G. Sreekumaran vs V. Shylajakumari
2021 Latest Caselaw 1557 Mad

                             BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                      DATED: 25.01.2021

                                                             CORAM

                                         THE HONOURABLE Ms. JUSTICE P.T. ASHA

                                                    Rev.Aplc (MD) 1/2020
                                                              in
                                                    CMSA(MD) /45 of 2010

                     G. Sreekumaran
                                                                                        ...Petitioner
                                                              Vs

                     V. Shylajakumari
                                                                                    ... Respondent

Prayer : Review Petition filed under Order XLVII Rule 1 and 2 of Civil Procedure Code read with Section 114 of C.P.C.praying to review the order dated 26.09.2019 passed in CMSA (MD).No.45 of 2010, on the file of this Honourable Court, by allowing the Review Application.

                                   For Petitioner        :    Mr. K. Sreekumaran Nair

                                   For Respondent        :    Mr. Krishanveni, SC
                                                              for Mr. P. Thiyagarajan








https://www.mhc.tn.gov.in/judis/
                                                           ORDER

The above Review Application has been filed stating that the

Judgment of this Court dated 26.09.2019 in CMSA (MD) No.45 of 2010

suffers from an error apparent on the face of the record in as much as under

Section 21 (1) of the Code of Civil Procedure (which has been wrongly

referred to as Section 21 (3)) there is no allegation that on account of the

lack of territorial jurisdiction there has been a failure of justice and the

judgment rendered by this court a nullity.

2. The facts in brief necessary to dispose of the petition are

hereinbelow narrated: The petitioner herein had filed HMOP No.48 of 2007

on the file of the First Additional Subordinate Judge, Nagercoil seeking

dissolution of the marriage dated 09.06.1976 between him and the

respondent. The ground on which the divorce was sought for was on the

ground of cruelty and that the marriage between the two had irretrievably

broken down. The petitioner had conferred jurisdiction on the 1st

https://www.mhc.tn.gov.in/judis/ Additional Subordinate Court, Nagercoil on the ground that the petitioner

and respondent had last resided together as husband and wife within the

jurisdiction of the said Court.

3. The respondent herein had filed a detailed counter and her first

ground of attack was that the Learned Subordinate Judge, Nagercoil lacks

the jurisdiction to decide the HMOP, since at no point of time did the

parties reside within the jurisdiction of the Court. In fact, in her counter, the

respondent had stated as follows:

" Since most of the cause of actions have

really arisen at Bangalore the petition ought to

have been filed at Bangalore. Just to harass the

respondent, the petitioner has deliberately filed

this Petition before this Honourable Court

against law and real facts. Since both the parties

never resided within the territorial jurisdiction of

this Honourable Court even for a single day,

during their matrimonial life, he ought not to have

https://www.mhc.tn.gov.in/judis/ filed this petition before this Honourable Court."

4. Besides this, the respondent had raised several objections to the

Petition on merits. A reply had been filed by the petitioner herein wherein

he would make the following submissions:

"Many days during pregnancy period of son

and daughter and other period both petitioner and

respondent lived in Nagercoil and both son and

daughter were born in Nagercoil. As stated in the

petition the petitioner resides in Nagercoil and this

Honourable court alone is having jurisdiction to

entertain the petition."

5. In the petition, the petitioner had stated that both of them had last

resided together at Nagercoil whereas in the reply he would submit that he

resides at Nagercoil and therefore the Court has jurisdiction.

https://www.mhc.tn.gov.in/judis/

6. Despite the respondent taking such a defense as the first defense in

her counter statement, the learned Subordinate Judge did not deem it fit to

frame an issue with reference to the jurisdiction. In fact, the Learned Judge

has not framed any issue. He has simply framed a comprehensive issue as

to whether the petition can be allowed. However, the Learned Judge in

paragraph No 10 of the judgment has stated that jurisdiction will be

conferred on the Court within whose jurisdiction the respondent at the time

of the institution of the OP resided, where the marriage was solemnized,

where the parties last resided together as husband and wife and where the

petitioner resides at the time of the filing of the Petition.

7. The learned Judge would state that the respondent has not filed a

petition for raising the issue of jurisdiction as a preliminary issue and

considering the fact that Kumarapuram Naduvoorkarai is within the

jurisdiction of this Court which is the place where the parties lived together

for a brief period as husband and wife, the Court was conferred with the

jurisdiction.

https://www.mhc.tn.gov.in/judis/

8. Ultimately the learned Judge has allowed the Petition. Challenging

the same, the respondent herein had filed CMA No.16 of 2010 on the file of

the Principal District Judge, Nagercoil. The respondent besides raising

other grounds had primarily contested the judgment of the Trial Court on

the ground that the Court below lacks the jurisdiction to consider the suit.

The Principal District Judge, Nagercoil had dismissed the Appeal simply

repeating the finding of the Trial Court regarding jurisdiction.

9. Challenging the same, the respondent herein had filed CMSA.

(MD) No.45 of 2010, which this Court had allowed by the Judgment and

Decree dated 26.09.2019 on the ground that the decree passed by the Court

which lacks inherent jurisdiction is a nullity.

