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CODE OF CIVIL PROCEDURE AND THE


LIMITATION ACT

TOPIC: BHATIA COOP. HOUSING SOCIETY LTD. VS DC PATEL, AIR


1953 S.C. 16

Class Teacher
Mr Subhadip Chakroborty

NAME: ARKAPRAVA BHOWMIK


ROLL NO - 29
COURSE:LL.B. 3YEARS (SEMESTER – IV )

INDIAN INSTITUTE OF LEGAL STUDIES


2018
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ACKNOWLEDGEMENT

With profound gratitude and sense of indebtedness I place on record my sincerest thanks to

Dubhadip Chakroborty, Professor Assistant in Law, Indian Institute of Legal Studies, for her

guidance, sound advice and affectionate attitude during the course of the study work.

There is no hesitation in saying that he molded raw clay into whatever we are through his incessant

efforts and keen interest shown throughout the academic pursuit. It is due to his patient guidance that

I have been able to complete the task.

I would also thank the Indian Institute of Legal Studies Library for the wealth of information therein.

I express my regards to the Library staff for cooperating and making available the books for this

project research paper.

Finally, I thank my beloved parents for supporting me morally and guiding me throughout the project

work.

Date:
_____________________
ARKAPRAVA BHOWMIK
LL.B (4th Semester) Roll No: 29
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TABLE OF CONTENTS
___________________________________________________________
Acknowledgement…………………………………………………….………………………1

Research Methodology……………………………………….………………………………..3- 4
A. Aims and Objectives………………………………………………..………………3
B. Statement of Problem………………………………………………….…………..3
C. Research Hypothesis……………………………….…………………….…………3
D. Research
Questions…………………………………………….….……………..……………3
E. Methodology of Research…………………………….……………….……………4
F. Scope and Limitations…………………………………………………..……………4
G. Review of Literature……………………………………..…………….……………4
H. Mode of Citation…………………………………………………….………………4

Table of Cases……………………………………………………………….………………….5

Chapter – I: Introduction……………………………………………..…………………………6-7
Chapter II: Types of Jurisdiction………..…………………………………………………….....8-9

Chapter III: Civil Jurisdiction…………..………………………………………………………10-11


Chapter IV: Case Study…………………….…………………………………………………..12-16
Chapter V: Conclusion…………………………………………………………………………..17
Bibliography……………………………………………………………………………………18
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RESEARCH METHODOLOGY
___________________________________________________________
A. AIMS AND OBJECTIVES
The aim of this paper is to understand the jurisdiction of civil courts. It also strives to analyze
the judgment of Bhatia Coop. Housing Society Ltd.Vs DC Patel , AIR 1953, SC 16.

B. STATEMENT OF PROBLEM

The current systems do not give an equal chance to access and flourish. Though we have
various Laws /Statutes/Case laws, yet essential things are missed out and very few literates know the
proper meaning and nature of the said project Topic. As such many of us are still in dark as to what
the basic terminologies mean and why was it enacted. Also what is the current status of the said
Topic with respect its implementation.

C. RESEARCH HYPOTHESIS
1. It is well settled that civil courts has inherent power to decide its own jurisdiction.
2. The suit in which right to property or office is contested is suit of civil nature.

D. RESEARCH QUESTIONS

 What are different kinds of jurisdiction?

 What do you mean by jurisdiction of civil courts?

 Analyze the verdict of Bhatia Coop Housing Society Ltd. case?


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E. METHODOLOGY OF RESEARCH

“Methodology” implies more than simply the methods the researcher used to collect data. It is often
necessary to include a consideration of the concepts and theories which underlie the methods. The
methodology opted for the study on the topic is Analytical and Doctrinal. Doctrinal research in law
field indicates arranging, ordering and analysis of the legal structure, legal frame work and case laws
by extensive surveying of legal literature but without any field work.

F. SCOPE AND LIMITATIONS


The scope of the study refers to the parameters under which the study is operating. An extensive
attempt has been made in order to search for the quest with regard to the topic under this paper.
Though there is ample scope to highlight on the principle of good faith and duty of disclosure
according to different Statutes, but the scope of research work is limited to a particular area in search
of answer. Therefore, the researcher confines to the materials which are available and widely
accepted.

G. REVIEW OF LITERATURE
The researcher while writing this project has taken recourse to various primary and secondary
sources. Primary sources would include various laws. Secondary sources would include books and
articles, reports and websites.

