Pankaj Suryakant Lohar vs Mayuri Pankaj Lohar
2002 Latest Caselaw 791 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard the learned Advocates for the parties. Rule. Rule made returnable forthwith by consent.

2. The applicant/defendant challenges the order dated 28-6-2002, passed by the trial Court rejecting the preliminary objection raised by the applicant on the ground of absence of territorial jurisdiction to the Court below to entertain the proceedings filed by the respondent/plaintiff.

3. It is the case of the applicant that on the face of the plaint it is apparent that the applicant, who is the defendant in the suit, resides at Mumbai, beyond the territorial limits of the District of Thane. It is further case of the applicant that the pleadings in the plaint apparently disclose that the applicant and the respondent last resided together at Goregaon. It is, therefore, sought to be contended on behalf of the applicant that the pleadings nowhere disclose territorial jurisdiction to entertain the proceedings by any Court within the District of Thane, where the proceedings have been initiated by the respondent. The Court below considering the applicability of Section 19 of the Hindu Marriage Act, 1955 has rejected the contentions sought to be raised by the applicant and has further held that it is not necessary to decide the said issue as a preliminary issue and the same can be considered along with the other issues in the matter. The impugned order is sought to be justified by the learned Advocate for the respondent by placing reliance in the decisions of the learned single Judge of this Court in the matter of Hariram Dhalumal Karamchandani v. Jasoti w/o Hariram, as well as of a learned single Judge of the Rajasthan High Court in the matter of Cheni Ram and Anr. v. Shanti Devi and Anr. . It is his further contention that in view of the fact that the applicant is presently a NRI, employed in a foreign country, and considering the fact that the respondent/plaintiff is residing within the territorial limits of Thane, no fault can be found with the territorial jurisdiction of the Thane Court to entertain the proceedings.

4. The provisions of the law contained in Section 18 of the Hindu Adoptions and Maintenance Act, 1956, under which the proceedings are initiated by the respondent/plaintiff in the trial Court, do not specify the Court in which the said application is required to be filed. The Hindu Adoptions and Maintenance Act, 1956 does not prescribe the procedure to be followed in relation to such application as well as the forum wherein such proceedings are to be initiated.

5. Section 19 of the Hindu Marriage Act, 1955 provides that every petition under the said Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction -- the marriage was solemnized, or the respondent, at the time of the presentation of the petition resides, or the parties to the marriage last resided together, or the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which the said Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive. Apparently, the section deals with the place of suing under the said Act and not under any other Act. Neither there is any provision either under the Hindu Adoptions and Maintenance Act, 1956 or under the Hindu Marriage Act, 1955 specifying that the provisions of the Hindu Marriage Act, 1935 would be applicable to the proceedings initiated under the Hindu Adoptions and Maintenance Act, 1956. Being so, the question of

applicability of Section 19 of the Hindu Marriage Act, 1955 to the proceedings under the Hindu Adoptions and Maintenance Act, 1956 cannot arise.

6. In the absence of specific provisions regarding the procedure to be followed for the purpose of filing a proceedings under the Hindu Adoptions and Maintenance Act, 1956, as rightly submitted by the learned Advocate for the applicant, the provisions of the Code of Civil Procedure, 1908 will have to be followed. Section 20 of the Code of Civil Procedure, 1908 provides that every suit shall be instituted in a Court within the local limits of whose jurisdiction (a) the defendant, or each of the defendant where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) where any of the defendants, where there are more than one, at the time of the commencement of the suit actually or voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; (c) the cause of action, wholly or in part, arises. The explanation clause to Section 20 provides that a Corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place. Apparently, the suits are required to be filed either at the place where the defendant resides, or carries on business, or personally works for gain, or where the cause of action, wholly or in part, arises. In the case in hand, undisputedly, the permanent residence of the applicant/defendant is disclosed to be at Vimal Bhuvan, Jawahar Nagar, Road No. 17, Goregaon (West), Mumbai-400062. Prima facie it is not in dispute that the suit area lies beyond the territory of the Thane District. Being so, considering the provisions of Section 20 of the Code of Civil Procedure, 1908, it cannot be said that a Court within the District of Thane will have jurisdiction to entertain the proceedings, initiated by the respondent-wife.

