Damodaram Sanjivayya National Law University

Unit 3 – Choice of Forum

• Meaning of jurisdiction (Section 16-20 CPC)

• Kinds of Jurisdiction (jurisdiction in
personam and jurisdiction in rem)
• Stay of (Section 10 CPC)
• Limitation (Limitation Act 1963)

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Lecture 1
Meaning of jurisdiction

Meaning of jurisdiction

• The term ‘jurisdiction’ derived from Latin words: ‘juris’ means law and
‘dicto’ means speaking. So, ‘jurisdiction’ means speaking by law.

• Jurisdiction is the power or authority conferred by law upon courts to entertain

a suit and decide the dispute between the parties and render a valid judgement.

• Here the question is – whether a court will hear and determine an issue upon
which its decision is sought?.

• Rules relating to jurisdiction prescribes when a court will entertain a suit.

Courts in each country assume or decline jurisdiction as per applicable local
law and they won’t consider whether their actions in conformity with the
rules of international law.

• The principal applicable law in India is Civil Procedure Code 1908 which
contained detailed provisions upon jurisdiction (when courts have or do not
have jurisdiction) – Section 16 to 20 CPC.

Coram non judice – means ‘not before a judge’. Any judgement or sentence passed
by a court which has no authority to try – is clearly in violation of the law and would
be coram non judice. And the judgement will be treated as nullity.

• Kiran singh v. Chairman Paswan (Air 1954 SC 340) – a decree passed by a

court without jurisdiction is a nullity and its validity can be challenged even at
the stage of execution of proceedings. A defect of jurisdiction strikes the
wrong authority of the court to pass decree and that cannot be cured even by
the consent of the parties.

Jurisdictional Issues

• Territorial jurisdiction – section 15 to 20 CPC

• Pecuniary jurisdiction – section 16 CPC

• Subject matter jurisdiction – section 19 CPC

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– Sec. 16-18 immovable property; Sec. 19 movable property; and Sec.

20 cause of action

• Objections as to jurisdiction – section 21 CPC

Subject-matter jurisdiction (suit of civil nature):

– Sec. 19 CPC (the courts to try all civil suits unless barred). The courts
shall have the jurisdiction to try all suits of civil nature unless then
cognizance is either expressly or impliedly barred.

– Explanation 1 – A suit in which right to property or right to office is

contested is a suit of civil nature. Even if such right is entirely based on
the question of religious rites or ceremonies.

– Explanation 2 – it is immaterial that whether such office invokes any

remuneration or the office attached to any place.

Conditions:

– The suit must be of civil nature

– Cognizance of the suit is not barred either expressly or impliedly.

Suit of civil nature:

• Civil means anything relating to the private rights and remedies of a citizen as
opposed to the question of criminal, caste or religious questions.
• PMA Metropolitan v. Morom Mar Marthoma (AIR 1995 SC 2001)

The question was whether courts can examine the validity of an order
ex-communicating a person from religious matters relating to a church.
The court held that it involves the question of right to worship of a
person and the court has jurisdiction.

The court further held that the usage of the word ‘civil nature’ rather
than ‘civil proceeding’ indicates that the provision is broader in scope.

– Examples of suit of civil nature:

• Suits relating to right to property.

• Suits relating to enforcement of contract or damages for breach.

• Suits relating to marriage, divorce, succession.

• Suits relating to right to worship or religious procession

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• Suits relating to office.

Suits not of civil nature:

– Suits involving primarily caste questions.

– Suits involving primarily religious rites or ceremonies.

– Suits relating to upholding of dignity or honour.

– Criminal cases.

• Cognizance expressly barred:

– When the jurisdiction of a court is barred by the express provisions of

an enactment, the civil court has no jurisdiction over such cases. The
legislature has the power to enact any law expressly barring the
jurisdiction of civil courts (Sec. 23 of RTI Act)

– But such legislations should be interpreted strictly and civil courts

should always lean towards the exercise of jurisdiction.

• Example: matters falling under revenue courts, election tribunals, company

law tribunals, income tax tribunal, or matters dealt by bar council of India,
medical councils, university councils, etc. (Sec. 268 of Companies Act).

– State of Tamil Nadu v. Ramalinga Samigal (AIR 1986 SC 794) – when

remedy provided by the Statute is not adequate or where all questions
cannot be decided by the special tribunal or where the tribunal goes
ultra vires its jurisdiction or refuse to exercise its jurisdiction, the civil
courts can always interfere in such cases.

• Impliedly barred:

– Suits impliedly barred by special acts and tribunals.

– Barred by general principles of law

• That is, act of state or sovereign functions – duty of police

officer keeping jewels in safe custody on suspicion or act done
by judge in the course of his duties.

