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Delhi District Court

Sh. Sameer Chandra vs Smt. Shivani Chandra on 20 May, 2019

     IN THE COURT OF SURINDER KUMAR SHARMA
    ADDITIONAL SESSIONS JUDGE­05,EAST DISTRICT
           KARKARDOOMA COURTS : DELHI


                                                                Crl. Rev. No. 230/2018
1.     Sh. Sameer Chandra
2.     Dr. Suresh Chandra
3.     Smt. Manorma Saxena
All residents of:
JC­5, Jawahar Nagar,
Jaipur, Rajasthan.                                                  .......Revisionists

VERSUS
Smt. Shivani Chandra
R/o N­30, Laxmi Nagar
Delhi - 110092.                                                     ......Respondent

                               Date of assignment : 13.11.2018
                               Date of Arguments : 25.04.2019
                               Date of Judgment : 20.05.2019

JUDGMENT

1. The present Revision petition has been directed against the order dated 25.08.2018 passed by Ms. Harshita Vatsayan, Ld. M.M. (East) Karkardooma Courts, Delhi.

2. Vide the impugned order, Ld. M.M. has Crl. Rev. No. 230/18 Sameer Chandra & Others v. Shivani Chandra Page 1 of 8 dismissed the application of the revisionists wherein it was prayed that the complaint of the respondent be dismissed.

3. The revisionists being aggrieved with the impugned order has challenged the same on various grounds.

The brief facts necessary for the disposal of the revision petition as revealed from the record are as under:­

4. The marriage of the revisionist No. 1 and the respondent (Petitioner before the Ld. Trial Court) was solemnized on 09.01.1995. Out of the wedlock two daughters were born. As per the case of the revisionists, both the parties have lastly resided at Jaipur before the respondent left her matrimonial home voluntarily on 01.03.2012. The respondent filed a Divorce Petition under Section 13 (1) (ia) & (iii) of Hindu Marriage Act 1955 of Hindu Marriage Act against the revisionist No.1 on the ground of insanity and cruelty which is pending in the Court of Ms. Sarita Birbal, Judge, Family Courts, Delhi. The respondent has also filed a petition under Section 12 of Protection of Crl. Rev. No. 230/18 Sameer Chandra & Others v. Shivani Chandra Page 2 of 8 Women from Domestic Violence Act, 2005(hereinafter called D.V.Act) against the revisionists. The revisionists had filed an application on 18.01.2017 for dismissal of the said application filed by the respondent under D.V.Act. The said application of the revisionist has been dismissed by the Ld. Trial Court vide the impugned order dated 25.08.2018.

5. During the pendency of the present revision petition, Ld. Counsel for the revisionists filed an application for conversion of the present Revision petition into Appeal under Section 29 D.V.Act. He has also moved an application under Section 5 of Limitation Act for condonation of delay in filing the appeal.

6. I have heard Sh. Sunil Kumar, Ld. Counsel for the Revisionists and Sh. Karun Gupta, Ld. Counsel for the Respondent. I have perused the file and the Trial Court Record.

7. It was submitted by the Ld. Counsel for the revisionists that due to erroneous belief, he filed the present revision petition whereas appeal under Section 29 of D.V.Act should have been filed Crl. Rev. No. 230/18 Sameer Chandra & Others v. Shivani Chandra Page 3 of 8 against the impugned order. So, the same be converted into appeal. He has also submitted that period for filing appeal is 30 days and therefore, delay be condoned in the interest of justice.

8. On the other hand, Ld. Counsel for the respondent has submitted that the application filed by the revisionist for conversion of the revision petition into appeal is not maintainable. It was argued that the ignorance of law is no excuse. It was contended that the application under section 5 of Limitation Act is also not maintainable and the same is liable to be dismissed.

