In modern days, in almost every legal systems the civil disputes are resolved by the courts of civil jurisdiction. As a rule, the civil courts can take cognizance of every controversy of civil nature as the court of ultimate jurisdiction but there are some recognized exceptions to this general rule which is to be discussed through this work.
SECTION 9 OF THE CODE OF CIVIL PROCEDURE, 1908
Section 9 The Code of Civil Procedure, 1908 confers jurisdiction over the civil courts to adjudicate upon all suits of civil nature, except such suits the cognizance of which is either expressly or impliedly barred. In other words whenever the object of the proceedings is the enforcement of civil rights, a civil court would have jurisdiction to entertain the suit unless the cognizance of the same is barred through a legislative instrument.
The legislature, both Federal and Provincial, has placed bar on the exercise of jurisdiction of the civil courts through number of Acts, Ordinances and other legislative instruments. For example, section 172 of the West Pakistan Land Revenue Act, 1967 has placed embargo over the powers of civil court to adjudicate upon any matter in which the powers of adjudication has been given to the revenue authorities and same is the case of section 36 of the Colonization of Government Lands (Punjab) Act, 1912. Almost all the special tribunals has been given exclusive jurisdiction by the legislature to decide the matters fall within their domain and, as a rule, their decisions / actions are immune from scrutiny by the civil courts, but there are certain exceptions to this general rule.
As per the different judicial pronouncement on the subject, it has been established that the law requires the civil court to be jealous about their jurisdiction and it should not give away its right to hear and adjudicate upon the case of civil nature unless there is a clear bar imposed by the legislature.
In the leading decision of Secretary of State v. Mask & Co. (67 I.A. 222) the Privy Council observed:
“it is settled law that the exclusion of the jurisdiction of the civil court is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied”.
In Radha Kishan v. Ludhiyana Municipality 1963 AIR 1547, 1964 SCR (2) 273 it was held:
“Under section 9 of the civil procedure code the court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. A statute, therefore, expressly or by necessary implication can bar the jurisdiction of civil courts in respect of a particular matter. The mere conferment of special jurisdiction on a tribunal in respect of the said matter does not in itself exclude the jurisdiction of civil courts. The statute may specifically provide for ousting the jurisdiction of civil courts; even if there was no such specific exclusion, if it creates liability not existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the remedy could be had. Even in such cases, the civil court’s jurisdiction is not completely ousted.”
Now I discuss the situations when the civil court may take cognizance of any matter notwithstanding the bar of jurisdiction.
MALACE AND MALA FIDE ATTRIBUTED TO THE FUNCTIONARIES ACTING UNDER SPECIAL LAWS:
In “Gul Shah and others Vs. Hafiz Ghulam Muhammad and others” (2009 SCMR 1058) the honorable Supreme Court of Pakistan has held that:
“Admittedly, under section 14 of Act XIII, 1975 the jurisdiction of Civil Court is ousted / barred, but the jurisdiction is barred in ordinary cases and when malice and mala fide is attributed to the official respondents, then the Civil Courts are the Courts of ultimate jurisdiction and they can decide the matter in accordance with law.”
In another case titled “University of Punjab Vs. Miss Wajuha Arooj” (2008 SCMR 1577) the august Supreme Court held that:
“Where the action or order passed by the public officer, tribunal or authorities is within the four corners of jurisdiction, the Civil Court cannot entertain the lis. But where the order passed or act done was void, or without jurisdiction, or mala fide, or in excess of jurisdiction, or otherwise not in accordance with law, or based on fraud, the civil Courts would have jurisdiction to interfere with the same.”
It is abundantly clear now that the Civil Courts can take cognizance of the matter irrespective of the barring clause in the special enactment, if the order or action is not qualified upon the criteria laid down by the Apex Court in the above mentioned cases.
WHEN SERIOUS QUESTION OF FACT IS INVOLVED IN THE CONTROVERSY:
There may be another situation when the Civil Court can take cognizance of the matter, notwithstanding the barring clause in the special law. In a case wherein serious question of facts are involved for the determination of which framing of issues and recording of evidence is necessary and the special tribunal has not been given such powers, then the civil court has the power to adjudicate upon the matter as the special tribunal has no power to effectively decide the fate of the matter in issue.
In “Muhammad Khan and others Vs. Province of Punjab and others” (2007 SCMR 1169) the honorable Supreme Court held:
“It is well settled by now that “a purely administrative officer, who is empowered to pass an order if certain circumstances exist, has no jurisdiction to determine those circumstances and the objective existence of those circumstances is an essential condition of the validity of his order. In respect of every order passed by him, the court can make an enquiry and if it finds that all the circumstances needed for passing the order were not present, it will declare the order to be void………… So far as special judicial tribunals are concerned they are given jurisdiction to determine certain fact but they are not judges of the facts which are the foundation of their jurisdiction nor can they define the limits of their own jurisdiction.”