– Barred by public policy – damages for breach of illegal contracts,

defamation against witness in the course of proceedings.

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• Territorial Jurisdiction/Place of suing (Sec. 15 CPC)

– Section 15 to 20 CPC deals with place of suing or territorial

jurisdiction of courts. Section 21 deals with objections as to
jurisdictional issues.

– Section 15 CPC talks about courts in which suits to be instituted. Every

suit shall be instituted in the court of the lowest grade competent to try
it.

• The purpose of the section is to avoid over-crowding of cases at

higher courts. The section lays down the rule of procedure and
not of the rule of jurisdiction. The presence of Section 15 CPC
does not imply that the higher courts have no jurisdiction.

• Any suit decided by higher court, which ought to have decided

by the lower court – then it amounts to irregularity dealt under
Section 99 CPC.

• Any suit decided by a lower court, which ought to be decided

by a higher court – then the judgements becomes a nullity.

• Section 99 CPC provides that no decree shall be reversed in an

appeal on the ground of mere irregularity or error unless it
affects the merits or jurisdiction of the court.

– Nandita Bose v. Ratanlal Nahata (AIR 1987 SC 1947)

• The supreme court held that Section 15 CPC provides the

principle of pecuniary jurisdiction of civil courts. Ordinarily the
valuation of the suit is based on the relief claimed by the
plaintiff in the plaint. But he cannot invoke the jurisdiction of a
court by grossly overvaluing or undervaluing the suit.

• Pecuniary Jurisdiction (Sec. 16 CPC)

– Unless otherwise expressly provided, nothing in the CPC to give any

court jurisdiction over suits where the value of the subject-matter
exceeds the primary limits of its ordinary jurisdiction.

– Suits Valuation Act 1887; Punbjab Courts Act 1918

– Civil judge (junior division) – pecuniary limits upto Rs. 25,000. Civil
judge (junior division) after three years of service will have unlimited
pecuniary jurisdiction.
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– Civil judge (senior division) – no pecuniary limits as to the jurisdiction

over civil suits.

– District judge – appeal lies from the decree passed by both civil judge
(junior division) and civil judge (senior division) irrespective of the
value of original suit.

• Place of suing:

– Section 16, 17, 18 (suits on immovable property)

– Section 19 (suits for tort claims)

– Section 20 (other suits not falling under Section 16 to 19)

– For instance, section 16 provides the following six grounds in which a

suit may be instituted with regard to immovable property.

• Recovery of immovable property with or without rent or profit

• Partition of immovable property

• Foreclosure, sale or redemption of mortgage or charge

• Determination of right or interest in immovable property

• Compensation for wrong to immovable property.

• Recovery of movable property under distraint or attachment.

In all such cases the suit shall be instituted in the court within whose
local limits or jurisdiction the property is situated.

– Regarding the fifth ground regarding compensation for wrong done to

immovable property – the suit may either be filed at lex situs or at the
court within whose jurisdiction the defendant ordinarily resides or
carries on business or personally works for gain.

– But this alternative forum is available only when dependent held the
property and the wrong was done to the property and not for those
where the property was held by the plaintiff.

• Multiple Jurisdiction (Section 17 CPC)

– Where suit is to obtain relief or compensation with regard to an

immovable property situated within the jurisdiction of two or more

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courts, the suit may be instituted in any court within whose jurisdiction
or local limits any portion of the property is situated.

– But for pecuniary limits or valuation of the subject-matter of the suit –

the entire claim shall be taken into account.

– However, where the course of action arise as to the property outside is

wholly different from the property situate within jurisdiction – then
Section 17 CPC will not be applicable.

• Uncertainty over jurisdiction (Section 18 CPC)

– When the parties allege uncertainty as to the jurisdiction or local limits

or two or more courts with regard to an immovable property and the
court is satisfied as to the alleged uncertainty – then the court may
record a statement to that effect and proceed to entertain the suit.

– The decree passed by such court shall have the same effect as if the
property is situated within its local limits.

– When the court did not record any such statement – the appellate or
revisional court shall not allow any objection as to jurisdiction – unless
the appellate or revisional court is of opinion that at the time of the
institution of suit there has no reasonable ground for uncertainty as to
jurisdiction and there is a consequent failure of justice.

• Wrong to person or movables (Section 19 CPC)

– Where the suit is for compensation for wrong done to the person or
movable property then suit may be instituted at the court at whose
jurisdiction the wrong was committed or where the defendant
ordinarily or voluntarily reside or carries on business at the option of
the plaintiff.

