OUSTER CLAUSES AND JURISDICTION OF CIVIL COURTS

CONTENTS

TABLE OF CASES....................................................................................................................I ABBREVIATIONS..................................................................................................................III CHAPTER 1...............................................................................................................................1 Jurisdiction: Meaning and Scope ........................................................................................1 Types of Jurisdiction of Courts............................................................................................2 Civil and Criminal jurisdiction...........................................................................................2 Territorial or local jurisdiction...........................................................................................2 Pecuniary jurisdiction.........................................................................................................3 Subject Matter jurisdiction.................................................................................................3 Original jurisdiction...........................................................................................................3 Appellate jurisdiction.........................................................................................................3 Foreign jurisdiction............................................................................................................3 CHAPTER 2...............................................................................................................................4 Jurisdiction of Civil Courts....................................................................................................4 Classes of Suits.......................................................................................................................5 Suits of a Civil Nature........................................................................................................5 Suits Not of a Civil Nature.................................................................................................6 Cognizance of Suits Not Barred.............................................................................................7 Suits Expressly Barred.......................................................................................................7 Suits Impliedly Barred.......................................................................................................8 General Principles of Jurisdiction of Civil Court...................................................................9 CHAPTER 3.............................................................................................................................10 3.1 Ouster Clause: Meaning and Scope...............................................................................10 See Zoe Kirk-Robinson, Ouster Clauses in English Law, http://www.suite101.com/content/ouster-clauses-in-english-law-a161264 (Last Visited : Mar. 27, 2011)...................................................................................................................................10 3.1.1 Classifications.........................................................................................................10 A Valid Ouster Jurisdiction Clause......................................................................................11 Ousting Jurisdiction and Statute...........................................................................................13

Ouster of Jurisdiction of Civil Courts by Statutes................................................................14 3.4.1 Bar under the Civil Liability for Nuclear Damage Bill, 2010.................................14 3.4.2 Bar under the Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010 .....................................................................................................15 3.4.3 Bar under the Educational Tribunals Bill, 2010 .....................................................15 3.4.4 Bar under the Industrial Disputes Act, 1947 .........................................................15 Conclusion............................................................................................................................16 BIBILIOGRAPHY...................................................................................................................IV

TABLE OF CASES
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. A.B.C. Laminart Pvt. Ltd. and Anr. v. A.P. Agencies, Salem, AIR 1989 SC 1239. A.P.S.E.B Rept by Chairman v C.Subhadramma, 1983 LS (A.P) 66. Abdul Waheed Khan v. Bhawani and Ors., AIR 1966 SC 1718. Bai Shri Vaktuba and Ranjitsinghji Agarsingji v. Agarsingji Raisingji, (1910) 12 BOMLR 697. Baker v. Jones, (1954) 1 WLR 1005. Bennett v. Bennett, [1952] 1 KB 249. Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors., (1993) 2 SCC 507 Dhulabhai and Ors. v. The State of Madhya Pradesh and Anr., AIR 1969 SC 78 His Holiness Peria Kovil Kelvi Appan Thiruvenkata Ramanuja Pedda Jiyyangarlu Varlu v. Prathivathi Bhayankaram Venkatacharlu and Ors. AIR 1947 PC 53 I.S Chetty & Sons v. State of Andhra Pradesh, AIR 1964 SC 322. Janata Janardan Shikshan Sanstha and Anr. v. Vasant P. Satpute, 1986 MhLJ 260. Jodhi Singh and Ors. v. Vedabarat Sharma Arya alias Mauji Singh and Ors., AIR 1956 Pat 205. K. S. Venkataraman & Co. v. State of Madras, AIR 1966 SC 1089 Life Insurance Corporation of India v. Indian Automobiles and Co. and Ors., AIR 1991 SC 884. Most. Rev. P.M.A. Metropolitan and Ors. v. Moran Mar Marthoma and Anr., AIR 1995 SC 2001 Nagindas Narandas Lavar v. Somnath Premchand Lavar, AIR 1932 Bom 122 Patel Roadways Limited, Bombay v. Prasad Trading Company, AIR 1992 SC 1514 Piramal Healthcare Limited v. Dia Sorin S.P.A., 172 (2010) DLT 131 Punjab State Electricity Board and Anr. v. Ashwani Kumar, (1997) 5 SCC 120 Official Trustee, West Bengal and Ors. v. Sachindra Nath Chatterjee and Anr., AIR 1969 SC 823 Raja Soap Factory and Ors. v. S.P. Shantharaj and Ors., AIR 1965 SC 1449 Rajasthan State Electricity Board v. Universal Petro Chemicals Ltd., (2009) 3 SCC 107 Ramakrushna Mohapatra and Ors. v. Gangadhar Mohapatra and Ors., AIR 1958 Ori 26 Ramesh Dwarkadas Mehra v. Indravati Dwarkadas Mehra, AIR 2001 Bom 470 Sankar Narayana Potti v K.Sreedevi, (1998) 3 SCC 751 Shree Baidyanath Ayurved Bhawan Pvt. Ltd. v. Praveen Bhatia and Ors., (2009) 8 SCC 779 Shri Sukhdev Chand, Asst. CIT, Acquisition Range vs. Shri Kashmir Singh Bhullar and Ors., (1984) 42 CTR (P&H) 345 State of Tamil Nadu v. Ramalinga Samigal Madam, AIR 1986 SC 794.

