DR. JAHANGIR IQBAL TANTRAY Versus FARMEEDA AKHTAR
PARA 12) At the stage of admission of a suit, it is only to be seen as to whether it has been duly instituted or not. The recitals/statements contained in the plaint are to be taken by way of demurer and they can only be proved or disproved through evidence based on issues that may be struck.
PARA 13) The obligation to dismiss a suit at the threshold or return a plaint for want of jurisdiction arises only when it is a pure issue of law. The issue of jurisdiction, depending on question of fact or mixed question of law and fact, must be decided on merits. If the court finds, on trial, that the case is not cognizable by the court for want of territorial or pecuniary jurisdiction, the plaint will be ordered to be returned for presentation to the proper court and if the court finds that, having regard to the nature of the suit, it is not cognizable by the class of courts to which it belongs, the plaintiff‟s suit will have to be dismissed in its entirety. However, if the question of jurisdiction is a question of fact or a mixed question of fact and law, the suit cannot be thrown overboard lock, stock and barrel without affording an opportunity to the plaintiff to establish the case.
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH
AT SRINAGAR
Reserved on: 17.02.2023
Pronounced on: 21.02.2023
RFA No.50/2022
DR. JAHANGIR IQBAL TANTRAY
... APPELLANT(S)
Through: - Mr. Shuja-ul-Haq, Advocate.
Vs.
FARMEEDA AKHTAR
…RESPONDENT(S)
Through: - None.
CORAM:
HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
JUDGMENT
1) As Benjamin Franklin once remarked – “great
haste makes great waste”, the courts while
endeavouring to deliver speedy justice, must never deny
justice in overzealousness to dispose cases.
2) Challenge in this Civil Miscellaneous Appeal in
terms of Order XLIII of Code of Civil Procedure, 1908
(„Code‟ for short) has been thrown to order dated
10.09.2022 propounded by the Court of learned
Principal Judge Family Court, Srinagar (hereinafter
referred to as „trial court‟) in case No.2782/2022 titled
„Jahangir Iqbal Tantray vs. Farmeeda Akhtar‟, vide which learned trial court has returned the suit filed by
the appellant for presentation before the court of
competent jurisdiction.
3) Shorn of verbosity, factual matrix of the case set
out by the appellant in the trial court is that appellant
preferred a suit for declaration and permanent
injunction for a decree of declaration that the divorce
pronounced by him upon the respondent on 22.04.2022
had attained finality after the expiry of three months
period, a decree of declaration declaring that the
respondent/defendant has no right or claim in the
landed property measuring 21 marlas bearing Survey
No.10 (Old 3) Khewat No.162/157 situate at Mouza
Habak Khushki, Srinagar, Kashmir, purchased by him
in 2013 after raising loan from the State Bank of India,
Srinagar, a decree of declaration declaring that
respondent/defendant has no right, claim or interest
upon the house situate at Loren Mandi, Poonch,
Jammu, constructed by him after raising loan from the
J&K Bank, Srinagar, and a decree of permanent
prohibitory Injunction restraining the respondent/
defendant from interfering or causing interference into
his peaceful and smooth life.
4) The appellant has questioned the impugned order,
primarily, on the ground that since parties to the suit
are living at Hazratbal Srinagar, the marital dispute
between them arose at Srinagar, divorce was also
pronounced/communicated upon the respondent/
defendant and the property in question also falls within
the territorial jurisdiction of the learned trial court,
therefore, the impugned order is per se illegal, arbitrary,
perverse and perfunctory. It is also case of the appellant
in the trial court that it has been pleaded and agitated
by the respondent/defendant in the application filed by
her under Section 12 of the Protection of Women From
Domestic Violence Act that divorce has taken place in
Srinagar, therefore, suit filed by the appellant could not
be returned for want of jurisdiction.
5) The respondent despite service did not choose to
appear and, accordingly, is set exparte.
6) It is trite position of law that in dealing with the
subject, whether a civil court‟s jurisdiction to analyze a
suit is barred or not, it is necessary to bear in mind that
every opinion should be made in support of the
jurisdiction of a civil court. The refusal of jurisdiction,
rejection of plaint or return thereof by a civil court to entertain civil causes should not be easily inferred
unless the appropriate law contains express terms to
that effect or points to a significant and inevitable
implication of nature.
7) In order to appreciate the contours of controversy
in the right perspective, we need to analyse some
indispensable provisions of the Code. Section 9 of the
Code makes it clear that Courts, subject to other
provisions of the Code, shall have jurisdiction to try all
suits of a civil nature except those whose cognizance is
either expressly or impliedly barred. Sub-section (1) of
Section 26 stipulates that every suit shall be instituted
by the presentation of a plaint or in such other manner
as may be prescribed. Section 27 deals with the
issuance of summons to the defendants and it provides
that where a suit has been „duly instituted‟, a summons
may be issued to the defendant to appear and answer
the claim and may be served in the manner prescribed
etc. Section 33 of the Code postulates that the Court,
after the case has been heard, shall pronounce
judgment and on such judgment, a decree shall follow.
