-SUIT IMPLIEDLY BARRED: A STUDY

Subject Name:

6.1 Code of Civil Procedure and Law of Limitation

Academic Year: 2020-2025

Semester: VIth

Submitted by

ANOUSHKA V. PATANGE

Submitted to

Prof. Sanya Agarwal,

Associate Professor of Law

MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

1
INDEX

INTRODUCTION......................................................................................................................3
RESEARCH DESIGN...............................................................................................................3
i. RESEARCH METHODS................................................................................................3
ii. Research Aim and objectives..........................................................................................4
iii. Scope and Limitation...................................................................................................4
SECTION 9................................................................................................................................4
SUITS EXPRESSLY BARRED................................................................................................5
SUITS IMPLIEDLY BARRED.................................................................................................6
CONCLUSION........................................................................................................................12
BIBLIOGRAPHY....................................................................................................................13

2
INTRODUCTION

The two main principles of natural justice, Audi alterm partem and nemo debet esse propia
causa are enshrined in constitution and every other Indian statue. Components of natural
justice can be, fair notice, reasonable time, good faith, fair trial. These components are
maintained by procedural codes such as the criminal code and civil procedural codes. These
codes help to deliver justice in a way where there is no prejudice and are caused to any party.

The major issue which lies in front of any court or tribunal at the initial stage is whether the
court can decide the case at all or not. A court can be said to have jurisdiction over a subject
matter of a particular controversy if the court has the authority to hear and decide the causes
of a class to which the controversy belongs. Courts in cases have upheld that, the jurisdiction
of the court depends upon the right of the court to decide the case and not on the merits of its
decision.

It is well settled that, that the allegations made in the plaint are the basis for the determination
of the jurisdiction of the court. The pith and substance of the allegation given in the plaint and
also the reliefs sought have to be kept in mind. Plaintiff can his choice, choose his forum.
Allegations made in the plaint decide the forum. The jurisdiction doesn’t rely upon the
written statement given by the defendant.

Procedure regarding the determination of jurisdiction of a civil case is given under section 9
of CPC. This paper tries to explain the ambit of section 9 of CPC with respect to a specific
term mentioned in the statute which is “Impliedly barred”.

RESEARCH DESIGN

i. RESEARCH METHODS

The analysis is primarily based on secondary resources such as bare act, and books, websites, etc.
The research for this project would entail looking at a variety of materials on the subject,
most of which would be found online. In the end, footnotes would be added to acknowledge
the sources.

3
 ii. Research Aim and objectives

This paper aims to understand the nature of suits that are impliedly barred under section 9 of
the code of civil procedure.

Objectives:

1. To understand section 9 of CPC.

2. To understand the scope and ambit of CPC.
3. To understands suits that are impliedly barred with help of judicial pronouncements.

iii. Scope and Limitation

In this research paper, as the title suggest, I have discussed about Section 9 of the CPC.
Although, the major focus of the paper was on the analysis of the term “Impliedly barred”
used in Section 9. As, there is a lack of material available on this topic, I have majorly
referred to case laws to understand the jurisprudence of Section. This is the major focus of
my topic and Introductory of section 9 is given, not a detailed analysis.

SECTION 9
Section 9 of CPC states the following:

“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 I]. —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 civil courts are responsible for initiating and adjudicating civil lawsuits. The court
indicates that in addition to having the outward appearance of a judicial tribunal, it should
also have the capability and power to render a final judgement that has authority, which are
crucial components of judicial pronouncements . The Civil Courts have the authority to hear
civil lawsuits that are not expressly or impliedly barred by another legislation under Section 9

4
of the CPC. Hence, a civil court may consider a lawsuit if the following conditions are
fulfilled:

1. The suit should be of a civil Nature.

2. The suit should not be Expressedly or impliedly barred.

Nowhere in the Code is the definition of a civil suit stated. Therefore, we can come to the
conclusion that, a lawsuit that is not of a criminal nature is referred to as a civil lawsuit. The
word "civil suit" refers to a legal proceeding that establishes a person's civil rights. A civil
action is a procedure that deals with the defence of private rights.