29. 30. 31. 32.

Sultan Ali Nanghiana v. Nur Hussain, AIR 1949 Lah 131 The Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke of Bombay and Ors., AIR 1975 SC 2238 Union of India v. Ram Chand Beli Ram, AIR 1955 P&H 166 Union of India v. Tarachand Gupta and Bros , AIR 1971 SC 1558

ABBREVIATIONS
AIR Anr. A.P Bom BOMLR CTR Del. DLT ED. ILR KB Kant Lah LS Mad. MP MhLJ n. Ori P. Pat. PC P&H Punj SC SCC v. WLR
-

All India Reporter Another Andhra Pradesh Bombay Bombay Law Reporter Current Tax Reporter Delhi Delhi Law Times Edition Indian Law Review King's Bench Karnataka Lahore Law Summary Madras Madhya Pradesh Maharashtra Law Journal Note Orissa Page No Patna Privy Council Punjab and Haryana Punjab Supreme Court Supreme Court Case0073 Versus Weekly Law Reports

CHAPTER 1
Jurisdiction: Meaning and Scope
The word jurisdiction is derived from Latin terms juris and dicto which means I speak by law. Jurisdiction means the legal power, right, or authority of a particular court to hear and determine causes, to try criminals, or to execute justice; judicial authority over a cause or class of causes; as, certain suits or actions, or the cognizance of certain crimes, are within the jurisdiction of a particular court, that is, within the limits of its authority or commission. Jurisdiction may be defined to be the power of a 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 that are litigated before it or to take cognizance of matters presented in a formal way for its decision.1 The courts jurisdiction must include the power to hear and decide the question at issue, the authority to hear and decide the particular controversy that has arisen between the parties.2 In Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors.,3, the Honble Supreme Court observed: It is settled law that a decree passed by a court without jurisdiction on the subject matter or on the grounds on which the decree made which goes to the root of its jurisdiction or lacks inherent jurisdiction is a corum non judice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right,
1

Raja Soap Factory and Ors. v. S.P. Shantharaj and Ors., AIR 1965 SC 1449; Official Trustee, West Bengal and Ors. v. Sachindra Nath Chatterjee and Anr., AIR 1969 SC 823.
2

Union of India v. Tarachand Gupta and Bros , AIR 1971 SC 1558;Official Trustee, West Bengal and Ors. v. Sachindra Nath Chatterjee and Anr., AIR 1969 SC 823. See also Halsburys Law of England, (Vol. 10 : 4thED.), para 715: By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by Statute or Charter or Commission under which the Court is constituted and may be extended or restricted by similar means. If no restriction or limitation is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind or nature of actions or the matters of which a particular Court has cognizance or as to the area over which the jurisdiction extends, or it may partake of both these characteristics 3 Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors., (1993) 2 SCC 507. See also Patel Roadways Limited, Bombay v. Prasad Trading Company, AIR 1992 SC 1514

even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or waiver of the party. When a court has jurisdiction to decide a dispute, the same cannot be taken away or ousted by consent of parties. An agreement to oust absolutely the jurisdiction of the Court will be unlawful and void being against the public policy. Ex dolo malo non oritur actio.4 A Civil Court has got jurisdiction in respect of all civil matters except those of which tribunals are constituted under special statutes; and such tribunals have limited jurisdiction. Whether a court has jurisdiction or not has to be decided with reference to the initial assumption of jurisdiction by that court. Whenever the jurisdiction of the court is challenged, the court has inherent jurisdiction to decide the said question. Every court or tribunal is not only entitled but bound to determine whether the matter in which it is asked to exercise its jurisdiction comes within its jurisdiction or not.

