Satya Narayan Prasad Gupta @ Satoo ... vs Bijay Kumar Gupta And Ors
2023 Latest Caselaw 4037 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                      Miscellaneous Appeal No.333 of 2018
======================================================

Satya Narayan Prasad Gupta @ Sato Sao @ Satya Prakash Prasad, Son of Late Ram Chandra Prasad Bedil and adopted ,Son of Late Bhola Sao alias Bhola Halwai resident of Mohalla-Kamasi Bazar Tola Commissionary, P. O , P. S and District-Sheikhpura, at present resident of Mohalla-Chandani Chowk, P. O, P.S and District-Sheikhpura.

(Plaintiff in the court below) .... Appellant

-Versus-

1. Bijay Kumar Gupta, Son of Late Ram Chandra Prasad Bedil, resident of Mohalla- Kamasi Bazar, Tola Commissionary P.o. P.s and District -Sheikhpura.

(A) Madhuri Devi, wife of Kishor Kumar Gupta, daughter of Late Ram Chandra Prasad Bedil, resident of Mohalla Dengal para, P. O , P.S and District Dumka. (B) Gita Devi, wife of Kanhai Prasad Gupta, daughter of Late Ramchandra Prasad Bedil resident of Mohalla Katrapar, Biharsharif, District-Nalanda.

.. Defendant-Respondent (Ist Party)

2. Jai Prakash Gupta, Son of late Ram Chandra Pd. Bedil

3. Kaushal Kumar Gupta

4. Kamlesh Kumar Gupta Both minor sons of Jai Prakash Gupta under the Guardianship of their natural father and next friend Jai Prakash Gupta. All residents of Mohalla Kamasi Bazar Tola Commissary P. O and P.S. District- Sheikhpura.

Respondents/Defendant (Second Party) ====================================================== Appearance :

For the Appellant/s      :         None.
For the Respondent No. :           Mr. Kameshwar Prasad Gupta
                                   Mr. Virendra Kumar, Advocate

====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI and HONOURABLE MR. JUSTICE JITENDRA KUMAR CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE JITENDRA KUMAR)

Date : 25-08-2023

The present appeal has been filed impugning the

judgment dated 29.01.2018 passed by Principal Judge, Family Patna High Court MA No.333 of 2018 dt. 25-08-2023

Court, Sheikhpura, in Title Suit (Adoption) No. 21 of 2009,

whereby learned Family Court has dismissed the petition of the

Appellant/Plaintiff seeking declaration that the

Appellant/Plaintiff is adopted son of Bhola Sao and Parwati

Devi (both deceased) and the Appellant/Plaintiff is legal heir

and representative of Bhola Sao and Parwati Devi.

2.1 The case of the Appellant/Plaintiff as per the

pleading is that one Bhola Sao alias Bhola Halwai had some

landed property including building in the town Sheikhpura. He

was married to one Parwati Devi (now deceased). They had no

child. So they thought it fit to adopt a son, and accordingly,

placed proposal to his brother-in-law / Ramchandra Prasad

Bedil and his wife Sabo Devi (deceased), who agreed to give

their son (Appellant/Plaintiff) Satya Narayan Prasad Gupta @

Sato Sao @ Satya Prakash Prasad, in the year 1967, who was

ten years' old. Accordingly, on 15.05.1967, both the parties i.e

Bhola Sao and his wife Parwati Devi and Ramchandra Prasad

Bedil and his wife Sabo devi along with some respectable

persons of the locality were invited at Maharani Asthan, Bypass,

Sheikhpura, P.O. and District - Sheikhpura. Purohit, Jay Pandit

Ji started puja-path and hoam before the sacred fire and

Ramchandra Prasad Bedil and his wife Sabo Devi gave the Patna High Court MA No.333 of 2018 dt. 25-08-2023

Plaintiff to Bhola Sao and his wife Parwati Devi, who accepted

the Appellant/Plaintiff as his son in presence of the respectable

persons, invitees and witnesses : (i). Khaderan Lal, son of late

Bihari Lal, resident of Mohalla Bangaliper P.S.- Sheikhpura,

district-Sheikhpura. (ii) Jagdish Prasad, son of late Bachu Lal,

resident of Mohalla - Bangaliper, P.S. & district-Sheikhpura.

