H.P. Lakshmidevaraje Urs vs G.P. Asharani alias Nandini

V. Gopala Gowda, J.—Being aggrieved by the order dated 25-6-2001 rejecting I.A. No. II in O.S. No. 511 of 1998 passed by the Trial Court, the first defendant has presented this revision petition. The said application was filed under Order 7, Rule 11 of the CPC seeking rejection of the plaint on the ground that the plaint does not disclose cause of action and the one pleaded is vague and ambiguous and the suit is not maintainable.

Learned Counsel for the petitioner has placed reliance upon Explanation (c) of Section 7(1) of the Family Courts Act in support of his contention that the order under revision is bad in law.

I have heard the learned Counsels for the parties and perused the order under revision. The Trial Court observed that though the matrimonial dispute is between the husband and wife, the suit is filed by the wife for recovery of movable properties said to have been taken away by the first defendant. Clause (c) of Explanation to Section 7(1) of the Family Courts Act refers to a suit or proceeding between the parties to a marriage. In the instant case, the plaintiff in paragraph 5 of the plaint has alleged that her father-in-law had joined hands with the first defendant and therefore he has been arrayed as 2nd defendant in the suit. But in paragraph 7 of the plaint it is clearly pleaded that the properties have been taken away by the first defendant. Thus, the main dispute is between the parties to the marriage. In view of Section 8 of the Act, the jurisdiction of Civil Court is barred and the Family Court has to try the suit. In this view of the matter, the contention of the learned Counsel for the petitioners that the Civil Court has no jurisdiction to try the suit, is well-founded. The Trial Court has not considered this important aspect. Consequently, the order under revision is liable to be set aside.

The submission of Mr. Varadarajan, learned Counsel for the respondent-wife that since 2nd defendant is impleaded as a party in the suit, the Family Court has no jurisdiction to try the suit and it is only the Civil Court which has got jurisdiction, is wholly untenable and can-not be accepted. Section 7(l)(a) clearly spells out that the Family Court shall have and exercise all the jurisdiction exercisable by any District Court or any subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation. Clause (c) of Explanation refers to suit or proceeding between the parties to a marriage with regard to the property of the parties. Admittedly, the suit is in relation to the properties between the parties to the marriage. In the circumstances, the 2nd defendant may not be a necessary party but he is proper party.

The Trial Court rejected the application on the ground that issues have already been framed and the plaint cannot be rejected at that stage. The same is contrary to the law laid down by the Supreme Court in the decision of I.T.C. Limited Vs. Debts Recovery Appellate Tribunal and Others, wherein it is held that framing of issues shall not come in the way of considering the application under Order 7, Rule 11 of the CPC.

The revision petition is allowed and the order under revision is set aside. I.A. No. II is partly allowed directing the Trial Court to return the plaint within two weeks from the date of receipt of a copy of this order for being presented before the Family Court.