Types of Jurisdiction of Courts

The term jurisdiction has not been defined in the Code.5 But several provisions in the Civil Procedure Code6 speak of different kinds of jurisdiction of civil courts namely Sections 6, 9, 15 to 20 etc. The various types of jurisdiction are as follows:

Civil and Criminal jurisdiction

Civil jurisdiction is that which concerns and deals with disputes of a civil nature. Criminal jurisdiction relates to crimes and punishes offenders.

Territorial or local jurisdiction

Every Court has its own territorial limits of jurisdiction. This power is so vested for easy disposal of a matter. Extra territorial jurisdiction if granted will delay the process. Government fixes the local limits to be exercised by a Court. Every state has a High Court which is the higher judicial institution in the State. Every district will have a District Court which will have overall control of courts and cases in that particular district. Generally a Court does not have the authority to try cases beyond its territorial jurisdiction.

4
5

A.B.C. Laminart Pvt. Ltd. and Anr. v. A.P. Agencies, Salem, AIR 1989 SC 1239. The Code of Civil Procedure, 1908. 6 Ibid.

Pecuniary jurisdiction
Section 6 of the Code7 says that no court will get jurisdiction over suits where the amount or value of the subject-matter of which exceeds the pecuniary limits of its ordinary jurisdiction. The pecuniary limit of jurisdiction of a Munsiff Court is one lakh rupees. However the District Courts and High Courts do not have any pecuniary limits. These higher courts act generally as Courts of Appeal.

Subject Matter jurisdiction

Each Court is having separate powers to deal with particular cases. Writ jurisdiction is only vested with High Court and Supreme Court. Other lower courts cannot adjudicate a matter concerning writs. The District Court normally acts as an appellate Court to judgements passed by other lower courts. But it has ordinary original jurisdiction to entertain matters like copyright, insolvency, local fund audit, etc.

Original jurisdiction
Original jurisdiction is jurisdiction inherent in, or conferred upon, a court of first instance. In exercise of that jurisdiction, a court of first instance decides suits, petitions or applications.

Appellate jurisdiction
Appellate jurisdiction is the power or authority conferred upon a superior court to rehear by way of appeal, revision, etc., of causes which have been tried and decided by courts of original jurisdiction. Appeal from appeals or original judgments from the District Courts will be filed in the High Court. Special cases will go for appeal in the Supreme Court also. Supreme Court is the highest Court of Appeal in the country.

Foreign jurisdiction
Foreign jurisdiction means jurisdiction exercised by a court in a foreign country. A judgement rendered or decision given by a foreign court is a foreign judgement.

Section 6, The Code of Civil Procedure, 1908. 6. Pecuniary jurisdiction.- Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.

CHAPTER 2
Jurisdiction of Civil Courts
The right to institute a suit for enforcement of a civil right in some civil court of competent jurisdiction is a right inherent in a person under the general law which is incorporated in Section 9 of the Code of Civil Procedure.8 Generally speaking, civil courts can try all suits which involved the determination of any civil right. The civil court has inherent jurisdiction, unless a part of that jurisdiction is curbed from such jurisdiction, expressly or by necessary implication, by any statutory provision and is conferred on any other tribunal or authority.9 Thus a civil court has jurisdiction to try a suit if two conditions are satisfied: (i) The suit must be of a civil nature; and (ii) The cognizance of such suit should not have been expressly or impliedly barred. Civil nature means such rights as are vested in the citizen, and fall within the domain of private, and not of public law.10 Where there is a civil right there is a civil remedy that is to say, that the ordinary civil courts are the proper Tribunals to which resort must be had for the enforcement of a civil right, and that no wrong of a civil nature shall be without remedy in the Civil Court.11 According to Explanation I. of the section, 12 a suit in which the right to property or to an office is contested is cognizable by a civil court despite the fact that such right may depend entirely on decision of questions as to religious rites or ceremonies.13 The expensive nature of the section is demonstrated by use of phraseology both positive and negative. The earlier part opens the door widely and the latter debars the entry to only those which are expressly or impliedly barred. It is structured on the basic principle of a civilised jurisprudence that absence of machinery for enforcement of right renders it
8

Section 9, The Code of Civil Procedure, 1908. 9. Courts to try all civil suits unless barred.- 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. 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. 9 Sankar Narayana Potti v K.Sreedevi, (1998) 3 SCC 751. 10 Janata Janardan Shikshan Sanstha and Anr. v. Vasant P. Satpute, 1986 MhLJ 260. 11 Umesh Chandra, Woodroffe & Ameer Alis Commentary on The Code of Civil Procedure, 1908, (4th ED. : 2006) (Delhi Law House, New Delhi) at P.119. 12 See Supra n.8 13 Ramakrushna Mohapatra and Ors. v. Gangadhar Mohapatra and Ors., AIR 1958 Ori 26.