In the case of Dhruv Green Field v. Hukam Singh1, it was determined that whenever a
special statute excludes civil courts from hearing a lawsuit, it should be interpreted strictly.
However, when a civil court has the authority to grant relief to one of the parties to the
lawsuit, it has the jurisdiction to hear the case.

Only civil cases are heard in civil court. Moreover, situations that are not civil in nature or
lawsuits that are expressly or impliedly barred are heard in tribunals, councils, or special
courts that are designated by law. The community or religious leaders, such as priests,
spiritual leaders, etc., make decisions on issues that are solely related to caste or religious
rites.

SUITS EXPRESSLY BARRED

A lawsuit that is expressly barred by a law that is now in effect. A competent legislature may
limit the civil court's ability to hear a certain type of civil lawsuits, provided that it does so
without violating any constitutional provisions and remains within the purview of the
legislative authority granted to it. As a result, when a lawsuit is expressly barred by the
currently in effect law, it cannot be filed in civil court.

Only if doing so preserves it within the legislative field granted to it and does not violate any
provisions of the Constitution may a competent legislature bar civil courts from having
jurisdiction over a certain class of civil lawsuits. A civil court shall be presumed to have
jurisdiction if there is any doubt regarding that fact.

The following are some acts and statues which expressly bars Civil Court’s Jurisdiction:

1
Dhruv Green Field v. Hukam Singh, MANU/SC/0643/2002.
5
 1. (1993) Recovery of Debts Due to Banks and Financial Institutions Acts
2. (2003) Indian Electricity Act
3. (1996) Arbitration and Conciliation
4. (1957) Copyright Act
5. (1936) Payment of Wages Act
6. (1986) Consumer Protection Act
7. (1955) Essential Commodities Act
8. (1988) Motor Vehicle Act
9. (1950) Constitution of India

SUITS IMPLIEDLY BARRED

Apart from the suits which are expressly barred such as mentioned above, there are certain
suits which goes against the general principles of law and equity or on the grounds of public
policy.

In the initial stages of the development of law, most of the rights and liabilities could be
traced back to the common law. There were very few statutory enactments, and they rarely
ever provided with framework and forum for remedy. This meant that any affected persons
would have to approach the ordinary civil court for remedy on the principle of ubi jus ibi
remedium, which means where there is a right, there is a remedy. Although with the concept
of the welfare state, many new enactments were created more rights and liabilities. Provisions
for the remedy for grievance were provided as well as provisions for appeals. The result of
which was, the powers of section 9 were curtailed. Determining the ouster of jurisdiction of
civil courts require examination of 2 questions, 1) whether the rights and liabilities created
under an enactment do not relate to pre-existing law. 2) whether the machinery for redressal
of the grievance was adequate and complete? The ouster jurisdiction can be upheld when the
rights and liabilities are created by an act and the remedy for redressal provided in the act is
adequate and complete.2

Therefore, these suits were barred by necessary implication and are considered suits that are
impliedly barred. The civil courts have no jurisdiction in these subject- matters. Mere
existence of a statutory tribunal to give the same reliefs as a civil court is not enough to

2
SHIV KUMAR CHADHA v. MUNICIPAL CORPORATION OF DELHI AND OTHERS, (1993) 3 SCC 161.

6
exclude the jurisdiction of the civil court, there must be some provision in the statute that
would clearly rule out the remedy of a civil court3

Suits which are impliedly barred:

1. Suits that lie to recover costs incurred in criminal court.

This was upheld in the case of Fazal Imam v. Rasul4. In this case, the plaintiff
already prosecuted the defendant in a criminal court for assault. Later the plaintiff
sued the defendant for, amongst other damages, expenses incurred by the plaintiff in
order to prosecute the defendant in the criminal court. Sir John Edge C.J, was of the
opinion that the plaintiff cannot maintain this suit which is claiming for recovery of
costs incurred in criminal court. Hence, this suit was not entertained.
2. Damage for defamatory statements made during judicial proceedings.
In the case of Baboo Gunnesh Dutt Singh v. Mugneeram Chowdhry 5, the concept of
witness privilege was discussed in detail. Any statement made by a witness is
privileged on grounds of public policy and no suit of defamation can be filed against
the witness. This rationale is on the ground that the witness while giving his evidence
shouldn’t be afraid of any subsequent suits of defamation.
In the case of Woolfun. Bibi v. Jesarat Sheikh6, the rule was further modified, which
stated, the witness, is protected from any defamation suit if the statement made by
him is relevant to the inquiry of the issue of the case.
By virtue of these judgments, filing a suit in civil court for recovery of damages for
defamatory statements during the judicial proceedings is impliedly barred.
3. Military servant alleging discharge from service.
In the case of Union of India v. Shri Ram Chand 7, the question of the ambit of
section 9 was yet again raised. In this case, the plaintiff a Subedar at Chak Lal, he
challenged the validity of the orders passed by the central government and the general
officer commanding of the Indian military. The court said, even though there is no
expressed provision barring the suit bought by the plaintiff, but by virtue of public
policy the suit can be considered to be impliedly barred. The court referred to Lord
Blackburn’s dictum, which stated that a public servant's position and terms of service

