Karnataka High Court
Abdul Hameed S/O Abdul Jabbar Kahan ... vs Smt Asma W/O Abdul Hameed Savanur on 26 March, 2025
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RFA No. 100358 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF MARCH, 2025
PRESENT
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
AND
THE HON'BLE MR. JUSTICE G BASAVARAJA
REGULAR FIRST APPEAL NO. 100358 OF 2020 (DEC/INJ)
BETWEEN:
ABDUL HAMEED S/O. ABDUL JABBAR KAHAN SAVANUR
AGE: 63 YEARS, OCC: ADVOCATE,
R/O: H.NO.39, SUVIDHA COLONY,
(C.T.S. NO.458/B/39, WARD EXTENSION),
KESHWAPUR, HUBBALLI, DIST: DHARWAD.
...APPELLANT
(BY SRI. DINESH M. KULKARNI, ADVOCATE)
AND:
SMT. ASMA W/O. ABDUL HAMEED SAVANUR
AGE: 58 YEARS, OCC: SENIOR BANK MANAGER,
R/O. SYNDICATE BANK, NGV,
KORAMANGALA, BENGALURU.
...RESPONDENT
Digitally signed by (BY SRI. H.V.VASANTHALAKSHMI AND
MOHANKUMAR B SRI. B.R.DHANANJAIAH, ADVOCATES)
SHELAR
Location: HIGH
COURT OF
KARNATAKA THIS RFA IS FILED UNDER SEC. 96 OF C.P.C., AGAINST THE
DHARWAD
BENCH
Date: 2025.04.03 JUDGMENT AND DECREE DATED 27.09.2019 PASSED IN O.S.
14:17:35 +0530
NO.318/2014 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HUBBALLI,
DISMISSING THE SUIT FILED FOR DECLARATION AND INJUNCTION.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
AND
THE HON'BLE MR. JUSTICE G BASAVARAJA
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RFA No. 100358 of 2020
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM)
In the captioned appeal, the appellant has questioned
the judgment and decree rendered by the trial Court in
O.S.No.318/2014. In the said suit, the appellant herein who
is the plaintiff sought a declaration to declare the sale
transaction dated 16.04.1994 relating to suit plot relating to
respondent/defendant who is the wife as a benami
transaction and to declare that the respondent/defendant is
the benamidar of the suit property holding that plaintiff is the
real owner and for consequential relief of injunction. The
said suit was contested by the defendant/wife and the Court
has dismissed the suit filed by the plaintiff/husband on
merits.
2. The appellant/plaintiff has filed an application in
I.A.No.1/2025 seeking leave of the Court to withdraw the
suit that was originally filed before the regular Civil Court
and to institute a fresh suit on the same cause of action
before the jurisdictional Family Court. The primary
contention raised by the appellant/plaintiff is that the dispute
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between the husband and wife pertains to a property that
was purchased in the name of the wife, and therefore, the
Civil Court lacks jurisdiction to adjudicate the matter. The
appellant/plaintiff has urged that the appropriate forum to
decide such disputes is the Family Court, as per the
provisions of the Family Courts Act, 1984.
3. The learned counsel appearing for the
appellant/plaintiff has specifically drawn the attention of this
Court to Section 7(1)(c) of the Family Courts Act, 1984. This
provision stipulates that the Family Court has jurisdiction
over disputes between spouses relating to property of either
or both parties. Citing this statutory provision, the learned
counsel contended that the suit filed before the regular Civil
Court was not maintainable from the outset. It was further
argued that the husband, who is the appellant/plaintiff in this
case, had inadvertently instituted the suit before the wrong
forum and that the defect in jurisdiction should not bar him
from pursuing his legal rights before the proper forum, i.e.,
the Family Court.