nugatory. Jurisdiction with reference to the subject-matter of dispute as distinguished from local jurisdiction means jurisdiction with reference to the nature of the claim made by the plaintiff.14 A litigant having a grievance of a civil nature has independently of any statute, a right to institute a suit in some court or unless its cognizance either expressly or impliedly barred. 15 The jurisdiction of the civil courts is all embracing except to the extent it is excluded by an express provision of law or by clear intendment arising from such law. This is the purport of Section 9 of the Code.16 Section 9 of the Code provides that Civil Court shall try all suits of civil nature, subject to pecuniary jurisdiction, unless their cognizance is expressly or by necessary implication is barred. Such suit would not be maintainable. It is true that ordinarily, the Civil Court has jurisdiction to go into and try the disputed questions of civil nature where the fundamental fairness of procedure has been violated.17

Classes of Suits
The suits can be divided into two classes (1) those of a civil nature, and (2) those not of a civil nature. It is only the former suits that a civil court has jurisdiction to entertain. A civil court cannot entertain a suit which is not of a civil nature.

Suits of a Civil Nature

The word civil has not been defined in the code. According to the dictionary meaning, it pertains to private rights and remedies of a citizen as distinguished from criminal, political, etc. the word nature has been defined as the fundamental qualities of a person or thing; identity or essential character; sort, kind, character. It is thus wider in content. A suit is of a civil nature if the principal question therein relates to a civil or legal right. It is not the status of the parties to the suit, but the subject matter of it which determines whether or not the suit is of a civil nature. If the principal or only question in the suit is a caste question or a question relating to religious rites or ceremonies, the suit is not of a civil nature for it deals not with the rights of the citizen but with matters that are purely social. Conversely when, (1) a caste question or a
14

See Umesh Chandra, Supra n.11, at P.120 Most. Rev. P.M.A. Metropolitan and Ors. v. Moran Mar Marthoma and Anr., AIR 1995 SC 2001. 16 Dhulabhai and Ors. v. The State of Madhya Pradesh and Anr., AIR 1969 SC 78 17 Sarkar Amit, Sarkars Commentary on The Code of Civil Procedure, 1908, (2nd ED. : 2008) (Dwivedi Law Agency, Allahabad) at P.144.
15

question relating to religious rites or ceremonies is not the principal question in the suit, but is merely a subsidiary question, and (2) the principal question is of a civil nature, and (3) the principal question, which is of a civil nature, cannot be determined without deciding the caste question or the question relating to religious rites or ceremonies, the court has the power to decide the caste question or the question relating to religious rites or ceremonies, to enable it to decide the principal question.18 According to Explanation II of the section,19 a suit relating to a religious office is maintainable whether or not it carries any fees or whether or not it is attached to a particular place. A few exemplifications of suits that are of a civil nature are as follows: Suits relating to rights to property; Suits relating to rights of worship; Suits relating to taking out of religious procession; Suits relating to right to share in offerings; Suits for damages for civil wrongs; Suits for specific performance of contracts or for damages for breach of contracts; Suits for specific reliefs; Suits for restitution of conjugal rights; Suits for dissolution of marriages; Suits for rent; Suits for rights to hereditary offices; Suits against wrongful dismissal from service and for salaries;

Suits Not of a Civil Nature

A suit in which the principal question relates to caste or religion is not a suit of a civil nature. The best description of caste is given in Nagindas Narandas Lavar v. Somnath Premchand Lavar,20 as follows: The caste is a social combination, the members of which are enlisted by birth, not by enrolment. Its rules consist partly of resolutions passed from time to time, but for the most part of usages handed down from generation to generation. The
18

Ramakrushna Mohapatra and Ors. v. Gangadhar Mohapatra and Ors., AIR 1958 Ori 26; His Holiness Peria Kovil Kelvi Appan Thiruvenkata Ramanuja Pedda Jiyyangarlu Varlu v. Prathivathi Bhayankaram Venkatacharlu and Ors. AIR 1947 PC 53. 19 See Supra n.8 20 Nagindas Narandas Lavar v. Somnath Premchand Lavar, AIR 1932 Bom 122

caste is not a religious body, though its usages, like all other Hindu usages, are based upon religious feelings. In religious matters, strictly so called the members of the caste are guided by their religious preceptors and their spiritual heads. In social matters they lay down their own laws. A suit as to religious rites or ceremonies, which involves no question of the right to property or to an office is to an office is to a suit of a civil nature within the meaning of the section and is not within the jurisdiction of a Civil Court. A few exemplifications of suits that are not of a civil nature are as follows: Suits involving principally caste questions; Suits involving purely religious rites or ceremonies; Suits for upholding mere dignity or honour; Suits for recovery of voluntary payments or offerings; Suits against expulsions from caste;