(iii). Anirudh Singh, Son of late Dhanushdhari Singh, resident of

village- Barmaper, P.O.- Sarari, P.S.- Sarari, District-

Sheikhpura. (iv) . Daso Mahto, son of late Saukhi Mahton,

Kamasi Bazar, P.O.- Sheikhpura, P.S. Sheikhpura, District-

Sheikhpura and several other persons. Thereafter, Bhola Sao

distributed sweets as prasad to the present persons. Since then,

late Bhola Sao and late Parwati Devi started living with

Appellant/Plaintiff and gave love and affection to him as their

son and the Appellant/Plaintiff also became a devotee, follower,

loyal and obedient to his adoptive parents.

2.2 It has been further pleaded that Bhola Sao died

in the year 2002 and his Shraddh was performed by the

Appellant/Plaintiff and his son. It has further been pleaded that

since Bhola Sao had got no child and the Appellant/Plaintiff had

been adopted by the said Bhola Sao and Parwati Devi,

Ramchandra Prasad Bedil had greedy eye over the properties of Patna High Court MA No.333 of 2018 dt. 25-08-2023

the deceased Bhola Sao. Hence, he willfully gave the

Appellant/Plaintiff in adoption so that he might help him in

misappropriating the property of Bhola Sao, but as this

Appellant/Plaintiff is very loyal to his adoptive father, there

arose differences between Ramchandra Prasad Bedil and the

Appellant/Plaintiff. After death of Bhola Sao, Ramchandra

Prasad Bedil and his son Jai Prasad Gupta instigated Parwati

Devi against the Appellant/Plaintiff causing some differences in

between the adoptive mother and the Appellant/Plaintiff.

2.3 It has further been pleaded that during his

lifetime, Bhola Sao purchased a piece of land, measuring two

decimals, half in the name of his wife Parwati Devi and half in

the name of this Appellant/Plaintiff, situated at Mouza-

Sheikhpura, Thana No. 178, Touzi No. 887, Khata No. 174, Plot

No. 520 through registered sale-deeds dated 19.11.1982.

2.4 Later, it came to the notice of the

Appellant/Plaintiff that khata number and boundary of the said

land was wrongly mentioned in the sale deed, so he approached

the vendor who executed a correction deed on 30.04.1983 and

produced the same before the Sub-Registrar, Sheikhpura on

03.05.1983 for registration. But as the deed of Parwati Devi has

not been corrected, the Appellant/Plaintiff also acquired the land Patna High Court MA No.333 of 2018 dt. 25-08-2023

of the Parwati Devi forcibly and thereafter constructed a double-

storied building over the same and he has been residing there

along with his wife and children till date.

2.5 It has been further pleaded that the adoptive

father and mother of the Appellant/Plaintiff, who were residing

in the old ancestral house at Kamasi Bazar but the

Appellant/Plaintiff looked after her at the said house.

2.6 Taking advantage of the absence of the

Appellant/Plaintiff and death of Bhola Sao, Ramchandra Prasad

Bedil, the natural father of the Appellant/Plaintiff, along with his

son Jai Prakash Gupta got entrance in the said house by showing

sympathy and service to the deceased, Parwati Devi and after

few days they obstructed entry of the Appellant/Plaintiff and his

family members into the said house. However, the

Appellant/Plaintiff kept mum to avoid nuisance and litigations.

2.7 It has further been pleaded that in the year

2003, late Parwati Devi under the instigation of Jai Prakash

Gupta and Ramchandra Prasad Bedil, filed two Eviction Suits

against the tenants of the Appellant/Plaintiff. In the Eviction

Suit, late Parwati Devi as well as Ramchandra Prasad Bedil

accepted the averments of the Appellant/Plaintiff during the

course of cross examination. It has also been pleaded that Bhola Patna High Court MA No.333 of 2018 dt. 25-08-2023

Sao had given a written paper in favour of the Plaintiff to the

tenants regarding adoption and for realization of rent. Such

paper, as per the pleading has already been filed by the tenant in

the Eviction Suit.