H. MODE OF CITATION
A Blue Book system of citation has been adopted throughout the project.
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TABLE OF CASES

1. BOMBAY COOP. HOUSING SOCIETY LTD. VS DC

PATEL, AIR 1953 SC 16


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CHAPTER I – INTRODUCTION
Before we look at the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC) with
reference to the jurisdiction of civil courts in India, it would be interesting to note the meaning of
jurisdiction. The CPC does not define the term jurisdiction. In fact, none of the substantive or
procedural laws seeks to define the term “jurisdiction”.

Black's Law Dictionary defines “jurisdiction” as “A court's power to decide a case or issue a decree.”

The Calcutta High Court in a full bench judgment in Hirday Nath v. Ram Chandra sought to explain
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, by
jurisdiction is meant the authority which a court has to decide matters presented in a formal way for
its decision.”

It went on to clearly demarcate three categories of jurisdiction- subject matter jurisdiction, i.e.
whether the particular court in question has the jurisdiction to deal with the subject matter in
question; territorial jurisdiction, i.e. whether the court can decide upon matters within the territory or
area where the cause of action arose; and pecuniary jurisdiction, i.e. whether the court can hear a suit
of the value of the suit in question.

Before going on any further, it must be mentioned that the jurisdiction of the court is not whether the
court is entitled to pass a particular order or decree in a suit. It is whether the court has the right to
hear the particular case. Further, also the jurisdiction is decided by the allegations made in the plaint,
and not the defence's arguments.

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 1-

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.
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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 section clearly allows for the legislature by statute to expressly bar the jurisdiction of the Civil
Courts.

The general rule however is that the presumption would be made in favour of the existence of a right
to sue in a Civil court, the exclusion of the same being an exception.

The Supreme Court has laid down the rule that the plea of absence of jurisdiction can be raised and
entertained at any stage. In the absence of clarity in the point, the author believes that the plea of the
absence of jurisdiction should be allowed only at any point of the case when in the Court of First
Instance, and not in any appeals subsequent to it. Allowing such pleas in appeal might be misused by
the appellant having lost the suit in the lower court. For instance, the losing party in the Court of
First Instance may raise the plea in the appellate court in case he loses in the Lower Court, despite
the suit commencing on his petition. This would be gross injustice to the other party and would also
be against the principles of natural justice. Hence it must not be allowed to raise the plea at the
appellate court.

Like jurisdiction, there is no definition of a civil suit in any Act. However, Explanation I makes it
clear that the suit in which the principal question relates to a civil right is a civil suit.

In Sanker Naryan Potti v K Sreedevi, the Apex Court held “...it is obvious that in all types of civil
disputes civil courts have inherent jurisdiction as per Section 9 of the CPC unless a part of that
jurisdiction is carved out from such jurisdiction, expressly or by necessary implication, by any
statutory provision and conferred on any other tribunal or authority.
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CHAPTER II – TYPES OF JURISDICTION

In India, there are mainly 5 types of jurisdiction which can be classified as follows:

 Subject-matter jurisdiction:

It can be defined as the authority vested in a court of law to try and hear cases of a particular type
and pertaining to a particular subject matter. For example, District Forums established under the
Consumer Protection Act, 1986 have jurisdiction over only consumer-related cases. It cannot try
criminal cases.

 Territorial jurisdiction:

Under this type of jurisdiction, geographical limits of a court’s authority are clearly delineated and
specified. It cannot exercise authority beyond that territorial/geographical limit. For example, if a
certain offence is committed in Madhya Pradesh, only the courts of law within the boundaries of
Madhya Pradesh can try and adjudicate upon the same unless otherwise provided for in a particular
piece of legislation.

 Pecuniary jurisdiction:

Pecuniary means ‘related to money’. Pecuniary jurisdiction tries to address whether a court of law
can try cases and suits of the monetory value/amount of the case or suit in question. For example,
consumer courts have different pecuniary jurisdictions. A district forum can try cases of
value upto Twenty lakh rupees only.

 Original jursidiction:

It refers to the authority of a court to take cognizance of cases which can be tried and adjudicated
upon in those courts in the first instance itself. It is different from appellate jurisdiction in the sense
that in case of the latter, the courts rehear and review an already decided matter whereas in case of
the former the cases are tried for the very first time. For example, the High Court of Allahabad has
original jurisdiction with respect to matrimonial, testamentary, probate and company matters.
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 Appellate jurisdiction:

It refers to the authority of a court to rehear or review a case that has already been decided by a lower
court. Appellate jurisdiction is generally vested in higher courts. In India, both the High Courts and
the Supreme Court have appellate jurisdiction to hear matters which are brought in the form of
appeal before them. They can either overrule the judgment of the lower court or uphold it. At times
they can also modify the sentence.

