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Chandana Hansda (Murmu) vs Anil Hansda on 12 March, 2020

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

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