I am BACK. The details will follow soon with pictures. Just before leaving for Pakistan i guess i have left my PALPITATING organ in Delhi. Surely so many new friends will take good care of it.
For the moment. THANKS TO ALL. It may be impossible to pay back the amount of bestowed hospitality. I love my new friends and i hope our mutual respect and understanding will grow us tall.
Thankyou so much for what all of you did?
We miss you and want all of you here in Lahore. Soon, Very soon and its an ORDER.
The most Costly SLAVE Works More, Eats little, Sleeps barely and Speaks less..............Like most, I am ECONOMICAL
Thursday, March 30, 2006
Saturday, March 18, 2006
JURISDICTION FRUSTRATION
The Latin term “Juris-dictio” or ‘law saying’ will later become the fundamental term of every legal system and for the bulk of laws developed by all nations. Ordinarily it will reflect in it the space and a stretch between which a certain law would operate. In the procedural laws the jurisdiction issues will arise frequently and even the most wary legislatures will coy from defining absolutely the ‘jurisdiction’ because of the magnanimity of the term. It is however clear that in territorial area of laws, a general jurisdiction will clearly define its boundaries and parameters. The present paper will attempt to deal with ‘Jurisdiction’ as unfolded in the Code of Civil Procedure 1908.
Since the Civil Procedural laws are to transform so many substantive laws in operation which may fall in its domain, the language of the code is must to be constructed to allow a playing surface for all of them. In at least one perspective every provision of Civil Procedure contains expressly or impliedly, directly or indirectly, and actively or passively its relation with Jurisdiction. It is only possible to identify certain provisions which flavors it well and contains therein the profound and stark features of jurisdiction.
Code of Civil Procedure 1908 talks JURISDICTION
In determining the parameters of ‘Jurisdiction’ in Code of Civil Procedure Section 9 holds a crown position. The section in fact contains heaps of valuable legal perspectives. It allows the Courts to embrace every kind of civil suit except for which the code itself or other concerned laws bar it. This section generates and provide strong strength to the courts, only through the channels which other body of laws allow to flood it. The only check on jurisdiction expressly stated is to the other sister provisions of the same code, the later part of section in its attempt to define jurisdiction announces the other laws and their maybe compatibility with it. In each case this section open heartedly allows other laws to succumb to it. Its legislative explanation further elaborates the scope of jurisdiction of courts to try the civil suits. Since the section is based on the age old principle of ‘Ubi jus ibi remediem (wherever there is a right, there is a remedy) the moment a civil right is to be asserted the jurisdiction of all courts capable of trying it will be invoked. It is however to be kept in mind that if the ‘jurisdiction’ talks about its stretch-ness it never fails to submit to the limits.
In order to invoke a jurisdiction certain requisites are to be fulfilled before actually a current could be sparked in it. Jurisdiction consist of taking cognizance of a case by court, establishing certain points, taking jurally observations and then ascertaining/ establishing the points as understood by that legal seat. It has been held that there lies a distinction between ‘want of jurisdiction’, ‘excess of jurisdiction’ and ‘wrong exercise of jurisdiction’. The Civil Code Procedure also subscribe to the fact that the civil courts have the authority to determine their own personal jurisdiction and when it may be so challenged the court will go through the tests (which the procedural rules itself provide) and in case of failure will not exercise it. The plaint to entertain that suit will thus be returned. Now on the other extreme if the jurisdiction of the court remains undisturbed and the parties to a suit remain contently oblivious of the jurisdiction (obviously not every suit will be contested on these grounds) and the court gives the finding on the suit, it can only be objected on the grounds of appeal, review and revision etc but not on jurisdiction.
In PLD 1964, SC 1997 it has been held that every irregularity in the exercise of jurisdiction shall not result in the reversal or variation of decree by the appellate court. And only the irregularity of serious nature or that which spoils the merit of the case or the serious irregular exercise of jurisdiction may meet veer, but not pointing at an early stage may result in a waiver of right to object at the later stage.
The litmus test to establish a jurisdiction can be several and the major comes from the clarity of the law to which it expressly confers power to the court dealing with the suit. Often in the preliminary inquiry such issues are brought forward. The Section 16 so exhaustive in nature talks as to the territorial jurisdiction of the court and limits it to the immoveable property as is situating in the local limits of the courts. It has been held in 1985 SCMR 604, that civil court has territorial jurisdiction over the entire district and the District Judge cannot restrict such local limits. The other parameters so exclusive to jurisdiction involves Pecuniary jurisdiction on the basis of which competency of a court and its authority is judged. Its purpose is to bring clarity in the subject matter of the trial and this may be usually judged before or at the beginning of a trial.
Another perspective of Section 9 also reveals the jurisdiction of courts to exercise its authority to every individual. The personal jurisdiction thus comes best to define it. Since the law clearly expresses itself to ‘suit of civil nature’ it further emphasis the object of the code only to ascertain or enforce a civil right through a civil proceeding. The PLD 1949 Lahore, 301 held that the court makes no difference between common law rights and the statutory rights. Another interesting perspective reveals that it’s only the subject matter of the suit which determines the nature of the suit and not the status of the parties that comes in defining it. Though this makes us enter the debate of Civil law vs. Criminal law but in its outermost capacity the establishing of rights against one individual to another invokes the civil law, thus the suits filed as a matter of right for the assertion of civil right come directly in its fold.