2.8 It is further pleaded that the said Parwati Devi,

on account of old age, illness and unsoundness of mind is

leading her life in the house at Kamasi Bazar along with Jai

Prakash Gupta and his wife and children.

2.9 It has been further pleaded that Jai Prakash

Gupta taking advantage of weakness of late Parwati Devi got a

fraudulent Will executed by her in favour of his two minor sons,

namely, Kausal Kumar Gupta and Kamlesh Kumar Gupta on

22.05.2003.

2.10 It is further pleaded that under the instigation

of the Respondent/Defendant, Parwati Devi filed two Eviction

Suits No. 03 of 2002 and No. 4 of 2002 against the Tenant of the

Plaintiff. Thereafter, the tenants filed Eviction Appeal No. 2 of

2007 and No. 3 of 2007 which had been pending before learned

A.D.J., F.TC.-IVth, Sheikhpura. During the pendency of the

Appeals, Most. Parwati Devi died on 19.03.2008 and after her

death, the Appellant/Plaintiff filed petition for substitution in her

place and the Defendant-Second Party also filed substitution Patna High Court MA No.333 of 2018 dt. 25-08-2023

petition. However, the Court was pleased to direct the

Appellant/Plaintiff to obtain a succession certificate from the

appropriate Court. And hence, the necessity of the present Suit

arose.

2.11. It has been further pleaded that cause of

action for filing the present suit arose on 15.05.1967 for the first

time when the Appellant/Plaintiff was adopted and again in

2002 when Bhola Sao died and again on 22.05.2003 when Will

was executed by Parwati Devi and again on 19.03.2008 when

Parwati died and lastly on 30.03.2009 when learned

A.D.J.,F.T.C. IVth, Sheikhpura, directed him to obtain order

from the competent Court in support of his adoption or a

succession certificate.

3.1 On notice, only Respondent-No. 2 Jai Prakash

Gupta, who was Defendant No. 2 before the Family Court,

appeared and filed his written statement, wherein he took

following preliminary objections : (i) That the suit as framed is

not maintainable. (ii) That the Plaintiff has got no cause of

action or right to sue . (iii) That save and except what has been

specifically admitted in the written statement all the allegations

made in the plaint are denied. (iv) That the instant suit is barred

by law of estoppel, waiver and acquiescence. (v) That the Patna High Court MA No.333 of 2018 dt. 25-08-2023

instant suit is barred by the Specific Relief Act. (vi) That the

instant suit is bad for misjoinder and non-joinder of the parties.

3.2 He has also denied the averment that the

Appellant/Plaintiff was adopted by Bhola Sao and Parwati Devi.

It is also claimed that Bhola Sao @ Bhola Halwai had executed

three registered deeds of gift on 08.04.2000 in favour of Niraj

Kumar, son of Satya Narayan Prasad Gupta and Kaushal Kumar

Gupta alias Gope son of Jai Prakash Gupta Gupta, Kamlesh

Kumar Gupta @ Gholu, son of Jai Prakash Gupta. However, he

has admitted that Eviction Suit No. 3 of 2003 and Eviction Suit

No. 4 of 2003 are going on in the Court of Munsif, Sheikhpura.

3.3 It has also been denied by the Respondent/Defendant that

the Appellant/ Plaintiff had ever lived with Bhola Sao and his

wife Parwati Devi and it is also denied that the

Appellant/Plaintiff had performed Shraddh of Bhola Sao after

his death. He has also admitted that in Probate Case No. 03 of

2008, the Appellant wanted to become a party but the same has

not been allowed by the Court.

4. Considering the pleading of the parties, the

Court Below has framed the following issues:

i). Whether the suit is maintainable ?

ii). Whether the Plaintiff has got valid cause of action or right to sue?

