Wherein it was held that the court trying the subsequent suit is not competent to enter into the question, whether the court which granted the plaintiff permission to withdraw the first suit with liberty to bring a fresh suit had properly made such order. [Mookeijee C.J.] Hriday Nath Roy v. Ram Chandra Barna Sarma, AIR (1921) Cal 34, 36, ILR 48 Cal 134, 140 – 50 (FB)
(a) Meaning of Jurisdiction
In the order of reference to a Full Bench in the case of Sukhlal v Tara Chand, ILR 33 Cal 68, 71.
It was stated that jurisdiction may be defined to be the power of .i court to hear and determine a cause, to adjudicate and exercise any judicial (tower in relation to it; in other words, by jurisdiction is meant the authority by which a court has to decide matters that are litigated before it or to take cognisance of matters prescribed in a formal way for its decision. An examination of the cases in the books discloses numerous attempts to define the term ‘jurisdiction’, which hns been st.ited to be •the power to hear and determine issues of law and fact’; ‘that authority by which the judicial officers take cognisance of and decide causes’; ‘the authority to hear and decide a legal controversy’; ‘the power.to hear and determine the subject-matter in controversy between parties to a suit and to adjudicate or exercise any judicial power over them’; ‘the power to hear, determine and pronounce judgment on the issues before the court’; ‘the power or authority which is conferred upon a court by the legislature to hear and determine causes between parties and to carry the judgments Into effect’; ‘the power to inquire into the facts, to apply the law, to pronounce the judgment and to carry it into execution’. Aslutosh v. Behari Lal, ILK 35 Cal 61; Gurdeo v. Chtmdrikn, ILR 36 Cal 193
The jurisdiction of the court may be qualified or restricted by a variety of circumstances. Thus, the jurisdiction may have to be considered with reference to place, value and nature of the subject matter. The power of a tribunal may be exercised within defined territorial limits. Its cognisance may be restricted to subject matter of prescribed value. It may be competent to deal with controversies of a specified character, for instance, testamentary or matrimonial causes, acquisition of land for public purposes, record of rights as between landlords and tenants. This classification into territorial jurisdiction, pecuniary jurisdiction and jurisdiction of the subject matter, is obviously of a fundamental character. Given such jurisdiction, we must be careful to distinguish exercise of jurisdiction from existence’of jurisdiction; for fundamentally different are the consequences of failure to comply with statutory requirements in the assumption and in the exercise of jurisdiction. The authority to decide a cause at all and not the decision rendered therein is what makes up jurisdiction; and when there is jurisdiction of the person and subject matter, the decision of all other questions arising in the case is but an exercise of that jurisdiction. The extent to which the conditions essential for creating and reassign the jurisdiction of a court or the restraints attaching to the mode of exercise of that jurisdiction, should be included in the conception of jurisdiction itself, is sometimes a question of great nicety. Sukhlal v Tara Chand, ILR 33 Cal 68; Khosh Mnhommnd v Nazir Mnliommnd, ILR 33 Cal 352; Raghunath v Sunder Das, ILR 42 Cal 72, 83
The distinction between existence of jurisdiction and exercise of jurisdiction has not always been borne in mind and this has sometimes led lo confusion. Mabulla v Hemangini, 11 CLJ 512; Moser v. Marsden, (1892) 1 Ch 487 Thus, it must not overlook the cardinal position that in order that jurisdiction may be exercised, there must be a case legally before the court and a hearing as well as a determination. A judgment pronounced by a court without jurisdiction is void, subject to the well-known reservation that when the jurisdiction of a court is challenged, the court is competent to determine the question of jurisdiction, though the result of the enquiry may be that it has no jurisdiction to deal with the matter brought before it. Rashmoni v. Gynnodn, 19 CWN 84
