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 - 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.
The words “either expressly or impliedly barred ” have been substituted for the words “barred by any enactment for the time being in force “ which occurred in s. 11 of the Code of 1882. The latter words were held to mean expressly barred.
A party seeking to oust the jurisdiction of ordinary Civil Courts must establish his right to do so.
Suits may be divided into two classes
It is suits only of a civil nature which a civil Court has jurisdiction to entertain. A civil Court has no jurisdiction to try suits which are not of a civil nature. A suit is not 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. But when a caste question or a question relating to religious rites or ceremonies is not the principal question in the suit, but is merely a subsidiary question, and the principal question is of a civil nature, i.e., a question as to a right to property or to an office or to any other civil rights and the principal question which is of a civil nature cannot be determined without deciding the caste question or question relating to religious rites or ceremonies, the Court will in such a case decide the caste question or the question relating to religious rites or ceremonies to enable it to decide the principal question. It is upon this principle that the Explanation I to the section is based. We may therefore say that a suit is of a civil nature if the principal question in the suit relates to a civil right The mere fact that the determination of such a question depends entirely on tlie decision of caste questions or questions as to religious rites or ceremonies does not take the suit out of the category of suits of a civil nature (see the Explanation to the section).
We now proceed to consider the leading cases in which the Courts have refused to try suits on the ground either
A caste is any well defined native community be it Hindu or Mohamedan governed for certain internal purposes by its own rules and regulations. A caste question is one which relates to matters affecting the internal autonomy of the caste and its social relations.
To determine whether or not a question is a caste question, the test is Would the cognizance of the matter in dispute by the Court be an interference with the autonomy of the caste? Would the Court be deciding the question which the caste as a self-governing body is entitled to decide for itself ? If yes, the question is a caste question and no civil Court has jurisdiction to entertain it.
Thus a caste may pass a resolution depriving a member of man-pan invitation or invitation to dinner or to munj or other ceremonies for an alleged breach of a caste rule. The excluded member has no remedy in law, for all that he has lost is a social privilege, and not a legal right, and the caste is the only tribunal to which a casteman deprived of that privilege could resort. A civil Court has no power by its decree to compel the members of a caste to invite a casteman to dinner or to any ceremony. Similarly a Court has no power to compel barbers belonging to a certain caste to shave a casteman or to pare his nails though the party aggrieved may allege that he would lose caste by the loss of service at the hands of the barbers. On the same principle a member of a caste is not entitled to any remedy in law if the other members refuse to go to his house on the occasion of a death in his family and assist him in the removal of the dead body, though they may have in so doing broken a rule of the caste. It is not for a Court of law to enforce a caste rule or resolution : it is for the caste itself that makes the rule or passes the resolution to do so. And so a Court will not compel a defaulting member to pay to the caste a sum of money which by a resolution of the caste every casteman is liable to pay on the occasion of a marriage in his family.
The following are suits of a civil nature:
The following are not suits of a civil nature:
To exclude a member of a caste from invitation to caste dinners or ceremonies is as stated above, to deprive him of a social privilege. But to expel him from tho caste is to deprive him of a legal right which forms part of his status. Hence a suit will lie for a declaration that the plaintiff is entitled to bo readmitted into the caste and also for damages for expulsion from tho caste. But to entitle the plaintiff to a decree, it must be shown that the excommunication is wrongful, and the Court will in such cases enquire into the validity of the sentence of excommunication.
Excommunication is wrongful, if a member is expelled from the caste without opportunity of explanation being offered to him. It is also wrongful if a member is expelled for an alleged breach of a caste rule which, as a matter of fact he has not broken. In the mufassal of Bombay, however, a suit does not lie for restoration to caste, the cognizance of such a suit being expressly barred by Bombay Regulation II of 1827, s. 21. But a suit is maintainable for “damages ” on account of an alleged injury to the caste and character of the plaintiff arising from some illegal act or unjustifiable conduct of the other party.