Apart from that there are however so many grounds on the basis of which suits can be barred and they may all fall under a ‘jurisdictional objection’. The jurisdictional objections seem to be so vast that almost every kind of bar put on the suit in fact amounts to fall in it. Thus the issues of concern for the court are only the jurisdictional objections and not any other relation.
The enormity of the term and its capacity to be used especially in the civil suits seek deep, thorough and clear description rather than its definition or interpretation. The exhaustive journey of procedural codes outshines its masters and the temptation to grope it further remains insatiable. The contemporary advances in legal system and society demands quick disposal of suits and if most of them become prey to jurisdiction in its strong web, the odds are that superfluous jurisdiction frustration will continue………....I really mean it has to continue…….The temptation and frustration like this present so chaotic discourse.
Since the Civil Procedural laws are to transform so many substantive laws in operation which may fall in its domain, the language of the code is must to be constructed to allow a playing surface for all of them. In at least one perspective every provision of Civil Procedure contains expressly or impliedly, directly or indirectly, and actively or passively its relation with Jurisdiction. It is only possible to identify certain provisions which flavors it well and contains therein the profound and stark features of jurisdiction.
Code of Civil Procedure 1908 talks JURISDICTION
In determining the parameters of ‘Jurisdiction’ in Code of Civil Procedure Section 9 holds a crown position. The section in fact contains heaps of valuable legal perspectives. It allows the Courts to embrace every kind of civil suit except for which the code itself or other concerned laws bar it. This section generates and provide strong strength to the courts, only through the channels which other body of laws allow to flood it. The only check on jurisdiction expressly stated is to the other sister provisions of the same code, the later part of section in its attempt to define jurisdiction announces the other laws and their maybe compatibility with it. In each case this section open heartedly allows other laws to succumb to it. Its legislative explanation further elaborates the scope of jurisdiction of courts to try the civil suits. Since the section is based on the age old principle of ‘Ubi jus ibi remediem (wherever there is a right, there is a remedy) the moment a civil right is to be asserted the jurisdiction of all courts capable of trying it will be invoked. It is however to be kept in mind that if the ‘jurisdiction’ talks about its stretch-ness it never fails to submit to the limits.
In order to invoke a jurisdiction certain requisites are to be fulfilled before actually a current could be sparked in it. Jurisdiction consist of taking cognizance of a case by court, establishing certain points, taking jurally observations and then ascertaining/ establishing the points as understood by that legal seat. It has been held that there lies a distinction between ‘want of jurisdiction’, ‘excess of jurisdiction’ and ‘wrong exercise of jurisdiction’. The Civil Code Procedure also subscribe to the fact that the civil courts have the authority to determine their own personal jurisdiction and when it may be so challenged the court will go through the tests (which the procedural rules itself provide) and in case of failure will not exercise it. The plaint to entertain that suit will thus be returned. Now on the other extreme if the jurisdiction of the court remains undisturbed and the parties to a suit remain contently oblivious of the jurisdiction (obviously not every suit will be contested on these grounds) and the court gives the finding on the suit, it can only be objected on the grounds of appeal, review and revision etc but not on jurisdiction.
In PLD 1964, SC 1997 it has been held that every irregularity in the exercise of jurisdiction shall not result in the reversal or variation of decree by the appellate court. And only the irregularity of serious nature or that which spoils the merit of the case or the serious irregular exercise of jurisdiction may meet veer, but not pointing at an early stage may result in a waiver of right to object at the later stage.
The litmus test to establish a jurisdiction can be several and the major comes from the clarity of the law to which it expressly confers power to the court dealing with the suit. Often in the preliminary inquiry such issues are brought forward. The Section 16 so exhaustive in nature talks as to the territorial jurisdiction of the court and limits it to the immoveable property as is situating in the local limits of the courts. It has been held in 1985 SCMR 604, that civil court has territorial jurisdiction over the entire district and the District Judge cannot restrict such local limits. The other parameters so exclusive to jurisdiction involves Pecuniary jurisdiction on the basis of which competency of a court and its authority is judged. Its purpose is to bring clarity in the subject matter of the trial and this may be usually judged before or at the beginning of a trial.
Another perspective of Section 9 also reveals the jurisdiction of courts to exercise its authority to every individual. The personal jurisdiction thus comes best to define it. Since the law clearly expresses itself to ‘suit of civil nature’ it further emphasis the object of the code only to ascertain or enforce a civil right through a civil proceeding. The PLD 1949 Lahore, 301 held that the court makes no difference between common law rights and the statutory rights. Another interesting perspective reveals that it’s only the subject matter of the suit which determines the nature of the suit and not the status of the parties that comes in defining it. Though this makes us enter the debate of Civil law vs. Criminal law but in its outermost capacity the establishing of rights against one individual to another invokes the civil law, thus the suits filed as a matter of right for the assertion of civil right come directly in its fold.
Apart from that there are however so many grounds on the basis of which suits can be barred and they may all fall under a ‘jurisdictional objection’. The jurisdictional objections seem to be so vast that almost every kind of bar put on the suit in fact amounts to fall in it. Thus the issues of concern for the court are only the jurisdictional objections and not any other relation.
The enormity of the term and its capacity to be used especially in the civil suits seek deep, thorough and clear description rather than its definition or interpretation. The exhaustive journey of procedural codes outshines its masters and the temptation to grope it further remains insatiable. The contemporary advances in legal system and society demands quick disposal of suits and if most of them become prey to jurisdiction in its strong web, the odds are that superfluous jurisdiction frustration will continue………....I really mean it has to continue…….The temptation and frustration like this present so chaotic discourse.
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