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2002 Supreme(Bom) 799
IN THE HIGH COURT OF BOMBAY
R.M.S. Khandeparkar, J.
Pankaj Suryakant Lohar .... Applicant.
Versus
Mayuri Pankaj Lohar.... Respondent.
Civil Revision Application No. 1272 of 2002, decided on 6-8-2002.
Advocates appeared :
S.M. Oak, for applicant.
R.P. Behere, for respondent.
Headnote:CIVIL PROCEDURE CODE, 1908
Sections 20 and 21 -Order 7, Rule 10 - Objection as to territorial jurisdiction -Objection regarding territorial jurisdiction must be decided by the trial court, taking recourse to Sections 20 and 21 read with Order 7, Rule 10. Where question related to jurisdiction of the court regarding the procedure to be followed in the proceedings under Hindu Adoption and Maintenance Act, 1956, in the absence of provisions in the said Act, provisions of CPC will apply.
Key Points:- The resident defendant’s location beyond the district’s territorial limits raises questions about proper jurisdiction under CPC Section 20 in proceedings under the Hindu Adoptions and Maintenance Act (act does not specify forum) (!) .- The trial court’s rejection of the territorial jurisdiction objection was reversed; the case was directed to return the plaint to the proper court with jurisdiction, relying on Section 20 read with Order 7 Rule 10 CPC (!) (!) (!) .- The objections to territorial jurisdiction must be decided by the trial court using Sections 20 and 21 read with Order 7 Rule 10; appellate or revisional courts should not entertain such objections unless raised at the earliest opportunity (!) (!) .- Section 19 of the Hindu Marriage Act is not applicable to proceedings under the Hindu Adoptions and Maintenance Act, as the latter does not specify its applicability or procedure, so CPC provisions govern (!) (!) .
How to determine territorial jurisdiction for proceedings under the Hindu Adoptions and Maintenance Act when the defendant resides outside the local district?What is the applicable procedure for raising objections to territorial jurisdiction in a suit when the issues pertain to the territorial scope under the Code of Civil Procedure?What is the correct forum for filing proceedings initiated under the Hindu Adoptions and Maintenance Act when the Act does not specify the court or procedure, and how does Section 20 CPC apply?
2. The applicant/defendant challenges the order dated 28-6-2002, passed by the trial Court rejecting the preliminary objection raised by the applicant on the ground of absence of territorial jurisdiction to the Court below to entertain the proceedings filed by the respondent/plaintiff.
3. It is the case of the applicant that on the face of the plaint it is apparent that the applicant, who is the defendant in the suit, resides at Mumbai, beyond the territorial limits of the District of Thane. It is further case of the applicant that the pleadings in the plaint apparently disclose that the applicant and the respondent last resided together at Goregaon. It is, therefore, sought to be contended on behalf of the applicant that the pleadings nowhere disclose territorial jurisdiction to entertain the proceedings by any Court within the District of Thane, where the proceedings have been initiated by the respondent. The Court below considering the applicability of section 19 of the Hindu Marriage Act, 1955 has rejected the contentions sought to be raised by the applicant and has further held that it is not necessary to decide the said issue as a preliminary issue and the same can be considered along with the other issues in the matter. The impugned order is sought to be justified by the learned Advocate for the respondent by placing reliance in the decisions of the learned Single Judge of this Court in the matter of (Hariram Dhalumal Karamchandani v. Jasoti w/o Hariram)1, reported in A.I.R. 1963 Bombay 176, as well as of a learned Single Judge of the Rajasthan High Court in the matter of (Cheni Ram and another v. Shanti Devi and another)2, reported in A.I.R. 1980 Rajasthan 192. It is his further contention that in view of the fact that the applicant is presently a N.R.I. employed in a foreign country, and considering the fact that the respondent/plaintiff is residing within the territorial limits of Thane, no fault can be found with the territorial jurisdiction of the Thane Court to entertain the proceedings.
4. The provisions of law contained in section 18 of the Hindu Adoptions and Maintenance Act, 1956, under which the proceedings are initiated by the respondent/plaintiff in the trial Court, do not specify the Court in which the said application is required to be filed. The Hindu Adoptions and Maintenance Act, 1956 does not prescribe the procedure to be followed in relation to such application as well as the forum wherein such proceedings are to be initiated.
5. Section 19 of the Hindu Marriage Act, 1955 provides that every petition under the said Act shall be presented to the District Court within the local limits of whose Ordinary Original Civil Jurisdiction-the marriage was solemnised, or the respondent at the time of the presentation of the petition resides, or the parties to the marriage last resided together, or the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which the said Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive. Apparently, the section deals with the place of suing under the said Act and not under any other Act. Neither there is any provision either under the Hindu Adoptions and Maintenance Act, 1956 or under the Hindu Marriage Act, 1955 specifying that the provisions of the Hindu Marriage Act, 1955 would be applicable to the proceedings initiated under the Hindu Adoptions and Maintenance Act, 1956. Being so, the question of applicability of section 19 of the Hindu Marriage Act, 1955 to the proceedings under the Hindu Adoptions and Maintenance Act, 1956 cannot arise.
6. In the absence of specific provisions regarding the procedure to be followed for the purpose of
