The general jurisdiction of the civil courts to try all suits of a civil nature conferred and recognized by section 9 CPC is subject to the condition that their jurisdiction has not been expressly or impliedly barred. It is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred but that such exclusion must either be explicitly expressed or clearly implied.
Express ouster under the CPC itself
There are provisions in the CPC itself which bar the cognizance of certain suits by the civil courts. For example:-
- Sections 11 and 13 CPC- Res Judicata.
- Suits barred by section 12 CPC under sub section (1)
- Order II Rule 2
- Order IX Rule 9
- Order XXI Rule 103
- Order XXII Rule 9
- Order XXIII Rule 1 under Sub section (2)
- Suits barred by section 47
- Suits barred by Section 144
Express ouster under other laws
Different formulas are employed to bar the jurisdiction of courts. The commonest formula adopted with a little variation in language and emphasis here and there is to provide that an act done or order made by an authority under a statute shall not be questioned or called in question in a court of law. When the legislature says that a certain act cannot be questioned by a court of law, then it means notwithstanding any provision contrary to it in any other law and absence of the words such as “notwithstanding any other provision” in the ouster clause would not make difference. The leading authority on the point is Zafar-ul-Ahsan case. (PLD 1960 SC 113). It was held “if a statute provides that an order made by an authority acting under it shall not be called in question in any court, all that is necessary to oust the jurisdiction of the courts is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute and the order made should be such as could have been made under the statute. These conditions being satisfied the ouster is complete……”.
Then, there are provisions which not only bar the jurisdiction of the courts but also provide alternate remedy. The repealed Income Tax Act of 1922, section 67, provides an illustration of such a provision. That section provided that “no suit shall be brought in any civil court to set aside or modify any assessment made under this Act…….” While expressly barring the jurisdiction of the civil court, the Act exhaustively defined the obligations of, and prescribed the remedies available to, a tax-payer.
Ouster where any special authority is Empowered
Sometimes jurisdiction is ousted by providing that no court shall have jurisdiction in respect of any matter which an authority or officer is empowered to determine or that a civil court shall not have jurisdiction in any matter which an authority or officer is empowered by Act to dispose of. In such cases, the statute empowers and vests the statutory authorities with jurisdiction to determine certain specified matters. If the matter determined by such an authority falls squarely within its jurisdiction, the ouster is complete and the jurisdiction of the civil courts is barred. (1968 SCMR 667 ) (PLD 1975 SC 624).
Saving of Orders done “Under the Act”
Then, there are jurisdiction – ousting clauses which save orders or acts done “under the Act” from challenge in civil courts. The intention here is not to protect any and every order or act. Such provisions are limited in their application to acts or orders which could be passed under the Act or which the officer making them was empowered to make under the Act. (PLD 1965 SC 698).
In a particular enactment the words such as “under the Act” may not appear and words of similar import may have been used. But whatever the phraseology employed, any provision saying that orders passed under the enactment would not be liable to challenge in a court of law has reference only to orders passed with jurisdiction. (PLD 1965 SC 671).
Special Judicial or Administrative Tribunals:
Generally, special judicial or administrative tribunals are given jurisdiction to determine certain facts but they are not judges of the facts which are the foundation of their jurisdiction (they are called jurisdictional facts); nor can they define the limits of their own jurisdiction. (PLD 1975 Lah 1270).
But where the special tribunal required to be established under the statute is not constituted or is constituted but does not function or refuses to exercise jurisdiction entrusted to it, the civil courts’ jurisdiction to determine the rights of civil nature is not ousted. (PLD 1964 Dacca 773)
There are then finality clauses. A statute may say that any determination of a tribunal or authority “shall be final and conclusive”. In England, it has been uniformally held that they preclude an appeal to a higher court – in the sense of an appeal proper where the higher court reviews the decision of the lower tribunal. The same principle applies in Pakistan. Thus, even where the statute says that the order shall be final and shall not be called in question in any court, the jurisdiction of the civil courts is not barred in respect of acts or orders without or in excess of jurisdiction. As was held in Abdul Rauf V. Abdul Hameed such expressions have reference only to orders passed with jurisdiction. (PLD 1958 SC (Pak) 104).
Where there is no express ouster of the civil courts’ jurisdiction and there is no provision in the statute concerned such as that the court will have no jurisdiction to entertain suits or that acts done or orders made under the statute shall not be called in question in any court, then the question to consider is whether on a true construction of the various provisions contained in the statute it can be held that the jurisdiction of civil courts is impliedly barred. This being a question of construction has to be approached with a pronounced leaning against ouster, on the principle that recourse to established courts for the determination of one’s rights is not to be excluded except by clear words. Such exclusion, must therefore be clearly and necessarily implied.
Just as the civil courts exercise the judicial power of the State in civil matters, the criminal courts exercise the judicial power of the State in criminal matters. No suit will, therefore, lie for a declaration that the plaintiff has not committed a criminal offence or that the facts basis of a criminal prosecution do not constitute a criminal offence.