8) Order V Rule 1(1) reflects the substantive provision
contained in Section 27 of the Code and it lays down that when a suit has been „duly instituted‟, a summons
may be issued to the defendant to appear and answer
the claim and to file the written statement of his defence
etc.
9) It is axiomatic upon examination of the provisions
of Section 27 read with Order V Rule 1(1) of the Code,
that when a suit is „duly instituted‟ a summons may be
issued to the defendant. The use of expression „duly
instituted‟ has to be seen in the context of the provisions
of Orders VI and VII of the Code.
10) Adverting to the present case, a perusal of copy of
the plaint annexed with the present appeal indicates
that it is specific case of the appellant in the trial court
that the respondent/defendant approached Chief
Proctor, Kashmir University, for intervention into the
marital dispute of the parties and the respondent asked
for divorce. It is further case of the appellant/plaintiff
that he pronounced single Talaq upon the respondent
on 20.04.2022 in Srinagar and consequently a deed of
declaration of divorce was prepared by the
appellant/plaintiff on 30.07.2022 and Fatwa given by
Mufti Nasir-ul-Islam was pronounced in Srinagar after
the expiry of three month‟s period from the date of pronouncement of Talaq on 20.04.2022. It is also
specific case of the appellant/plaintiff in the trial court
that the respondent/defendant has been residing in the
quarter allotted to him by the University at Mirzabagh,
Kashmir University, after she was posted as a Lecturer
in HSS Boys, Ganderbal, after 24.04.2021. It is also
pertinent to mention that the appellant/plaintiff also
seeks a decree of declaration with respect to the landed
property situate at Mouza Habak Khushki, Srinagar,
though the house, with respect to which the appellant
also seeks declaration, is situated at Loren Mandi,
Poonch, Jammu. Therefore, it is evident from the title of
the suit as also from the recitals of the plaint that
marital dispute between the parties arise at Srinagar,
one of the landed properties situate at Srinagar, the
divorce was pronounced at Srinagar and above all wife
of the appellant resides in the quarter at Kashmir
University, Srinagar, i.e. within the territorial
jurisdiction of the trial court. Therefore, it is neither a
case of return of plaint envisaged under Order VII Rule
10 nor a case of rejection of plaint within the meaning of
Order VII Rule 11 of the Code.
11) It needs a specific mention that first proviso to
Order V Rule 1(1) of the Code itself provides a situation where summons must not be issued and that happens
when a defendant appears at the presentation of a
plaint and admits the plaintiff‟s claim. In all other cases,
when a suit has been duly instituted and is not hit by
either Order VII Rule 10 or Order VII Rule 11 of the
Code, summons have to be issued to the defendant.
Therefore, it was incumbent upon learned trial court to
have issued summons to the defendant, particularly
because the respondent/ defendant had not appeared at
the time of presentation of the plaint and did not admit
the claim of the appellant/plaintiff.
12) At the stage of admission of a suit, it is only to be
seen as to whether it has been duly instituted or not.
The recitals/statements contained in the plaint are to be
taken by way of demurer and they can only be proved or
disproved through evidence based on issues that may be
struck.
13) The obligation to dismiss a suit at the threshold or
return a plaint for want of jurisdiction arises only when
it is a pure issue of law. The issue of jurisdiction,
depending on question of fact or mixed question of law
and fact, must be decided on merits. If the court finds,
on trial, that the case is not cognizable by the court for want of territorial or pecuniary jurisdiction, the plaint
will be ordered to be returned for presentation to the
proper court and if the court finds that, having regard to
the nature of the suit, it is not cognizable by the class of
courts to which it belongs, the plaintiff‟s suit will have to
be dismissed in its entirety. However, if the question of
jurisdiction is a question of fact or a mixed question of
fact and law, the suit cannot be thrown overboard lock,
stock and barrel without affording an opportunity to the
plaintiff to establish the case.
14) As discussed earlier, it is a specific case of the
appellant/plaintiff that not only the parties to the suit
reside but the cause of action with respect to the
matrimonial dispute arose as also the part of the landed
property situate within the territorial jurisdiction of the
trial court and since the respondent/defendant, a
female is stated to be residing within the territorial
jurisdiction of the trial court, it shall also be convenient
for her to appear and prosecute case in the trial court.
We should not endeavour to hand out hasty decisions,
“the hurrier I go, the behinder I get” – as remarked by
Lewis Carroll, Alice in Wonderland.
15) Having regard to what has been observed and
discussed above, the appeal is allowed and the
impugned order being devoid of merit is set aside.
Learned trial court is directed to entertain the suit and
proceed with the trial of the case in accordance with
law.
16) A copy of this order be sent to learned trial court
for information and compliance.
Tags:
dismissing suit on jurisdiction
J&K High Court
Judgment
judgments with headnotes
jurisdiction of court
lack of jurisdiction
latest judgment
Order XLIII CPC
question of jurisdiction
Section 9 CPC