3
Raja Ram v. S, A 1968 A 369 FB
4
Fazal Imam v. Rasul (1899) ILR 12 All 166
5
Baboo Gunnesh Dutt Singh v. Mugneeram Chowdhry, (1811-72) 4 IR 636: 11 BLR 321
6
Woolfun. Bibi v. Jesarat Sheikh, (1899) 27 Cal. 262 (263),
7
Union of India v. Shri Ram Chand, AIR 1955 P H 166

7
 are subjected to public policy. Hence the rule of public policy restricts public servants
from suing the crown for their pay. And therefore, under section 9 of CPC, the kind of
suit bought by the plaintiff against the governor- General or UOI is impliedly barred.
4. Legatee filling a suit for allotment of the property, during the pendency of
administration suit as per the probate will.
In the case of Himangshu Kumar Basu v. Sudhangshu Kumar Basu 8 the court held
that such a suit cannot be filled by the plaintiff as the Succession Act of 1925 is a
complete code on its own. If a right or liability or right of a party to remedy exists
without any forum can be considered under section 9 of the CPC. But, if there exists
an adequate satisfactory alternative remedy, such as given under the succession act,
the party has no other choice but to first apply for a remedy under the appropriate
court under the succession act. Hence, suits of this nature are impliedly barred from
instituting a sit in civil courts. The court directed the proceeding to be initiated under
the 1925 Act.
5. Suits for redressal for provisions of the Orissa development authority act 1982
In the case of Puri Konark Development Authority v. Ratna Bhadra and others 9, the
major question of law was, whether section 91 (2) of the Orissa Development
authorities act which states that the “decision of the state government or the officers
shall be final” and “shall not be questioned in any court of law” impliedly bars a suit
of the same subject matter to be instituted in civil court? The court reached the
conclusion that the ODA Act provided an adequate remedy for the grievance of a
citizen and similarly order passed under section 91 has the remedy to approach the
state govt. and thereafter approach the court under certiorari jurisdiction.
The court held that the jurisdiction of civil courts is hence impliedly barred as there
are adequate measures provided under ODA. Furthermore, the civil courts also don’t
have any jurisdiction the grant any interim injunctions, but in cases where the
allegations are made for non-compliance with the provisions of the act by the
statutory body, the civil courts have jurisdiction to examine such suit.
6. Suits dealing with matters of electricity act
In this Geeta pump Pvt. LTD. V. District Judge, Saharampur 10 case, the court held
that the petitioner does not have any right to oppose the change of the meter. If there
is a dispute regarding the same, it can be referred to the Chief Electrical Inspector of
8
Himangshu Kumar Basu v. Sudhangshu Kumar Basu, AIR 2004 Cal 217
9
Puri Konark Development Authority v. Ratna Bhadra and others, AIR 2002 Ori 207
10
AIR 2000 All 58

