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.
A litigant having a grievance of a civil nature has a right to institute a civil suit unless its cognizance is barred either expressly or impliedly.
1. Suits expressly barred:
The Supreme Court in Umrao Singh vs. Bhagwan Singh held that, a suit is said to be expressly barred when it is barred by an enactment for the time being in force. If there is any doubt about the outing of Jurisdiction of a Civil Court, the Court will lean to an interpretation which would maintain the Jurisdiction.
Thus the matters falling within the exclusive Jurisdiction of Revenue Courts or under the Code of Criminal Procedure or the matters with by Special Tribunals under the relevant Statutes, e.g., by Industrial Tribunal, Election Tribunal, Rent Tribunal, Cooperative Tribunal, Income Tax Tribunal, Motor Accident Claims Tribunal etc., or by Domestic Tribunals, e.g., Bar Council, Medical Council, University, Club etc., are expressly barred from the Cognizance of a Civil Court.
2. Suits impliedly barred:
A suit is said to be impliedly barred when it is barred by general principles of law. Where a specific remedy is given by a statute, it thereby deprives the person who insists upon a remedy of any other forum than that given by the statute.
3. Presumption as to Jurisdiction:
The general rule of law is that a Civil Court has jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
The exclusion of jurisdiction of Civil Court entertain civil causes should not be readily inferred unless the relevant statute contains an express provision to that effect, or leads to a necessary and inevitable implication of that nature. It is, well settled that it is for the party who seeks to oust the jurisdiction of a Civil Court to establish his contention.
In the classic decision of Dhulabhai vs. State of M.P., after considering a number of cases, Hidyathullah, C.J., summarized the following principles relating to the Exclusion of Jurisdiction of Civil Courts.
1. Where the statute gives finality to the orders of the Special Tribunals the Civil Court’s jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such a provision however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of Judicial procedures.
2. Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find out the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court.
Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive.
In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further Lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether normally associated with actions in Civil Courts are prescribed by the said statute or not.
3. Challenge to the provisions of the particular Act as ultra vires cannot be brought before tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
4. When the provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act, but it is not a compulsory remedy to replace a suit.
5. Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.
6. Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie, if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.
7. An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.