to be readily inferred, but must be explicitly expressed or clearly implied. Where jurisdiction was excluded, even then civil court would have jurisdiction to examine cases where Provisions of the Act had not been compiled with or statutory Tribunal had not acted in conformity with fundamental principles of judicial procedure.

    Conclusion

    To conclude that by virtue of section 9 of CPC civil courts have jurisdiction to determine all suits of civil nature. The jurisdiction of civil courts cannot be ultimate, because the provisions of CPC bars jurisdiction of certain cases itself, and there are other bars also under other laws and thus the jurisdiction of the courts.
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    Item Reviewed: Jurisdiction of Civil Courts Rating: 5 Reviewed By: Usman Ali
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