in the Learned District court of JodhpurAt Jodhpur, indiaappeal No. 1221 / 2015Under Sections 6, 7, 9, 19 of the Civil Procedure code

-in the matter of-Ramnath Kumar & Anr. ...................................................................Plaintiff

v.Royal Automobiles Limited........................................................Defendant

Memorial On Behalf Of The Defendant

table of contents

Index Of AuthoritiesiiiCasesiiiStatutesiiiStatement OF JURISDICTIONvStatement Of FactsvIssues Under ConsiderationviI.Whether The District Court Of Jodhpur Has Jurisdiction To Look Into The MatterviII.Whether A Permanent Injunction Need To Be GrantedviSummary Of ArgumentsviiI.Whether The District Court Of Jodhpur Has Jurisdiction To Look Into The MatterviiII.Whether A Permanent Injunction Need To Be GrantedviiArguments Advanced1III.Whether The District Court Of Jodhpur Has Jurisdiction To Look Into The Matter1II.Whether A Permanent Injunction Need To Be Granted6PRAYER8

index of authoritiesCasesAustin Distributors v. Nilkumar, 1970 Labour IC 323 (C)4Barraclough v. Brown, [1897] AC 6156C. T. Nikam v. Municipal Corporation of Ahmedabad, AIR 2002 SC 9973Cutler v. Wandsworth Stadium Ltd., [1949] AC 3986Dhulabhai v. State of M.P., [1968]3SCR6621Doe D. Bishop of Rochester v Bridges, (1831) 1 B & Ad 8473Hari Kishan and others v. The Administrator, Municipal Committee, Ludhiana, 1964 SCR (2) 2734Jitendra Nath v Empire of India & Ceylon Tea Co., AIR 1990 SC 2553K. S. Venkataraman & Co. v. State of Madras, 1966 SCR (2) 2297Premier Automobiles Ltd. v. Kamelekar Shantharam Wadke, 1976 SCR (1) 4275Stevens v.Chown, [1901] 1 Ch 8946The State of Orissa v. Madan Gopal Rungta and others, AIR 1952 SC 127StatutesCivil Procedure Code, 19081Industrial Disputes Act, 19473

statement OF JURISDICTIONThe plaintiff has approached the District court of Jodhpur under sections 6, 7, 9, 19 of the CPC. It is most humbly submitted that the Court of India does not have competency and jurisdiction to adjudicate the matters mentioned above.

All of which is urged in detail in the written submission and is most humbly submitted.

statement of facts In one of the departments of "Royal Automobiles Limited" there were three groups of workers: One, the workers' union which was earlier recognised as a "trade union, and was derecognised by the appellant, and secondly another union which was recognised in its place and thirdly workmen who were members of neither union. As a result of a settlement entered into with the derecognised union an incentive scheme was in force in this department of the appellant. After de-recognition of the union because of the increase in the strength of the workmen, entered into a settlement with the union recognised later to revise the target figures of the incentive scheme. This led to protests from the derecognised union and Ramnath Kumar and Gopilal Deora who were members of the derecognised union in a representative capacity allege that the earlier settlement was a contract of service and that the new settlement would bring about a change in their service conditions, that the new settlement was arrived at without following the mandatory requirements of S. 9A of the Industrial Dispute Act. Hence the plaintiff moved to the district court of Jodhpur to seek for a permanent injunction to restrain the company from implementing the later settlement.

issues under considerationWhether the district court of jodhpur has jurisdiction to look into the matterwhether a permanent injunction need to be granted

summary of arguments1. Whether the district court of jodhpur has jurisdiction to look into the matterThe District Court of Jodhpur does not have jurisdiction to look into the matter because thisa matter falling under the Industrial Disputes Act which has its own machinery to look into Industrial Disputes. There is an implied bar to the civil court to look into the matter.whether a permanent injunction need to be grantedNo, a permanent injunction cant be granted because:a. Since there is no jurisdiction, unlike the English courts, Indian civil courts cant provide for any injunction, the matter totally cant be heard before a civil court.b. the plaintiff has agreed to the scheme

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arguments advancedWhether the district court of jodhpur has jurisdiction to look into the matterThe civil court has no jurisdiction to look into the matter at hand. Sec 9 of CPC[footnoteRef:2], speaks of jurisdiction of civil courts, according to which courts shall not have jurisdiction to try civil cases either if it is explicitly or implicitly barred. [2: Section 9, Civil Procedure Code.]

