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Cyberspace and Civil Procedure Code


Authored by Yukti Kohli


Keywords: Civil Procedure Code, Cyberspace.


Abstract

The Civil Procedure Code can be used to solve the problems of jurisdiction. Jurisdiction is not defined in the Code of Civil Procedure. This article deals with the exclusion of jurisdiction. Civil court has the jurisdiction to try suits of civil nature. The jurisdiction of the civil court can’t be questioned until it is not expressly or impliedly restricted. This article deals with the concept of a plea of the objection of jurisdiction, which states that objection can be taken at any stage of the proceedings.

Introduction

Cyberlaw, also known as cybercrime law, states the legislation concerning technology including a computer system, computer hardware, computer software, internet, network, etc. Cyber laws help from the harms that can be caused over the internet, therefore in this era of technology, such cyber laws are required.


Jurisdiction can be defined as the power of the court to adjudicate a matter. Jurisdiction is not defined in the Code of Civil Procedure. In other words, we can say that Jurisdiction is the power of a formally formed legal body to adjudicate on legal matters and to administer justice within a designated place of control. The term jurisdiction is also used to describe the subject matter or the geographical area wherein the authority of the legal body extends.

The Concept related to the Jurisdiction

The term jurisdiction was defined under Hriday Nath v Ram Chandra[1], as the authority of a court to decide the cases by virtue of its judicial power. The Indian judiciary system follows the Legal maxim “Ubi Jus Ibi Remedium” which means that where there is a right there is a remedy. Therefore, the jurisdiction of the court lies where the wrong has been committed. Section 9[2] of the Civil Procedure Code states that the civil court has the jurisdiction to entertain the civil suit unless it is impliedly or expressly prohibited. In Ganga bai v Vijai Kumar[3] the court held that it is an inherent right to constitute a civil suit unless it is impliedly or expressly. Later the court in Sankar Narayana Pottiv R Sreedevi[4] follows the same judgment as of Ganga bai v Vijai Kumar held that section 9 provides the power to the civil court to have jurisdiction over several disputes unless it is strictly restricted.

Civil nature suit is a suit that is not criminal in nature. Any suit that leads to determination and enforcement of civil rights may be defined as a civil suit. The concept of civil proceeding was elaborated by the court in the case of Kaher Singh Nihal Singh v Custodian General[5]. Under civil suits and civil proceedings, the two parties fight for enforcement and redressal of a private right. A civil suit aims to get compensation or recovery for private rights infringement. In civil proceedings, private rights are granted to individuals or corporations of society. The burden of proof to prove the execution of jurisdiction is upon the party claiming it.

Exclusion of jurisdiction

The general principle says that the civil court has the jurisdiction to try suits of civil nature. The jurisdiction of the civil court can’t be questioned until it is not expressly or impliedly restricted.

The apex court in the case of State of Andhra Pradesh v Majiti Laxmi Kanth Rao[6] laid down a test to determine the exclusion of jurisdiction of civil courts. First, the legislative intent is to exclude the suit which is to be determined which can be done either directly or implicitly. The court is liable to find and know the reason for the exclusion of civil courts and the court must justify the same. Thus the justification is not open for judicial scrutiny.


Then the court sees whether barred jurisdiction of a court provides for an alternative remedy or alternative jurisdiction. The alternative jurisdiction must have the same powers to pass the orders as that of the excluded jurisdiction. If there is no remedy available then the civil court jurisdiction cannot be excluded. But this test was overruled in Balawwa v Hasanabi[7]. The Allahabad High Court held that if in certain suits, a certain part is not tried by the civil code because of implied or expressed exclusion it does means that the entire suite will be prohibited.

Further, the court stated that if any special tribunal is created and the jurisdiction lies in the special tribunal, then also the jurisdiction of the civil court cannot be barred. As the civil courts have the inherent jurisdiction to entertain civil suits, the special tribunals can pass the decree concerning the part of the jurisdiction of the civil court is excluded.


Plea of the absence of jurisdiction

In Kiran Singh v Chaman Paswan[8] stated the scope of objecting concerning the jurisdiction of the court. The court held that Plea of objection can be raised at any stage of the proceedings, even in collateral proceedings. In Chief Engineer Hydro Project v Ravinder Nath[9], the court observed that the plea of objection cannot be rejected merely on the ground that the plea of the objection of jurisdiction was not taken in the initial stage and the court passed the decree without having jurisdiction.

Although the plea for the absence of jurisdiction can be raised at any stage of the proceedings it is only allowed for the court of the first instance and not in appellate courts. As the principle of natural justice may fail if a plea of absence of jurisdiction is allowed at the appeal stage and therefore injustice can be done to the opposite party. Therefore this plea of raising an objection is not allowed at the appellate stage.

