JUDGMENT : This is a plaintiff's second appeal from the order of the District Judge, Moradabad, dated 16th Oct. 1962, confirming the dismissal of her suit.

2. Smt. Krishneshwari Varshney had filed the suit giving rise to this appeal and claimed the following reliefs :

(A) It be declared that the plaintiff is the lawfully wedded wife of defendant No. 1.

(B) The defendant No. 1 be permanently restrained from contracting any subsequent marriage during the subsistence of the plaintiff's marriage and other defendants be restrained from bringing about and participating in the second contemplated marriage of defendant No. 1 with defendant No. 5.

(C) That the defendant No. 1 be ordered to perform conjugal and marital rights as a husband of the plaintiff and in case of refusal a decree for restitution of conjugal rights be passed against him.

(D) That the costs of the suit be taxed against the defendants.

(E) That any other relief, which may be beneficial to the plaintiff over and above the reliefs claimed as deemed just and equitable be granted. The suit was valued at Rs. 5,000/- for declaration of relief A at Rs. 250/- regarding permanent injunction and Rs. 250/- for the relief of restitution or conjugal rights.

3. The suit was filed in the Court of the Civil Judge, Moradabad. The contesting defendant-respondent by paragraph 10 of his written statement challenged the jurisdiction of the Civil Judge and averred that the suit being one for restitution conjugal rights ought to have been filed before the District Judge under the Hindu Marriage Act, (25 of 1955) (hereinafter referred to as the Act), issues were struck, but neither the plaintiff nor the defendant pressed for an issue on the question of the jurisdiction of the civil Court to try this suit. Both parties led evidence and after a protracted trial the Civil Judge dismissed the plaintiff's son holding that there was a love affair between the plaintiff and the defendant No. 1 but the factum of marriage had not been satisfactorily proved.

4. On appeal therefrom, the District Judge confirmed the finding of the Civil Judge, and as such the finding that no marriage had taken place was clearly one of fact and binding on this Court in second appeal.

5. Mr. Deoki Nandan, the learned counsel for the appellant has, therefore, very properly not sought to challenge this finding of fact but has attempted to salvage the case by raising the question of the jurisdiction of the Civil Judge to try the suit. His contention was that as the main relief was for restitution of conjugal rights, and after the passing of Act 25 of 1955, which was an Act meant to codify the law relating to marriages amongst Hindus, the suit could only have been tiled by way of a petition for restitution of conjugal rights under S. 9 read with S. 19 of the Act. According to him, the other relief for a declaration that the plaintiff was the lawfully wedded wife of the defendant could not have been sought by means of a separate suit as the larger relief of restitution embraced the smaller relief as to the validity of the marriage. It was further contended that a"petition", as required by S. 19 of the Act, could only have been filed in the Court of the District Judge and not in the Court of the Civil Judge as the Civil Judge though notified as a"District Court" under the provisions of S. 3(b) of the Act was nevertheless not the"District Court" within the local limits of whose ordinary original civil jurisdiction the marriage was solemnized as required by S. 19 of the Act. Great stress was placed on the word 'ordinary' which obtained in S. 3(b) of the Act. The argument was that the Civil Judge was undoubtedly a Court of ordinary original civil jurisdiction within whose local limits the marriage was solemnized but matrimonial jurisdiction was not the"ordinary original jurisdiction" of that Court. Lastly it was urged that the application, moved in this Court to withdraw the suit with, permission to file a fresh petition under t