Thus a suit will not lie to establish a right to parade bullocks on certain days, or to compel pujaris to adorn an idol at certain seasons nor to instal it in a particular temple instead of in another. There is no right of a civil nature involved in these cases.
Claim by a Swami (arch-priest) that he is entitled to be carried on the high road of a town or village in a palanquin on ceremonial occasions will not be entertained by a civil Court. What is claimed by the plaintiff in such a case is a mere mark of honour appended to the office of a Swami. Civil Courts should discourage as much as possible claims of so unsubstantial and objectionable a nature and they ought not to be involved in the determination of trivial questions of dignity and privilege, although connected with an office. For the same reason a suit will not lie for a declaration that the plaintiff as gurukhal or spiritualdeader is entitled to be received at a pagoda by the wardens of the pagoda with the honours and emoluments due to his rank on the occasion of the annual festival of the pagoda.
The duty of individuals to submit to and perform certain religious observances in accordance with the ritual or conventional practices of their race or sect is, in the absence of express legal recognition and provision, an imperfect obligation of a moral and not a civil nature. Of such obligations the present civil Court cannot take cognizance. Following this rule, the Courts have declined to entertain claims made by holders of religious office to precedence in worship, such as a claim to be the first to worship the deity and to receive gifts of rice and coconuts on certain public religious ceremonies. They have likewise declined to decide disputes as to precedence or privilege between purely religious functionaries. It is important to note that the suit in each of the above cases was not to establish a right to an office, but for a declaration that the plaintiff was, by virtue of his office, entitled to certain tokens of dignity or to votive offerings. In other words, the suit was not for a claim to an office but to vindicate an alleged dignity attached to an office. A suit for an office is of a civil nature, but a suit for vindication of a mere dignity, though connected with an office, is not. But if honours be attached to an office by way of remuneration in other words, as part of its emoluments, a civil Court can entertain a suit for such honours.
Suits in which the principal question is as to a civil or legal right are suits of a civil nature. The right to an “office” is a right of a civil nature. Therefore suits in which the principal question relates to the right to an “office” are suits of a civil nature ; and they are not the less so because the right claimed may depend on the decision of caste questions or questions as to religious rites or ceremonies or even religious tenets.1) So also.it is immaterial whether or not any fees are attached to the religious office or whether or not such office is attached to a particular place.2)
Whether every suit for a religious office is a suit of a civil nature?
The Explanation I to the section assumes that a suit in which the right to an “office ” is contested is a suit of a civil nature. Now an office may be either secular or religious in its character. We are here principally concerned with an office of a religious character, for the question as to religious rites and ceremonies contemplated by the Explanation can only arise when the right to a religious office is contested. Religious offices may be divided into two classes, namely:
Fees are to be distinguished from gratuities. When fees are attached to an office. The holder of the office is entitled on performance of the services to the stipulated or customary fees. Thus a Kazi or Joshi is entitled on performing a marriage ceremony to the marriage fee, and if the fee is not paid to him, he may enforce payment by a suit. In fact, a fee is a sum which the holder of an office is entitled to demand as payment for the execution of functions attached to the office. Besides fees paid to a Kazi or to a Joshi on the occasion of a marriage, there may be gratuities paid to him which are entirely voluntary in their character. If a person invites a Joshi for performing a marriage ceremony at his place, and pays him the fees, but no gratuities a suit will not lie at the instance of the Joshi for payment to him of any sum by way of gratuity though it may be usual to pay gratuities on such occasions ; the reason being that there is no obligation in law on the part of the person inviting a Joshi to make any payment by way of gratuity. The same remark applies to holders of religious offices referred to in class 2 above.
The question which concerns us at present is whether a suit will lie at the instance of the holder of a religious office for disturbing him in the exercise of his office. If the office is wrongfully usurped, can the person claiming to be the rightful holder of the office sue the intruder in a civil Court for a declaration that he is entitled to the office ? Will a civil Court entertain such a suit ? To answer these questions we must deal with the two classes of religious offices separately.
