Dharminder Kumar vs Ajay Sharma

Dharam Chand Chaudhary, J.—Petitioners, who are respondents in a petition filed by the respondent u/s 12 of the Protection of Women from Domestic Violence Act, 2005, have preferred this petition with the prayer to quash the proceedings so initiated against them by her on the ground that the Court of Judicial Magistrate at Nurpur has no jurisdiction to entertain and try the petition as the respondent, allegedly is residing at village Hatwas, within the jurisdiction of the Court of Judicial Magistrate, Kangra. The petition is at its initial stage. The petitioners, therefore, are at liberty to raise the question of jurisdiction of the Court at Nurpur to entertain and try the petition in the trial Court. In case any such question is raised, it is expected of the trial Court to consider and decide the same by treating such question as preliminary. Support in this behalf can also be drawn from the judgment dated 3rd June, 2011 rendered by a Co-ordinate Bench of this Court in Cr.MMO No. 87 of 2011 titled Dev Raj Versus State of H.P. & another, which reads as follows:-

The grievance of the petitioner in this petition is that the learned Judicial Magistrate Ist Class, Court No. 1, Dharamshala has no jurisdiction to entertain the complaint in terms of Section 27 of the Protection of Women from Domestic Violence Act, 2005, which provides:

Jurisdiction-(1) The Court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which-

(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or

(b) the respondent resides or carries on business or is employed; or

(c) the cause of action has arisen,

shall be the competent Court to grant a protection order and other orders under this Act and to try offences under this Act.

(2) Any order made under this Act shall be enforceable throughout India.

The Court is not competent to try the case as none of the parties reside there. In this view of the matter, the petitioner submits that the entire trial will be a matter of futility. The proceedings are at the initial stage and these should and ought to be quashed. Learned counsel appearing for the petitioner refers to the decision of the Supreme Court in Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, and Trisuns Chemical Industry Vs. Rajesh Agarwal and others, to urge that there is a bar to entertain the complaint and in this event, the proceedings should be quashed. In particular learned counsel has laid emphasis on para 13 of the judgment.

The question as to whether the parties are residing within the jurisdiction of the Magistrate taking cognizance of the case, is a question of fact to be determined by that Court. In these circumstances, a direction is issued that before proceeding with the case further, learned trial Court shall ascertain as to whether the parties are residing within its jurisdiction. This shall be decided as a preliminary point.

Therefore, in view of the nature of the relief sought in this petition and the observations hereinabove, there is no need to issue notice to the respondent and the petition is hereby disposed of with a direction to the trial Court to entertain and decide the question of jurisdiction, if already raised/raised later on, in accordance with law and by treating the same as preliminary. Pending application(s), if any, shall also stand disposed of.