9. The Ld. Counsel for revisionist has not mentioned under which provision of law the application for conversion of revision petition into appeal was moved nor during the course of arguments, he has referred to any provision of law or case law. However, in the interest of justice, the revision petition is converted into appeal in view of the law laid down in a judgment which is reported as Soleman Khan Vs. Md. Abdul Naser Al­Faruque, Crl. Rev. No. 26/2013 decided on 30.08.2013 by the Hon'ble Gauhati Crl. Rev. No. 230/18 Sameer Chandra & Others v. Shivani Chandra Page 4 of 8 High Court wherein it was held that Sub­section (5) of Section 401 of the Cr.P.C confers upon the Court the power to treat an application for revision as a criminal appeal and deal with the same accordingly if it is satisfied that the revision application was made on erroneous belief that no appeal for the same lies thereto and it is necessary in the interest of justice so to do.

10. The application under Section 5 of Limitation Act filed by the revisionist is also allowed, in the interest of justice as revision petition in the present case has been treated as an appeal.

11. It was contended by the Ld. Counsel for the revisionists that the Ld. Trial Court has passed the impugned order on surmises and conjunctures. It was contended that the Ld. Trial Court has passed the impugned order without appreciating the prima facie evidence. It was contended that the Ld. Trial Court has ignored the fact that the respondent has suppressed her actual place of residence. It was argued that the Delhi Courts do not have territorial jurisdiction to try the petition Crl. Rev. No. 230/18 Sameer Chandra & Others v. Shivani Chandra Page 5 of 8 under Section 12 of D.V.Act. It was argued that the Ld. Trial Court has failed to appreciate that the present petition was filed only to harass the revisionists. It was prayed that the impugned order dated 25.08.2018 be set aside.

12. On the other hand, Ld. Counsel for the respondent has submitted that the revisionists are adopting delaying tactics. It was further submitted that the impugned order is perfectly legal and valid and therefore, it does not require any interference by this Court. It was argued that issue of territorial jurisdiction is a mixed question of fact and law and it cannot be decided without evidence.

13. To support his contention, the Ld. Counsel for respondent has relied upon judgment of the Hon'ble Supreme Court of India which is reported as Isha Distribution House Pvt. Ltd. Vs. Aditya Birla Nuvo Ltd. & Anr. Civil Appeal Nos. 2554­ 2555 of 2019 dated 7th March 2019 wherein it was held that plea of territorial jurisdiction is essentially a mixed question of fact and law.

14. The perusal of the file shows that the Crl. Rev. No. 230/18 Sameer Chandra & Others v. Shivani Chandra Page 6 of 8 respondent has filed an application under Section 12 of Protection of Women from Domestic Violence Act, 2005 before the Ld. Trial Court. An application seeking dismissal of the said application of the respondent was moved on behalf of the revisionist. Vide the impugned order dated 25.08.2018, the said application of the revisionists was dismissed by the Ld. Trial Court by observing that whether the bar of limitation and jurisdiction is applicable to the petition or not is a mixed question of law and fact which is required to be adjudicated upon after the parties have led their respective evidence and not at this incipient stage.

15. As held in the judgment of the Hon'ble Supreme Court of India which is reported as Isha Distribution House Pvt. Ltd. Vs. Aditya Birla Nuvo Ltd. & Anr. (supra), the plea of territorial jurisdiction is essentially a mixed question of law and fact and therefore, the same cannot be decided at this stage. The Ld. Trial Court has rightly dismissed the application filed by the revisionists.

16. In view of the above discussion, the impugned order is well reasoned, justified and it does not require any interference by this Court. There is no infirmity or illegality in the impugned order. The appeal is without any merit. Therefore, impugned order is upheld. The appeal is dismissed.

17. The copy of this Judgment be sent to the Ld. Trial Court along with Trial Court Record.

18. The Appeal file be consigned to Record Room.

(This judgment has been typed directly by the PA on my dictation) Announced in the open Court on SURINDER Digitally signed by SURINDER KUMAR 20.05.2019 KUMAR SHARMA Date: 2019.05.20 SHARMA 17:20:53 +0530 (SURINDER KUMAR SHARMA) Additional Sessions Judge­05 East District, KKD Courts, Delhi Crl. Rev. No. 230/18 Sameer Chandra & Others v. Shivani Chandra Page 8 of 8