Sri Gopal Basu vs Nivedita Basu
2022 Latest Caselaw 1022 Cal

   (02)
07.03.2022

(p.jana) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION

CO No. 2273 of 2019 (IA No: CAN 2/2021) (not in file) Sri Gopal Basu

-versus-

Nivedita Basu

Mr. Rudraman Bhattacharyya, Mr. Sourojit Dasgupta, Ms. Aafreen Parveen, ... for the petitioner.

Mr. Rudraman Bhattacharyya, learned counsel

appearing for the petitioner, files affidavit-of-service

which is taken on record.

Despite repeated attempts, the presence of the

opposite party could not be secured.

The opposite party has filed an application

under Section 18 of The Hindu Adoptions and

Maintenance Act, 1956 (hereinafter referred to as 'the

said Act' in short) before the learned District Judge,

District: 24 Parganas (North) at Barasat for the

following reliefs:-

"a) To pass a judgment and decree declaring that the plaintiff is entitled to a maintenance monthly allowance of Rs. 20,000/- (Rupees Twenty Thousand) only for herself and the defendant's daughter.

b) To pass an order directing the defendant to make payment of Rs. 24,00,000/- (Rupees Twenty Four Lakh) only for expenses incurred for the maintenance including medical and educational expenses.

c) To pass an order directing the defendant to pay Rs. 10,00,000/- for the marriage expenses of the daughter.

d) To pass such other and further order/orders as Your Honour may deem fit and proper in the instant case."

The said application was subsequently

transferred to the 3rd Court of learned Additional

District Judge, Barrackpore, District: 24 Parganas

(North) and the same is now pending before the said

Court.

The petitioner in the said proceeding filed an

application under Order VII Rule 11 of the Code of Civil

Procedure for rejection of the said application for

maintenance, inter alia, on the ground that the

opposite party has no cause of action to initiate the

said proceeding and the learned Trial Judge is not the

proper Court to entertain the said proceeding.

The learned Trial Judge by the order impugned

has dismissed the said application holding, inter alia,

that the said proceeding has been wrongly registered as

title suit instead as misc. case and erroneously

declaration for the entitlement of the opposite party has

been prayed for but the said defects being hyper

technical would not entail rejection of the application

for maintenance.

The application for maintenance under the said

Act has all trappings of a Civil suit.

There is no specific provision under the said Act

as to which Court the proceeding for maintenance

under the said Act is required to be initiated, in the

absence of any specific provision in the said Act the

said question can only be determined with reference to

Section 20 of the Code of Civil Procedure. The said

proceedings in terms of the said provision of the Code

can be initiated in a Court within the local limits of

whose jurisdiction the husband resides or carries on

business or personally works for gain or in a Court

within the local limits of whose jurisdiction, the cause

of action wholly or in part arises. (See: ANIL KUMAR

BEDI V. SMT. ANJANA BEDI reported in AIR 1984

CALCUTTA 49)

The pecuniary jurisdiction of the Court of first

instance for initiation of such proceeding shall be

determined according to the value of the subject matter

of the suit to be calculated in terms of Section 7(ii) of

the West Bengal Court Fees Act, 1970.

For the reasons discussed above, the Court of

learned District Judge cannot be the Court of first

instance for an application for maintenance under the

said Act.

Filing of the application for maintenance in a

wrong Court cannot be the ground for dismissal of it,

such defect can at best be a ground under Order VII

Rule 10 of the Code for return of the said application to

the opposite party and for filing of it in the appropriate

Court.

C.O. 2273 of 2019 is disposed of by granting

liberty to the parties to approach the 3rd Court of

learned Additional District Judge at Barrackpore

District. 24 Parganas (North) for return of the said

application for maintenance and for filing of the same

before the appropriate Court having jurisdiction.

There shall be no order as to costs.

Urgent photostat certified copy of this order, if

applied for, be supplied to the parties subject to

compliance of all requisite formalities.

(Biswajit Basu, J.)