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Bar of Suits | Overview
- Proceedings under SARFAESI Act, 2002
- Suits not termed as Civil Suit
- Suits Impliedly Barred
- Civil Suits Not Barred
- Important Case Laws
This article on the bar of suits discusses the scope of section 9 of CPC by outlining the suits impliedly barred, civil suits not barred and it also deals with important case laws.
Civil suits are suits between subject and subjects dealing with civil rights. It generally means a suit in which any valuable right is sought to be enforced. As a matter of fact, it is the subject-matter of the suit and not the status of the parties to the suit which decides whether the suit is one of civil nature or not.
Every person has statutory and inherent right to file a suit of civil nature before appropriate authority unless the suit is barred by statute, one may, at his peril, bring a suit of his choice. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. Whereas in appeal there must have a clear authority of law for its maintainability. Any enactment can bar the jurisdiction of civil courts expressly from the time being in force.
Section 9 of the CPC reads
“Courts to try all civil suits unless barred- The Court 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.
Explanation I: A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
Explanation II: For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.”
The general rule is that the assumption would be made for the presence of a right to sue in a Civil court, the avoidance of the equivalent being an exception.
Proceedings under SARFAESI Act, 2002
The Civil Court’s jurisdiction to entertain any suit or proceeding in respect of any matter under SARFAESI Act, 2002 is totally barred as per Section 34 of the act, which confers the jurisdiction on Debt Recovery Tribunal or the Appellate Tribunal.
Suits not termed as Civil Suit
The following are some of the instances which cannot be termed as suits of civil nature:
- Suits related to Right of Privacy;
- Suit where the principal question is relating to caste;
- Suits relating purely to religious rites or ceremonies;
- Suits for mere establishing dignity or honour;
- Matters to be determined by special Tribunal or under the authority of an act of legislature are expressly barred;
- A tenant who is dispossessed otherwise than in due course of law.
Suits Impliedly Barred
The cognizance of a suit is impliedly barred whether by general principles of law or on grounds of public policy. Where a right, not pre-existing in common law, is created by a statute which itself provided machinery for enforcement of that right and finality of such statutory provision is intended then, even in the absence of an exclusionary provision the civil court’s jurisdiction is impliedly barred.
If a right pre-existing in common law, is recognized by the statute and a new statutory remedy for its enforcement provided, without expressly excluding the civil court’s jurisdiction then both the common law and the statutory remedies might become concurrent remedies. Thus, the removal of the civil court’s jurisdiction would depend on whether the right was pre-existing in common law or not.
Another perspective to be given due consideration while deciding the jurisdiction of the Civil Court is the principle of Res Judicata.
Section 11 of the CPC – No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised’ and has been heard and finally decided by such Court.
The exclusion of jurisdiction of a civil court is not to be readily inferred, such exclusion must be either explicitly expressed or clearly implied.
Civil Suits Not Barred
The following are some of the instances where civil suits are not barred:
- Suit for Damages
- Refund of Advance Sales-Tax paid under mistake of law
- For possessions and mesne profits
- Suit for correction of date of birth
- Suits under Consumer Protection Law
- Suit for a refund of wharfage and demurrage charges collected by railway.
- Suit for declaration for no liability to pay revenue in case of ferries resumed by government.
- Exercise of equity jurisdiction
- Suits for recovery
- Suit for declaration of title and possession
- Suit for declaration for illegal retrenchment
- Suits under section 20(6) of Minimum Wages Act, 1948
- Recovery of debt due to Bank & Financial Institutions Act, 1973
Important Case Laws
The High Court of Calcutta in Hirday Nath v. Ram Chandra “looked to clarify the term jurisdiction. It stated jurisdiction may be defined to be the power of Court to hear and determine a cause, to adjudicate and exercise any judicial power in relation to it; in other words, jurisdiction means the authority which a court has to decide for the matters presented in a formal way for its decision.”
In the matter of Dhulabhai v. Province of M.P, Chief Justice Hidayatullah stated the following principles for bar of suits arising from an express provision or arising by necessary intendment:
- Where the statute gives a finality to the orders of the special tribunals the civil court’s jurisdiction must be held to 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.
- 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 on the efficiency 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. Then, it is necessary to see if the statute creates a special right or a liability and provides for determination of the right or liability and further lays down that the said shall be determined by the tribunals so constituted and remedies available.
- The tribunals constituted under any act cannot adjudicate the matter where the provisions of the particular act are challenged as ultra vires. Even the High Court does not have the authority to adjudicated the same on a revision or reference from the decision of the tribunals.
- A suit is always open to challenge the constitutionality of any provision if it has not been declared unconstitutional. 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.
- A suit lies when the particular act has no provision to refund excess tax collected beyond constitutional limits or collected illegally.