7. It is also pertinent to note that Section 21 of the Code of Civil Procedure, 1908 provides that no objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court at first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been consequent failure of justice. Apparently, the party raising objection in relation to the territorial jurisdiction of the Court has to raise the same at the earliest available opportunity. Undisputedly, in the case in hand, the applicant has raised such objection at the earliest opportunity.

8. The Court below has totally misconstrued the provisions of law as well as the objection which was sought to be raised by the applicant. The objection was not in relation to the subject-matter of the case but in relation to the territorial jurisdiction of the Court to entertain the dispute. Being so, question of exercising the jurisdiction under the provisions of Order 14 of the Code of Civil Procedure, 1908 does not arise at all. The point sought to be raised is to be decided taking resort to sections 20 and 21 read with Order 7, Rule 10 of the Code of Civil Procedure, 1908. Order 7, Rule 10 of the Code of Civil Procedure, 1908 provides that the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted. Apparently,

the applicant having raised the point regarding the territorial jurisdiction of the Court below to entertain the, proceedings initiated by the respondent, it was necessary for the Court below to consider the matter as to whether it has territorial jurisdiction to entertain the plaint and thereupon to take appropriate decision regarding the same and if it is found that the Court lacked the territorial jurisdiction to entertain the plaint, then to return the same to be presented in a Court having such jurisdiction.

9. The decisions sought to be relied upon by the learned Advocate for the respondent are of no assistance in the case in hand. In Hariram Dhalumal Karamchandani's case (supra). It was a case initiated for a decree of divorce under Section 13 of the Hindu Marriage Act, 1955. Being so, the issue before the Court below was as to whether Section 19 of the Hindu Marriage Act, 1955 would apply or the proceedings are to be dealt with in accordance with the provisions of Section 20 of the Code of Civil Procedure, 1908 and that was not a case under the Hindu Adoptions and Maintenance Act, 1956.

10. Likewise, the decision of the Rajasthan High Court in Cheni Ram's case (supra) can also be of no assistance to the case in hand. Therein it was held that where the issue regarding jurisdiction being based on disputed questions of fact, the same cannot be termed as a purely legal issue and therefore the lower Court had no jurisdiction to decide it as a preliminary issue. Undisputedly, the point sought to be raised is not based on the disputed question of fact but is based on the pleadings of the respondent/plaintiff in the plaint itself. Besides, it does not relate to the dispute in the matter but it relates to the territorial jurisdiction of the Court to entertain such dispute. Being so, the decision is of no help in the matter.

11. As already observed above, the matter in hand is to be considered with reference to Section 20 r/w Order 7, Rule 10 of the Code of Civil Procedure, 1908. It is to be noted that the pleadings in the plaint apparently disclose the residence of the applicant/defendant to be beyond the territorial limits of the District of Thane. The parties to the proceedings last resided at Goregaon, Mumbai, which is also beyond the territorial limits of the Thane Court. It is the case of the respondent/plaintiff that on apprehension of danger to her life at the hands of the applicant/defendant and his family members, that she had to leave the matrimonial house at Goregaon. Apparently, the cause of action has also been arisen at Goregaon and considering the same on all counts, applying the provisions of Section 20 of the Code of Civil Procedure, 1908, the jurisdiction to entertain the said proceedings would be with the Court at Mumbai, within whose territorial jurisdiction Goregaon is situated and hence it is to be held that the Court at Thane lacks the territorial jurisdiction to entertain the suit and therefore the plaint is liable to be returned to the respondent/plaintiff to be presented in the Court of proper jurisdiction.

12. In the result, the revision application succeeds. The impugned order is hereby set aside and the trial Court is directed to return the plaint to the respondent/plaintiff to be filed in the Court of competent jurisdiction. Rule is made absolute accordingly with no order as to costs.