The word “jurisdiction” comes from latin words “juris” and “dicto” which means ‘I speak by the law’. It may be defined to be the power or authority of a Court of law to entertain, hear and determine a a cause or a matter or suit or other legal proceedings.
The jurisdiction of a Court thus refers to the power or the extent of the authority of a Court to administer justice with reference to the subject matter, pecuniary value and the extent of local authority. In Official Trustee v. Sachindra Nath, 1969, SC, before a court to be held to have jurisdiction to decide a particular matter it needs both the jurisdiction to try the suit and authority to pass the order sought for.
Thus, the jurisdiction must include the power to hear and decide the question at issue, the authority to hear and decide the particular controversy that has arisen between the parties.
The Courts and Their Jurisdiction
The High Court Act, 1861 – In the year 1862, namely, the High Courts of Calcutta, Bombay and Madras and one high court was established in the year 1866, namely, the high Courts of Allahabad. All these high courts were established by letters patent or charter, and they are therefore called Chartered high Courts. The Charter, for each of these high courts defines the nature and the extent of its jurisdiction.
The other statute, namely the Indian Councils Act, 1861, empowered the governor General of India in the Council to establish other courts in British India viz. the presidency small cause courts, provincial small cause courts, district courts, subordinate judges, courts, munsiff’s courts, etc.
Jurisdiction and Consent
It is a settled proposition of civil law for a Court having jurisdiction to decide a dispute cannot be robbed of its jurisdiction. The same cannot take away or oust by the consent of the parties. A defect of jurisdiction goes to the root of the matter and strikes at the authority of a court to pass a decree. Such a basic and fundamental defect cannot be cured by consent of parties and the judgment or order passed by a court, however precisely certain and technically correct, is null and void and the validity thereof can be challenged at any stage.
Any agreement which absolutely oust the jurisdiction of a court is both unlawful and void as against the public policy. If two or more courts have jurisdiction to try the suit, then the parties can certainly have an exclusive “jurisdiction clause” and may confer jurisdiction on anyone of the courts having such jurisdiction. Such agreement is valid and enforceable too.
Example: – (Often, two courts have concurrent jurisdiction, as for instance, when A in Mumbai sells goods to B in New Delhi. In such cases, it is open to the parties to agree in advance that the courts of only one particular city, for example, only the courts in Mumbai, would have jurisdiction in all matters relating to the business transactions between them.
Thus, one finds clauses like “Subject to Mumbai Jurisdiction only” on the bills, invoices, purchase orders, etc. of a company which is based in Mumbai. Such agreements are valid and enforceable and are not covered by S. 27 of the Indian Contract Act, which declares that all agreements in restraint of judicial proceedings are void).
Similarly, the parties cannot confer upon a court, jurisdiction which it does not possesses.
Example: – For instance, if A in Mumbai sells goods to B in New Delhi, the parties cannot agree that only the appropriate courts in Gujarat shall have jurisdiction in the matter, when no part of the cause of action has arisen in the State of Gujarat.
Thus, if the Court has no inherent jurisdiction, neither acquiescence nor waiver nor estoppel can create. The power to create or enlarge jurisdiction is legislative in character, so also the power to confer right of appeal or to take away the right of appeal.
A decree passed by a Court without jurisdiction is a Coram Non Judice i.e., a legal proceeding i.e., outside the present of a Judge, with improper venue or without jurisdiction. Any order so passed by a Court which has no authority to try the matter is clearly violation of law and would be Coram Non Judice and a nullity.
In the words of Lord Hobhouse, “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.”
In other words, if there is inherent lack of jurisdiction, the decree passed by a civil court is a nullity, and that nullity can be set up in any collateral proceedings. However, if a court has jurisdiction but it is irregularly exercised, the defect does not go to the root of the matter, and the error, if any, in exercising the jurisdiction can be remedied in appeal or revision and when there is no such remedy or is not availed of, the decision is final.
In Ittyavira Mathai Mathai v. Varkey Varkey AIR 1964 SC 907, it was contended that the decree passed by the court was a nullity since the suit was time barred. Negating that 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.”