Calcutta High Court (Appellete Side)
Chandana Hansda (Murmu) vs Anil Hansda on 12 March, 2020
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Justice Bibek Chaudhuri
C.O. 2453 of 2019
Chandana Hansda (Murmu)
Vs.
Anil Hansda
For the Petitioner: Mr. Ziaul Haque
For the Opposite party : Mr. Piush Chaturvedi
Mr. Anujit Mookherji
Heard on : 12.03.2020
Judgment on : 12.03.2020
Bibek Chaudhuri, J.:
The opposite party as plaintiff filed Other Suit No.13 of 2019 in the Court of the learned Civil Judge (Junior Division), Haldia, Purba Medinipur praying for declaration that the defendant is not her legally married wife and permanent injunction restraining the defendant from demanding the plaintiff as her husband. The defendant of the said suit has filed the instant application under Section 24 of the Code of Civil Procedure stating, inter alia, that her marriage was solemnized with the opposite party on 29th 'Jaistha', 1424 B.S. as per tribal ritual. Subsequently, the petitioner was tortured at her matrimonial home and she was driven out therefrom. She lodged a complaint before the Officer-in-charge, Chandrakona Police Station. On the basis of which a case under Section 498A/34 of the Indian Penal Code was registered against the opposite party and his relatives. Police investigated into the case and filed charge sheet in the Court of the learned Additional Chief Judicial Magistrate at Ghatal. The petitioner also filed an application invoking various provisions of the Protection of Women from Domestic Violence Act, 2005 in the Court of the learned ACJM, Ghatal and the learned Magistrate passed an order directing the opposite party to pay Rs.3,000/- per month as interim maintenance to the petitioner. However, the opposite party refused and neglected to pay such maintenance allowance to the petitioner. In the meantime, the opposite party filed O.S. No.13 of 2019 against the petitioner praying for declaration that the petitioner is not the legally married wife of the opposite party and permanent injunction. The petitioner has prayed for transfer of the said suit to a Court of competent jurisdiction at Garbeta in the district of Paschim Medinipur on the ground that she resides within the jurisdiction of Garbeta Court. Haldia Court is situated at a distance of about 120 kilometres from her place of residence and she is facing inconvenience to contest the said suit at Haldia mainly due to distance. It is also urged by the petitioner that she never stayed within the territorial jurisdiction of the learned Civil Judge (Junior Division) at Haldia and the opposite party has filed the suit in a Court which lacks territorial jurisdiction to try the suit.
Learned advocate for the petitioner submits that two other proceedings between the parties are pending at Ghatal Court and, therefore, the opposite party will not suffer any inconvenience if the above numbered suit is transferred to Ghatal.
Learned advocate for the opposite party, on the other hand, submits that the petitioner already entered appearance in the said suit on 27th June, 2019. As she failed to file written statement, the suit is fixed for ex parte hearing on 13th November, 2019. Thus, the suit has reached the stage of evidence. At this stage, it will not be appropriate to allow the application under Section 24 of the Code of Civil Procedure. In support of his contention the learned advocate for the opposite party refers to a decision of the Hon'ble Supreme Court in the case of Neelam Bhatia versus Satbir Singh Bhatia reported in (2004) 13 SCC 436. Coming to the instant case it is submitted by the learned advocate for the opposite party that as the petitioner failed to file written statement in spite of opportunity being given to her the suit is fixed for ex parte hearing. At this stage the principle laid down in Neelam Bhatia (supra) is squarely applicable in the instant case.
Learned advocate for the opposite party next submits that where the defendant/petitioner raised a question of lack of territorial jurisdiction by the trial Court, proper course would have been to file an application and return of plaint under Order 7 Rule 10 of the Code of Civil Procedure without making an application under Section 24 of the Code of Civil Procedure. It is further urged by the learned advocate for the opposite party that the petitioner cannot seek for transfer of the suit while she is disputing territorial jurisdiction of the trial Court. In support of his contention he refers to a decision of Madras High Court reported in 1999 -3-L.W.731:P.S.A. Rajaguru vs. P.S.D. Nagamani Marthandam and others. Paragraphs 14 and 15 of the said decision are relevant for our purpose and, therefore, quoted below:-
"14. In AIR 1955 Mysore 115 (N. Krishnaji Rao v. Gokuldas Harbhagavandas and another), in paragraph 4 of the judgment, it has been held thus:- (Relevant portion):
"Again there appears to be a legal impediment for the transfer of the cases from the Court of Principal Subordinate Judge, Bangalore, to the Court of the Subordinate Judge in Mysore. In the suit pending before the principal Subordinate Judge, Bangalore, the defendant has admittedly taken a stand that the Sub Court has no jurisdiction to entertain this suit. It is not open to a defendant to contend that a particular Court has no jurisdiction to entertain suit and at the same time, ask for a transfer of the case to some other Court.
In this connection, I would like to refer to the decisions reported in Gangumal v. Nanikram, AIR 1932 Sind 215, and Singara Mudaliar v. Govindaswamy Chettiar, AIR 1928 Madras 400 = 27 L.W.609. In the first case, His Lordship has held that a superior Court cannot make an order of transfer of a case under the appropriate Section of the Civil Procedure Code unless the Court from which the transfer is sought to be made has jurisdiction to try it, and that a defendant cannot therefore raise an issue as to the jurisdiction of a Court in which the suit is pending and at the same time apply for transfer of the case under S.24....." 15. In AIR 1986 Punjab and Haryana 326 (Hari Ram v. Anil Kumar), in paragraph 4 of the judgment, a learned judge of that High Court has held thus:-
"Admittedly, in the two suits, the defendant has raised the question of territorial jurisdiction of the Court at Hissar to entertain the suit which is pending adjudication before the Court. That being so, no transfer of the suit could be sought on that ground."
Learned advocate for the opposite party also refers to a decision of the Punjab and Haryana High Court in the case of Hari Ram versus Anil Kumar reported in AIR 1986 P & H 326 on the same point.
Last but not the least it is submitted by the learned advocate for the opposite party that paternal home of the petitioner is situated at a distance of about 60 kilometres away from Ghatal Court. On the contrary, she will have to travel a distance of about 100 kilometres to reach Haldia Court. Therefore, distance is also not a ground to allow the instant application under Section 24 of the Code of Civil Procedure.
Having heard the learned advocates for the petitioner and the opposite party and on perusal of the materials on record and the reported decisions relied on by the learned advocate for the opposite party, this Court also shares the same view that where the defendant /petitioner has raised the question of territorial jurisdiction of a particular Court proper course would be to file an application under Order 7 Rule 10 of the Code of Civil Procedure praying for return of the plaint. That being so, no transfer of the suit could be sought on that ground. Further more, O.S. 13 of 2019 is not a matrimonial suit for dissolution of marriage or restitution of conjugal rights. This is the suit for declaration and permanent injunction. In that suit the petitioner is not entitled to get the benefit of principle laid down in Rajani Kishore Pardeshi vs. Kishore Babulal Pardeshi reported in 2005 (12) SCC 237.
For the reasons stated above, I do not find any merit in the instant application and the application under Section 24 of the Code of Civil Procedure is rejected on contest, however, without costs.
Interim order, if any, be vacated.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties on usual undertakings.
(Bibek Chaudhuri, J.) Suman (AR) Item No.22 Ct.17