Case Note & Summary
The case involves a civil revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (CPC) by the petitioners (Nasima Banu and M.M. Muneer Hussain) against the respondents (Shabas Khan, Jareen Taj, Fauzia Khanum, and Nazia Khanam). The petitioners challenged the order dated 17.04.2023 passed by the II Additional Senior Civil Judge and JMFC, Hassan, in G and WC No.4/2023, whereby the trial court dismissed I.A.No.3 filed by the respondents under Order 7 Rule 11 CPC seeking rejection of the guardianship petition for want of jurisdiction. The respondents had filed an affidavit stating that they and their grandchildren resided at Arehalli Village and that the petitioners did not reside within the jurisdiction of the trial court. The trial court dismissed the application without deciding the issue of jurisdiction as a preliminary issue. The High Court, after hearing both sides, observed that the trial court ought to have framed a preliminary issue regarding jurisdiction and decided the same before proceeding further. The High Court allowed the revision petition, set aside the impugned order, and remitted the matter back to the trial court with a direction to frame a preliminary issue on jurisdiction and decide it afresh in accordance with law. The court also directed the parties to appear before the trial court on 12.06.2023.
Headnote
A) Civil Procedure Code - Order 7 Rule 11 - Rejection of Plaint - Jurisdiction - The trial court dismissed an application under Order 7 Rule 11 CPC seeking rejection of a guardianship petition for want of jurisdiction, without deciding the issue of jurisdiction as a preliminary issue. The High Court held that the trial court ought to have framed a preliminary issue regarding jurisdiction and decided the same before proceeding further. The impugned order was set aside and the matter was remitted back to the trial court to frame a preliminary issue on jurisdiction and decide it afresh. (Paras 3-5) B) Guardians and Wards Act, 1890 - Section 9 - Jurisdiction - The petition was filed under the Guardians and Wards Act, 1890. The respondents contended that the court lacked territorial jurisdiction as the parties resided outside its jurisdiction. The High Court directed the trial court to decide the issue of jurisdiction as a preliminary issue in accordance with law. (Paras 3-5)
Issue of Consideration
Whether the trial court was justified in dismissing the application filed under Order 7 Rule 11 CPC seeking rejection of the petition for want of jurisdiction, without deciding the issue of jurisdiction as a preliminary issue.
Final Decision
The High Court allowed the revision petition, set aside the impugned order dated 17.04.2023, and remitted the matter back to the trial court with a direction to frame a preliminary issue regarding jurisdiction and decide the same afresh in accordance with law. The parties were directed to appear before the trial court on 12.06.2023.
Law Points
- Order 7 Rule 11 CPC
- Section 115 CPC
- Section 9 of the Guardians and Wards Act
- 1890
- jurisdiction of Family Court
- preliminary issue
