Kamleshwari Ram. vs Smt. Kaushalya Devi and Another

R.M. Prasad, J.—As in all the above three matters the dispute is common, with consent of the parties, they have been heard together and arc being disposed of by this common judgment/order.

MJC No. 934 of 1990 has arisen on reference being made by the District Judge. Dhanbad to this Court to decide as to in which Court the proceeding lodged under the provisions of the Guardians and Wards Act, 1890 (hereinafter referred to as ''the Act'') with respect to the female child "Nishu should be tried and decided.

MJC No. 583 of 1990 has been filed against the order dated 7.6.1990 passed in Guardianship Case No.206/89 by the 13th Additional District Judge, Patna rejecting the prayer of the petitioner for transfer of the said case to Dhanbad for its trial and disposal along with Guardianship Case No. 13/89 pending in the Court of District Judge. Dhanbad.

Civil Revision No. 1596 of 1990 is directed against the order dated 27.8.1990 passed in Guardianship Case No. 306 of 1989 by the Patna Court rejection the prayer for stay of the said case on the ground that the case relating to similar grievance is pending before Dhanbad Court.

In short, the relevant admitted facts is that the parents of the child died in an accident in Jammu & Kashmir area. It is claimed by the petitioner of the two MJC applications that the custody of the child was handed over to him by the Army officials posted in Jammu & Kashmir Area. Later, opposite party No. 1 approached him and the custody of the child was given to her and presently the child is residing within the jurisdiction of Patna Court with her maternal grandmother (opposite party No. 1).

Section 9 of the Act provides that if the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. Sub-section (2) of Section 9 of the Act provides that if the application is with respect to the guardianship of the property of the minor it may be made either to the District Court having jurisdiction in the place where the minor ordinarily-resides or to a District Court having jurisdiction in a place where he has properly.

It is contended by Mr. Dinu Kumar learned Counsel appearing for the petitioner that since admittedly the parents of the minor had Locker No. 140 in the Bank of India, Hirapur Branch, Dhanbad, the jurisdiction to try the guardianship case is of Dhanbad Court and not of Patna Court.

Mr. Rajendra Prasad, learned Counsel appearing for the opposite party No. 1 submitted that it may be true that in view of the fact that the locker is within the jurisdiction of Dhanbad Court, the case can be tried at Dhanbad Court as well, but having regard to the admitted fact that the minor child resides within the jurisdiction of Patna Court, the case is to be tried at Patna in view of the provisions contained in sub-section (1) of Section 9 of the Act. It is further contended by him that the Courts shall have also to consider the convenience of the party in such mailers and the opposite party, being a lady, will have to face lot of difficulties in prosecuting the case at Dhanbad whereat the petitioner, who is a male member, will not have to face the same difficulty in prosecuting the case at Patna.

I find substance in the submission of the learned Counsel for opposite parts No. 1. It may be true that in view of the fact that the locker of the parents of the minor child is within the jurisdiction of Dhanbad Court, Dhanbad Court will have the jurisdiction to try the case filed before it, but sub-section (2) of Section 9 of the Act provides that the case can be tried cither in the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property. It has thus rightly not been disputed by the learned Counsel for the petitioner that the Patna Court also has the jurisdiction, in the facts and circumstances, to try the case.

It is by now well-settled that while dealing with such cases relating to transfer, the Court has also to keep in mind the convenience of parties.

Having regard to the fact that the opposite party No. 1 is a lady, she will have to face a lot of difficulties in prosecuting the case at Dhanbad when she admittedly resides in Patna. Under such circumstances, in my opinion, the proper Court to try both the cases is the Patna Court.

Accordingly, the reference contained in MJC No. 934 of 1990 is disposed of MJC No. 583 of 1990 is dismissed. In view of my aforesaid order. Civil Revision No. 1596 of 1990 is also disposed of accordingly.