Since jurisdiction is the power to hear and determine, it does not depend either upon the regularity of the exercise of that power or upon the correctness of the decision pronounced, for the power to decide necessarily carries with it the power to decide wrongly as well as rightly. [N. S. Bindra] N. S. Bindra, Interpretation of Statutes (8th Edition), p. 233
A court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not taken, the decision, however wrong, cannot be disturbed. [Lord Hobhouse] Malkarjun v Narhari, 27 IA 216, ILR 25 Bom 337, 347
It is the function of the legislature to enact the laws and the duty of the judiciary to interpret and enforce them. It is no doubt the characteristic of a good judge to amplify his jurisdiction where the words of the statute conferring the jurisdiction can reasonably be interpreted as giving him jurisdiction, where, however, jurisdiction can only be snatched by a strained interpretation of the law; the good judge becomes a bad citizen. Khudabux v. Panjo, AIR (1930) Sind 265, 271 (FB)
(b) Jurisdiction
The word ‘jurisdiction’ does not connote form or manner in which the act is to be done but relates to the power, the scope and the ambit of authority. Anwar Hussain v. Ajoy Kumar Mukherji, AIR (1959) Assam 28
(c) Jurisdiction Conferred and Taken Away Only by Law
INT
It is only by virtue of statutes that jurisdiction is conferred on courts, or taken away from them. In the absence of clear provisions, the ordinary rule of interpretation that a statute does not create new jurisdiction or enlarge existing ones, applies. Vyankatesh Dhonddev Deshpande v. Kusum Dattatray Kulkarni, (1976) Mah LJ 373 (DB) It cannot be impliedly affected by a statute which has nothing to do with jurisdiction. Official Liquidators, Dehra Dun-Mussooric Elcctric Tramway Co. v. Nabha State Regency, AIR (1936) All 826, 829 Exclusion of jurisdiction must be in express terms or by use of such terms as must lead to interference of such exclusion. Magiti Sasamal v. Pandab Bissoi, AIR (1962) SC 547 The requirement of venue is specified and unambiguous; it is not one of those vague principles which, in the interest of some overriding policy, is to be given a ‘liberal’ construction. Schnell v. Eckrich & Sons, 364 US 260, 5 L Ed 546, 550 PP
It is well-known that whenever the legislature wants to confer upon any specified authority the powers of a civil court in the matter of holding inquiries, specific provision is made in that behalf. Kasturi & Sons (Pvt) Ltd. v. N Salivatiswaran, AIR (1958) SC 507 The court will not favour an interpretation which has the effect of taking away the jurisdiction of the competent authority, unless the same is expressly provided for in law. M/s Coljax Laboratories Ltd. v. State of Goa, (1995) Goa LT 325 (DB)
(d) Consent cannot give Jurisdiction
The parties can, by mutual consent, no more take away a jurisdiction vested by law in any court than they can confer on it when it is not so vested by law. Maha Prasad v. Romani Mohan, AIR (1914) PC 140; Jagat Chandra v. Shyama Charan, AIR (1919) Cal 1033 – 34; Bepin Behary v. Mohit Kumar, AIR (1942) Cal 496
When a judge has no inherent jurisdiction over the subject-matter of a suit, the parties cannot confer jurisdiction on him by mutual consent, though they may constitute the judge their arbiter. Moreover, the right to object to the jurisdiction does not admit of waiver. Special Deputy Collector, Land Acquisition v. Kodandarama Charlu, AIR (1965) AP 23, (1964) 2 Andh WR 225
When in a cause, which the judge is competent to try, the parties without objective join issue and go to trial upon the merits, the defendant cannot subsequently dispute.his jurisdiction upon the ground that there were irregularities in the initial proceedings, which, if objected to at the time, would have led to the dismissal of the suit. Ledgard v. Bull, ILR 9 All 203; Minakshi Naidu v. Subramanya Sastri, ILR 11 Mad 26, 36
Where the court possesses inherent jurisdiction over the subject matter, but exercises it irregularly, the objection may be waived, and may, in peneral, be assumed to have been waived, when not taken at the time the exercise of jurisdiction is first claimed to the knowledge of the party affected. Bepin Behary v. Mohit Kumar, AIR (1942) Cal 496; Karashiddyaya v. Gajahan Urban Co-operative Bank, AIR (1943) Bom 288, 290
