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2010 Supreme(Mad) 160
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM & THE HONOURABLE MR. JUSTICE T. RAJA
Master Dhruv T.S. Bardwaj (minor aged 15 years) & Others
Versus
Nandini Venkatesh & Others
OSA Nos.457 to 459 of 2009 and MP Nos.1, 1 and 1 of 2009 in OSA Nos.457 to 459 of 2009 and MP Nos.2 and 2 of 2009 in OSA Nos.458 to 459 of 2009
Decided On :19-01-2010
For the Petitioner:P.S. Raman Senior Counsel for Mr. S. Sivanandaraj, Advocate.
For the Respondent:AR.L. Sundaresan Senior Counsel for M/s.ochhav & Co., Mrs. Hema Sampath Senior Counsel for Ms.R.Meenal, Advocates.
The main legal point established in the judgment is that the court emphasized the importance of the cause of action and the need for parties to come with clean hands, and held that the conduct of the next friend and the first respondent reflected that it was actually a suit filed by the next friend at the instance and instigation of the first respondent mother.
Headnote:
Jurisdiction - Civil Procedure Code - [Section 9, Section 11, Order 7 Rule 11] - The court held that the suit was not maintainable and revoked the leave granted for filing the suit. The court emphasized that the cause of action as found in the suit did not exist and the next friend acting on behalf of the minors suppressed relevant and necessary facts. The court confirmed the order of the learned Single Judge.
Fact of the Case:
The plaintiffs, minors represented by their maternal grandfather, filed a suit seeking permanent injunction against their father and his family members. The trial court granted an order of interim injunction, which was later vacated by the learned Single Judge. The children, citizens of Canada, were taken to India by their mother pursuant to a consent order from the Ontario Superior Court of Justice. The suit was filed by the maternal grandfather, acting as next friend of the minors, for injunction and not for custody of the children.
Finding of the Court:
The court found that the suit was not maintainable as the cause of action as found in the suit did not exist. The court held that the next friend suppressed relevant and necessary facts and did not come with clean hands. The court confirmed the order of the learned Single Judge, revoking the leave granted for filing the suit and vacating the interim injunction.
Issues: The main issue was the maintainability of the suit and the revocation of the leave granted for filing the suit.
Ratio Decidendi: The court emphasized that the cause of action as found in the suit did not exist and the next friend acting on behalf of the minors suppressed relevant and necessary facts. The court held that the conduct of the first defendant and the next friend reflected that it was actually a suit filed by the next friend at the instance and instigation of the first respondent mother.
Final Decision: The original side appeals were dismissed, confirming the order of the learned Single Judge. The parties were directed to bear their own costs.
These Three intracourt appeals concentrate in challenging a common order of the learned Single Judge of this Court made in A.Nos.6474 to 6476 of 2009 the first one to vacate the order of injunction granted on 8.9.2009, the second one to dismiss the suit as not maintainable and the third one to revoke the leave originally granted to file the suit.
2. These appeals have arisen under the following circumstances:
(a) The plaintiffs who are minors namely Master Dhruv T.S.Bardwaj and Baby Meghna Bardwaj, filed the suit through one A. Sethuraman, their maternal grandfather, seeking a relief of permanent injunction to restrain the second defendant their father, and his family members from in any manner directly or indirectly interfering with the plaintiffs’ right to peacefully reside in India and also for a permanent injunction restraining the second defendant or his family members directly or indirectly harassing and intimidating the plaintiffs by letters, emails, telephone or any other means of communication on the grounds and the cause of action as stated therein.
(b) Pending the suit, the appellants/plaintiffs filed the applications for interim injunction restraining the second respondent father in any manner directly or indirectly harassing and intimidating the applicants by letters or otherwise and also interim injunction restraining both the respondents namely mother and father respectively, from in any manner directly or indirectly sending the applicants out of India on 6th night/7th morning of September 2009 or any other date thereafter or in any manner sending the applicants to stay with the second respondent father until the disposal of the suit.
(c) Pursuant to the grant of leave to institute the suit, the trial Court granted an order of interim injunction. On appearance, the second defendant father filed the above applications to vacate the order of interim injunction dated 8.9.2009, to dismiss the suit as not maintainable and also to revoke the leave originally granted for want of jurisdiction.
(d) The learned Single Judge on enquiry of those applications allowed all the three holding that the suit was not maintainable and also vacated the interim injunction and revoked the leave originally granted. Aggrieved, the plaintiffs have brought forth these appeals.
3. Advancing arguments on behalf of the appellants, the learned Senior Counsel Mr.P.S.Raman would submit that the revocation of leave has not been ordered on the ground that the Court does not have territorial jurisdiction, but has been ordered as a penalty against the appellants; that the same is erroneous; that as per the judicial pronouncements, the question of territorial jurisdiction is to be determined based only upon the averments in the plaint; that when the first respondent has admitted the address, relying upon the submissions made by the second respondent and concluding that the plaint address is incorrect are erroneous; that it is pertinent to note part of cause of action had arisen within the territorial jurisdiction of this Court; that in fact, the second respondent had indeed submitted himself to the jurisdiction of this Court as he had filed vakalath without marking protest on the same; that there was no order restraining the appellant from travelling out of Chennai; that in the instant case, the paramount interest of the children namely the appellants, should be taken into account and the welfare of the child must be looked into; that it is settled proposition of law that where an application for revocation of leave raises questions of difficulty and importance, then the Court must not revoke the leave based on affidavit evidence but must dismiss the application for revocation of leave and proceed to determine the suit in accordance with law; and that the learned Single Judge has not applied the ratio of the said precedents, but has erroneously determined the issue on summary jurisdiction.
4. Added further the learned Senior Counsel t
