Smt. Manorama Sinha vs Bijoy Kumar Sinha

Hari Lal Agrawal, J.—This application in revision arises out of a proceeding instituted by the opposite party, the husband of the petitioner, u/s 13 of the Hindu Marriage Act, 1955, for dissolution of their marriage and a decree for divorce on the ground of desertion. The matter has come to this court against an order dated 19th September, 1977, passed by the learned Judicial Commissioner, Ranchi, refusing to decide the question of jurisdiction as a preliminary point in the aforesaid proceeding which was registered as Title Suit No. 25 of 1976.

The case of the husband in his petition is that he was married with the petitioner at Patna on 29th of May, 1969, according to the Hindu rites. After the marriage, the petitioner stayed with her husband at Arrah for about a week. The husband also sometimes visited the petitioner at her parents'' house at Patna in 1970 and 1971, but the petitioner did not allow the husband to consumate the marriage and "had now deserted the petitioner for more than two years."

The question of jurisdiction has been raised in view of the provision contained in Section 19 of the Hindu Marriage Act, according to which a petition under the Act can be presented only to such District Court ''''within the local limits of whose ordinary original civil jurisdiction the marriage was solemnized or the husband and wife reside or last resided together." in order to make his petition cognizable by the District Court at Ranchi the husband made the following statements in his petition:

...the last time the petitioner and the respondent resided together was, from 29-9-74 to 1-10-74, which was at Ranchi in the quarters of the petitioner''s father, and even then the respondent did not allow consumation of the marriage and behaved in the same psychopathetic and cruel manner. The application is, therefore, presented in this...court u/s 19 of the Hindu Marriage Act.

The petitioner on receiving the process of the above petition entered appearance and filed her written statement. In the written statement the petitioner refuted the allegation of the husband that the marriage was not consumated and pleaded that as her husband at the time of the marriage was reading in the Engineering College at Patna, he wanted the petitioner to remain at Patna at her parents'' house as it would be convenient for him to come and live with her and that the husband used to come on Sundays and holidays as also whenever be could find time and that both of them cherished each other''s company and always lived happily together as husband and wife.

With respect to the case of the husband in regard to the last place of residence as stated above, she pleaded that the husband last resided with her at Patna in the winter of 1974-75 and that "the parties did not last reside together at Ranchi of at any place within the jurisdiction of Ranchi court-Thus...the Ranchi court has no jurisdiction to entertain the petition or to proceed with its determination". She further pleaded that the petition was presented at Ranchi simply to cause harassment to her and to make it difficult for her to contest the unjust and illegal claim of the husband as she was living on the mercy of her parents.

From the above statements, it is apparent that a clear issue with respect to the territorial jurisdiction of the court below was raised by the petitioner. In view of the objection taken by the petitioner with respect to the jurisdiction of the District Court at Ranchi, she prayed that the question of jurisdiction be determined as a preliminary issue so much so that the learned Judicial Commissioner on an earlier occasion by his order dated 7th June, 1977, ordered for deciding the question of jurisdiction as a preliminary point. It appears, however, that the order dated 7th June, 1977, was passed without hearing the husband and, accordingly, on 5th July, 1977, the husband filed a petition for vacating that order. The petitioner filed a rejoinder to the said petition. The learned Judicial Commissioner, however, by the impugned order revised the earlier order and declined to determine the question of jurisdiction as a preliminary point, as already indicated above.

Long arguments were addressed on behalf of both parties before me in support of their respective stands. Whereas counsel for the petitioner contended that the question of jurisdiction being a pure point of law, it could be decided as a preliminary issue under the provision of Order 14, Rule 2 of the Code of Civil Procedure, learned Counsel for the opposite party contended that the question was not purely one of law; but at best it was a mixed question of law and fact, the determination of which could neither dispose of the whole suit, nor it could be decided, if at all without taking evidence.

According to the provision of Order 14, Rule 2 of the CPC "where issues both of law and of fact arise in the same suit, and the court is of the opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined."

This rule, therefore, obviously applied at the early stage of the proceeding. The Privy Council as well as almost all the High Courts, including the Patna High Court, has repeatedly held that in appealable cases, court should as far as possible decide on all the issues together and there should not be piecemeal trial which causes serious inconvenience and huge expenses to the litigant. [See Rohtas Industries Ltd. v. Jagamath Sahai Verma 1966 B.L.J.R. 225 and Rohtas Industries Ltd. v. Rohtas Industries Staff 1966 B.L.J.R. 215.