10. Mr. K. Sreekumaran Nair, learned counsel appearing on behalf of

the petitioner would submit that no decree becomes a nullity on the ground

of lack of territorial jurisdiction. He would rely on the provisions of

Section 21 (1) of the Code of Civil Procedure in respect of his arguments.

https://www.mhc.tn.gov.in/judis/

11. He would further submit that both courts observed that the

respondent had not taken out any petition by raising the issue of jurisdiction

as the preliminary issue and had participated in the entire proceedings by

letting in evidence as well. He would rely upon the judgment of the

Supreme Court reported in "[2019 3 SCC page 594]- Sneh Lata Goel vs.

Pushplata and Others" in support of his arguments.

12. The Hon'ble Supreme court had observed that Section 21 of the

Code of Civil Procedure makes it clear that an objection to the lack of

territorial jurisdiction has to be taken at the first instance. A distinction is to

be made between a jurisdiction with reference to subject matter of the suit

and that of territorial and pecuniary. If it is with reference to the subject

matter then the Judgment would be a nullity whereas in the other it will not.

Relying on the judgement reported in "[(2009) 2 SCC 244], Mantoo Sarkar

Vs. Oriental Insurance Co. Ltd" and "Vasudev Dhanjibahi Modi Vs.

Rajabhai Abdul Rehman reported in [(1970) 1 SCC 670] " the Hon'ble

Supreme Court held that the objection regarding jurisdiction can not be

https://www.mhc.tn.gov.in/judis/ raised before the executing Court. That was a case where the issue of

jurisdiction was raised for the first time before the executing Court. The

learned Judges held that the executing court was bound by the decree in the

suit and could not modify the judgment or decide the issue of jurisdiction.

The facts of the above case is not applicable to the facts of the instant

case.

13. The learned counsel had also relied on a judgment in "AIR 1981

Supreme Court 1143" in the case of Guda Vijayalakshmi vs Guda

Ramachandra Sekhara Sastry, wherein the Hon'ble Supreme Court was

considering whether the provisions of Code of Civil Procedure could be

used for seeking transfer when the same is not made applicable to

proceedings under the Hindu Marriage Act. Ultimately the learned Judges

had held that Section 21 (A) of the Hindu Marriage Act does not exclude

the power to transfer which is conferred on the Supreme Court under

Section 25 of the Code of Civil Procedure.

https://www.mhc.tn.gov.in/judis/

14. He would therefore submit that the respondent has not shown any

material that she has been adversely affected on account of the fact that the

Court which has passed the judgment was one without jurisdiction.

15. Ms. Krishnaveni, Senior Counsel appearing on behalf of the

respondent would submit that these arguments have already been made

before this Court and after considering the same, the judgment had been

pronounced. She would submit that the petitioner has selected and

conferred jurisdiction by simply stating that the petitioner and the

respondent had lived within the jurisdiction of the court for some time as

husband and wife. She would contend that this statement has not been

substantiated by evidence. She would further submit that a solitary

statement on jurisdiction, particularly territorial jurisdiction, would not

confer jurisdiction on a Court which inherently lacks jurisdiction. It would

render a judgment passed by such Court a nullity. She would submit that no

new case has been made out by the petitioner for reviewing judgment.

Therefore she sought for dismissal of the Petition.

https://www.mhc.tn.gov.in/judis/

16. Heard the counsel and perused the papers

17. The arguments that have been put forward today, namely the

provisions of Section 21 (1) of the CPC and the fact that there is no failure

of justice has been advanced during the final arguments in the CMA. If the

petitioner is aggrieved by the order of this Court his remedy is to challenge

it and not file a review. Be that as it may, a reading of Section 21 (1) would

clearly indicate that the issue of jurisdiction has to be taken at the first

instance. In the instant case, the respondent has taken out this defense as

her preliminary objection in the original petition before the First Additional

Subordinate Judge, Nagarcoil. The said contention has also been refuted by

the petitioner by stating that he is residing within the jurisdiction of

Nagarcoil Court. The learned Trial Judge has dismissed this objection on

the ground that the petitioner has not taken out a petition questioning

jurisdiction as a preliminary issue and further the learned Judge has

conferred an additional jurisdiction to the Court by stating that the place of

residence of the petitioner would also confer jurisdiction. Section 19 of the

Hindu Marriage Act clearly describes the Courts which would have

https://www.mhc.tn.gov.in/judis/ jurisdiction to entertain a petition for divorce. The judgment relied upon by

the learned counsel for the review petitioner namely "Sneh Lata Goel vs

Pushplata and Others reported in (2019) 3 SCC 594" relates to execution

proceedings and would therefore not advance the case of the Review

Petitioner. The Courts below by conferring jurisdiction on a place where the

parties admittedly had not last resided together as husband and wife on the

ground that petitioner is residing there has clearly overreached his

jurisdiction which is a clear case of failure of justice.

18. Under these circumstances, I do not find any error apparent on the

face of the record to the earlier order dated 26.09.2019 and accordingly

Review Petition stands dismissed. No costs.

25.01.2021

mrn Index : Yes/No Speaking order/non-speaking order

https://www.mhc.tn.gov.in/judis/ P.T.ASHA, J.

mrn

Rev.Aplc (MD) 1/2020 in CMSA(MD) /45 of 2010

25.01.2021

https://www.mhc.tn.gov.in/judis/