Patna High Court MA No.333 of 2018 dt. 25-08-2023

iii). Whether the suit is barred by the Specific Relief Act?

iv). Whether on 15.05.1967 at Maharani Asthan, Ram Chandra Prasad Bedil and his wife Sabo Devi gave the Plaintiff to Bhola Sao and his wife Parwati Devi who accepted him as their son in presence of the witnesses?

v). Whether the Plaintiff from the date of adoption left the house and property of natural parents and resided with Bhola Sao and Parwati Devi?

vi). Whether the Plaintiff is the legal adopted son of Bhola Sao and Parwati Devi?

vii). Whether the Plaintiff is entitled for any other relief or reliefs?

5. During the trial, in support of his petition, the

Appellant/Plaintiff had examined the following five witnesses:

(i) P.W. 1 - Satya Narayan Prasad Gupta @ Sato Sao @ Satya

Prakash Prasad (who is Plaintiff himself), (ii) P.W. - 2, Suresh

Yadav, (iii) P.W. - 3, Gore Lal Yadav, (iv) P.W.-4, Ram Jatan

Paswan, (v) P.W. - 5, Chandeshwar Prasad (vi) P.W. - 6, Niraj

Prasad Gupta.

6. Respondent No.2, who was Defendant No. 2 in

the Court below, had examined the following three witnesses :

(i) D. W. - 1 Jai Prakash Gupta (who is Defendant No. 2

himself), (ii) D. W. - 2 Shiv Nandan Singh, (iii) D. W. - 3

Firdosh Khan.

Patna High Court MA No.333 of 2018 dt. 25-08-2023

7. The Appellant / Plaintiff has also got the

following documents exhibited : (I) Ext. 1-Invitation Card, ii)

Ext. 2- Copy of Deposition of Parwati Devi in MEA No. 03 of

2007 / Eviction Suit No. 03 of 2003, iii) Ext. 3- Fardbeyan in

MEA No. 03 of 2007, iv) Ext. 4- Copy of Judgment dated

06.05.2016 passed in Misc. Case No. 06 of 2013 and 07 of

2013, v) Ext.-5, Copy of Deed No. 1948 of 2000.

8. After consideration of evidence on record and

submission made on behalf of the parties, Ld. Family Court

dismissed the suit finding all the issues against the Appellant-

Plaintiff.

9. Vide order dated 28.06.2023, learned counsel

for the appellant was directed to apprise this Court relating to

jurisdiction of the Family Court insofar as deciding the

adoption matter. It was also cautioned that in case there is no

representation on behalf of the appellant, the appeal would be

decided with reference to whether the Family Court has

jurisdiction to decide the adoption matter or not. However, on

the next date of hearing, i.e., on 13.07.2023, none appeared on

behalf of the appellant, though Ld. counsel for the respondent

was present, who was heard. He supported the impugned

judgment passed by Ld. Family Court. However, when the Patna High Court MA No.333 of 2018 dt. 25-08-2023

Court put the question to him whether the suit for declaration

regarding adoption is within the jurisdiction of the Family

Court or Civil Court, he could not point out how the Family

Court has jurisdiction to decide whether the Plaintiff was

adoptive son of Bhola Sao and Parvati Devi and on account of

being adopted son, he is a legal heirs to them. When the

relevant laws were pointed out by the Court to him, he was

unable to have contrary view based on law.

10. Hence, the first and foremost question which

arises for consideration of this Court is whether the Family

Court has jurisdiction to entertain any suit for declaration that

the Plaintiff is adopted son of Bhola Sao and Parwati Devi and

on account of being adopted son, he is a legal heir to them. It

is surprising that such question was not raised by either of the

parties. Even the Family Court failed in its duty to raise such

question and decide it before admitting the suit. Such question

is a pure question of law and it could have been raised by the

Court on its own. In case of its finding that it has no

jurisdiction, it could have been required to return the plaint to

the Plaintiff under Order VII Rule 10 Civil Procedure Code,

to present the plaint to the Court of competent jurisdiction.

