CPC –

A hyper-technical view' should not be adopted by the court in interpreting procedural laws. A
party cannot be refused just relief merely because of some mistake, negligence, inadvertence
or even infraction of the rules of procedure. Rules of pleadings are intended as aids for a fair
trial and for reaching a just decision. An action at law should not be equated to a game of
chess. Provisions of law are not mere for-mule to be observed as rituals. Beneath the words of
a provision of law, generally speaking, there lies a juristic principle. It is the duty of the Court
to ascertain that principle and implement it.

State of Punjab v Shyam Lal Murari AIR 1976 SC 1177

Jurisdiction

The essence of the matter is whether the court has power to grant relief prayed by the plaintiff
or applicant.

The defect of jurisdiction goes to the root of the matter and strikes at the authority of the
court to pass a decree. Kiran Singh vs Chaman Paswan AIR

Conversely, where the court has jurisdiction to decide a dispute, the same cannot be taken
away or ousted by consent of parties. An agreement to oust absolutely the jurisdiction of the
court would be unlawful and void being against the public policy. (Ex dolo malo non oritur
ac-to) 58 But if two or more courts have jurisdiction to try the suit, it is open to the parties to
select a particular forum and exclude the other forums.59 Hence, the parties may agree
among themselves that the suit should be brought in one of those courts and not in the other,
since there is no inherent lack of jurisdiction in the court. Such an agreement would be legal,
valid and enforceable.

IRREGULARITY AND WANT OF JURISDICTION DIFFERENT

Malkariun v. Narhari, the executing court wrongly held A to be a person representing the
estate of judgment-debtor B and issued notice to him and put the property for sale in
execution of a decree passed against the judgment-debtor. The Judicial Committee of the
Privy Council stated:
In so doing the court was exercising its jurisdiction. It made a sad mistake, it is true, but 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. (emphasis supplied)

In Mathai v. Varey AIR 1964 SC 907, it was contended that the decree passed by the court
was a nullity since the suit was time-barred. Negativing the contention, the Supreme Court
observed: "If the suit was barred by time and yet the court decreed it, the court would be
committing an illegality, and therefore the aggrieved party would be entitled to have the
decree set aside by preferring an appeal against it. But it is well-settled that a court having
jurisdiction over the subject matter of the suit and over parties thereto, though bound to
decide right may decide wrong; and that even though it decided wrong it would not be doing
something which it had no jurisdiction to do.... If the party aggrieved does not take
appropriate steps to have that error corrected, the erroneous decree will hold good and will
not be open to challenge on the basis of being a nullity.

Ujjam Bai vs State of UP AIR 1962 SC 1621

Anismic Ltd vs Foreign compensation commission

PRESUMPTION SO AS TO JURISDICTION

In dealing with the question whether a civil court has or has not jurisdiction to entertain a
suit, it is necessary to bear in mind that every presumption should be made in favour of the
jurisdiction of a civil court.12 In other words, whether a court has jurisdiction or not has to be
decided with reference to the initial assumption of jurisdiction by that court. The question
depends not on the truth or falsehood of the facts into which it has to enquire, or upon the
correctness of its findings on these facts, but upon their nature, and it is determinable "at the
commencement, not at the conclusion of the inquiry" 13 Whenever the jurisdiction of the
court is challenged, the court has inherent jurisdiction to decide the said question.

Likewise, it is well established that in deciding the question of jurisdiction, what is important
is the substance of the matter and not the form. In order to decide the question, the pleadings
must be considered as a whole. Thus, in Bank of Baroda v. Moti Bhai

Section 9, in PMA Metropolitan v. M M. Marthoma46 the Supreme Court stated: "The

expansive 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
latter 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.

It is structured on the basic principle of a civilised jurisprudence that absence of machinery

for enforcement of right renders it nugatory.

TEST

Prima facie suits raising questions of religious rites and ceremonies only are not maintainable
in a civil court, for they do not deal with legal rights of parties. But the explanation to the
section accepting the said undoubted position says that a suit in which the right to property or
to an office is contested is a suit of civil nature notwithstanding that such right may depend
entirely on the decision of a question as to religious rites or ceremonies. It implies two things,
namely, (i) a suit for an office is a suit of a civil nature; and (it) it does not cease to be one
even if the said right depends entirely upon a decision of a question as to the religious rites or
ceremonies. It implies further that questions as to religious rites or ceremonies cannot
independently of such a right form the subject-matter of a civil suit.
Honours shown or precedence given to religious dignitaries when they attend religious
ceremonies in a temple cannot be placed on a higher footing than the religious rites or
ceremonies, for they are integral part of the said rites or ceremonies. Prima face honours,
such as who is to stand in the ghosti, in what place, who is to get the tulasi, etc., in which
order, and similar others, cannot be considered to be part of the remuneration or
perquisites attached to an office, for they are only tokens of welcome of an honoured
guest within the precincts of a temple.

Suits of civil nature: Illustrations. - The following are suits of a civil nature:50
(i) Suits relating to right to property.
(ii) Suits relating to right of worship.
(iii) Suits relating to taking out of religious procession.
(iv) Suits relating to right to share in offerings.
(v) Suits for damages for civil wrongs.
(vi) Suits for damages for breach of contract.
(vii) Suits for a specific relief.
(viii) Suits for restitution of conjugal rights.
(ix) Suits for dissolution of marriage.
(x) Suits for rent.
(xi) Suits for or on accounts.
(xii) Suits for a right of franchise.
(xiii) Suits for a right to hereditary office.
(xiv) Suits for a right to Yajmanvriti.
(xv) Suits for scheme and administration of trust.
(xvi) Suits for removal of trustee.
(xvii) Suit for right of way.
(xviii) Suits for right to go in procession.
(xix) Suits against recovery of tax.
(xx) Suits against wrongful dismissal from service and for
salary; etc.

The following are not suits of a civil nature

1. Suits involving principally caste questions.

2. Suits involving purely religious rites or ceremonies.
3. Suits for upholding mere dignity or honour.
4. Suits for recovery of voluntary payments or offerings
5. Suits against expulsion from caste; etc.
Suits expressly barred

Section 293 of the Income Tax Act, 1961 reads thus:

No suit shall be brought in any civil court to set aside or modify any proceeding taken or
order made under this Act, and no prose-cution, suit or other proceeding shall lie against the
Government or any officer of the Government for anything in good faith done or intended to
be done under this Act.54
Similarly, Section 170 of the Representation of the People Act, 1951 reads:

No Civil Court shall have jurisdiction to question the legality of any action taken or of any
decision given by the Returning Officer or by any other person appointed under this Act in
connection with an election.

Suits impliedly barred

Pasmore v Oswaldtwistle Urban District Council

Premier automobiles v. Kamlekar shantaram

The Wolverhampton new Waterworks Company v Hawkesford -