Civil Jurisdiction of Cyberspace

This Era is considered as a technological era where the transaction happens through online medium. These transactions can lead to a situation such as cyber torts. The Information Technology Act, 2000 was introduced to provide a legal framework for such a transaction. The purpose of this act is to upgrade outdated laws to deal with cyber law issues. It is imperative to examine the jurisdiction of cyber law. The jurisdiction lies upon the adjudicating officer where the matter is below five crores rupees. The adjudicating officer also has the subject matter jurisdiction but the act is silent on territorial jurisdiction. Although the act very clearly defines the adjudicating procedure it fails to take cognizance over the most essential part. It is really difficult to determine the jurisdiction as it has a borderless spread.

As the Information Technology Act, 2000 is silent on the territorial jurisdiction therefore we shall consider the general principle, which is the civil procedure code for help. In India the jurisdiction is based on the maxim of “Lex Loci Deliciti”; that is the jurisdiction lies where the wrong is done whereas in property suits it is based upon “Lex Situs” that is the law of physical location.

Cyber transactions pose a difficult situation to determine the jurisdiction unlike the conventional understanding of jurisdiction. There is a possibility that a suit may have multiple jurisdictions but the main task is enforcement or implementation of foreign decrees. For enforcing a foreign decree there must be a final order concerning the subject thereafter concisely settled by the party amongst themselves. In other words, we can say that foreign decrees are implicitly binding. Although there are exceptions available which are looked upon during the execution. If an individual or corporate has accepted the foreign jurisdiction then such individual or corporate is barred by the decision of the foreign courts. Thus, we can say that any transaction over the internet as a jurisdiction throughout the country. Therefore for any transaction that happened over the internet cognizance can be taken throughout the country.

According to section 13 of the Civil Procedure Code[10], the foreign decree passed against any Indian defendant is probably not enforceable based on the procedure laid down in section 13. The aggrieved party can approach any Indian court to get the foreign decree executed under section 44 A[11]. When the transaction is taken over the internet there is a large number of documentary evidence and the leading of evidence is quite difficult. It is suggested that the defendant must institute the claim in India if he is a resident of India. Whereas on the other hand if the aggrieved party is in India and the defendant resides in a foreign jurisdiction then he must file a suit under section 19[12] of the civil procedure code. Section 19 of the Civil Procedure Code states that a suit can be filed for damages of a wrong committed to movable property or person. Under section 19 a suit can be instituted where the defendant resides or carries out business or the place where the wrong is done.

Section 20 of the code[13]secure justice because of its wide compassing provision to tackle the issues of jurisdiction that are left in the above sections. Section 45[14] of the Civil Procedure Code help them executing a decree pass by any Indian courts in the foreign jurisdiction under certain situation and it is easy to transfer the execution of Indian decree in a foreign jurisdiction.

When the decree is passed by a foreign or superior court a certified copy of the decree is to be filed in the district court and then it is perceived as if it was passed in India and the decree is then executed by the district court. With certified copy, a certificate is also filed which states the extent to which the decree has been satisfied. Section 47[15] governs the procedure for filing a certified copy in the district court and the district court can reject to execute the decree if it was under subsection (a) to (f) of section. The issue of jurisdiction can be solved with by invoking Civil Procedure Code along with IT Act, 2000

Conclusion

There is no proper jurisdiction laid down in any other statute rather than the Civil Procedure Code. Issues relating to the jurisdiction of cyber law must be solved by instituting a suit as per the provisions of the Civil Procedure Code. Cyberlaw has transcended geographical boundaries and extraterritorial jurisdiction. The Civil Procedure Code can be used to solve the problems of jurisdiction.

References

i. http://www.legalservicesindia.com/article/508/Jurisdiction-Of-Civil-Court-Under-Civil-Procedure-Code.html

ii. https://blog.ipleaders.in/civil-procedure-codes-application-cyberspace/

iii. https://blog.ipleaders.in/what-is-jurisdiction/

Foot Notes: [1] (1921) AIR Cal 34. [2] Section 9, The Code of Civil Procedure, Act No. 5, 1908. [3] 1974 AIR SC 1126. [4] (1964) AIR 24. [5] AIR 1959 P&H 58. [6] (2000) AIR SC 2220. [7] JT 2000(3) SC 600, (2000) 9 SCC 272. [8] 1954 AIR 340, 1955 SCR 117. [9] (2008) AIR SC 1315. [10] Section 13, The Code of Civil Procedure, Act No. 5, 1908. [11] Section 44 A, The Code of Civil Procedure, Act No. 5, 1908. [12] Section 19, The Code of Civil Procedure, Act No. 5, 1908. [13] Section 20, The Code of Civil Procedure, Act No. 5, 1908. [14] Section 45, The Code of Civil Procedure, Act No. 5, 1908. [15] Section 47, The Code of Civil Procedure, Act No. 5, 1908.