11. Now let us examine whether the Family Patna High Court MA No.333 of 2018 dt. 25-08-2023

Court has jurisdiction to adjudicate the matter as contained in

the plaint presented to it. As per Section 9 of the Civil

Procedure Code, the Court has jurisdiction to try all suits of a

civil nature excepting suits of which their cognizance is either

expressly or impliedly barred. However, exclusion of the

jurisdiction of the Civil Courts is not to be readily inferred, but

such exclusion must be either explicitly expressed or clearly

implied as Hon'ble Supreme Court in Dhulabhai Vs. State

of M.P. as reported in (1968) 3 SCR 662 has held that the

jurisdiction of the Civil Courts is all embracing except to the

extent it is excluded by an express provision of law or by clear

intendment arising from such law. The ouster of the

jurisdiction of a Civil Court is not to be lightly inferred and

can only be established if there is an express provision of law

or is clearly implied.

12. Declaratory suit has been provided under

Section 34 of the Specific Relief Act, 1963 as per which, any

person entitled to any legal character, or to any right as to any

property, may institute a suit against any person denying, or

interested to deny, his title to such character or right, and the

court may in its discretion make therein a declaration that he is

so entitled, and the plaintiff need not in such suit ask for any Patna High Court MA No.333 of 2018 dt. 25-08-2023

further relief.

13. Hon'ble Supreme Court in para 41 of

Ramchandra Dagdu Sonavane & Ors. Vs. Vithu Hira

Mahr & Ors. as reported in (2009) 10 SCC 273 has observed

that as regards whether there is valid adoption or not, that

question pertains to the status and legal character of an

individual, which falls within the purview of Section 34 of the

Specific Relief Act, 1963 and a suit for declaration before a

civil court is maintainable. Hon'ble Supreme Court has further

held that when a person claims on the basis of adoption, such

an adoption cannot be decided by the Collector as the same

involves legal status/character of a person which can only be

decided by the civil court.

14. Relying upon Ramchandra Dagdu

Sonavane case (supra), Hon'ble Jammu and Kashmir High

Court in para 9 of the Rajan Samotra & Ors. Vs. Financial

Commissioner & Ors. as reported in 2017 SCC Online

J&K 534 has also held that dispute with regard to the validity

of adoption is not a dispute in respect of which a revenue court

has exclusive jurisdiction. Such a dispute is a matter well

within the jurisdiction of a civil court. Therefore, it cannot be

within the exclusive jurisdiction of the revenue court to Patna High Court MA No.333 of 2018 dt. 25-08-2023

determine the legal character of an individual, whether he is an

adopted son or not.

15. As such, it is crystal clear that declaratory

suit in regard to adoption comes within the jurisdiction of

Civil Courts. However, sometimes, jurisdiction of Civil Court

is barred by special legislations with regard to civil suits of

particular nature providing alternative forum for adjudication

of the same for the purpose of speedy disposal or otherwise.

Unless the jurisdiction of Civil Court is barred by such

express legislations or by necessary implication, jurisdiction

of Civil Courts regarding civil matters cannot be excluded. In

such situation, question is whether jurisdiction of Civil Courts

has been excluded in regard to adoption by Family Courts

Act, 1984, which has been enacted to establish the Family

Courts with jurisdiction in regard to matters enumerated

therein. If it is found that jurisdiction in regard to adoption

has not been conferred upon the Family Courts, the

jurisdiction of Civil Courts in regard to adoption matters does

not stand excluded.

16. Hence, it is imperative to examine the Family

Courts Act, 1984 to see whether the Family Courts have been

entrusted with jurisdiction to deal with the matters connected Patna High Court MA No.333 of 2018 dt. 25-08-2023

with adoption. Section 7 of the Family Courts Act, 1984 deals

with the jurisdiction of the Family Court, which reads as

follows:-

"7. Jurisdiction.--(1) Subject to the other provisions of this Act, a Family Court shall--

(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and

(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.