Cognizance of Suits Not Barred

Under Section 9 of the Code, a Civil Court can entertain a suit of a civil nature except a suit of which its cognizance is expressly or impliedly barred. It is settled principle that it is for the party who seeks to oust the jurisdiction of the Civil Court to establish his contention. It is also equally established well settled that a statute ousting the jurisdiction of the Civil Court must be strictly construed.21

Suits Expressly Barred

Expressly barred, means barred by the any enactment for the time being in force passed by the Legislature.22 It is open to the State Legislature to bar the jurisdiction of Civil Court with respect to particular class of suits, provided in doing so it keeps within the field of legislation confided to its charge, and does not contravene any provision of the Constitution Article.23 If the right has got to be taken away, that must be taken away by express terms or by necessary implication. The general power vested in the courts of India under the Civil Procedure Code to entertain suits of a civil nature excepting suits of which cognizance is barred by any enactment for the time being in force does not carry with it the general power

21 22

Abdul Waheed Khan v. Bhawani and Ors., AIR 1966 SC 1718. Shri Sukhdev Chand, Asst. CIT, Acquisition Range vs. Shri Kashmir Singh Bhullar and Ors., (1984) 42 CTR (P&H) 345 23 A.P.S.E.B Rept by Chairman v C.Subhadramma, 1983 LS (A.P) 66.

of making declaration except in so far as such power is expressly conferred by statute.24 If there is any doubt about the ousting of jurisdiction of a civil court, the court will lean to an interpretation which would maintain the jurisdiction.25 Thus, matters falling within the exclusive jurisdiction of revenue courts or under the code of criminal procedure or matters dealt with by special tribunals under the relevant statutes, or by domestic tribunals, are expressly barred from the cognizance of a civil court. But if the remedy provided by a statute is not adequate and all questions cannot be decided by a special tribunal, the jurisdiction of a civil court is not barred.26 Similarly, when a court of limited jurisdiction prima facie and incidentally states something, the jurisdiction of a civil court to finally decide the time is not ousted.27

Suits Impliedly Barred

Impliedly barred means barred by general principles of law and equity or on ground of public policy.28 Where a specific remedy is given by a statute, it thereby deprives the person who insists upon a remedy of any other form than that given by the statute. 29 Where an act creates an obligation and enforces its performance in a specified manner, that performance cannot be enforced in any other manner. Similarly, certain suits, though of a civil nature, are barred from thee cognizance of a civil court on the ground of public policy.30 The principle underlying is that a court ought not to countenance matters which are injurious to and against the public weal.31 Thus, no suit shall lie for recovery of costs incurred in criminal prosecution or for enforcement of a right upon a contract hit by section 23 of the Indian Contract Act, 1872; or against any judge for acts done in the course of his duties. Similarly, political questions belonging to the domain of public administrative law and are outside the jurisdiction of civil courts. A civil court has no jurisdiction to adjudicate upon disputes of a political nature.

24 25

Bai Shri Vaktuba and Ranjitsinghji Agarsingji v. Agarsingji Raisingji, (1910) 12 BOMLR 697. Dhulabhai and Ors. v. The State of Madhya Pradesh and Anr., AIR 1969 SC 78. 26 State of Tamil Nadu v. Ramalinga Samigal Madam, AIR 1986 SC 794. 27 Life Insurance Corporation of India v. Indian Automobiles and Co. and Ors., AIR 1991 SC 884. 28 Jodhi Singh and Ors. v. Vedabarat Sharma Arya alias Mauji Singh and Ors., AIR 1956 Pat 205.
29

Punjab State Electricity Board and Anr. v. Ashwani Kumar, (1997) 5 SCC 120; The Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke of Bombay and Ors., AIR 1975 SC 2238. 30 The Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke of Bombay and Ors., AIR 1975 SC 2238. 31 Union of India v. Ram Chand Beli Ram, AIR 1955 P&H 166