(e) Statutory Jurisdiction to be Exercised Subject to Spccificd Limitations
Where the jurisdiction of a court in certain matters is statutory, the court, however admirable its intentions, is not entitled to go outside those provisions, and in effect to legislate for itself. King-Emperor v. Dahu Raut, AIR (1935) PC 89, 91
A statute conferring jurisdiction under certain particular conditions cannot be taken to confei jurisdiction also in cases which do not fall within the ambit of the conditions laid down merely on the basis of analogy. Shanti Prasad v. Bachchi Devi, AIR (1948) Oudh 349 – 50 But where a statute confers jurisdiction on a tribunal, it must be taken to have impliedly granted the power of doing all such acts or employing such means as are essentially necessary to its exercise or execution. Central Bank of India v. PS Rajagopalan, AIR (1964) SC 743; SDO, Sadar, Faizabad v Shambhoo Narain Singh, AIR 1970 SC 140
(f) Consensual Jurisdiction
Where the court possesses inherent jurisdiction over the subject matter, but exercises it irregularly, the objection may be waived, and may, in peneral, be assumed to have been waived, when not taken at the time the exercise of jurisdiction is first claimed to the knowledge of the party affected. Hanna Eissa v. Bishara Elias, AIR (1944) PC 5, 6
(g) Jurisdiction of Superior Courts
The old rule for jurisdiction is that nothing shall be intended to be out of the jurisdiction of the superior court but that which specifically appears to be so; nothing is intended to be within the jurisdiction of an inferior court but that which is expressly alleged. [Broom] Broom’s Legal Maxims (10th Edition), p. 647
(h) No Implied Authority to Deprive Superior Courts of their Jurisdiction
It is a well known rule of interpretation of provisions barring the jurisdiction of civil courts that they must be strictly construed for the exclusion of the jurisdiction of a civil court and least of all the Supreme Court, is not to be lightly inferred. [Hidayatullah C.J.] Madhav Rao v. Union of India, (1971) 3 SCR 9, 63
The general presumption is against construing a statute as ousting or restricting the jurisdiction of the superior courts. There is not to be presumed without express words an authority to deprive the Supreme Court of a jurisdiction which it had previously exercised or to extend the privative jurisdiction of the Supreme Court to the inferior courts. Dunbar v. Scottish County Investment Co., (1920) SC 210 (English); Oram v. Brearey, (1877) Ex D 346, 348; Albon v. Pyke, (1942) 4 M&G 421, 424; Balfour v. Malcolm (1842) 8 Cl & F 485, 500
(i) Jurisdiction of Civil Court
Section 9 of the code of Civil Procedure, 1908 lays down that the courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognisance is either expressly or impliedly barred. One general rule oflaw is that when a legal right and an infringement thereof are alleged, a cause of action is disclosed and unless there is a bar to the entertainment of a suit, the ordinary civil courts are bound to entertain the claim. Section 9 of the code of Civil Procedure, 1908 lays down a general rule in favour of the jurisdiction of the civil court and the burden of proof is on the party who pleads an exception to the general rule. Ramayya v. Lakshmi Narayana, AIR (1934) PC 84, 86
The exclusion of the jurisdiction of civil courts is not to be readily inferred, but such exclusion must either be explicitly expressed or clearly implied. Secretary of State v. Mark & Co., AIR (1940) PC 105, 110; Mani Ram v. Bhagat Sarupp, 1948 All LJ 40; Shanta Nand v. Basudeva Nand, AIR (1930) All 225 Interpretation in favour of the jurisdiction of a civil court should be preferred to the one for its absence. Bundi Municipal Board v. Bundi Electric Supply Co. Ltd., AIR (1957) Raj 278 – 79; Madhusudan Tripathi v. Bhagat Deb Goswami, (1966) ILR Cal 661
(k) Court’s Jurisdiction to Determine Jurisdictional Facts