As regards religious offices of the first class, that is, offices to which fees are attached, there is no doubt that a suit will lie against an intruder for a declaration that the office is vested in the plaintiff. Such a suit is a suit of a civil nature, and it will be tried by a civil Court. Turning now to religious offices of the second class, the question that faces us is, whether ; suit will lie for an office to which no fees is attached ? Until 1976 amendment to the Code different views have been held on this point by different Courts.
It has been held by the High Court of Calcutta that a suit by a person claiming to be entitled to a religious office against a usurper for a declaration of the plaintiff’s right to the office is a suit of a civil nature, and will therefore be entertained by a civil Court though no emoluments are attached to the office at all. This conclusion is based upon the reasoning that a religious office, though no fees are attached to it, is an “office” within the meaning of the Explanation I to this section and that the section assumes that a suit for an “office” is a suit of a civil nature. The office in that case was that of musicians who chanted holy songs in a satra at a certain village.
In another case, the office was that of a shebait, and the suit was by one member of a family against another for a declaration of a hereditary right to officiate as shebait at the worship performed by votaries at the foot of a certain tree. It was held that the suit was maintainable. In this case also there were no fees attached to the office, but voluntary offerings were made by the votaries.
It is worthy of note that in both these cases the office was one attached to a place as distinguished from an absolutely personal office. On the other hand, it has been held by the High Court of Madras that a suit does not lie for a religious office to which no fees are attached. According to that Court, a religious office to which no fees are attached is not an “office” within the meaning of this section. The office in one of these cases was that of priest of Samayacharm, of which the duties were to exercise spiritual and moral supervision over a certain class of persons. As regards Bombay decisions, if we are to reconcile them all, we must divide them into two classes, namely,
And it may be safely said that a suit will lie for a religious office winch is attached to a place, though no fees are appurtenant to it, such as the office of officiating priests in a temple or of Aya of a math. But a suit will not lie for an office to which no fees are attached, if the office be personal in its character, such as the office of Chalwady3), or the office of Guru. The distinction between offices that are attached to a place such as a temple or a math and offices that are in their nature personal is our own, and it must be said that none of the Bombay decisions turns expressly on any such distinction. This distinction has been devised to harmonize what would otherwise be a mass of conflicting decisions, though it must be observed that even then there remains one Bombay decision in which the office was a personal one and there were no fees attached to the office and yet it was held that a suit would lie for the office. The principal question in that case was whether a suit lies for the office of Khaiib (preacher), regard being had to the fact that fees were attached to the office and it was held that the suit would lie. The Court said : “Had it been the intention of the legislature that such a suit should not lie, the same would have been clearly provided for”. But if it is a question of the intention of the legislature, it may be said that the Explanation to the section, which did not occur in the Code of 1877, appears to have been suggested directly by a passage in a judgment in a Madras case decided in 1871, which was approved in a subsequent case by the Privy Council, and the religious office in both the cases was one to which fees were attached. It has been held by the High Court of Allahabad that a mere right to perform Bam Lila (religious pageants), which does not carry with it any right to emoluments nor is attached to a shrine or temple or sacred spot, cannot be enforced in a Court of law. The Patna High Court has held that a right to officiate at funeral ceremonies performed upon the banks of the Gangas between certain points, which did not carry any fees with it but merely gratuities, cannot be enforced in a Civil Court.
It is to be noted that all the above decisions are at present of no authority as by the amendment Act No. 104 of 1976, Code of Civil Procedure was amended and Explanation II was added to section 9. Now 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.
