The jurisdiction of a civil court in Pakistan is a foundational but unfortunately misunderstood area of law. While the Civil Procedure Code (CPC), 1908, (hereinafter referred to as the Code), establishes broad powers of civil courts, varying statutory provisions and inconsistent precedents have often made it ambiguous whether the jurisdiction is a shield or a maze? This article explores the scope and limitations of civil court Jurisdiction in Pakistan.
The Legal Foundation- Courts to try all civil suits unless barred: –
Section 9 of the Code states: “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.”
Jurisdiction: –
The maxim “Ubi Jus ibi remedium” (where there is a right, there is a remedy) is a basic principle of law. Until or unless the jurisdiction of a civil court is barred either expressly or impliedly, any person having a right has a remedy to institute a suit by virtue of the above-mentioned section. Civil courts are conclusively embedded with jurisdiction to try all suits of a civil nature.
Contrary to any implied or express bar, a civil court has jurisdiction to entertain the suit if the object of the suit is the enforcement and protection of civil rights.
According to Black’s Law Dictionary (hereinafter referred to as BLD), jurisdiction means “A Court’s power to decide a case or issue a decree.”
The term Jurisdiction refers to the legal powers to administer justice in accordance with the law and restrictions imposed by it, if any; otherwise, jurisdiction is generally unlimited. However, if there is any limit placed on it, either expressly or impliedly, it must be strictly complied with. The jurisdiction of a court is initially determined by the facts of the suit, and if the defendant challenges the jurisdiction, the court will first have to determine such facts.
Simultaneous Proceedings: –
Criminal proceedings can go along with civil ones; there is no bar to the simultaneous institution of both proceedings; both are contrary to each other. The object of civil proceedings is to enforce civil rights and obligations, while that of criminal proceedings is to punish crime.
Jurisdiction through consent: –
It is well settled that if the court has no jurisdiction over the matter, no party can confer it, even not by their mutual consent, nor can consent oust the jurisdiction of a court. However, if a party enters into an agreement to dispose of the matter, it could not subsequently challenge the jurisdiction. And a party can confer jurisdiction on a court through an agreement in a case where two courts possess jurisdiction, but this choice rests with the plaintiff. If the required conditions for the exercise of jurisdiction are not strictly obeyed, the entire proceedings thereafter are null and void; an objection to the jurisdiction of the court can be raised at any stage of the proceedings.
Revisional jurisdiction of High Court: –
Any exercise of Jurisdiction illegally or with material irregularity, leaving room for mistakes can be cured by high court under section 115 of the code, not all the irregularities and unlawful orders based on a want of jurisdiction and irregular exercise of jurisdiction result in reversal of the decree by the high court, unless the merits of the case are affected.
Foundations of Jurisdiction: How Civil Courts Derive Their Authority: –
The existence of jurisdiction can be established by following three means: –
- Subject matter jurisdiction.
- Territorial jurisdiction.
- Pecuniary jurisdiction.
- Subject matter jurisdiction: –
This refers to a court’s authority to hear and decide cases of a particular type or relating to a specific subject matter. This jurisdiction can be determined by holding a preliminary inquiry regarding the nature of the claim made and the competency of the court to entertain a claim of such nature. It is a settled principle of law that jurisdiction can be determined only on the basis of the allegation made in the plaint. In other words, the court’s competence to hear a case depends on what is stated in the initial claim, not on what may come up later in the proceedings.
- Territorial jurisdiction: –
The limits of the territorial jurisdiction of the court are provided in section 16 of the code, which states that every suit shall be instituted in the court within the local limits of whose jurisdiction the cause of action wholly or partly arose. The provisions of section 16 are subject to the pecuniary and other limitations prescribed by law.
- Pecuniary jurisdiction: –
Sections 15 and 16 of the code impose limits on courts based on the monetary value of the subject matter of the suit. Different classes of civil courts are assigned different jurisdictional limits, meaning thereby each court can only hear cases up to a certain monetary value, as defined by their respective provincial governments.
