Legal Notes by Arvind Datar: Coram Non Judice

The literal meaning of coram non judice is “before one who is not a Judge”.   This expression is used in cases where the court or tribunal lacks jurisdiction to decide a particular case. In Harshad Chimanlal Modi v. DLF Universal Ltd. (2005) 7 SCC 791, C.K. Thakker J. classified the jurisdiction of a court into three important categories:

(i) territorial or local jurisdiction;

(ii) pecuniary jurisdiction; and

(iii) jurisdiction over the subject matter.

The learned judge quoted a passage from Halsbury and held that neither consent nor waiver nor acquiescence could confer jurisdiction on a court otherwise incompetent to try the dispute. The case law under the three categories above can now be briefly discussed.

(i) Territorial jurisdiction: In Dhodha House v. Maingi, (2006) 9 SCC 41, it was held that if a District Court adjudicates a dispute when it lacks territorial jurisdiction, its judgment would be a nullity. In this context, a reference may be made to another important decision in Bahrein Petroleum Co. Ltd. v. P.J. Pappu AIR 1966 SC 634. In this case, a typist filed a suit in Cochin for recovery of his dues from his employer situated in Bahrein.  While the trial court accepted the objection on jurisdiction, the High Court of Kerala held that the employer had waived his objection on territorial jurisdiction and asked the trial court at Cochin to try the suit on merits.   Actually, the foreign employer had taken the objection on jurisdiction in its written statement. The Supreme Court referred to section 21 of the Code of Civil Procedure, 1908 and observed that an objection as to the place of suing cannot be taken at the appellate or revisional stage unless it was taken  before the trial court and before the issues were settled. This section used the expression “unless there has been a consequent failure of justice” and this was interpreted to mean “at a time before the trial court has given its verdict on merits”. The consequent failure of justice cannot arise unless the suit had been tried on merits. The objection on territorial jurisdiction was upheld.

(ii) Pecuniary jurisdiction: In Kiran Singh v. Chaman Paswan AIR 1954 SC 340, the plaintiff undervalued the suit.  Consequently, the appeal was heard in District Court and not by the High Court, on account of the lower pecuniary value. The deprivation of the right of the appeal to be heard by the High Court, was claimed, by the plaintiff, to have caused prejudice to him. It was further argued that the decree passed in appeal by the District Court, on the basis of an under-valued suit, was also to be regarded as a nullity. This plea was rejected on the basis of section 11 of  the Suits Valuation Act, 1887. It noted that the objection as to undervaluation had not been taken before the trial court but only in the appeal. Interestingly, it was the plaintiff who had undervalued the suit and then took the objection of lack of jurisdiction after he lost the appeal. On the basis of section 11, this plea was rejected, and it was also held that the decree  passed by the appellate court would not be a nullity as there was no prejudice to the plaintiff who, in the first place, had himself undervalued the suit. Apart from interpreting section 11, the court held that it would be an unfortunate state of law if the plaintiff, who initiated proceedings in a court of his own choice, could subsequently turn around and question the jurisdiction on the ground of  an undervaluation which was his own.  

Reference may also be made to section 21 of the CPC which prohibits an objection on grounds of pecuniary jurisdiction to be taken up before the appellate or revisional court, unless it was taken in the court of first instance at the earliest opportunity and before issues were settled.

(iii)  Jurisdiction over the subject matter: In Chandrabhai K. Bhoir v. Krishna Arjun Bhoir (2009) 2 SCC 315, the High Court in exercise of its testamentary jurisdiction, went into a dispute regarding  a development agreement between the legal heirs and the third party. It was held that the development agreement was a separate contract and the dispute with regard to it could not have been decided by the High Court while exercising its testamentary jurisdiction. The order of the High Court would be a nullity; it would be coram non judice.

In another case, Chief Engineer, Hydel Project v. Ravinder Nath (2008) 2 SCC 350, a labour dispute arising out on account of termination of employees under the Certified Standing Order was tried by the civil court when the remedy was only under the Industrial Disputes Act, 1947. Upholding this objection, the Supreme Court held that the order passed by all the courts below were a nullity as the civil courts were coram non judice. It also held that the order of the civil court, including the High Court were liable to be set aside even though the objection on jurisdiction was not taken at the initial, first appellate or the second appellate stage. Consequently, the judgments of all the three courts were set aside without expressing any view on the merits of the dispute.     

In Union of India v. Association of Unified Telecom Services Providers of India, (2011) 10 SCC 543, it was held that the order passed by the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) deciding on the validity of certain clauses in the telecom licence agreement was without jurisdiction. Consequently, the TDSAT order was held to be nullity and the principle of res judicata will not apply. Reference was made to earlier cases, where it was held that orders which are coram non judice can be challenged even in collateral proceedings.

Thus, the lack of jurisdiction can arise on three grounds mentioned in the beginning of this article.

As far as territorial and pecuniary jurisdictions are concerned, the objection to such jurisdiction has to be treated at the earliest possible opportunity and, in any case, at or before settlement of issues. If such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage.

Jurisdiction as to subject-matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject-matter of the suit by reason of any limitation imposed by statute, charter or b commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is a nullity.

A decree passed by a court having no jurisdiction is non est and its invalidity can be set up whenever it is sought to be enforced as a foundation for a right, even at the stage of execution or in collateral proceedings. A decree passed by a court without jurisdiction is a coram non judice.

Arvind P Datar is a Senior Advocate.