Explanation.--The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:--

(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;

(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;

(d) a suit or proceeding for an order or injunction in circumstance arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the Patna High Court MA No.333 of 2018 dt. 25-08-2023

legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise--

(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and

(b) such other jurisdiction as may be conferred on it by any other enactment."

17. Section 8 of the Family Courts Act, 1984

deals with exclusion of jurisdiction and pending proceedings,

which reads as follows:-

"8. Exclusion of jurisdiction and pending proceedings.

--Where a Family Court has been established for any area,--

(a) no district court or any subordinate civil court referred to in sub-section (1) of section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section;

(b) no magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974);

(c) every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of section 7 and every proceeding under Chapter IX of the Code of Patna High Court MA No.333 of 2018 dt. 25-08-2023

Criminal Procedure, 1973 (2 of1974),--

(i) which is pending immediately before the establishment of such Family Court before any district court or subordinate court referred to in that sub-section or, as the case may be, before any magistrate under the said Code; and

(ii) which would have been required to be instituted or taken before such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall stand transferred to such Family Court on the date on which it is established."

18. Section 20 of the Family Courts Act, 1984

provides for overriding effect which reads as follows:-

"20. Act to have overriding effect.--The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."

19. It is clear from Section 20 of the Family

Courts Act, 1984 that the Act has overriding effect over all

other previous Acts. As such, it will prevail over all other

previous Acts which may have inconsistent provisions. As per

Section 7 of the Act of 1984, the jurisdiction of the Family

Court is limited to the specific categories of the cases as

referred to in the Explanation to Section 7(1). Section 7(2)(b) Patna High Court MA No.333 of 2018 dt. 25-08-2023

of the Act of 1984 further makes it clear that any other

jurisdiction can be conferred on the Family Court only by

further enactment. In other words, other jurisdiction upon

Family Court cannot be conferred except by enactment or

explicit implication or clear inference. Section 8(a) of the Act

of 1984 further makes it clear that the jurisdiction of Civil

Courts or any other court in regard to the subject matter of the

jurisdiction of the Family Court is barred.

20. Now coming to the jurisdiction of the Family

Courts as provided by the Act of 1984, it is crystal clear that

there is no jurisdiction of the Family Court in regard to

adoption. None of the clauses from (a) to (g) of the

Explanation to Section 7(1) of the Act of 1984 is related with

adoption. As such, no suit declaratory or otherwise in regard to

adoption comes within the jurisdiction of Family Courts. The

declaratory suits as provided in Clause (c) and (e) are also not

connected with adoption. As per Clause (b), a suit or

proceeding for a declaration as to the validity of a marriage or

as to the matrimonial status of any person has been provided

and as per Clause (e), a suit or proceeding for a declaration as

to legitimacy of any person has been provided. Neither suit is

connected with adoption. The legitimacy of any person as Patna High Court MA No.333 of 2018 dt. 25-08-2023

provided in Clause (e), must be arising out of marriage and not

of adoption or any other thing because the object of the Family

Courts Act is to provide jurisdiction to Family Courts in regard

to marriage and family affairs and for matters connected

therewith and establish Family Court as one spot forum for

family litigations. Adjudication of other civil matters comes

within the domain of Civil Courts. As such, Family Courts

have no jurisdiction to adjudicate any adoption matters.

21. Hence, the Family Court has passed the

impugned judgment without jurisdiction. The impugned

judgment is therefore nullity and non-est as per

pronouncements of the Apex Court. Hon'ble Supreme Court

in para 18 of Chiranjilal Shrilal Goenka Vs. Jasjit Singh as

reported in (1993) 2 SCC 507 has clearly observed that it is

settled law that a decree passed by a court without jurisdiction

on the subject-matter or on the grounds on which the decree

made which goes to the root of its jurisdiction or lacks

inherent jurisdiction is a coram non judice. A decree passed by

such a court is a nullity and is non est. Its invalidity can be set

up whenever it is sought to be enforced or is acted upon as a

foundation for a right, even at the stage of execution or in

collateral proceedings. The defect of jurisdiction strikes at the Patna High Court MA No.333 of 2018 dt. 25-08-2023

very authority of the court to pass decree which cannot be

cured by consent or waiver of the party.