WHEN AGGRIEVED PERSON BECOMES REMEDY LESS:
Almost all the special laws provide mechanism for assailing the order of the authority before the next higher authority. For instance, as per section 82D of the Banking Companies Ordinance, 1962 the Banking Mohtasib has been given authority to decide the complaint filed against any bank or its employee. The order of the Banking Mohtasib, as per section 82E (4) of the same Act, can be appealed against before the Governor State Bank within 30 days of the passing of the order by the Mohtasib. There may be a situation that the appellate authority is not available or is not appointed, then, what would be the remedy available to the aggrieved party if he feels aggrieved with the order and wants to challenge the same?
This same situation came under discussion in case titled “All Pakistan Textile Mills Association Vs. Federation of Pakistan” (PLD 2009 Lahore 494) before the honorable Lahore High Court and the court held that:
“In the present case, Association of Textile Manufacturers, subject to its locus standi undoubtedly had a right of appeal under the statute, which was the most sacred right, however, if for any reason the forum of appeal had not been established enabling the exercise of such valuable right, the right, could not be allowed to be frustrated or stultified, for the lapse on part of the Federal Government as it was the fundamental principle of law that the rights and the remedies of the parties could not be left in vacuum, thus, in the situation the Association (Subject to its locus standi) shall have an independent right to challenge any such order under Art. 199 of the Constitution, if it had been passed by a forum which could be construed to be a forum against which a writ of certiorari would lie, otherwise before the courts of plenary civil jurisdiction under S.9, C.P.C.”
NO FURTHER RECOURSE TO DEPARTMENTAL AUTHORITIES IN CASE OF VOID ORDER:
In special enactments the legislature provides the mechanism to check the actions of the authorities who perform their functions under the said statute. In almost all the special laws the provisions of appeals and revisions have been provided and in some of the statutes, powers of review have also been given to the authorities. For instance, in West Pakistan Land Revenue Act, 1967 (the Act), the revenue functionaries have been given powers to hear appeals against the orders of their sub-ordinate revenue officers (section 161 of the Act). The Executive District Officer (Revenue) and the Board of Revenue have also been given powers of revision (section 164 of the Act) and as per section 163 of the Act certain revenue officers have been authorized to review their orders.
In this situation the next question which may arise here is that whether a person who is aggrieved by the order passed by a special tribunal / administrative officer is bound to assail that order under the special law by filing appeal or revision before the functionary designated to hear the same under that law or he may approach the civil court on any admissible ground, without exhausting all the remedies provided under the special law. As per the general rule, the aggrieved person is bound to avail all the remedies provided under the special law before approaching the civil court, so that, even if the order is void the departmental authorities should rectify the error themselves. But there are also certain exceptions to this rule which were highlighted in Mohd. Latif Vs. Province of West Pakistan” (PLD 1970 SC 180). The honorable Supreme Court held that:
“There is no doubt that under section 11 of the Sindh Revenue Jurisdiction Act, 1876, ordinarily the party in revenue matters should exhaust all his remedies by way of appeal before invoking the aid of the civil Court. But there are different considerations where the allegation of the party is that the impugned order is a nullity in the eye of law. The civil Courts have jurisdiction to examine into cases where statutory provisions have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.”
ABSOLUTE BAR OF JURISDICTION:
There are some instances that even mala fide or void-ab-initio orders of authorities cannot be questioned through filing a civil suit before the Civil Courts. If the bar is placed by the Constitution, which is the supreme law of the land then the jurisdiction of civil court would not be invoked in any situation, whatsoever.
As per Article 212 of the Constitution of Islamic Republic of Pakistan no court can take cognizance of the matter relating to the terms and conditions of civil servants except the service tribunals. There is also bar of jurisdiction of all the courts, except the tribunal established by legislation, in taxation matters. As per Article 225 of the Constitution, the elections of House or Provincial Assembly can only be challenged through election petition before election tribunals. All these matter are absolutely immune from scrutiny by the Civil Courts as the immunity is granted by the Constitution and the bar of jurisdiction is absolute without any exception. The question of invalidity of order or action for being mala fide and void etc. can only be raised before the special tribunals established by the legislature under the command of the Constitution or other remedy as provided by the Constitution itself.
In the light of the judgment of the superior court we may safely draw the following conclusion:
Notwithstanding of the bar placed by the legislature over the jurisdiction of the civil court the civil court may take cognizance of case in the following circumstances;
When the order / action has been taken in mala fide and malicious manner.
When the order has been passed or authority has been exercised in excess of jurisdiction or without jurisdiction.
When serious question of fact is involved which cannot be decided without recording the evidence.
When the aggrieved person has become remedy less due to non availability of appellate authority.
We may also conclude that the aggrieved person is bound to exhaust all the remedies available under the special law but in case of order which is void and nullity in the eye of law, he may approach the civil court straight away while bypassing the remedies available to him under the law.
Finally in case of bar imposed under the Constitutional provisions, the civil court would not take cognizance of the matter on any ground, whatsoever.