Some of the other types of jurisdiction include:

 Concurrent jurisdiction: A situation in which more than one court of law has the
jurisdiction to try certain matters. Sometimes, this type of jurisdiction is also referred to as
‘co-ordinate jurisdiction’.
 Admirality jurisdiction: Jurisdiction pertaining to mercantile and maritime law and cases.
 Probate jurisdiction: Matters concerning the administration of an estate belonging to a
dead person and its guardianship come under probate jurisdiction. For example, cases
involving administrationand execution of the will of a deceased person.
 Summary jurisdiction: It refers to the authority of a court to try matters in accordance with
the summary procedure. Such cases take form of summary trials in order to speedily
resolve a dispute.
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CHAPTER III : JURISDICTION OF CIVIL COURTS

Civil courts are the lowest courts which take cognizance of all the suits of civil nature except few of
which the jurisdiction is specifically ousted. In India, the functioning of civil court is guided by the
Code of Civil Procedure, 1908. Section 9 of CPC brings out the jurisdiction of Civil Courts which
reads as under,

9. Courts to try all civil suits unless barred:- the courts shall (subject to the provisions
herein) have jurisdiction to try all suits of a civil nature excepting suits of which the
cognizance is either expressly or impliedly barred.

Explanation– 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 decisions of questions as to
religious rites or ceremonies.

It can be inferred from the above that the civil courts can adjudicate upon all the suits of civil nature
except those where the jurisdiction has been expressly or impliedly barred. The expression ‘expressly
or impliedly barred’ has been discussed by courts in several cases and now it is settled principle that,
the jurisdiction can be barred either through an express provision under any statute or by the
legislative intent which is clearly implied from the statute. In the landmark decision of Secretary of
State v. Mask & Co.[1], the Privy Council observed that:

“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 expressed or clearly implied.”

From the observance of the Privy Council it is clear that the position in relation to the jurisdiction of
civil court was made clear in very beginning. The Supreme Court of India discussed the matter much
later in the year 1963 in the case of Radha Kishan v. Ludhiyana Municipality[2] wherein it was held
that:

“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 court in respect of a
particular matter. The mere conferment of special jurisdiction on a tribunal in respect of the said
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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 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 statue 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.”

Form the two judgments it is clear that civil court can adjudicate upon all the suits of civil nature
unless its jurisdiction is expressly or impliedly barred. It should also be kept in mind that the term
‘impliedly’ should never be given liberal interpretation rather strict approach should be adopted and
clear implication from the statute is mandatory for ousting the jurisdiction of civil court.
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CHAPTER IV – BOMBAY COOP. HOUSING SOCIETY LTD. VS DC PATEL,


AIR 1953 SC 16

Facts

Section 4 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which provides
that the Act shall not apply to premises belonging to the Government or a local authority applies not
only to suits between the Government or a local authority as a landlord against the lessee, but also to
suits by a lessee of the Government or a local authority against his sublessee. The indemnity
conferred is in respect of premises belonging to the Government or a local authority.

A building site was auctioned to a person by the City Im- provement Trust of Bombay with a
condition that the bidder Was to put up a building of a certain description at a cost of not less than
Rs. 50,000 and after the Completion of the building, the site and the building were to be leased to the
bidder for a period of 999 years at a fixed yearly rent. Held, a construction of the lease-deed that the
building put up by the bidder belonged to the Trust and not to the bidder and a suit by the lessee
against his sub-lessee was not governed by the-Bombay Rents, Hotels and. Lodging House Rates
Control Act, 1947, as the premises belonged to a local authority within the meaning of s. 4 (1) of the
Act, and the suit could accordingly be instituted in the City Civil Court of Bombay.

A civil Court has inherent jurisdiction to decide the question of its own jurisdiction and to entertain a
suit although as a result of the inquiry it may turn out that it has no jurisdiction.

This is an appeal filed with the special leave of this Court. It is directed against the judgment and
decree passed December 2, 1949, by a Division Bench (Weston and Shah JJ.) of the Bombay High
Court reversing, the ground of absence of jurisdiction, the judgment and decree for possession passed
January 24, 1949, by the Bombay City Civil Court and directing the return of the plaint for
presentation to the proper Court.