– The section primarily focus on infringement of legal right i.e., torts or

civil wrong against a person or movable property. Example, assault,
slander, libel, etc.

• Other suits (Section 20 CPC)

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– For other suits that are not covered under the previous sections i.e.,
from Sec. 16 to 19 – like contracts, marriage, etc. the following are the
place of suing:

• Within the local limits of whose jurisdiction the cause of action

arise.

• Within the local limits of whose jurisdiction defendant

ordinarily or voluntarily resides or carry on business or works
for gain.

• When there are two or more defendants, then the plaintiff may
choose any one jurisdiction – provided: a. he has obtained the
leave of the court; or b. the remaining non-resident defendants
agreed and consented for the same.\

• Objection to jurisdiction (Section 21 CPC)

– Objection as to territorial jurisdiction – no such objection as to the

place of suing shall be allowed unless:

• It was taken in the court of first instance

• It has taken at the earliest possible opportunity

• There has been a consequent failure of justice.

– Objection as to pecuniary – no objection as to pecuniary limits of its

jurisdiction shall be allowed by the appellant or revisional court,
unless:

• It was taken in the court of first instance

• It has taken at the earliest possible opportunity

• There has been a consequent failure of justice.

– Objection as to the competence of executing court – no such objection

shall be allowed, with regard to the local limits of its jurisdiction, by
any appellate or revisional court, unless:

• Such objection was taken at the executing court

• It was taken at the earliest possible opportunity

• There has been a consequent failure of justice.

Private International Law – Dr. P.R. Kalidhass

 Damodaram Sanjivayya National Law University

Lecture 2
Meaning of jurisdiction (Cont….)

Who can file suit

• Section 83 CPC – Any one can file a suit in Indian court: Indian citizens,
foreigners/alien friend and corporations (whether they incorporated in India or
outside the country).

• An alien enemy (residing in India or in foreign country) cannot file a suit in

Indian court without the permission of Government of India. A person
considered as an enemy only when there is war between India and the foreign
country.

• Who is an alien enemy depends not on the nationality of the person but
by the place where he is residing or carrying on business. The same
applies to corporations.

• So a person voluntarily residing or carrying on business in a country at

war with India is regarded as an alien enemy.

• A Pakistani citizen could file a suit after the war, and the proclamation
of emergency had come to an end.

• Sovfracht (V/O) v. Van Udens Scheepvaart en Agentuur Maatschappij (NV

Gebr) 1943 – a company was incorporated in Netherlands. Germany occupied
Netherland during second world war. UK had war with Germany. Here, the
company was regarded as an alien enemy. In such situation, the corporation
could not resort to English courts unless permission was given by Royal
licence.

• What gives a place an enemy character, is invasion of the territory by

the enemy who exercises some kind of government or administration
over it.

• Where a friendly country is invaded and occupied by the enemy. A person

residing in such a place cannot be regarded as an alien enemy as the
government of that country was not at war with India.

• Similarly, if an alien enemy had field a suit before the outbreak of war, the suit
is maintainable and can be heard even if he subsequently becomes an alien
enemy. But he cannot file an appeal if his suit is dismissed as his right to do so
is suspended.
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• However, an alien enemy can be sued, and if he is sued, he can defend

himself, and file an appeal against any adverse order (may be final or
interlocutory).

Against whom one can file suit

• One can file a suit against the person for payment of damages for breach of
contract, or for a tort, or an action for recovery of debt, etc. The action may be
in personam or action inter partes.

• Similarly, a foreign company can sue and be sued in India.

• English law:

• Against these persons actions may be filed:

• When the defendant is present within the local jurisdiction.

• Where the court assumes jurisdiction.

• Where the defendant submits to the jurisdiction.

• Once summons are served on the defendant while he is at the

jurisdiction – then the court has jurisdiction (irrespective of any
connection with the subject-matter).

• If the summons are served on a foreigner who is a tourist or trader even

then the courts exercise jurisdiction.

• If the summons are not served on the defendant when he was within
the jurisdiction – then the court cannot exercise jurisdiction (even if the
subject-matter is well within its jurisdiction).

• Indian law:

• Section 15 to 20 of the CPC deals with the place of suing.

• Section 27 to 29 of the CPC deals with summons to defendants;

defendant in another state; foreing summons

• Order V Rule 9-20 talks about modes of service of summons.

• Kasinath v. Anant (1899)

• Plaintiff and defendant has a right to share profits arising out of

a property situated outside India. Defendant collects the income
and resides outside India.
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• But at the time of suit he was in India – under CPC the court
has no jurisdiction. Bombay high court held that it has
jurisdiction.