It is well known that the jurisdiction of a court to try a suit is of three kinds:

(i) Jurisdiction with reference to the nature of the suit;

(ii) Jurisdiction with reference to the pecuniary value of the suit; and

(iii) Territorial jurisdiction.

Under the provision of Order 7, Rule 10 of the Code, where at any stage of the suit, the court finds that it has no jurisdiction, either territorial or pecuniary, or with regard to the nature of the suit, the court is bound under the rule to return the plaint to be presented to the proper court in which the suit ought to have been instituted. Where a court has no jurisdiction with reference to the nature of the suit, but without returning the plaint for presentation to the proper court, tries it and passes a decree, such a decree would be a nullity and can be attacked whenever and wherever the question arises, irrespective of the fact whether any objection to the jurisdiction was taken by the opposite party. But where a court has no pecuniary or territorial jurisdiction and without returning the plaint, it passes a decree, no objection to the validity of the decree will be allowed except under the circumstances mentioned in Section 21 of the Code.

Order 7, Rule 1 of the Code lays down the particulrrs to be contained in a plaint and one of the essential particulars enumerated in Rule 1 is "the facts showing that the court has jurisdiction."

In compliance of the above provision read with Section 19 of the Hindu Marriage Act, the husband made the allegations "that the husband and wife last resided together within the jurisdiction of this court", a fact controverted by the petitioner. It is obvious and could not be disputed that in view of the nature of the stand taken by the respective parties, the decision on this question needed some evidence, although the nature of this inquiry would be quite independent of the controversy falling for determination in the main case. It is also evident that the disposal of this question as a preliminaty point would neither dispose of the suit nor any of its part, and if decided in favour of the petitioner, would simply affect the situs. The nature of the objection is not that the court has inherent lack of jurisdiction. There are some cases, no doubt, that if a plea of the nature that the court has no jurisdiction with respect to the nature of the suit is taken, that should be tried at the first instance as that would save the parties from unnecessary harassment, and learned Counsel for the petitioner also cited before me a decision of the Supreme Court in the case of Smt. Ujjam Bai v. State of Uttar Pradesh and Anr. AIR 1962 S.C. 1621.. But that was a case where the nature of the objection of the Tribunal in question was of inherent lack of jurisdiction. The principles laid down in that case, therefore, will have no application to this case.

I have already said above that the nature of question raised in this case is not one of pure law in the sense that on its decision, the suit may be disposed of. It is neither a mixed question of law and fact of the nature which will result in the disposal of the suit, but it is a question of law which is mixed with such fact which is wholly independent of the main issues in the case. To such a situation the provision of Order 14, Rule 2 of the Code obviously has got no application and it need not be decided as preliminary point It may be quite true that the reason given by the learned Judicial Commissioner that the petitioner (the opposite party before him) had not filed any petition indicating to the court "on what ground the jurisdiction has been challenged" may be erroneous inasmuch as the petitioner had clearly stated in her written statement all the necessary facts to dispute the territorial limits of this court, I do not feel that on that account the impugned order requires any interference. Notwithstanding the necessary averments made by the petitioner in the written statements to that effect, the question of jurisdiction in this case cannot be decided, as also fairly conceded by the learned Counsel for the petitioner, without taking evidence to that effect. In such a case in my opinion, it would not be necessary to decide such a question as a preliminary issue because it will neither dispose of the entire suit nor any part thereof and, therefore, it must await the stage of the final hearing of the suit It was, however, contended on behalf of the petitioner that the nature of the evidence on this question being quite independent of the main controversy between the parties, it should be permitted to be taken and this issue be decided at this very stage. He placed reliance on a Bench decision of the Madhya Pradesh High Court in the case of Ramdayal Umraomal Parntership Firm v. Pannalal Jagannathji Partnership Firm AIR 1976 M.P. 16 But I do not find that the said authority supports the contention of the learned Counsel The Supreme Court in the case of Major S.S. Khanna Vs. Brig. F.J. Dillon, . has deprecated such "lop-sided trial."

Before parting, however, I would like to observe that it would be open to the learned Judicial Commissioner to return the petition filed before him by the husband of the petitioner at any stage of the suit if he finds that he has no territorial jurisdiction in the matter under the provision of Order 7, Rule 10 of the CPC for its presentation to the proper court.

10 For the reasons stated above, I do not find any ground for interference and would dismiss this application ; but in the circumstances, I would leave the patties to bear their own costs.