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Section 9 CPC

Section 9 of CPC
• Section-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.—As 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 Il— 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.
1. The Courts
• Defintion of Court:
• Generally speaking, A court is any person or institution, often as a government institution, with
the authority to adjudicate legal disputes between parties and carry out the administration of
justice in civil, criminal, and administrative matters in accordance with the rule of law
• The ‘Court’ is not defined anywhere in CPC, 1908
• The definition of the word ‘court’ can be found in S.3 of Indian Evidence Act and S. 2(e) of
Arbitration & Conciliation Act, 1996 which are reproduced below:
S.3 IEA “Court” —“Court” includes all Judges and Magistrates, and all persons, except arbitrators,
legally authorized to take evidence.
2(e) of Arbitration & Conciliation Act “Court” means the principal Civil Court of original jurisdiction
in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having
jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had
been the subject-matter of a suit, but does not include any civil court of a grade inferior to such
principal Civil Court, or any Court of Small Causes;
However these definitions cannot be made applicable to CPC, 1908
• To under stand the meaning of ‘courts’ under CPC S.3, 4, 5, 7, 8 are relevant.
1. The Courts
CPC S.3, 4, 5, 7, 8
3. Subordination of Courts.- For the purposes of this Code, the District Court is
subordinate to the High Court, and every Civil Court of a grade inferior to that of a
District Court and every Court of Small Causes is subordinate to the High Court and
District Court.
4.Savings.-
(1) In the absence of any specific provision to the contrary, nothing in this Code shall
be deemed to limit or otherwise affect any special or local law now in force or any
special Jurisdiction or power conferred, or any special form of procedure prescribed,
by or under any other law for the time being in force.
(2) In particular and without prejudice to the generality of the proposition contained in
sub-section (1), nothing in this Code shall be deemed to limit or otherwise affect any
remedy which a landholder or landlord may have under any law for the time being in
force for the recovery of rent of agricultural land from the produce of such land.
1. The Courts
5.Application of the Code to Revenue Courts.-
(1) Where any Revenue Courts are governed by the provisions of this Code in
those matters of procedure upon which any special enactment applicable to
them is silent, the State Government may, by notification in the Official Gazette,
declare that any portions of those provisions which are not expressly made
applicable by this Code shall not apply to those Courts, or shall only apply to
them with such modifications as the State Government may prescribe.
(2) "Revenue Court" in sub-section (1) means a Court having jurisdiction under
any local law to entertain suits or other proceedings relating to the rent, revenue
or profits of land used for agricultural purposes, but does not include a Civil Court
having original jurisdiction under this Code to try such suits or proceedings as
being suits or proceedings of a civil nature.
1. The Courts
CPC S.3, 4, 5, 7, 8
7.Provincial Small Cause Courts.- The following provisions shall not extend to Courts
constituted under the Provincial Small Cause Courts Act, 1887, or under the Berar Small
Cause Courts Law, 1905, or to Courts exercising the jurisdiction of a Court of Small Causes
under the said Act or Law, or to Courts in Part B States exercising a corresponding jurisdiction
that is to say,-
(a) so much of the body of the Code as relates to-
(i) suits excepted from the cognizance of a Court of Small Causes;
(ii) the execution of decrees in such suits;
(iii) the execution of decrees against immovable property; and
(b) the following sections, that is to say- section 9, sections 91 and 92, sections 94 and 95 so
far as they authorize or relate to-
(i) orders for the attachment of immovable property,
(ii) injunctions,
(iii) the appointment of a receiver of immovable property, or
(iv) the interlocutory orders referred to in clause (e) of section 94], and sections 96 to 112 and 115.
1. The Courts
CPC S.3, 4, 5, 7, 8
8.Presidency Small Cause Courts.-Save as provided in sections 24, 38 to 41, 75, clauses (a),
(b) and (c), 76, 77 and 155 to 158, and by the Presidency Small Cause Courts Act, 1882, 15
of 1882 the provisions in the body of this Code shall not extend to any suit or proceeding
in any Court of Small Causes established in the towns of Calcutta, Madras and Bombay:
Provided that—
(1) the High Courts of Judicature at Fort William, Madras and Bombay, as the case may be,
may from time to time, by notification in the Official Gazette, that any such provisions not
inconsistent with the express provisions of the Presidency Small Cause Courts Act, 1882,15
of 1882 and with such modifications and adaptations as may be specified in the
notification, shall extend to suits or proceedings or any class of suits or proceedings in
such Court;
(2) all rules heretofore made by any of the said High Courts under section 9 of the
Presidency Small Cause Courts Act, 1882,15 of 1882 shall be deemed to have been validly
made.
