DECREE

DATED

27.11.2021

PASSED

IN

OS

NO.72/2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE

AND ACJM, UDUPI, DECREEING THE SUIT FOR DECLARATION AND

MANDATORY INJUCTION.

IN R.F.A CROB NO.8 OF 2022

GANESH S. NAYAK

AGED ABOUT 51 YEARS

MANGALORE - 575 022. & CROSS OBJECTOR

AGED ABOUT 46 YEARS

R/AT HOUSE NO.43B

UDUPI TALUK AND DISTRICT - 576 104. &RESPONDENT

(BY SHRI. CHANDRASHEKAR, ADVOCATE)

THIS RFA CROB IS FILED UNDER 41 RULE 22 OF THE CPC,

AGAINST THE JUDGMENT AND DECREE DATED 27.11.2021 PASSED IN

OS NO.72/2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL

JUDGE AND ACJM, UDUPI, PARTLY DECREEING THE SUIT FOR

DECLARATION AND INJUCTION.

THIS RFA AND RFA CROB COMING ON FOR ADMISSION THIS

DAY, P.S. DINESH KUMAR J, DELIVERED THE FOLLOWING:-

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JUDGMENT

These two appeals are directed against the judgment

and decree dated November 27, 2021, in O.S.No.72/2015

passed by the Additional Senior Civil Judge and ACJM,

Udupi.

2.

RFA No.313/2022 is filed by the defendant-wife and

RFA Crob.No.8/2022 is filed by the plaintiff-husband.

3.

For the sake of convenience, parties shall be referred

as per their status before the Trial Court.

4.

Plaintiff and defendant are man and wife. Plaintiff

filed the instant suit seeking declaration so far as

Schedule A to F properties. Suit has been decreed.

Feeling aggrieved, both plaintiff and defendant have

preferred this appeal and cross-objection.

5.

Learned advocates on both sides submitted that the

suit was instituted in the year 2015. The Family Court

has been established in Udupi in the year 2021.

As per Section 7(a) of the Family Courts Act, 1984,

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the Family Court has jurisdiction to try the suit.

Therefore, the judgment and decree passed by the Trial

Court is not sustainable in law.

6.

Shri Varadarajan, learned advocate for the plaintiff

submitted that since the decree has been passed by a

Court without jurisdiction, the same may be set-aside.

7.

Shri Chandrashekar, learned advocate for the

defendant submitted that defendant desires to file an

additional written statement as she could not give proper

instructions to her advocate and also seeks permission

to lead evidence.

8.

We have carefully considered the submissions of

learned advocates on both sides and perused the records.

9.

Section 7 of the Family Courts Act, 1984, reads as

follows;

"7.

Jurisdiction

(1) Subject to the other provisions of this Act, a Family

Court shall4

5

(a) have and exercise all the jurisdiction exercisable by

any district court or any subordinate civil court under

any law for the time being in force in respect of suits

and proceedings of the nature referred to in the

Explanation; and

(b) be deemed, for the purposes of exercising such

jurisdiction under such law, to be a district court or, as

the case may be, such subordinate civil court for the

area to which the jurisdiction of the Family Court

extends."

10.

Admittedly, the prayer in the suit filed by the

husband is for a declaration. Defendant is the wife.

Therefore,

Family

Court

shall

have

jurisdiction

to

try the instant suit.

11.

In view of the above, the judgment and decree

passed by the Trial Court is liable to be set-aside and

hence, the following;

ORDER

(i)

Both

RFA

No.313/2022

and

RFA

Crob.No.8/2022 are allowed;

(ii)

Judgment and decree dated November 27,

2021, in O.S.No.72/2015 passed by the Additional

Senior Civil Judge and ACJM, Udupi, is set-aside;

6

(iii)

The matter is remitted to the Family Court,

Udupi, to try the suit from the stage as it stood on

the date of establishment of Family Court at Udupi;

(iv)

Learned

Senior

Civil

Judge,

Udupi,

shall

transfer the records to the Family Court, Udupi;

(v)

Registry shall refund the court fees under

Section 64 of the Karnataka Court Fees and Suits

Valuation

Act,

1958,

in

both

RFA

and

RFA

Cross-objection; and

(vi) Since the suit is of the year 2015, the Family

Court, Udupi, shall expedite the hearing subject

to load on its board.

No costs.