22. Hon'ble Supreme Court in para 30 of

Harshad Chiman Lal Modi Vs. DLF Universal Ltd. as

reported in (2005) 7 SCC 791 has observed that the

jurisdiction of a court may be classified into several

categories. The important categories are (i) territorial or local

jurisdiction; (ii) pecuniary jurisdiction; and (iii) jurisdiction

over the subject-matter. So far as territorial and pecuniary

jurisdictions are concerned, objection to such jurisdiction has

to be taken at the earliest possible opportunity and in any case

at or before settlement of issues. The law is well settled on the

point that if such objection is not taken at the earliest, it cannot

be allowed to be taken at a subsequent stage. Jurisdiction as to

subject-matter, however, is totally distinct and stands on a

different footing. Where a court has no jurisdiction over the

subject-matter of the suit by reason of any limitation imposed

by statute, charter or commission, it cannot take up the cause

or matter. An order passed by a court having no jurisdiction is

a nullity.

23. Hon'ble Supreme Court in para 24 of

Hasham Abbas Sayyad Vs. Usman Abbas Sayyad & Ors., Patna High Court MA No.333 of 2018 dt. 25-08-2023

as reported in (2007) 2 SCC 355 has observed that a

distinction must be made between a decree passed by a court

which has no territorial or pecuniary jurisdiction in the light of

Section 21 of the Civil Procedure Code, and a decree passed

by a court having no jurisdiction in regard to the subject-

matter of the suit. Whereas in the former case, the appellate

court may not interfere with the decree unless prejudice is

shown, ordinarily the second category of the cases would be

interfered with.

24. Hon'ble Bombay High Court in para 20 of

I.C.I.C.I. Vs. Sharad Khanna as reported in 1993 Mh.LJ.

448 has observed that a situation, where a statute mandates the

Court of plenary jurisdiction to do or not to do something, and

the Court breaches the mandate, cannot be equated with a

situation where the Court inherently lacks jurisdiction to

adjudicate upon the subject matter of the dispute or with the

case of a special forum of limited jurisdiction acting out of

bounds of its jurisdictional limits. The former results in an

erroneous decree; the latter in a decree which is a nullity.

25. Hence, this Court has no option but to set

aside the impugned judgment and direct the return of the plaint

under Order VII Rule 10 of the Civil Procedure Code to the Patna High Court MA No.333 of 2018 dt. 25-08-2023

Plaintiff to present it before the Civil Court of competent

jurisdiction. As per Rule 10(1) of Order VII of the Civil

Procedure Code, the plaint can be returned at any stage of the

suit and the appellate/revisional courts are also competent to

return the plaint after setting aside the impugned

judgment/decree.

26. Rule 10(1) of Order VII of the Civil

Procedure Code reads as follows:-

"10. Return of plaint.- (1) subject to the provisions of rule 10A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.

Explanation.- For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this sub-rule."

27. As per Rule 10(B) of Order VII of the Civil

Procedure Code, presentation of such return of the plaint to

the Court of competent jurisdiction is subject to the provisions

of the Limitation Act, 1963.

28. Hence, the impugned judgment is set aside.

The office is directed to return the plaint to the Appellant-

Plaintiff to present it before Civil Court of competent

jurisdiction, subject to the law of limitation.

29. The instant Appeal is disposed of, Patna High Court MA No.333 of 2018 dt. 25-08-2023

accordingly. Both the parties will bear their own costs. Let the

decree be drawn accordingly.

30. Registrar General is directed to circulate a

copy of the judgment amongst all the judicial officers of Bihar

including presiding officers of the Family Courts and send a

copy to Director of Bihar Judicial Academy for needful.

(Jitendra Kumar, J)

( P. B. Bajanthri, J) Skm/chandan/-

AFR/NAFR                AFR
CAV DATE                13.07.2023
Uploading Date          25.08.2023
Transmission Date