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Judgments of Supreme Court of India and High Courts

CO/2028/2018 on 4 February, 2019

1

Cl. February C.O. 2028 of 2018
21 4, 2019

With

22. C.O. 2587 of 2018
With
C.O. 407 of 2019

Mr. Jahar Chakraborty,
Mr. Ashok Kumar Mondal,
Ms. Fatima Hassan,
…for the petitioner.

Mr. Souradipta Banerjee,
Mr. Ardhendu Nag,
Mr. S. K. Dutta,
Mr. S. C. Mitra,
…for the opposite party.

C.O. 2028 of 2018, C.O. 2587 of 2018 and C.O. 407 of 2019

are taken up together for hearing, since those arise from connected

orders.

Mr. Souradipta Banerjee, learned advocate, appears on

behalf of the opposite party and submits that his junior, Mr.

Ardhendu Nag, learned advocate, files vakalatnama on behalf of the

opposite party on February 1, 2019 under filing no. A-2115 in C.O.

2587 of 2018 and under filing no. A.2114 in C.O. 407 of 2019 and

on September 7, 2018 under filing no. A-12918 in C.O. 2028 of

2018.

Office is directed to incorporate the vakalatnama filed by

Mr. Nag in the respective records of this case.

C.O. 407 of 2019 has been filed against an order whereby
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the Chief Judge, City Civil Court at Calcutta, permitted the

petitioner to take back his application for custody of the person as

well as property of a minor on the ground that the City Civil Court

at Calcutta did not have jurisdiction to take up the matter. The

petitioner, being thus compelled, approached the Family Court at

Calcutta with a similar prayer. However, in the Family Court, the

opposite party took out an application challenging the

maintainability of the application on the ground of Section 7(1)(g)

of the Family Courts Act, 1984, which specifies that the Family

Court has jurisdiction to take up suits or proceedings in relation to

guardianship only of the person or custody of or access to a minor,

and does not provide for the said court taking up any matter

pertaining to the property of a minor.

The other two revisional applications have been taken out

against orders passed by the Family Court after the matter was

taken there.

The learned advocate appearing on behalf of the petitioner

places reliance on the Second Schedule of the City Civil Court Act,

1953 (as amended recently) and submits that the Guardians and

Wards Act, 1890 has been referred to therein. The said Schedule,

read in conjunction with Section 5(3)(i) of the said Act of 1953, it is

submitted, confers jurisdiction on the City Civil Court at Calcutta to

take up all matters under the Guardians and Wards Act, 1890.
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As to the limited jurisdiction of the Family Court concerning

only the person of a minor, the learned advocate for the petitioner

concedes to the said proposition and submits that the petitioner is

ready to withdraw the matter from the Family Court and prosecute

the matter which was returned by the City Civil Court at Calcutta.

The learned advocate appearing on the behalf of the opposite

party, on the other hand, submits that the Family Court does not

have jurisdiction to hear matters regarding the custody of the

property of a minor and, as such, the proceeding before the Family

Court was not maintainable. In view of the City Civil Court at

Calcutta having only the general power to take up matters under the

Guardians and Wards Act, it is argued, the jurisdiction to adjudicate

matters relating to the person of a minor still vested with the Family

Court only.

A perusal of the respective Acts shows that there is no

specific non-obstante clause in the relevant Sections of the Family

Courts Act, 1984 whereas Section 21 of the City Civil Court Act,

1953 specifically provides that the said Act shall have effect

notwithstanding anything contrary to any other law, including in

particular the Letters Patent of the High Court.

In such view of the matter, since Section 5(3) (i), read with

Second Schedule, of the City Civil Court Act, 1953 specifically

confers jurisdiction on the City Civil Court at Calcutta to take up all
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matters under the Guardians and Wards Act, it is evident that the

City Civil Court at Calcutta refused to exercise jurisdiction vested

in it by law in returning the application for guardianship and

custody made by the petitioner.

In view of the prayers made by the petitioner, the petitioner

will now proceed with the matter before the City Civil Court at

Calcutta and withdraw the application filed before the Family

Court.

Accordingly, the revisional application bearing C.O. 407 of

2019 is allowed on contest, thereby setting aside the orders

impugned therein and directing the Chief Judge, City Civil Court at

Calcutta to take up for hearing and dispose of Act VIII Case No. 3

of 2017, pending in the said court, as expeditiously as possible. The

parties are permitted to move urgent interlocutory matters before the

said court at the earliest, as and when required.

Consequentially, the other two revisional applications

bearing C.O. 2028 of 2018 and C.O. 2587 of 2018 are disposed of

in the light of the above observations.

It is made clear that the petitioner will immediately approach

the Family Court at Calcutta and take steps to get the matter,

pending at the instance of the petitioner in the said court, dismissed

for non-prosecution.

There will be no order as to costs
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( Sabyasachi Bhattacharyya, J. )
dns

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