It is well-settled that a tribunal can investigate into the facts relating to the exercise of its jurisdiction when that jurisdictional fact itself is in dispute. Where a. tribunal is invested with jurisdiction to determine a particular question, it is competent to determine the existence of the facts collateral to the actual matter which the tribunal has to try. This power to decide collateral facts is the foundation for the exercise of its jurisdiction. Jaddu Veeraswami v. Sub-Collector, Narasapur, (1975) 1 Andh WR 337
(I) New Right and Special Remedy
Where a special tribunal, out of the ordinary course, is appointed by a statute, to determine questions as to rights which are the creation of that statute, that tribunal’s jurisdiction to determine those questions is exclusive except insofar as is expressly provided for or necessarily implied, it is an essential condition. Nnwal Kishore v. Municipal Board, Gorakhpur, AIR (1937) All 365, observed [Sir Lawrence Jenkins C.J.]:
Of those rights that they should be determined in the manner prescribed by the Act, to which they owe their existence. In such a case there is no ouster of the jurisdiction of the civil courts, for they never had any; there is no change of the old order of things; a new order is brought into being. Bhai Shanker v. Municipal Corporation, Bombay, ILR 31 Bom 604, 609
Prima facie where the same statute creates a new right and specifies the remedy, the remedy is exclusive. The natural presumption to begin with is that Parliament, in creating the novel right, attaches to it the particular mode of enforcement as part of its statutory scheme. Pasmore v. Ouwaldtwistle Urban Council, (1898) AC 387
Where a statute gives a right to recover expenses in a court of summary jurisdiction from a person who is not otherwise liable, he can only take proceedings in the latter court. Barrachlough v. Brown, (1897) AC 615
It follows that where a statute creates an obligation and enforces the performance in a specified manner, the general rule is that performance cannot be-enforced in any other manner. Doe v. Bridges, 1 B & Ad 847, 859; Josephson v. Walker, (1914) 18 CLR 691, 694, 696
If statute has conferred a power to do an act and has laid down method in which that power has to be exercised, it necessarily prohibits the doing of the act in another manner. State of Uttar Pradesh v. Singhera Singh, AIR (1964) SC 358; Nazir Ahmad v. King-Emperor, (1936) 63 IA 372, AIR (1936) PC 253; Prem Singh v. Sahayak Abhiyanta Sa Niva Upkhand Adhiknri, (1993) All LJ 666 Similarly, where a statute creates an offence, and denies particular ‘ remedies against the person committing that offence, prima facie, the party injured can avail himself of the remedies so provided, and no other. Brain v. Thomas, 50 LJQB 633, 662
(m) Special Tribunal
When a special tribunal is constituted under a statute, its jurisdiction depends upon the specific provisions of the statute. It may be limited by conditions as to its constitution, as to the persons whom or the offences which it is competent to try, and as to the orders which it is empowered to make, or by other conditions which the law makes essential to the validity of its proceedings and orders. Where the special tribunal, acts ultra vires, or refuses to exercise its jurisdiction, or acts mala fide or arbitrary in the exercise of its jurisdiction, the civil court has power to interfere and set matter right. The civil court is the final authority to determine the issue, whether the special tribunal has or has no jurisdiction over a certain cause, Royal Calcutta Turf Club v. Kishen Clmnd Manchand, AIR (1942) Lah 179 but where the special tribunal is vested with exclusive jurisdiction to determine its own authority in certain matters, the jurisdiction of the civil court will be deemed to have been taken away to that extent. Manibhai v. Arbuthnot. AIR (1947) Bom 413; Mohesh Chandra Shaha v. Abdul Cafur, AIR (1946) Cal 435
Statutes creating special jurisdiction have, however, to be strictly construed when their language is doubtful. A construction which would impliedly create a new jurisdiction is to be avoided, specially where it would have the effect of depriving the subject of his full proprietary rights or of any common law right or of creating an arbitrary procedure. But where a power has been conferred in unambiguous language by a statute, the courts cannot interfere with its exercise and substitute their own discretion for that of persons and bodies selected by the legislature for the purpose. Balwant v. Secretary of State, 7 Bom LR 497