There is no dispute as to the facts material for the purposes of this appeal. or about April 15, 1908,
the Board of Trustees for the Improvement of the City of Bombay put up to auction plots Nos. 16, 17
and 18 of new survey Nos. 8234, 8235 and 8244 situate the Princess Street Estate of the Board
containing an area of 2235 square yards for being let certain conditions. One Sitaram Luxman was
the highest bidder and was declared the tenant at an annual rent per square yard to be calculated at
the rate of 41/2 per cent of Rs. 29 per square yard and he signed the memorandum of agreement
incorporating the conditions upon which the auction was held and by which he agreed to be bound.
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He deposited the moneys in terms of clause 3 of the conditions, and upon such payment entered into
possession of the plots. By clause 7 Sitaram Luxman agreed, within the time specified therein, to
build and complete at a cost of not less than Rs. 50,000 a building consisting of 5 floors with suitable
offices, drains etc. according to plans and specifications to be made by an approved architect and
approved by the Board By clause 17 he agreed, so soon as the main building should be roofed in, to
insure in the joint names of the Board and of himself and, until the granting of the lease thereinafter
provided, keep insured the buildings and works the plots for the full value thereof.

Issue

The main controversy between the parties is as to whether the Act applies to the demised premises.
The solution of that controversy depends upon a true construction of section 4 (1) of the Bombay Act
LVII of 1947.

Arguments by the appellant

The contention of the appellant Society is that the demised premises belonged to the Trustees for the
improvement of the City of Bombay and now belong to the Bombay Municipality both of which
bodies are local authorities and, therefore, the Act does not apply to the demised premises. Learned
counsel for the respondent, however, urges that the object of the Act, as recited in the preamble, is
inter alia, to control rent. It follows, therefore, that the object of the legislation was that the
provisions of the Act would be applicable only as between the landlord and tenant. Section 4(1)
provides for an exemption from or exception to that general object. The purpose of the first two parts
of section 4(1) is to exempt two cases of relationship of landlord and tenant from the operation of the
Act, namely, (1) where the Government or a local authority lets out premises belonging to it, and (2)
where the Government lets out premises taken on lease or requisitioned by it. It will be observed that
the second part of section 4(1) quite clearly exempts 'any tenancy or other like relationship' created
by the Government but the first part makes no reference to any tenancy or other like relationship at
all but exempts the premises belonging to the Government or a local authority. If the intention of the
first part where as formulated in item (1), then the first part of section 4(1), like the second part,
would have run thus :-

This Act shall not apply to any tenancy or other like relationship created by Government or local
authority in respect of premises belonging to it.

13. The Legislature was familiar with this form of expression, for it adopted it in the second part and
yet it did not use that form in the first. The conclusion is, therefore, irresistible that the Legislature
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did not by the first part intend to exempt the relationship of landlord and tenant but intended to
confer on the premises belonging to Government an immunity from the operation of the Act.

Argument by the Respondent

Learned counsel for the respondent next contends that the immunity given by the first part should be
held to be available only to the Government or a local authority to which the premises belong. If that
were the intention then the Legislature would have used phraseology similar to what it did in the
second part, namely, it would have expressly made the Act inapplicable 'as against the Government
or a local authority'. This it did not do and the only inference that can be drawn from this
circumstance is that this departure was made deliberately with a view to exempt the premises itself.

Finally, learned counsel for the respondent urges that the words 'belonging to' have not been used in
a technical sense and should be read in their popular sense. It is pointed out that it was the lessee who
erected the building at his own cost, he is to hold it for 999 years, he has the right of subletting the
building in whole or in part on rent and terms to be fixed by him, of ejecting sub-tenants, and of
assigning the lease. Therefore, it may fairly be said that the premises or, at any rate, the building
belongs to the lessee and the rights reserved by the lease to the lessor are only by way of security for
the preservation of the building which, on the expiry or sooner determination of the lease, will vest in
the lessor. This line of reasoning has found favour with the High Court which has held that although
in form the building belongs to the Bombay Muncipality who are the successors in interest of the
lessors, in substance the building belongs to the appellant, the assignee of the lessee, and not to the
Bombay Municipality. We are unable to accept this reasoning, for we see no reason to hold, in the
circumstances of this case, that the substance does not follow the form. By the operative part of the
lease the demise is not only of the land but also of the building standing thereon. This demise is
certainly an act of ownership exercised by the lessor over the land as well as the buildings. Under
section 105 of the Transfer of Property Act a lease is a transfer only of a right to enjoy the demised
premises, but there is no transfer of ownership or interest in the demised premises to the lessee such
as there is in a sale (section 54) or a mortgage (section 58). In the present case, the lessee cannot, on
his own covenant, use the buildings in any way he likes. He has to use the same only as offices or
schools or for residential purposes and cannot, without the lessor's consent, use them for purposes of
any trade or business. He cannot pull down the buildings or make any additions or alterations
without the lessor's consent. He cannot build upon the open space. He must, if the premises are
destroyed by fire or otherwise, reinstate it. The lessor has the right to enter upon and inspect the
premises at any time on giving 48 hours' notice. All these covenants clearly indicate that the lessor
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has the dominant voice and the real ownership. What are called attributes of ownership of the lessee
are only the rights of enjoyment which are common to all lessees under well drawn leases, but the
ownership in the land and in the building is in the lessor. It is true that the lessee erected the building
at his own cost but he did so for the lessor and on the lessor's land on agreed terms. The fact that the
lessee incurred expenses in putting up the building is precisely the consideration for the lessor
granting him a lease for 999 years not only of the building but of the land as well at what may, for all
we know, be a cheap rent which the lessor may not have otherwise agreed to do. By the agreement
the building became the property of the lessor and the lessor demised the land and the building
which, in the circumstances, in law and in fact belonged to the lessor. The law of fixtures under
section 108 of the Transfer of Property Act may be different from the English law, but section 108 is
subject to any agreement that the parties may choose to make. Here, by the agreement the building
became part of the land and the property of the lessor and the lessee took a lease on that footing.

