Khan Malukar vs Jannathul Firdouse
2023 Latest Caselaw 9333 Mad

                                                                                    C.R.P.No.2490 of 2023 &
                                                                                    C.M.P.No.15443 of 2023

                                     IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                         DATED: 01.08.2023

                                                             CORAM:

                                   THE HON'BLE Mrs.JUSTICE V.BHAVANI SUBBAROYAN

                                                    C.R.P.No.2490 of 2023 &
                                                    C.M.P.No.15443 of 2023

                     Khan Malukar                                             ...Petitioner

                                                                Vs.
                     1. Jannathul Firdouse
                     2. K.Mohammed Muhasen                                    ...Respondents


                                  Civil Revision Petition filed under Article 227 of the Constitution of

                     India to set aside the fair and decreetal order dated 21.11.2022 in I.A.No.2

                     of 2022 in O.S.No.74 of 2022 on the file of the learned II Additional Family

                     Court (FAC), Chennai



                                        For Petitioner      : Mr.K.Harikrishnan

                                        For Respondents : Mr.J.Titus Enock

                                                             ORDER

The present Civil Revision Petition has been filed to set aside the

order dated 21.11.2022 in I.A.No.2 of 2022 in O.S.No.74 of 2022 on the file

of the learned II Additional Family Court (FAC), Chennai

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

C.R.P.No.2490 of 2023 & C.M.P.No.15443 of 2023

2. The brief facts of the case in nutshell are as follows:-

The petitioner is the defendant and the respondents are the plaintiff

in O.S.No.74 of 2022. The said suit is filed for permanent injunction and to

pay monthly maintenance of Rs.5,000/- each to the respondents / plaintiffs.

Prior to the filing of the suit, the respondents filed M.C.No.109 of 2020

against the petitioner. Pending suit, I.A.No.2 of 2022 was filed by the

petitioner / defendant to reject the plaint in O.S.No.74 of 2022. The court

below dismissed the said application, aggrieved against the same, the

petitioner has come forward with this Revision Petition.

3. The learned counsel for the petitioner would submit that the lower

court had only taken note of the triable issue of the suit, however has not

taken note of the maintainability of the suit. Moreover, the schedule

property in the suit is not related to the matrimonial property. Further, the

1st respondent is having high sources of income and suppressed all the

facts and filed the suit, therefore, the same is abuse of process of law and

evading the given property / income details in asset and liabilities in

M.C.No.109 of 2020.

4. Lastly, the learned counsel for the petitioner submits that in so far

as claiming of maintenance is concerned, the same relief has been

pending in M.C.No.109 of 2020 and in respect of permanent injunction, the https://www.mhc.tn.gov.in/judis

C.R.P.No.2490 of 2023 & C.M.P.No.15443 of 2023

suit property is situated beyond the jurisdiction of the court, thereby

pleaded to set aside the order passed in I.A.No.2 of 2022 dated

21.11.2022.

5. On the other side, the learned counsel for the respondents

submits that the petitioner / husband has failed to take care of the

respondents, who are his wife and son, which necessitates her to file

M.C.No.109 of 2020. The petitioner with an intention to harass the

respondents without filing written statement, has filed I.A.No.2 of 2022 to

reject the plaint and the court below has rightly dismissed the application,

thereby pleaded to dismiss the present Revision.

6. Heard the learned counsel on either side and perused the

documents placed on record.

7. It is an admitted fact that the suit has been filed by the

respondents/plaintiffs, who are wife and son of the petitioner / defendant

praying to direct the petitioner / defendant to pay a sum of Rs.5,000/- each

to the respondents / plaintiffs and for permanent injunction restraining the

petitioner, his men, agents etc., from alienating or encumbering the

property scheduled in the plaint without leave of the court.

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

C.R.P.No.2490 of 2023 & C.M.P.No.15443 of 2023

8. It is pertinent to point out that respondents / plaintiffs have not filed

original petition under muslim law, the respondents have resorted a remedy

by filing Original Suit No.74 of 2022 under Order VII Rule 1 CPC. Further, it

is the contention of the petitioner that the respondents have raised

M.C.No.109 of 2020 before learned IV Additional Judge, Family Court,

Chennai seeking maintenance and the respondents / plaintiffs have taken

out the same relief in the Suit in O.S.No.74 of 2022, which is not

maintainable. It is also the contention of the petitioner / husband that the

averments stated by the respondents are false and he is paying for his

son's education. Moreover, the 1st respondent is not taking care of the 2nd

respondent / child and she is always looking after her business and also

receiving huge amount as salary.

9. During the course of arguments, the learned counsel on either

side submitted that the case is at the stage of pronouncing judgment and

till date, no such orders are passed by the court below. According to the

respondents, the petitioner has not shown any cause of action to invoke

Order 7 Rule 11 CPC and therefore, the court below has declined to grant

the relief sought by the petitioner. That apart, there is a bar in deciding the

maintenance amount in two different forums.

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

C.R.P.No.2490 of 2023 & C.M.P.No.15443 of 2023

10. On a perusal of the documents placed on record, it is seen that

there are various avenues available to the respondents / wife and child to

claim maintenance and the respondents filed a petition under Section 125

Cr.P.C., claiming a sum of Rs.30,000/- and Rs.20,000/- maintenance to

them respectively and a sum of Rs.30,000/- towards litigation expenses.

Thereafter, the respondents had filed a suit claiming permanent injunction

and maintenanance of Rs.5,000/- each to the respondents. In fact, the

aspect of any order being passed in the maintenance case will be taken

into consideration by the trial court while disposing of the suit.

11. As far as the other point raised by the petitioner that the suit

schedule property is situated at nilgiris and suit is filed before the Family

Court, Chennai, therefore, the said court does not have jurisdiction is

concerned, the said point cannot be accepted because though the property

may be situated whereever, after the decree being passed, the same can

be executed by the concerned court, which has got jurisdiction and the

decree will be transmitted to the concerned execution court, which has

jurisdiction and there is no need to consider about the same at this

juncture.

12. In view of the above, this Court is of the view that the petitioner

has not made out any case for interfering with the order dated 21.11.2022 https://www.mhc.tn.gov.in/judis

C.R.P.No.2490 of 2023 & C.M.P.No.15443 of 2023

passed in I.A.No.2 of 2022 in O.S.No.74 of 2022 and the petitioner is at

liberty to file the written statement in said suit and the court is directed

consider the order being passed in M.C.NO.109 of 2022 while deciding the

suit.

In the result, the present Revision Petition is dismissed.

Consequently, connected miscellaneous petition is closed. No costs.

01.08.2023

Index:Yes/No Internet:Yes/No Speaking / Nonspeaking order ssd

To

The II Additional Family Court (FAC),

Chennai

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

C.R.P.No.2490 of 2023 & C.M.P.No.15443 of 2023

V.BHAVANI SUBBAROYAN J.

ssd

C.R.P.No.2490 of 2023 & C.M.P.No.15443 of 2023

01.08.2023

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