652 2023 Pamela Ghosh Saha vs S/L Arijit Saha
2023 Latest Caselaw 4901 Cal

Ct.

No.   09.8                      C.O. 1966 of 2023
652   2023                            Pamela Ghosh Saha
                                          -Versus-
S/L                                      Arijit Saha

akb
             Mr. Partha Pratim Roy
             Mr. Subhendu Bandyopadhyay          ...For the Petitioner

             Mr. Goutam Dey
             Mr. Prateep Bera
             Mr. Dipak Sarkar
             Ms. Ankita Ghosh
             Mr. Ankon Mondal                    ...For the Opposite Party

Being aggrieved by and dissatisfied with the order dated 15th May, 2023, the present revisional application under Article 227 Constitution of India has been preferred by the petitioner. By the impugned order the Court below directed petitioner herein to take the ward to Dakshineswar Temple every Sunday between 5.00p.m. to 7.00 p.m. for the purpose of visitation.

Mr. Partha Pratim Roy, learned Counsel appearing on behalf of the petitioner submits that the child is residing in Chandannagar since 2020 and she is also studying in a local School at Chinsurah. Accordingly, Mr. Roy, submits that the ward's ordinary place of the residence is at Chandannagar and Barasat Court cannot have any jurisdiction to entertain the said Misc. Case or to pass any order of visitation in connection with the said case. In this context he relied upon the judgment passed by a coordinate Bench of this Court in the cases of Soumi Mukherjee Vs. Manas Mukherjee, reported in 2019 (4) CHN (Cal.) 550 and Pooja

Bahadur Vs. Uday Bahadur, reported in 1999AIR SC 1741.

Mr. Roy contended that the statute has created specific jurisdiction of the court, Keeping in mind the welfare and convenience of the child. He further contended that the Temple at Dakshineswar situates far away from the

petitioners place of residence and it would be hardship for the child to bring her at the Temple from Chandannagar and accordingly he has prayed for stay of operation of the impugned order.

Mr. Goutam Dey, learned Counsel appearing on behalf of the opposite party raised vehement objection and contended that the order impugned makes it clear that the order was passed on consent and accordingly the petitioner cannot now raise the issue of jurisdiction before the Court or to challenge the order impugned on that ground. He further contended that the petitioner has not filed any application seeking rejection of plaint and as such the order impugned is very much sustainable and they have also initiated one execution proceeding in connection with the order impugned, being Misc Case No. 4 of 2023.

In reply, learned Counsel appearing on behalf of the petitioner submits that even if there is any consent that consent cannot confer jurisdiction to pass order upon the Court below.

Having considered the submissions made on behalf of both the parties it appears that the petitioner has raised an arguable issue as to the maintainability of the order and as such the revisional application is required to be heard on merit.

Let the revisional application be listed under the heading 'Contested Application' within a week from date.

Let there be an order of stay of operation of the order impugned for a period of 10 (ten) days from date or

until further order whichever is earlier.

( Ajoy Kumar Mukherjee, J.)