(n) Provision Making Performance Enforceable In a Specified Manner
Where a statute creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner. [Lord Tenterden C.J.] Doe v Bridges (1831) 1 B & Ad 847, 859
This general rule is, however, subject to exceptions. It may be that, though a specific remedy is provided by the Act, yet the person injured has a personal right of action in addition. That depends upon the scope and purpose of the particular statute, in particular for whose benefit it is intended. Black v. Fife Coal Co. Ltd., (1912) AC 149, 165
The principle is well-settled that when certain duties or conditions are imposed by a statute, when these duties or conditions are not conditions precedent to the exercise of jurisdiction, they are subject to the maxim lex non cogit ad impossibilia out inutilia. They are understood as dispensing with the performance which is idle or impossible. Amarchand v. Union of India, AIR (1955) Assam 221
(o) Prescribing Statutory Duty without Laying down Remedy
If a statutory duty is prescribed but no remedy by way of penalty or otherwise for its breach is imposed, it can be assumed that a right of civil action accrues to the person who is damnified by the breach. For if it was not so, the statute would be wholly ineffectual. N. S. Bindra, Interpretation of Statutes (8th Edition), p. 241
(p) Where Special Tribunal does not come into Existence or Neglects to Function
If a special tribunal is constituted to adjudicate upon the rights created by a statute and if that tribunal functions, then in that event,- the jurisdiction of the civil court would stand ousted. But if that special tribunal never comes into being or refuses or neglects to function, the jurisdiction of the civil court cannot be said to be ousted in that event. Sat Narain v. Hanuman Parshad, AIR (1946) Lah 85, 91
It cannot be supposed that the legislature contemplated that the government might deprive persons to whom it had given a right, from having recourse to a tribunal to enforce that right and in such circumstances that subject has the right to proceed in the ordinary civil courts, unless and until legislature carries out its duty of appointing a special tribunal. It is clear that when this shall have been done, the jurisdiction of the civil court will be ousted. [Terrell C.J.] Lachmi Chnnd v. Rampratap, AIR (1934) Pat 670 (2) (FB)
(q) Avoidance of Conflict of Jurisdiction
The existence of concurrent jurisdiction renders very necessary the observance of a comity between those jurisdictions the disregard of which would lead to most unfortunate friction. Two points appear to me to be usual on considering whether the court should have regard and defer to a jurisdiction with which it may come into conflict, or whether the court can fairly expect that other jurisdiction to defer it. One is priority in time, and the other is the extent of the relief asked for or obtainable in the other jurisdiction. [Farewell L.J.] Jopson v James, (1908) 77 LJ Ch 824 EX
It is a matter of great public importance that there should be no conflict or clash of jurisdiction between two equally competent authorities. The expression ‘religious trust’ in the title and preamble and in sections 2 (1) and 2 (3), Bihar Hindu Religious Trusts Act 1951, must be construed not in the plain and grammatical sense, but must be cut down so as to exclude such religious trusts which are administered under a scheme prepared by court outside the territorial limits of Bihar. Under the circumstances, the Bihar Act does not apply to Baidyanath temple and the president has no jurisdiction to take any proceedings against, the petitioner under any of the sections of the Act. Bhabaprintananda v. President, Bihar State Board of Religious Trusts, AIR (1954) Pat 262
If a court is incapable of granting the relief claimed, normally the proper construction would be that it is incompetent to deal with the matter. Gujnrnt Co-operative Land Development Bank v. PR Mankad, AIR (1979) SC 1203, (1979) 3SCC 1231