General Principles of Jurisdiction of Civil Court

The general principles relating to jurisdiction of a civil court emerging from various decisions of the Supreme Court can be summarized as follows:32 A civil court has jurisdiction to try all suits of a civil nature unless their cognizance is barred either expressly or impliedly. Consent can neither confer nor take away jurisdiction of a court. A decree passed by a court without jurisdiction is a nullity and the validity thereof can be challenged at any stage of the proceedings, in execution proceedings or even in collateral proceedings. There is a distinction between want of jurisdiction and irregular exercise thereof. Every court has inherent power to decide the question of its own jurisdiction. Jurisdiction of a court depends upon the averments made in a plaint and not upon the defence in a written statement. For deciding jurisdiction of a court, substance of a matter and not its form is important. Every presumption should be made in favour of jurisdiction of a civil court. A statute ousting jurisdiction of a court must be strictly construed. Burden of proof of exclusion of jurisdiction of a court is on the party who asserts it. Even where jurisdiction of a civil court is barred, it can still decide whether the provisions of an act have been complied with or whether an order was passed de hors the provisions of law.

32

C.K. Takwani, Civil Procedure, (6th ED. : 2011) (Eastern Law House New Delhi) at P.61.

CHAPTER 3
3.1 Ouster Clause: Meaning and Scope
An Ouster or Finality Claus is a provision in an Act of Parliament to restrict or eliminate judicial review in the interests of the smooth administration of justice. Parliament uses these clauses to bring finality to decisions that they wish to be determined in the way they have laid down without delays or without an interpretation that does not meet the political expectations of the executive. Ouster clauses are sections of legislation that allow Parliament to deny members of the public the right to have decisions reviewed by the courts, in the public interest. It is sometimes provided by a particular statute that a decision taken under it shall be final, or shall be final and conclusive, or shall not be appealable, or shall not be questioned in any legal proceedings whatsoever. Such expressions are known as finality or ouster clauses because they make the original decision final by attempting to oust the jurisdiction of the courts.33

3.1.1 Classifications
Ouster clauses may be classified under three heads: 1. Constitutional ouster clauses; 2. Statutory ouster clauses; 3. Non-statutory ouster clauses; A constitutional ouster clause is usually found in modern written constitutions, where a provision of the constitution would aim at ousting or restraining the jurisdiction of the courts on certain matters. When a statute ousts or restrains the jurisdiction of the courts in respect of certain matters the ouster is referred to as statutory ouster clause. Apart from constitutions or statues, an agreement or treaty or the rules of a voluntary organization may contain clauses that may be treated non-statutory ouster clauses. In considering a non-statutory ouster clause a contract was held to be illegal on the ground of public policy, in so far as it terms forbade the parties to seek remedy in a court of law.34 In Baker v. Jones,35 the court held that a provision in the rules of a voluntary

33

See Zoe Kirk-Robinson, Ouster Clauses in English Law, http://www.suite101.com/content/ousterclauses-in-english-law-a161264 (Last Visited : Mar. 27, 2011). 34 Bennett v. Bennett, [1952] 1 KB 249. 35 Baker v. Jones, (1954) 1 WLR 1005.

10

association making its governing council the sole and ultimate arbiter on the legal construction of the rules of the association was contrary to public policy and thus void.

A Valid Ouster Jurisdiction Clause

A statute may confer exclusive jurisdiction on the authorities constituting the machinery to decide finally a jurisdictional fact thereby excluding by necessary implication the jurisdiction of a civil court in that regard. But an authority created by a statute cannot question the vires of that statute or any of the provisions thereof where under it functions. 36 It must act under the Act and not outside it. If it acts on the basis of a provision of the statute, which it ultra vires, to that extent it would be acting outside the Act. In that event, a suit to question the validity of such an order made outside the Act, would certainly lie in a civil court.37 A statute ousting jurisdiction of civil court must be strictly construed; the expensive nature of Section 9 is demonstrated by use of phraseology both positive and negative. 38 From the different sections enacted under the Civil Procedure Code and the various decisions of the court it is explicit that more than one court may have jurisdiction in respect of the same subject matter as per the circumstances of the particular case. In such a situation, the parties may enter into an agreement and confer exclusive jurisdiction on one of the Courts, and at the same time oust the jurisdiction of other Courts, which may also have jurisdiction on the subject matter as provided in the Code. There are number of decisions of the Apex Court wherein it was held that where there may be two or more competent courts which can entertain a suit consequent upon a part of the cause of action having arisen therein, if the parties to the contract agree to vest jurisdiction in one such court to try the dispute which might arise as between themselves, such agreement would be valid and binding.39 In A.B.C. Laminart Pvt. Ltd. and Anr. v. A.P. Agencies, Salem,40 the Court stated thus; From the foregoing decisions it can be reasonably deduced that where such an ouster clause occurs, it is pertinent to see whether there is ouster of jurisdiction of other courts. When the clause is clear, unambiguous and specific
36

