Madras High Court
Khan Malukar vs Jannathul Firdouse on 1 August, 2023
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.1544 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
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C.R.P.No.2490 of 2023 &
C.M.P.No.15443 of 2023
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 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
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C.R.P.No.2490 of 2023 &
C.M.P.No.15443 of 2023
scheduled in the plaint without leave of the court.
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
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C.R.P.No.2490 of 2023 &
C.M.P.No.15443 of 2023
maintenance amount in two different forums.
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.
https://www.mhc.tn.gov.in/judis
C.R.P.No.2490 of 2023 &
C.M.P.No.15443 of 2023
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
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.1544 of 2023
01.08.2023
https://www.mhc.tn.gov.in/judis