Shall Have
• The words ‘the courts shall have jurisdiction” makes it clear that the civil courts
have inherent jurisdiction in all types of civil disputes unless barred. Thus right
to file a civil suit is an inherent right.
• The words ‘shall have’ means the presumption is in favour of the jurisdiction of
the court and thus the party seeking to oust the jurisdiction shall establish its
right to do so i.e. burden of proof is on the party who denies the jurisdiction.
• As per S.21 of CPC the objection as to jurisdiction must be raised at the earliest
possible opportunity.
• Procedural Aspect: Order 7 Rule 10. Where the party denying the jurisdiction
establishes that the court do not have jurisdiction in such case the court shall
return the plaint.
Jurisdiction to try
• The word ‘jurisdiction’ means any area over which one can exercise his authority.
• Kinds of Jurisdiction:
1. Territorial or local jurisdiction.
2. Pecuniary jurisdiction.
3. Subject matter jurisdiction.
4. Original and appellate jurisdiction.
• Whenever the suit is instituted before the court the initial issue is to decide whether the court
has jurisdiction to deal with the matter. If the court has all the three territorial, pecuniary or
subject matter jurisdiction then simply the court has the power to deal with any of the cases. If
the court does not have any of the jurisdiction then it will be recognized as lack of jurisdiction and
irregular exercise of jurisdiction. When the court does not have jurisdiction to decide the case
then such decision will be regarded as void (lack of subject matter jurisdiction) or voidable (lack of
territorial or pecuniary jurisdiction) depending upon the circumstances.
• Jurisdiction is determined mainly on the grounds of:
• Fiscal value;
• Geographical boundaries of a court;
• The subject matter of court.
All suits of Civil Nature
• The word ‘jurisdiction’ means any area over which one can exercise his authority.
• Kinds of Jurisdiction:
1. Territorial or local jurisdiction.
2. Pecuniary jurisdiction.
3. Subject matter jurisdiction.
4. Original and appellate jurisdiction.
• Whenever the suit is instituted before the court the initial issue is to decide whether the court
has jurisdiction to deal with the matter. If the court has all the three territorial, pecuniary or
subject matter jurisdiction then simply the court has the power to deal with any of the cases. If
the court does not have any of the jurisdiction then it will be recognized as lack of jurisdiction and
irregular exercise of jurisdiction. When the court does not have jurisdiction to decide the case
then such decision will be regarded as void (lack of subject matter jurisdiction) or voidable (lack of
territorial or pecuniary jurisdiction) depending upon the circumstances.
• Jurisdiction is determined mainly on the grounds of:
• Fiscal value;
• Geographical boundaries of a court;
• The subject matter of court.
PMA Metropolitan v. M.M. Marthoma AIR 1995 SC 2001
• explaining the concept of jurisdiction of civil courts under section 9, the supreme court stated:
• “the expensive nature of the section is demonstrated by use of phraseology both positive and negative. The earlier part opens
the door widely and latter debars entry to only those which are expressly or impliedly barred. The two explanations, one
existing from inception and later added in 1976, bring out clearly the legislative intention of extending operation of the section
to religious matters where right to property or office is involved irrespective of whether any fee is attached to the office or not.
The language used is simple but explicit and clear. It is structured on the basic of a civilized jurisprudence that absence of
machinery for enforcement of right renders it nugatory. The heading which is normally a key to the section brings out
unequivocally that all civil suits are cognizable unless bared. What is meant by it is explained further by widening the ambit of
the section by use of the word ‘shall’ and the expression ‘all suits of a civil nature unless expressly or impliedly barred’.
• Each word and expression casts an obligation on the court to exercise jurisdiction for enforcement of rights. The word shall
makes it mandatory. No court can refuse to entertain a suit if it is of the description mentioned in the section. That is amplified
by the use of the expression. ‘ all suits of civil nature’. The word civil according to the dictionary means, relating to the citizen as
an individual; civil rights.’ In Black’s legal dictionary it is defined as, ‘ relating to provide rights and remedies sought by civil
actions as contrasted with criminal proceedings’. In law it is understood as an antonym of criminal. Historically the two broad
classifications were civil and criminal. Revenue, tax and company etc. were added to it later. But they too pertain to the larger
family of civil. There is thus no doubt about the width of the word civil. Its width has been stretched further by using the word
nature along with it. That is even those suits are cognizable which are not only civil but are even of civil nature….