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4. On the other hand, the learned counsel appearing
for the respondent/defendant has vehemently opposed the
application. She has contended that the respondent/wife has
been subjected to continuous harassment at the hands of the
appellant/husband, who is a practicing Advocate. She has
highlighted that the suit has been lingering since 2014,
compelling the wife to undergo severe mental, emotional,
and financial distress due to the prolonged litigation. The
learned counsel further emphasized that the
respondent/wife, lacking adequate financial resources, has
been forced to contest the matter before multiple judicial
forums, including the trial Court and the appellate Court, for
an extended period of time. The appeal itself has been
pending for nearly five years, adding to her hardship. It was
argued that permitting the appellant/plaintiff to withdraw the
suit and file a fresh suit on the same cause of action before
the Family Court would be unjust and would further
perpetuate the harassment faced by the respondent/wife.
5. This Court, having taken note of the unfair conduct
of the appellant/plaintiff, observed that after suffering an
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adverse decree of dismissal in the suit before the Civil Court,
he now seeks to take advantage of the provisions under the
Family Courts Act to initiate fresh proceedings. Recognizing
the undue hardship caused to the respondent/wife and in an
effort to mitigate her financial burden, this Court, in its
earlier order, had directed the appellant/plaintiff to deposit a
sum of Rs.40,000/- towards the litigation costs incurred by
the respondent/wife. This directive was issued with the intent
to ensure that, if a fresh suit were to be filed before the
Family Court, the respondent/wife would not be left entirely
uncompensated for the financial strain already borne in
contesting the earlier litigation.
6. Pursuant to the direction of this Court, the
appellant/plaintiff has complied with the order and has
deposited the sum of Rs.40,000/- before this Court. In light
of this compliance, we find it appropriate to order the release
of this amount in favor of the respondent/wife, upon proper
verification of her identity. This financial relief, while not
entirely offsetting the legal expenses incurred by the
respondent/wife, will serve to alleviate some of the financial
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burden that has been placed upon her due to the prolonged
litigation.
7. On the substantive legal issue, this Court has
examined the question of whether the suit originally
instituted before the regular Civil Court was maintainable.
This issue has already been conclusively settled by a Division
Bench of this Court in the case of Bashirahmed S/o Imamsab
Tahsildar vs. Smt. Surayya D/o Usmansab Benni1. In that
decision, the Division Bench categorically held that disputes
between husband and wife concerning property fall
exclusively within the jurisdiction of the Family Court and
that regular Civil Courts inherently lack the jurisdiction to
entertain such matters.
8. Applying the ratio laid down by the Division Bench,
we are of the considered view that the suit filed by the
appellant/plaintiff before the Civil Court was not maintainable
as it pertained to a property dispute between spouses. The
nature of the lis in the present case falls squarely within the
ambit of Section 7(1)(c) of the Family Courts Act, 1984,
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thereby ousting the jurisdiction of the Civil Court.
Consequently, the appropriate forum for adjudication of such
disputes is the Family Court, and any further proceedings in
the Civil Court would be without legal foundation.
9. In view of the aforesaid observations, we find merit
in the application filed by the appellant/plaintiff in
I.A.No.1/2025. Accordingly, the application is allowed, and
the appellant/plaintiff is permitted to withdraw the suit.
Liberty is granted to the appellant/plaintiff to institute a fresh
suit on the same cause of action before the jurisdictional
Family Court. Furthermore, the Registry is directed to
forthwith release the sum of Rs.40,000/- deposited by the
appellant/plaintiff in favor of the respondent/wife upon
verification of proper identification. With this, the matter is
disposed of.
10. For the foregoing reasons and in the light of the
exclusion provided under sub-section (1)(c) of Section 7 of
the Family Courts Act, 1984, I.A I.A.No.1/2025 seeking leave
of the Court to withdraw the suit that was originally filed
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before the regular Civil Court and to institute a fresh suit on
the same cause of action before the jurisdictional Family
Court is allowed. Liberty is reserved to file fresh suit.
The interim order granted by this Court shall be in
force for a period of four weeks from the date of receipt of
order copy. Appeal stands disposed off.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
Sd/-
(G BASAVARAJA)
JUDGE
CA
Ct:vh
