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Rajasthan High Court – Jodhpur

Ritu Chandravanshi @ Ritu Tak vs K.K. Chandravanshi @ Kanhaiya Kumar … on 23 February, 2024

Author: Vinit Kumar Mathur

Bench: Vinit Kumar Mathur

[2024:RJ-JD:9392]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 17567/2022

Ritu Chandravanshi @ Ritu Tak W/o Shri K. K. Chandravanshi @
Kanhaiya Kumar Chandravanshi, Aged About 54 Years, R/o
B/701-702, Shubh Asiyana Apartment, Khara Kua, Nar Udai
Petrol Pump, Shobhagpura 100 Feet Main Road, Udaipur (Raj.).
—-Petitioner
Versus
1. Shri K.K. Chandravanshi @ Kanhaiya Kumar
Chandravanshi S/o Late Shri Vishvanath Shah Ji
Chandravanshi, R/o B/701-702, Shubh Asiyana
Apartment, Khara Kua, Nar Udai Petrol Pump,
Shobhagpura 100 Feet Main Road, Udaipur And
Superintendent House, Government Detention And Child
Home, Department Of Child Rights, Government Of
Rajasthan, Chitrakut Nagar, Udaipur (Raj.).
2. Municipal Corporation Udaipur, Through Commissioner.
3. Urban Improvement Trust, Udaipur, Through Secretary.
4. Deputy Inspector General, Department Of Registration
And Stamps, Range Udaipur.
5. Sub Registrar, Department Of Registration And Stamps,
Udaipur-First, Udaipur.
6. Sub Registrar, Department Of Registration And Stamps,
Udaipur-Second, Udaipur.
7. Sub Registrar, Department Of Registration And Stamps,
Badgaov (Udaipur), Udaipur.
8. Branch Manager, Aditya Birla Housing Finance Ltd., Unit
No. 32/1105, IVth Floor, Centre Point Building, Opposite
B. N. College, Udaipur.
—-Respondents

For Petitioner(s) : Mr. Tananjay Parmar for
Mr. Vinit Sanadhya
For Respondent(s) : Mr. Rakesh Chotia
Ms. Muskan Acharya

HON’BLE MR. JUSTICE VINIT KUMAR MATHUR

Order

23/02/2024

1. Heard learned counsel for the parties.

2. The present writ petition has been filed against the order

dated 30.07.2022 passed by the learned Judge Family Court No.2,

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Udaipur, whereby the application preferred by the petitioner under

Order 7 Rule 11 CPC was rejected.

3. Briefly noted, the facts in the case are that the respondent

No.1 preferred a suit for declaration and permanent injunction

with respect to two flats i.e. Flat Nos.B/701-702 situated at

Shubh Asiyana Apartment, Khara Kua, Nar Udai Petrol Pump,

Shobhagpura 100 feet main road, Udaipur. In the suit so preferred

by the respondent No.1, the petitioner filed an application under

Order 7 Rule 11 CPC and the same was considered by the learned

Family Court No.2, Udaipur and after hearing the learned counsel

for both the parties, the same was rejected vide order dated

30.07.2022. Aggrieved against the order dated 30.07.2022, the

present writ petition has been filed.

4. Learned counsel for the petitioner vehemently submits that

since the subject matter involved in the present case relates to

the two flats for which injunction and declaration has been sought,

therefore, the same cannot be tried and adjudicated by the Family

Court. He further submits that the property disputes are required

to be adjudicated in the Civil Courts and, therefore, the learned

Family Court had no jurisdiction to deal with the matter in the

present case. Learned counsel also submits that appropriate Court

fee was not paid by the respondent No.1 and therefore, the suit is

not maintainable and should be dismissed on the ground of

deficiency of Court fee not paid by the respondent No.1. He,

therefore, prays that the present writ petition may be allowed, the

order dated 30.07.2022 may be quashed and set-aside and the

suit pending before the learned Family Court No.2, Udaipur may

be dismissed.

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5. Per contra, learned counsel for the respondent No.1, while

opposing the contentions of the counsel for the petitioner, submits

that since there is a matrimonial dispute in which the petitioner is

trying to get the injunction and declaration with respect to the two

flats which actually belongs to respondent No.1 as the same were

purchased by him but has been registered in the name of the

petitioner, therefore, the Family Court had jurisdiction to deal with

the matter. Learned counsel further submits that no illegality has

been committed by the learned Family Court below while passing

the order dated 30.07.2022 as the questions raised by the

petitioner in her application preferred under Order 7 Rule 11 CPC

shall be decided after framing the issues in the matter. He also

submits that even the point of deficit Court fees is also ordered to

be adjudicated after framing of the issues. He, therefore, prays

that no interference is warranted in the order dated 30.07.2022

passed by learned Family Court.

6. I have considered the submissions made at the Bar and have

gone through the relevant record of the case.

7. It is an undisputed fact that because of the discord in the

marriage of the petitioner and the respondent No.1, a divorce

petition was filed and the same has been decreed vide order dated

09.06.2022. As an offshoot of the marital discord, dispute arose

between the parties with respect to the two flats in question and,

therefore, a suit was filed on behalf of the respondent No.1. As far

as the jurisdiction of the Family Court is concerned, Section 7 (1)

(c) of the Family Courts Act, 1984 very clearly stipulates that a

suit or proceeding between the parties to a marriage with respect

to the property of the parties or of either of them shall lie before

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the Family Court. Therefore, in the opinion of this Court, the

Family Court No.2, Udaipur has the jurisdiction to adjudicate the

suit filed by the respondent No.1 and thus, the application

preferred by the petitioner under Order 7 Rule 11 of CPC has

rightly been rejected.

8. The Division Bench of this Court while deciding Civil Misc.

Appeal No.564/2003 : Mamta and Ors. vs. Hari Kishan on

16.09.2003, held as under:

“12. The Family Courts Act was enacted with an object to
set up a forum for settlement of family disputes with due
emphasis on conciliation and achieving socially desirable
results and further to eliminate the rigid rules of procedure
and evidence. The Law Commission in its 59 th report (1974)
had also stressed that in dealing with the disputes
concerning the family, the Court ought to adopt an
approach radically different from that adopted in ordinary
civil proceedings and it should make reasonable efforts at
settlement before the commencement of the trial. It covers
the exclusive jurisdiction of the matters relating to :

“(1) matrimonial reliefs, including nullity of
marriage, judicial separation divorce,
restitution of conjugal rights, or declaration
as to the validity of marriage, or as to the
matrimonial status of any person;

(ii) the property of the spouses or of
either of them;

(iii) declaration as to the legitimacy of any
person;

(iv) guardianship of a person or the custody
of any minor;

(v) maintenance, including proceedings
under Chapter IX of the Code of Criminal
Procedure.””

9. The question of deficit Court fee raised by the petitioner has

already been ordered to be adjudicated by the learned Court

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below after framing of the issues, therefore, the view taken by

learned Family Court below does not suffer from any error.

10. In view of the discussions made above, no interference is

warranted in the order passed by the learned Family Court No.2,

Udaipur. The writ petition is, therefore, dismissed.

(VINIT KUMAR MATHUR),J
6-Arun P/-

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