The position was reiterated in various case laws. It has been laid down by the honourable supreme court that[footnoteRef:3] [3: Dhulabhai v. State of M.P., [1968]3SCR662]

1. Where the statute gives a finality to the orders of the special tribunals the civil Court' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provision of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.2. Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil Court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or a liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil Courts are prescribed by the said statute or not.3. Challenge to the provisions of the particular Act as ultra vires cannot be brought before the tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the tribunals.4. When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, as suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.5. Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.6. Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant inquiry.7. An exclusion of the jurisdiction of the civil Court is not readily to be inferred unless the conditions above set down apply.Here though there is no express bar to the jurisdiction of civil court it can be seen that there is implied bar to the jurisdiction, which is the second point laid down in the case because the ID act[footnoteRef:4] creates through Chapter II and section 10 and 33C a full fledged complete mechanism to adjudicate and to provide remedy with regard to these rights specially created by the act on matters that are industrial disputes as defined in sec 2 (k). In the words of Untwalia, J., since the time of the earliest decisions of the Federal Court and the Supreme Court of India it has been recognized fully well that the powers of the authorities deciding industrial disputes under the Act are very extensive much wider than the power of a Civil Court while adjudicating a dispute which may be an industrial dispute. The jurisdiction of the civil court is ousted impliedly to in a case which could form the subject matter of an industrial dispute collectively between workmen and their employers[footnoteRef:5]. ID Act[footnoteRef:6] creates a special machinery under sections 10, and 33C to enforce specially created right because of which the ordinary court cant be approached by the parties. The scheme of ID Act clearly excludes the jurisdiction of civil court by implication in case of remedies that are available under the act and for which there is complete procedure and machinery provided in the act[footnoteRef:7]. There is no complete ouster if jurisdiction of the civil court in matters regarding industrial disputes because individual aggrieved cannot approach the Tribunal or the Labour Court directly for the redress of his grievance without the intervention of the Government[footnoteRef:8]. [4: Infra Note 5] [5: C. T. Nikam v. Municipal Corporation of Ahmedabad, AIR 2002 SC 997] [6: Industrial Disputes Act, 1947] [7: Jitendra Nath v Empire of India & Ceylon Tea Co., AIR 1990 SC 255] [8: Infra Note 11]

Where an Act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner[footnoteRef:9]. If a new obligation is imposed by statute, and in the same statute a remedy is provided for nonfulfillment of the obligation, then that remedy is the only remedy. The matter would have had be different only if the obligation imposed under the statute brings into existence a right in favour of an individual but provides no remedy for its enforcement. [9: Doe D. Bishop of Rochester v Bridges, (1831) 1 B & Ad 847]

This has been reiterated by Subba Rao, J as even if there was no such specific exclusion (of jurisdiction of civil courts by the statute) , if it creates a liability not existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the said remedy could be had[footnoteRef:10]. [10: Hari Kishan and others v. The Administrator, Municipal Committee, Ludhiana, 1964 SCR (2) 273]

In the present case, we can see that there is a right to apply for adjudication in case of industrial disputes that is being granted by the act and can be enforced by the act, and not by the general law. This is not a case were the a obligation is not remedied by the ID Act through the mechanism in 10 and 33C, nor does it fall into the category of violation of the contract of service recognized only by the general law and not in ID Act[footnoteRef:11]. Supposing after providing for awarding of certain compensation in Chapter VA of the Act there was no provision made in it likesection 10orsection 33C, then there would have arisen a case were the statue is providing for award of compensation, but not remedy is being made for its enforcement. In such a case, the civil court would have had jurisdiction to look into the matter. But here, since in the matter under consideration, right and a mechanism to meet and enforce that right has been laid down, it impliedly strikes down the jurisdiction of the civil court as the specific act lays down the manner of enforcement and hence a general act cant have a say in the matter. [11: Austin Distributors v. Nilkumar, 1970 Labour IC 323 (C) ]