See Sarkar Amit, Supra n.17, at P.140. K. S. Venkataraman & Co. v. State of Madras, AIR 1966 SC 1089. 38 Ramesh Dwarkadas Mehra v. Indravati Dwarkadas Mehra, AIR 2001 Bom 470. 39 Rajasthan State Electricity Board v. Universal Petro Chemicals Ltd., (2009) 3 SCC 107; Shree Baidyanath Ayurved Bhawan Pvt. Ltd. v. Praveen Bhatia and Ors., (2009) 8 SCC 779; Piramal Healthcare Limited v. Dia Sorin S.P.A., 172 (2010) DLT 131. 40 A.B.C. Laminart Pvt. Ltd. and Anr. v. A.P. Agencies, Salem, AIR 1989 SC 1239.
37

11

accepted notions of contract would bind the parties and unless the absence of ad idem can be shown, the other courts should avoid exercising jurisdiction. As regards construction of the ouster clause when words like alone, only, exclusive and the like have been used there may be no difficulty. Even without such words in appropriate cases the maxim expressio unius est exclusio alterius -- expression of one is the exclusion of another -- may be applied. What is an appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another. When certain jurisdiction is specified in a contract an intention to exclude all others from its operation may in such cases be inferred. It has therefore to be properly construed. In light of the law explained by the Supreme Court in the above stated case,41 the wording of the ouster clause is unambiguous particularly when it uses words like exclusive, alone and the like. In those circumstances, no option is left to the court to still assert its jurisdiction. Once an ouster clause is clear that it is only the particular court will have the jurisdiction, it is not possible to ignore such a clause and still say that since a part of the cause of action has arisen within the territorial jurisdiction of this court, this suit should be entertained. But the mere fact that a special statute provides for certain remedies may not by itself necessarily exclude the jurisdiction of the civil courts to deal with a case brought before it in respect of some of the matters covered by the said statute. 42 A suit in the civil court will always lie to question the order of a tribunal created by a statute, even if it is, expressly or by necessary implication, made final, if the said provision abuses its power or does not act upon the act but in violation of its provisions. It is equally well established that civil courts have power to entertain a suit in which the question is whether the executive authority has acted ultra vires its power.43 It is for the party who seeks to oust the jurisdiction of the civil court to establish his contention.44 Therefore the aforementioned principles declared by Supreme Court and the other courts should be kept in view while drafting a jurisdiction ouster clause otherwise the jurisdiction ouster clause may not be enforceable.

41 42

Ibid. I.S Chetty & Sons v. State of Andhra Pradesh, AIR 1964 SC 322. 43 K. S. Venkataraman & Co. v. State of Madras, AIR 1966 SC 1089. 44 Abdul Waheed Khan v. Bhawani and Ors., AIR 1966 SC 1718.

12

Ousting Jurisdiction and Statute

If a right or liability is created by a statute, then the statute may create a specific forum for its enforcement. In such a case, the question whether the civil courts jurisdiction is impliedly excluded within the meaning of the Section 9 of the Code is one of statutory construction. If the right is a new one, ouster may be inferred.45 The principles regarding the exclusion of civil courts jurisdiction as summarized in Dhulabhai and Ors. v. The State of Madhya Pradesh and Anr.,46 maybe stated as follows: 1. Where the statute gives finality to the orders of the special tribunals the Civil Court's jurisdiction must be held to be 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. 2. 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 or the sufficiency 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. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statue or not. 3. Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. 4. When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. 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.
45

Vinay Kumar Gupta, Mulla Code of Civil Procedure (Abridged) (14th ED. : 2010) (Lexis Nexis Butterworths Wadhwa, Nagpur) at P.44. 46 Dhulabhai and Ors. v. The State of Madhya Pradesh and Anr., AIR 1969 SC 78.

13

5. Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies. 6. Questions 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 a relevant enquiry. 7. An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.