- Question 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 the relevant enquiry.
- An exclusion of the jurisdiction of the civil court is not ready to be inferred unless the conditions above set down apply.
However in the matter of Shri Panch Nagar Parak v. Puru Shottam Das “Supreme Court held that without any express statutory provisions, the court needs to inspect the reason, rules and related provisions of the Act so as to decide the bar of the jurisdiction of Civil Courts.”
In the matter of State of A.P. v. Manjeti Laxmi Kanth Rao the Supreme Court laid down test for exclusion of the jurisdiction of civil courts where a suit is expressly barred from any special law or enactment. Firstly, the intention of the legislature is to be considered which bars the jurisdiction of civil courts either expressly or impliedly.
This implies the Court should initially attempt to decide the exact purposes behind the bar of jurisdiction of the Civil Courts, and its applicability. During the trial of the suit, if the court is of the opinion that the rule which bars the jurisdiction of the civil courts is valid and binding. Whereby, a reasonable alternative is provided under the same act, the civil court shall not have the authority to pass an order under the same act.
In the matter of Balawwa v. Hasanabi Supreme Court held “that the Civil Court lacks jurisdiction to entertain any suit barred under” any other act if the jurisdiction is conferred to a Tribunal under the act. As the tribunal is the competent authority to preside over the matter. The matter in this case was with regard to The Karnataka Land Reforms Act 1961 which is to be adjudicated by Land Tribunal, yet the petitioner has filed this matter before the civil court.
In this regard, the High Court at Allahabad in numerous cases held that a suit is barred of jurisdiction by the Civil Courts just if the cognisance of the whole suit is barred. This infers if a specific suit emerges, a piece will generally not be taken up by the Civil Court, because of express or inferred prohibition. The purpose of the law is to provide relief and in such cases, if the tribunal refuses to adjudicate on the same issue then, civil courts have the original jurisdiction to try the suit.
Subsequently, if the jurisdiction of the Civil Court doesn’t extend to all issues under certain circumstances in specific suits. It may exercise the inherent powers to exercise the jurisdiction to try the suit of civil nature without any adverse order to the parties. That the Supreme Court has time and again explained the circumstance where a suit can be adjudicated by courts in regards to the jurisdiction of a Civil Court wherein its jurisdiction is absolutely barred, explicitly or impliedly and where a part of it isn’t.
 Bishan Dayal v. Keso Prasad, AIR 1937 All 176
 Maharani Devi v. Ram Adhar, AIR 1962 All 23
 Ganga Bai v. Vijai Kumar, AIR 1974 SC 1126
 Ohene Moore v. Akesseh Tayee, AIR 1935 PC 5
 Bhaiyalal Tiwari v. Central Bank of India, AIR 2014 MP 57
 Sayyad Azuf v. Ameerubibi, (1895) ILR 18 Mad 163
 Narayana Mudali v. Peria Kalathi Mudali, AIR 1939 Mad 494
 Sinha Ramanuja v. Ranga Ramanuja, AIR 1961 SC 1720
 State of MP v. Morodhwaj Singh, AIR 1960 SC 976
 Mohd. Ishaq v. Mohd. Bashir, AIR 1961 Punj 8
 Raja Ram Kumar Bhagawa v. UOI, AIR 1988 SC 752
 Mario Cotta Pereira v. State of Goa, 2010 (6) Mah LJ 115
 MP Electricity Board, Jabalpur v. Vijaya Timber Co, AIR 1997 SC 2364
 State of Bombay v. Jagmohandas, AIR 1966 SC 1412
 Durga Singh v. Tholu, AIR 1963 SC 361
 Ishar Singh v. National Fertilizers, AIR 1991 SC 1546
 State of Karnataka v. Vishwabarathi House Building Coop Society, AIR 2003 SC 1043
 Raichand A Shah v. UOI, AIR 1964 SC 1268
 Ranendra N Sinha v. State of WB, AIR 1971 SC 1245
 Shiv Kr Sharma v. Santosh Kumari, AIR 2008 SC 171
 IFCI Ltd. v. Cannanore Spg & Wvg Mills Ltd., AIR 2002 SC 1841
 Sulochana v. Rajendra Singh, AIR 2008 SC 2611
 Allahabad Distt Co-op Ltd. v. Hanuman, AIR 1982 SC 120
 Pabbojan Tea co. v. Dy. Comm. Lakhimpur, AIR 1968 SC 271
 JP Builders v. Ramadas Rao, (2011) 1 SCC 429
 AIR 1929 Cal 445
 AIR 1969 SC 78
 AIR 1999 SC 3071
 AIR 2000 SC 2220
 (2000) 9 SCC 272
 Ramesh Chand Ardawatiya v. Anil Panjwani, AIR 2003 SC 2508