It can be seen that the Supreme Court has laid down four principles with regard to the jurisdiction of civil court with respect to industrial dispute[footnoteRef:12]: [12: Premier Automobiles Ltd. v. Kamelekar Shantharam Wadke, 1976 SCR (1) 427]

1. If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil court.2. If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the Civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in particular remedy.3. If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.4. If the right which is sought to be enforced is a right created under the Act such as Chapter VA then the remedy for its enforcement is either section 33C or the raising of an industrial dispute, as the case may be.It has been specifically laid out in this case that when a right is to be enforced under Chapter 5A, which is the chapter from which the right arises in this case, then the remedy for its enforcement is as per Section 33 C of the act, thereby making it clear that the present fact scenario it the right being sought for is not one created by general law, but instead by the specific act.Also, the case strictly lays down the position of law as for adjudication of an industrial dispute in connection with a right or obligation under the general or common law and not created under the Act, the remedy is not exclusive but alternative, while for the enforcement of a right or an obligation under the Act the remedy provided in the act in it is the exclusive remedy. The position provided in the act is as per section 33C, where the party claiming the right are to approach the government for setting up means for adjudication.This position can be seen as had been adopted in various foreign judgments too. When the special statute under consideration gave a right to recover expenses in court of Summary Jurisdiction from a person who was not otherwise liable at common law, it was held that there was no right to come to the High Court for a declaration that the applicant had a right to recover the expenses in a court of Summary Jurisdiction. Lord Watson in that case expressed out "The right and the remedy are given uno flatu, and the one cannot be dissociated from the other." In other words if a statute confers a right and in the same breach provides for a remedy for enforcement of such right the remedy provided by the statute is an exclusive one[footnoteRef:13]. [13: Barraclough v. Brown, [1897] AC 615]

Further, going by the test of scope and purpose of a statute[footnoteRef:14], it can be seen that the object of the Act, as its preamble indicates, is to make provision for the investigation and settlement of industrial disputes, which means adjudication of such disputes also. Hence the mechanism laid down in the ID Act prevails over approaching the civil court. [14: Cutler v. Wandsworth Stadium Ltd., [1949] AC 398]

1. whether a permanent injunction need to be grantedNo, a permanent injunction cant be granted because:a. The position of law in England that even if a suit could not lie in a civil court for enforcement of the right, still the remedy of injunction by a suit was not lost[footnoteRef:15] is not the position of law in India. The principle of separate remedy only for the purpose of injunction available in a court of Chancery, which was kept intact even after the Judicature Act of 1873 is not applicable in India and the jurisdiction of the Civil Court in India is limited to cases in which there is a right at law, that is to say a right to be pursued in such Court[footnoteRef:16]. So by virtue of the above arguments, since the civil court doesnot have jurisdiction the rights of parties under the ID Act, it doesnt have the jurisdiction to pronounce a permanent injunction too.A suit merely for the purpose of injunction would not lie to prevent an action which when completed cannot be challenged in a civil court[footnoteRef:17]. [15: Stevens v.Chown, [1901] 1 Ch 894] [16: Supra note 11, The State of Orissa v. Madan Gopal Rungta and others, AIR 1952 SC 12] [17: K. S. Venkataraman & Co. v. State of Madras, 1966 SCR (2) 229]

b. As an arguendo it can also be seen that till date because the plaintiff had been availing renumeration in accordance with the new scheme, it shows their tacit consent to the scheme. A person cant apply for injunction once they have availed and have benefitted from the scheme that they are challenging because that party cant avail the same benefit in two different ways. So even if the learned court finds that it has jurisdiction to deal with the matter, no injunction can be granted to the plaintiff.

PRAYERWherefore in the light of the facts stated, issues raised, arguments advanced and authorities cited, it is most respectfully prayed before this Learned Court that it may be pleased to declare: 1. That it has no jurisdiction to hear the present matter2. That no permanent injunction can be granted3. And further pass any other order or decree in favour of the defendant as this Learned Court may deem fit in the ends of equity, justice and good conscience.All of which is most humbly and respectfully prayed.

Date: 6. 08. 2015 Counsel for the DefendantPlace: Jodhpur