8
 the respective state. As the statute provides for an alternative remedy in electrical
matters, the courts can not interfere in such cases. As electrical matters are highly
technical matters which are beyond the comprehension of a person who isn’t well
acquainted with electrical engineering or its system. This is why the civil court shall
not intervene in such matters; hence this suit should not be bought before the Civil
court and is impliedly barred.
7. Suits under the Rajasthan tenancy act, 1955
In case of Bank of Baroda v. Moti Bhai11, one of the primary issues raised by the
respondent was regarding the maintainability of the case. The subject matter of the
case dealt with enforcing the mortgage which was enforced in the favor of the Bank
of Baroda. This falls under the ambit of the Rajasthan Tenancy Act, third schedule,
1955. The court held that after a combined reading sec. 207 and 256 of the Rajasthan
Tenancy Act, the court reached the conclusion that the Jurisdiction of the Civil Court
is barred in cases of suits and applications specified in the third schedule. As the
remedy for these suits and applications is provided under the Rajasthan Tenancy Act,
of 1955, the revenue court would have jurisdiction over such matters.
8. Suits challenging eviction order under the Rent control act
In the case of Smt. Guduma vs Shikandar And Ors.12, the supreme court stated that
The Karnataka Rent Control Act is a self-contained statute that consists of full and
functional statutory provisions and its forums. In this view, the court was of the
opinion that any suit which was questioning the eviction order is both expressly and
impliedly barred under section 9 of the CPC. Furthermore, it is also stated that, when
the suit itself is not maintainable, parties cannot seek temporary injunctions in such
cases. A temporary injunction is something granted in a judicial proceeding in favor
of a party when the court is of the opinion that, the issues of the case require further
examination and judicial scrutiny by, and till then the rights of the parties are to be
protected.

9. Suit for declaration and injunctions towards the illegal recovery of central excise duty
on goods

11
Bank of Baroda v. Moti Bhai (1985) 1 SCC 475

12
Smt. Guduma vs Shikandar And Ors , AIR 2004 NOC 451

9
 In the case of Union of India v. M/s. Gokulchand & Sons 13, a suit was filled by the
respondent for the suit for declaration and injunctions towards illegal recovery of
central exercise duty on goods. This suit was challenged on many grou nds by the
petitioner, one of which was on the grounds of maintainability, stating in view of
Section 11B (5), the civil court has no jurisdiction to entertain suit with this subject
matter.
The court held that the civil courts have no jurisdiction to entertain this case. There
was also no need for the court to recall upon the application u/s 151 of CPC. Even
though the decision passed could have been erroneous in nature, there was no error
apparent on the face. Therefore the impugned order was set aside.
10. Suits under Berar Municipalities Act, 1922
In the case of Bata Shoe Co. v. Jabalpur Mun14, one of the contentions raised was
regarding the maintainability of the suit in civil courts. The suit which was bought by
Plaintiff was regarding double duty and revised duty. The court said, "a suit in a civil
court will always lie to question the order of a tribunal created by a statute, even if its
order is, expressly or by necessary implication, made final, if the said tribunal abuses
its power or does not act under the Act but in violation of its provisions". The court
held that the assessment, in this case, was made by the authority who was statutorily
empowered to do so. Secondly, while the authority was revising the assessment and
imposing double duty it was acting under the act and the authority had the power to
assess and levy double duty. Section 86 of the Municipal Act, of 1911 states that, no
authority other than the authorities provided under this act can question the liability of
any person to be taxed. The court held that the suit was not maintainable as a remedy
was provided to the party for enforcement of the liability u/s 86 of the Municipal Act,
1911. Hence, the plaintiff’s suit was dismissed.
11. Suits under Andhra Pradesh Land Grabbing (Prohibition) Act
In the case of LL. Sudhakar Reddy v. State of A.P15 it was held that the remedy to the
suit which was bought by the plaintiff was given under s. 8. (2) read with s, 15 of the
Andhra Pradesh Land Grabbing (Prohibition) Act. So, no suit in respect of the
disputed land which alleges land grabbed could be entertained by a civil court.
12. Suits claiming ownership over the copyright under the Copyright Act.