• The word ‘nature’ has defined as ‘the fundamental qualities of a person or thing; identity or essential character,
sort;kind;charachter’. It is thus wider in content. The word ‘civil nature’ is wider that the word ‘civil proceeding’. The section
would, therefore, be available in every case where the dispute was of the characteristics of affecting one’s rights which are not
only civil but of civil nature.”
Q. Whether following suits are cognizable by civil court :-

• (A) Suit for dismissal from post of honorary secretary of an association.


• (A) Suit for dismissal from post of honorary secretary of an association is not suit of civil nature within
the meaning of Section 9.
• (B) Suit for exclusion of a member from caste.
• (B) Suit for exclusion of a member from a caste is a one cognizable by civil court because exclusion of
some one from his caste, affects his legal right.
• (C) Suit to set aside the election of directors.
• (C) Suit to set aside the election of director's is suit of civil nature because in such suit, legal right of
some one for being appointed as "Directors' is challenged.
• (D) Proceedings for dissolution of Muslim marriage.
• (D) Proceeding for dissolution of Muslim marriage is purely a suit of civil nature.
• (E) Claim by Swami to be carried out in palanquin on high road of Town on a occasion.
• (E) Claim of any Swami to be carried out in palanquin is not a suit of civil nature, because, it does not
involve any legal right of Swami but claim is mark of honour.
• (F) Suit relating to caste property.
• (F) Suit for inspection of accounts of caste property is a civil nature, as every member of cast is entitled
to inspect account books at all reasonable times on demand.
[Convinio Shopping Nine 2 Nine v. Olympia Opaline Owners Assn., 2019 SCC OnLine Mad
646 :-
• Court cannot suo motu return a suit at threshold on the ground that parties had agreed to refer all disputes to arbitration
• held that Section 8 of the Arbitration Conciliation Act, 1996 clearly indicate that the role of judicial authority to refer parties to
arbitration arises only upon an application being made by a party to the arbitration agreement.
• The High Court was faced with a very interesting question: “Whether the Civil Court can act at the threshold in returning/rejecting
a Plaint without numbering the suit on the ground that the parties have entered into an Agreement to refer the disputes to
arbitration?”
• In the present case, there existed a Lease Agreement between the parties. As per Clause 19 of the Agreement, all disputed arising
between the parties were to be resolved under the A&C Act. Subsequently, a dispute arose between the parties. The petitioner filed
a suit before the District Munsif who returned the suit at the very threshold, observing on the basis of Clause 19 that “this Court
does not have jurisdiction to entertain this suit. Hence, this plaint is returned.” Aggrieved thereby, the petitioner approached the
High Court.
• The High Court referred to Section 9 CPC (courts to try all suits unless barred) and observed Civil Court have to try all suits of civil
nature except those suits which have been specifically barred under provisions of some Acts or impliedly barred. Therefore, the
Court perused Section 8 of the A&C Act (power to refer parties to arbitration where there is an arbitration agreement).
• Relying on the decision in P. Anand Gajapathi Raju v. P.V.G. Raju, 2000 (4) SCC 539 and Ameet Lalchand Shah v. Rishabh Enterprises,
2018 SCC OnLine SC 487, the Court observed, “a reading of Section 8 would clearly indicate that the role of the Judicial authority to
refer parties to arbitration will arise only upon an application being made by a party to the arbitration agreement or a person
claiming under or through him. This window is given only to enable the defendant who is not desirous of having the dispute settled
by arbitration to waive his right for having the dispute referred to arbitration. Therefore, from a reading of the above, it is very clear
that a Judicial authority cannot suo moto return/reject a suit on the ground that the parties to the suit have agreed to refer all their
disputes to arbitration at the threshold when the case is filed.”
• It was further observed that under the A&C Act, there is no total ouster of jurisdiction of Civil Courts unlike in cases arising under
the SARFAESI Act, Motor Vehicles Act, etc. Resultantly, the petition was disposed of by directing the District Munsif to number the
suit forthwith on the petitioner resubmitting the returned papers along with the copy of orders.,

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