Judgement

The result, therefore, is that we allow this appeal, set aside the judgment and decree of the High
Court and restore the decree passed by the City Civil Court. The appellant will be entitled to costs
throughout in all Courts.

Ratio

In our opinion the interest of the lessor in the demised premises cannot possibly be described as a
contingent interest which will become vested on the expiry or sooner determination of the lease, for
then the lessor could not have demised the premises including the building as he did or before the
determination of the lease exercise any act of ownership or any control over it as he obviously has
the right to do under the covenants referred to above. The truth is that the lessor, after the building
was erected, became the owner of it and all the time thereafter the demised premises which include
the building have belonged to him subject to the right of enjoyment of the lessee in terms of the
lease. If it were to be held that the building belonged to the lessee by reason of his having put it up at
his own cost and by reason of the attributes of ownership relied on by learned counsel, then as
between the local authority (the lessor) and the lessee also the building must for the same reason
founded on what have been called the attributes of ownership be held to belong to the lessee and the
Act will apply. Surely that could not possibly be the case, for it would mean that the Government or
a local authority will always be bound by the Act in respect of the building put up by the lessee under
building leases granted by it in respect of land belonging to it. In that case the immunity given to the
Government or a local authority will be wholly illusory and worthless. In our view in the case before
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us the demised premises including the building belong to a local authority and are outside the
operation of the Act. This Act being out of the way, the appellants were well within their rights to
file the suit in ejectment in the City Civil Court and that Court had jurisdiction to entertain the suit
and to pass the decree that it did.
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CHAPTER V – CONCLUSION

Apart from being expressly barred by a statute, the jurisdiction of the civil court may also be
impliedly barred. However to be considered as impliedly barred, the jurisdiction of the civil court
must be necessarily barred. The Supreme Court has held in Shri Panch Nagar Parak v. Puru Shottam
Das that in the absence of any express exclusionary provision, the court needs to examine the
purpose, scheme and relevant provisions of the Act in order to determine implied exclusion of the
jurisdiction of Civil Courts.

An example of such implied exclusion would be a suit by a person whose property is attached under
Code of Criminal Procedure, 1898 is impliedly barred from filing a civil suit and can only invoke
clauses under that Act for remedies.

However it must be mentioned that the Supreme Court has held that ouster of the jurisdiction of Civil
Court by a statute, whether explicitly or implicitly does not bar the court from examining whether the
provisions of the Act have been complied with, or if the authority under the Act has acted in
accordance with the principles of natural justice. The High Court at Calcutta went on to explain
further that in the event of any of the above being contravened, the Civil Court has the jurisdiction to
strike down all such acts of the authority.

Another aspect to be considered while determining the jurisdiction of the Civil Court is the concept
of Res judicata. Section 11 of the CPC reads “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.”

Hence it is clear that the jurisdiction of the Civil Court does not extend to all matters but might be
limited in certain cases. However it has “inherent” jurisdiction to try all suits of a civil nature in the
absence of any exclusion of the same.

However the author hopes that the Apex Court comes out clarifying the situation with the case
regarding the jurisdiction of a Civil Court in which its jurisdiction is partly barred, expressly or
impliedly and where a part of it is not.
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BIBLIOGRAPHY

A. PRIMARY SOURCES

I. STATUTES: Section -9 of Code of Civil Procedure

B. SECONDARY SOURCES

A. BOOKS

 C.K. TAKWANI , CIVIL PROCEDURE WITH LIMITATION ACT


1963, 8TH EDITION,
II. WEBSITES

- https://indiankanoon.org/doc/713373/

- https://www.lawteacher.net/free-law-essays/jurisprudence/jurisdiction-of-civil-courts-in-
india.php/

- http://logosconsultancy.co.in/llb/?p=1430