13
Union of India v. M/s. Gokulchand & Sons ,AIR 2005 MP 201
14
Bata Shoe Co. v. Jabalpur Mun 1977 AIR 955, 1977 SCR (3) 182
15
LL. Sudhakar Reddy v. State of A.P AIR 2001 SC 3205 (3206) (2001) 6 SCC 634

10
 In the case of K.I. George C. Cheriyan16it was held by the court that, according to
section 62 of the Copyright Act of 1957, in suits regarding infringement of copyright
in any work or in cases of infringement of any other right which is conferred by the
copyright act, the District Court will have jurisdiction over those case. Therefore, no
ordinary court will have jurisdiction and such suits are impliedly barred from being
instituted in a civil court.
13. Suits under UP Co-operative Societies Rules, 1936
The court in the case of Charan Singh v. Iqbalpur &c.17 deliberated upon whether or
not Rule 115 framed under section 43 of the U.P. Co-operative Societies Rules bars
the jurisdiction of the Civil Courts. The court stated that, Firstly, in cases where the
impugned order is without jurisdiction then the civil court will retain its jurisdiction.
And secondly, the jurisdiction of civil courts can only be ousted by the virtue of
section 9 of CPC only by an act or legislature and not any rule made by the executive.
The court in this case held that, by necessary implication under rule 115. The
jurisdiction of civil court is barred and the present suit is not maintainable as its
regards the business of society and its officers. And therefore, a suit covered by 115 is
to be referred to the registrar for a decision to be given by him or by the way of
arbitration, and this decision can later be challenged by an appeal.

Other Subject- Matter of Suits which impliedly barres Civil Court from taking cognizance
under Section 9 is:

14. Suits under Maharashtra municipalities act (40 of 1956)

Gandhi Agencies v. Municipal Council, Barshi,18
15. Suits under the companies act of 1956.
Sunil Kumar Gupta v. Shri J. K Gupta19
16. Suits relating to acts of state
Sardar Sarjerao Appajirao v. Government Of Province Of Bombay20
17. Suit under Nationalisation act 36 of 1972
Bharat Coking Coal Ltd. v. United Commercial Bank21
18. Suits that challenge election to a gram panchayat under the Bihar Act of 1948
16
K.I. George C. Cheriyan, A 1986 Ker 12, 15
17
Charan Singh v. Iqbalpur &c, AIR 1975 All 111
18
Gandhi Agencies v. Municipal Council, Barshi AIR 1995 Bom 169
19
Sunil Kumar Gupta v. Shri J. K Gupta, 2002 1 Punj LR 129
20
Sardar Sarjerao Appajirao v. Government of Province of Bombay AIR 1943 Bom 427
21
Bharat Coking Coal Ltd. v. United Commercial Bank AIR 1989 Pat 153

11
 Jodhi v. Vedabharat
19. Suits against a judge for words used by him while trying a case
Raman Nayar vs Subramanya Ayyan22

This list is not exhaustive.

In the case of Syyad mohd Vaquire v. State of Gujrat 23, it was said that. Where a statute
gives finality to the orders of the special tribunal the civil court’s jurisdiction must be held to
be excluded if there is adequate remedy to do what a civil court will normally do in a suit.
Examination of a scheme to find out whether remedy provided its adequate or sufficient is
relevant even in cases where there is an express bar on the jurisdiction of the court.

CONCLUSION

Section 9 of the Civil Process Law largely addresses the issue of a civil court's capacity to
hear a case. It states that a civil court has the authority to hear a civil lawsuit unless it is
expressly or through necessary implication. Although it may ultimately be determined that the
civil court lacks jurisdiction over the subject, it has the authority to decide the jurisdictional
issue. A civil court has the authority to determine whether a tribunal, quasi-judicial body, or
statutory authority behaved in accordance with their authority.

22
Raman Nayar vs Subramanya Ayyan (1894) ILR 17 Mad 87

23
Syyad Mohd Vaquire El-Edroos v, State of Gujrat, (1981) 1 SCC 383

12
BIBLIOGRAPHY
Websites:
1. https://lawwire.in/section-9-of-the-civil-procedure-code/#:~:text=As%20per
%20Section%209%20of,either%20expressly%20or%20impliedly%20barred.
2. https://lawbhoomi.com/section-9-of-civil-procedure-code/
3. https://www.legalservicesindia.com/article/508/Jurisdiction-Of-Civil-Court-Under-
Civil-Procedure-Code.html

Books:
1. Sir Dinshaw Fardunji Mulla, THE CODE OF CIVIL PROCEDURE, Vol. 1, pp. 139-
140.
2. S C Sarkar, CODE OF CIVIL PROCEDURE, 12th edt., Vol. 1, pp. 60-64.

All the case laws are taken from SCC, citations are provided in Footnote.

13