Ouster of Jurisdiction of Civil Courts by Statutes

It is well settled that the jurisdiction of a civil court and the provisions of the Act enforceable therein may be excluded by the clear implication arising from the scheme of an Act. This is more so when the legislature sets up a special forum for determining the disputes and the rights and liabilities of the disputes and the rights and liabilities of the parties under the statute itself.47 Where a right is created by statute which also prescribes the manner in which the right may be enforced, the party complaining of any infringement of such right can only seek such remedy as is provided by that statute. When a plea of ouster of the civil courts jurisdiction is taken the essential question to determine is whether such jurisdiction is barred expressly or by necessary implication.48 Where there is no provision in the statute that the civil courts have no jurisdiction to entertain the suit the question falling for decision is whether on true construction of the various provisions contained in that statute it can be held that the jurisdiction of the civil court is impliedly barred.49

3.4.1 Bar under the Civil Liability for Nuclear Damage Bill, 2010
The Clause 35 of the proposed Act in the Civil Liability for Nuclear Damage Bill, 2010 contains provisions for exclusion of jurisdiction of civil courts, it provides that no civil court shall have jurisdiction to entertain any suit or proceedings in respect of which the Claims Commissioner or the Nuclear Damage Claims Commission is empowered to adjudicate under the proposed legislation and no injunction shall be granted by any court or other authority in

47 48

See Umesh Chandra, Supra n.11, at P.136. See Umesh Chandra, Supra n.11, at P.156-157. 49 Sultan Ali Nanghiana v. Nur Hussain, AIR 1949 Lah 131.

14

respect of any action taken or to be taken in pursuance of any power conferred by or under the proposed legislation.

3.4.2 Bar under the Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010
The Clause 20 of the proposed Act in the Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010 provides for exclusion of jurisdiction of civil courts. It provides that no civil court shall have jurisdiction in respect of any matter which the Competent Authority is empowered by or under the proposed legislation to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the proposed legislation.

3.4.3 Bar under the Educational Tribunals Bill, 2010

The Section 47 of the proposed Act in the Educational Tribunals Bill, 2010 Educational Tribunals Act, 2010 contains provisions for exclusion of jurisdiction of civil courts, it provides that no civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the State Educational Tribunal or the National Educational Tribunal is empowered by or under the proposed legislation to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by the proposed legislation.

3.4.4 Bar under the Industrial Disputes Act, 1947

The principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute under the Industrial Disputes Act, 1947 may be stated as:50 1. If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil Court. 2. If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy. 3. If the industrial dispute relates to the enforcement of a right or an obligation created under the Act then the only remedy available to the suitor is to get an adjudication under the Act.

50

The Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke of Bombay and Ors., AIR 1975 SC 2238;

15

4. If the right which is sought to be enforced is a right created under the Act such as Chapter VA then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute as the case may be.

Conclusion
A judgement passed by a court without jurisdiction is ultra vires or illegal which cannot be enforced. Section 9 of the Civil Procedure Code primarily deals with the question of civil courts jurisdiction to entertain a case. It states that civil court has jurisdiction to entertain a suit of civil nature except when its cognizance is expressly barred or barred by necessary implication. Civil court has jurisdiction to decide the question of its jurisdiction although as a result of the enquiry it may eventually turn out that it has no jurisdiction over the matter. Civil court has jurisdiction to examine whether tribunal and quasi- judicial bodies or statutory authority acted within their jurisdiction. But once it is found that such authority had initial jurisdiction, then any erroneous order by the authority is not open to collateral attack in a suit. This is because there is an essential and marked distinction between the cases in which courts lack jurisdiction to try cases and where jurisdiction is irregularly exercised by courts. Thus the general rule is that if the court rendering a judgement suffers from want of jurisdiction then its judgement is nullity and may be ignored.

16

BIBILIOGRAPHY
Books
1. 2. 3. 4. C.K. Takwani, Civil Procedure, (6th ED. : 2011) (Eastern Law House New Delhi) Sarkar Amit, Sarkars Commentary on The Code of Civil Procedure, 1908, (2nd ED. : 2008) (Dwivedi Law Agency, Allahabad) Umesh Chandra, Woodroffe & Ameer Alis Commentary on The Code of Civil Procedure, 1908, (4th ED. : 2006) (Delhi Law House, New Delhi) Vinay Kumar Gupta, Mulla Code of Civil Procedure (Abridged) (14th ED. : 2010) (Lexis Nexis Butterworths Wadhwa, Nagpur)

Articles
1 See Zoe Kirk-Robinson, Ouster Clauses in English Law, http://www.suite101.com/content/ouster-clauses-in-english-law-a161264 (Last Visited : Mar. 27, 2011). 2 Nigel P. Gravel, Time Limit Clauses and Judicial Review. Some Second Thoughts, http://www.jstor.org/stable/1095798, (Last Visited : Mar. 26, 2011) 3 Henry P. de Vries, Jurisdiction in Civil Law Countries, http://www.heinonline.org : 55 A.B.A. J. 246 1969, (Last Visited : Mar. 15, 2011) 4 M.A. Fazal, Effectiveness of Ouster Clause in India, http://www.jstor.org/stable/312203, (Last Visited : Mar. 17, 2011)

IV