• Srinivas v. Venkata Ayyangar (1906)

• Defendant come to Madras as an apprentice for vakil. He was

present in the jurisdiction – at the time of suit. Clause 12 of the
Letters Patent Act 1865 confers territorial jurisdiction over all
person present in the territory.

Against whom one cannot file suit

Although as a general rule as an action can be filed against any person who is
present within the jurisdiction, there are certain persons who enjoy jurisdictional
immunity and therefore suits cannot be filed against them. The following persons
enjoy jurisdictional immunity:

• Foreign state, its head and its departments.

• Persons entitled to diplomatic immunity (e.g., the state officials like

diplomates, consular agents, etc.).

• Officials of international organizations including UN and its organs.

In international law, foreign states are immune from the suits in the municipal
courts of other countries in civil and criminal matters. In early days, the state officials
(such as diplomates, consular agents, head of the state, military commanders, etc.)
enjoyed absolute immunity and are completely immuned from their civil liability and
criminal responsibility.

Civil liability – Later on, the immunity of state officials have been confined only
to civil matters. Due to increase commercial activities of states, even the immunity
for civil matters have been restricted and now the immunity was confined only to
governmental acts of a state (acta jure imperii ) and no immunity for commercial
activities of the states (acta jure gestionis) is allowed.

• The Chistina – the court of a country will not implead a foreign sovereign
when a case involving damages. The court should not size or detain the
property which is his or of which he is in position or control.

• Once the official waive their immunity, then they have civil liability for their
acts.

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Criminal responsibility – For criminal matter – no immunity available to any

officials.

• Whoever commits genocide, torture, crime against humanity and crime of

aggression, then they are not immuned from criminal responsibility.

• Rome Statute on International Criminal Court 1998 and International

convention against Torture and Other Inhuman Or Degrading Treatment or
Punishment 1984 treats these crimes as serious crimes.

• United Nations (Privileges and Immunity) Act 1947, and Diplomatic Relations
(Vienna Convention Act 1972).

• Section 86 CPC – who enjoy immunity from suits. A foreign state can be sued
in a court in India, and Indian courts would then proceed to hear the suit
regardless of the principles of international law. Such consent can only be
granted in accordance with the provision of Section 86(2).

• Section 86(2) – if the foreign state has itself approached an Indian court, the
defendant can sue the state, and that the foreign state can waive the immunity.

• No suit can be field against a foreign state except with the consent of
Government of India. Consent cannot be refused without giving a reasonable
opportunity to the applicant to be heard.

• The government should bear in mind the principles of international law

• Immunity of foreign state entities – state enjoy immunity but only if and to the
ex tend to which, the proceedings relate to governmental acts.

• Waiver of immunity – once the immunity is waived then no immunity

• Probate – no immunity

• Taxation – no immunity

Kinds of legal actions

• Action inter partes or personal action

– the action may be relating to contract, tort, recovery of debt, etc. such
actions bind only parties to the dispute.

• Actions relating to property

– Immovable property and some times movable tangible and intangible

property.
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• Actions relating to status

– Matrimonial causes, guardianship, adoption, legitimacy, etc.

Lecture 3
Kinds of jurisdiction (Sec. 16–20 CPC)
• Jurisdiction in Personam
• Jurisdiction in rem

Jurisdiction in Personam

• Courts of any country have jurisdiction over property situated within the
country, and over persons (may be citizens or domiciled in that country).

• Similarly, even if the defendant is not within the jurisdiction of the court and
is not a citizen of the country – if the cause of action or part of it has arisen
within the jurisdiction of the court.

• In such situations, the domestic courts apply their own laws on the subject.
Orders passed in exercise of such jurisdiction in personam may not be
recognised and acted upon outside the country.

• Civil Procedure code 1908 – Sec. 16 provides that Indian courts have
jurisdiction over the property situated in India.

– suits for the possession of immovable property or the partition of

immovable property, or relating to the mortgage of such property or
for wrongs to such property – also for movables actually under

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distraint or attachment – can be filed in the Indian court within whose

jurisdiction the property is situate.

• Indian courts will not entertain suits in respect of property is situated outside
India. No suits for the partition or declaration of title to immovable property
situated outside India can be entertained in an Indian court.

• Exceptions:

– The rule had no application to admirality proceedings in rem.

– The rule does not apply to administration of an estate or trust.

– Suits for trespass or other torts relating to foreign land can be

entertained.

– If the defendant was within the jurisdiction of the court (if the suit is
relating to personal obligation) - equity acts in personam.

– Suits can be maintained for the specific performance of a contract

relating to immovable property (equity between them/fiduciary
relationship between them).

– Court can give direction to any property belonging to the husband and
wife (sec. 27 HMA).