Bar on Jurisdiction: –
The question of jurisdiction should be decided first, and where it is barred, the plaint is to be returned or rejected under Order 7 Rule 10 or 11. The jurisdiction could be barred in two ways, expressly or impliedly.
Express Bar: –
It is a general principle of law that any special law overrides the effect of general law. The special law dealing with a specific matter provides a special procedure; therefore, a special procedure in such a matter would be followed if the same has not been provided under the general law. If there is any special law dealing with a particular subject matter and relevant legislation excludes the jurisdiction of civil courts to try a suit of such nature, the special law bars a civil court from trying that suit. A law which takes away the jurisdiction of a civil court shall be strictly construed, and if remedies provided by a special law are not availed of, a civil suit is not competent.
Civil suits are barred in regard to special laws, as the tribunals and courts having exclusive jurisdiction under special laws are well acquainted with such matters, i.e., revenue authorities, service tribunals, and labour courts.
Under the Land Revenue Act 1967, revenue courts have exclusive jurisdiction to determine and adjudicate matters arising out of agricultural land, and by virtue of Section 172 of the said act, the jurisdiction of civil courts is excluded to try any matter that falls under the ambit of the said act.
Similarly, the jurisdiction of civil courts is expressly barred in any matter that is exclusively triable by any tribunal and administrative court established under Article 212 of the Constitution of Pakistan 1973. Where a special tribunal or court is established to hear and decide a dispute, then the jurisdiction of courts constituted under general law is ousted from exercising powers of the same nature.
Moreover, civil courts are barred from taking cognizance of any matter relating to criminal proceedings. Although it is a settled principle that both proceedings can go simultaneously, even arising out of the same matter, both cases have to be decided on their individual merits, and the evidence recorded in one of them cannot be used in the other, nor the judgment in the civil suit would be binding in the criminal case. And any matter once decided by a criminal court cannot be re-agitated in a suit before a civil court.
However, where any special statute barred a jurisdiction of a civil court, it does not mean that the jurisdiction of a civil court is entirely excluded; there are always some exceptions. And in case where the jurisdiction of the civil court is not expressly barred, and any special forum has adjudicated a similar matter earlier, it does not exclude the civil court’s jurisdiction.
Implied Bar: –
In addition to cases where the jurisdiction of civil courts is explicitly barred, Section 9 of the code also recognizes the concept of an implied bar. This means that, even if not expressly stated, a civil court’s jurisdiction may be excluded by general principles of law or considerations of public policy. Jurisdiction may be impliedly barred in situations, i.e., when the suit concerns an act of state, when adjudicating the matter would conflict with public policy, or when a special tribunal or forum has been established through legislation to handle such matters.
An act of state is an act done or adopted by a state in its sovereign capacity between two sovereign states; there is no act of state when a citizen of either state is involved. And all the matters arising out of an act of state are exclusively governed by international law, and the jurisdiction of civil courts is excluded until or unless expressly provided, as civil courts do not possess the authority to enforce judgments given in such matters.
Public policy refers to the principle that no person may lawfully engage in actions that harm the public interest. It connotes some matter which concerns the public good and public interest. Public policy refers to principles that are considered fundamental to the public good, welfare, and interest of society. The jurisdiction of civil courts to try suits can be impliedly barred on the grounds of public policy in cases where suits are instituted against government servants or judicial officers for acts performed in their official capacity.
Apart from express bars provided in statutes governing special tribunals and courts, the jurisdiction of civil courts may also be barred implicitly by such special acts. If a statute provides a remedy for a grievance that did not exist prior to its enactment, the jurisdiction of a civil court is impliedly barred from enforcing such a right.
The coexistence of general and special jurisdiction, coupled with inconsistent precedents and procedural intricacies, reveals that civil jurisdiction can act both as a shield-protecting individual rights-and as a maze-confusing and restricting access to justice through technicalities and overlapping forums.
Bibliography: –
- Aamer Raza, Civil Procedure Code (12th edn, 2019)
- Bryan A Garner (ed), Black’s Law Dictionary (12th edn, Thomson Reuters 2024)