It is settled law that if a person usurps an office to which another person is entitled and receives the fees of the office, he is bound to account to the rightful owner for them, and the rightful owner may sue the usurper to recover the fees properly payable to him. But the case is different where the payments are merely voluntary and a suit will not lie to recover voluntary gratuities that may have been received by the usurper. The reason is that where voluntary offerings are made they must be taken to have been intended for the very person who was then actually performing the ceremony, whether rightfully or wrongfully, and, further, that it is quite possible that no gratuities would have been given at all if the rightful owner officiated at the ceremony instead of the usurper. The same principles apply when a suit is brought by the lawful holder of an office against a member of the caste for employing the usurper for performing ceremonies which the rightful holder was entitled to perform. Thus a village priest may be entitled by hereditary right to officiate and take fees in the families of a particular caste in the village, and if a member of the caste employs an intruder in the office to perform the ceremonies, the village priest is entitled to recover from the casteman the fees which would properly be payable to him if he had been employed to perform those ceremonies. But a suit will not lie against a casteman for a gratuity which the party might have refused to give if he had pleased. If for determining the plaintiff’s right to the fees claimed it becomes necessary to determine incidentally the right to perform the ceremonies, the Courts should try and decide that right. The cases in which a suit by the rightful owner of a religious office against a usurper for recovery of voluntary gratuities has been held not to be maintainable must be distinguished from those where a suit is brought by a sharer in a religious office against his co-sharer for recovery of his share of the voluntary gratuities. In the latter class of cases it has been held that a suit will lie, for the basis of the claim in such cases is an agreement, express or implied, that all the sharers should have a share in the gratuities. Dues paid by bagglas and shopkeepers to chowdhiris of bazars are in the nature of voluntary payments ; hence a suit will not lie to recover such dues or for a declaration of the right to recover them.
Suppose that a caste is divided into two factions, F1 and F2 and that F1 owns certain property which stands in the names of some of its members. If these members secede from faction FI and go over to faction F2, a suit will lie to recover property from them at the instance of faction FI.
Here the subject-matter of the suit is property belonging to one section of the caste, and the claim is against persons outside that section. Suppose, next, that a caste owns some property purchased out of the caste funds, and that it is subsequently divided into two factions Fl and F2 . If faction F2 happens at the time of the division to be in possession of the caste property, faction FI cannot maintain a suit against faction F2 for recovery of one half of the caste property, or its value. Here the subject-matter of the suit is caste property, and the claim is not against an outsider, but against another section. As regards user of caste property, it has been laid down that a majority of a caste has the right to regulate the use of the property, and the minority is bound by the resolution of the majority, provided the resolution is not so subversive of the interests of the minority as to amount to a complete denial of their rights. Thus if the majority of a caste passes a resolution that the caste oart should not be used for feasting any Brahmans, and the minority invites Brahmans to a feast in the oart, a suit will lie to restrain the minority from using the oart in contravention of the resolution.
Such a suit relates purely to a caste question, and it cannot therefore be entertained by a Civil Court.
Removal or alteration of namams or religious marks in a temple, which are recognized as the badges of a particular religious denomination, amounts to an interference with property , and is a ground of action in Civil Courts.
Suits for a declaration of the right to worship or to offer prayers at a certain place are suits of a civil nature. It often happens that the members of a particular class are alone entitled to worship in the sanctuary of a temple, and to perform certain portions of the religious worship. Such a right is one of a civil nature, and it may be enforced by a suit in a civil Court.
Similarly the right of burial is a civil right ; and it has accordingly been hold that an interference with the rights of the relatives of a deceased Mahomedan to recite prayers over his body before burial in front of a particular mosque, being an invasion of a civil right, may be enforced by suit.
A person claiming rights to property taken possession of by the Official Assignee as belonging to an insolvent and whose claim has been disallowed by the Insolvency Court may bring a regular suit to establish his rights notwithstanding that under the Insolvency Act he had a right of appeal from the order of that Court and has not availed himself of that right.
Such a suit is not cognizable by a civil Court.
A civil Court has jurisdiction to entertain a suit for the recovery from Government of the proceeds of the sale of property attached and sold under ss.83 and 84 of the Criminal Procedure Code.