– Suits for recovery of rent -recovery of profits from land, recovery of

sale proceeds of foreign immovable property.

– Court can declare a will is forgery under the Specific Relief Act 1963.

• Court within whose jurisdiction the property is situated, or the defendant

actually and voluntarily resides or carries on business or personally works for
gain.

• Suits for compensation for wrongs done either to person or movables - within
whose jurisdiction or carries on business or personally works for gain.

• Section 20 CPC – enables an Indian court to assume jurisdiction over a suit if

the defendant, or some of the defendants actually and voluntarily reside or
carry on business or personally works for gain, or the cause of action wholly,
partly has arisen

• A corporation is deemed to carry on business at its sole or principal office in

India, or in respect of a cause of action arising in any place where it has a
subordinate office, at such place.
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• A company incorporated outside India which has established a place of

business in India – is required to file with the Registrar of Companies – the
name of a person and address where process can be served on it – and service
can be effected on such person and at such place.

• An Indian court cannot attach the salary of an employee in a foreign country.

Foreign intangible property – suits for infringement of foreign patents or copyrights

can be maintained wherever the infringement takes place.

• Penguin Books Ltd. England v. M/s India Book Distributors 1986 – Delhi high
court observed that the right of copyright is a territorial concept.

• Hague Convention on the Choice of a Court 1965 (choice of forum)

• The convention applies to agreements on the choice of a court in civil and

commercial matters in situations having an international character

• This convention does not apply to matters of status or capacity of persons or

family matter or relating to maintenance obligations or questions of succession
or bankruptcy or relating to immovable property.

• the convention enables the parties to decide in advance that any disputes that
may arise between them will be decided in the court in a particular country.

• All other courts must decline jurisdiction in such cases.

Jurisdiction in rem

Apart from CPC, certain statutes enact special rules relating to jurisdiction in
specified cases:

• Jurisdiction in rem enables courts to pronounce on things, mainly ships and

their cargo.

• Admirality jurisdiction - English parliament enacted an Act called the

Colonial Courts of Admiralty Act 1890 which conferred the admirality
jurisdiction on the old Supreme Courts in Bombay, Calcutta and Madras.

• Subsequently, Indian Legislature enacted the Colonial Courts of Admirality

(India) Act 1891 which conferred the admiralty jurisdiction of the High Courts
of Bombay, Calcutta and Madras.

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• Later, the Law Commission of India proposed a draft Admiralty Act 1993 – all
high courts in India should enjoy admirality jurisdiction.

• The mode of proceeding in admiralty matters is regulated by rules made by the

courts. The usual procedure is to apply for the arrest of a ship or its cargo, and
the proceeds of the sale of a ship or cargo, within the jurisdiction of the court
(whether an Indian ship or ship registered outside India).

• The proceedings begin in rem, but if the owner of the ship or cargo appears in
court to contest the proceedings, the proceedigns become in personam as the
owner is regarded as having submitted to the jurisdiction of the court.

• Air proceedings – Carriage by Air Act 1972 (Warsaw Convention and Hague
Protocol)

• An action for damages against a carrier has to be filed, at the option of

the plaintiff either where the carrier is ordinarily resident or has his
principal place of business or has an establishment where the contract
was made, or at the place of destination (Rule 28 of the Act).

• Regarding baggage, the passenger can proceed against either the first
carrier, the last carrier, or the intervening carrier if the damage, loss or
delay (Rule 30 of the Act).

• Maritime Proceedings – Merchant Shipping Act 1958 (sec. 145-150)

• A suit or proceeding by a seaman or apprentice or the master of a

vessel for the recovery of wages can be tried summarily by a judicial
magistrate of the First Class or Metropolitan Magistrate

• A civil court would have no jurisdiction unless the owner of the vessel
has been declared insolvent or the vessel has been arrested under the
order of a court.

• Multimodal Transportation of Goods Act 1993 (sec. 25) – a court have

jurisdiction to entertain a claim under the Act if the principal place of business
or the habitual residence of the defendant is within jurisdiction, or the contract
was made within the jurisdiction, or the goods were shipped or were to
delivered within jurisdiction.

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• Matrimonial proceedings – it is covered under different laws for different

religion of the person.

• Guardianship Proceedings – Guardians and Wards Act 1890 (sec. 9), Hindu
Minority and Guardianship Act 1956

• An application for the appointment of a guardian of the person of the

minor can be made in the court within whose jurisdiction the minor
ordinarily resides

• And in the case of the appointment of the guardian of the property of

the minor either in the court within whose jurisdiction the property is
situated or the minor resides.

Stay

Section 10 of CPC

Limitation

Indian Limitation Act 1963

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