In Gujrat Insecticides Ltd4) case it was held that:
It is trite law that when more than one Court has the jurisdiction, parties may, by agreement, confer exclusive jurisdiction on one Court to the exclusion of all other Courts. At the same time, if a particular Court has no jurisdiction and it lacks inherent jurisdiction, the parties cannot confer jurisdiction upon the said Court by their consent.
The section provides inter alia that suits, though of a civil nature, are not triable by civil Courts, if the cognizance of such suits is expressly barred, that is, barred by any enactment for the time being in force. Thus it is provided by the Income Tax Act, s. 39, that no suit shall lie in any civil Court to set aside or modify any assessment made under that Act. Similarly, it is provided by the Pensions Act 23 of 1871, s. 4, that except as provided by that Act, no civil Court shall entertain any suit relating to any pension or grant of money or land-revenue conferred or mode by the British or any former Government. But the provision must express to exclude a suit of a civil nature from the cognizance of ordinary Courts. The mere fact that an enactment provides a summary remedy in a certain case docs not constitute a bar to a regular suit. We may turn for an instance to O.21, r. 955). That rule provides a summary remedy to which a purchaser at a sale in execution of a decree may resort to recover possession from a judgment debtor. But it does not say that no suit shall lie to recover possession. The purchaser may therefore resort to the remedy provided by that section, or he may at his option bring a regular suit.
Further, the jurisdiction of a civil Court is not excluded unless the cognizance of the entire suit as brought is barred. The general rule is that statutes affecting the jurisdiction of Courts are to be construed so far as possible to avoid the effect of transferring the determination of rights and liabilities from the ordinary Courts to executive officers.
It has been held by the High Court of Bombay that the jurisdiction of civil Courts to try suits by superior holders to recover their dues from inferior holders is not barred by s. 85 of the Bombay Land Revenue Code6) It has been held by the same Court that s. 4(c) of the Bombay Revenue Jurisdiction Act is not a bar to a suit in which there is a claim arising out of the alleged illegality of proceedings taken for the realization of land revenue.
Besides suits of which the cognizance is expressly barred, there are suits which are barred by general principles of law, such as suits relating to acts of State and public policy. Thus a suit will not lie against the Secretary of State for damages for Publication of a Government resolution in the Government Gazette respecting the conduct of a public servant, though it may amount to a libel. Such a publication is an act of State in respect of which no action lies. Similarly a suit will not lie for damages for defamatory statements made in the course of a judicial proceeding by a party or by a witness. The ground of this principle is, that it concerns the public and the administration of justice that witnesses giving their evidence on oath in a Court of justice should not have before their eyes the fear of being harassed by suits for damages ; but that the only penalty which they should incur, if they give evidence falsely, should be an indictment for perjury.
In the classic decision of Dhulabhai v. State of M.P, after considering a number of cases, Hidayatullah, C.J. summarised the following principles relating to the exclusion of jurisdiction of civil courts:
An exclusion of jurisdiction of a civil court is not readily to be inferred unless the conditions above set down apply.The above principles enunciated are relevant in deciding the correctness or otherwise of assessment orders made under taxing statutes.
In Premier Automobiles v. Kamlekar Shantaram, the Supreme Court laid down the following principles as applicable to the jurisdiction of a civil court in relation to industrial disputes:
Again, in Rajasthan SRTC v. Krishna Kant, after considering various leading decisions on the point, the Supreme Court summarised the principles applicable to industrial disputes thus:
In Chandrakant v. Municipal Corpn. of Ahmedabad, the Supreme Court reiterated the principles laid down in earlier decisions and stated:
“It cannot be disputed that the procedure followed by civil courts are too lengthy and consequently, are not an efficacious forum for resolving the industrial disputes speedily. The power of the Industrial Courts also is wide and such forums are empowered to grant adequate relief as they think just and appropriate, it is in the interest of the workmen that their disputes, including the dispute of illegal termination, are adjudicated upon by an industrial forum.
From various decisions of the Supreme Court, the following general principles relating to jurisdiction of a civil court emerge: