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2005 DIGILAW 1052 (AP)

S. Rama Mohan Reddy v. S. Saraswathi

2005-11-08

P.S.NARAYANA

body2005
( 1 ) THE matter is coming up for admission today. Heard Sri Ramesh, the counsel representing Sri S. V. Bhat, counsel for revision petitioner. ( 2 ) THE revision petitioner Sri S. Ram Mohan Reddy, is the petitioner in i. A. Mo. 352 of 2004 in O. S. No. 77 of 2004 on the file of Principal Junior Civil judge, Produttur and he is the defendant in the suit. The respondent herein, the plaintiff in the said suit, S. Sarswati filed the suit for declaration that her marriage between her and the defendant is true and valid and for a consequential relief of permanent injunction. The suit was originally instituted as O. S. No. 190 of 2002 on the file of Junior Civil Judge, Kamalapuram, which is now pending as O. S. No. 77 of 2004 on the file of Principal Junior Civil Judge, proddutur. Sri S. Ram Mohan Reddy also filed a suit in O. S. No. 189 of 2002 on the file of Junior Civil Judge, Kamalapuram now pending as O. S. No. 78 of 2004 on the file of Principal Junior Civil Judge, Proddutur praying for a negative declaration that the said Saraswati is not his legally wedded wife and for consequential relief. The said S. Ram Mohan Reddy, the defendant in O. S. No. 77 of 2004 filed an application I. A. No. 352 of 2004 under Order VII Rule 11 (a) and (d) read with Section 151 CPC to reject the plaint in O. S. No. 77 of 2004. The learned Judge after recording reasons ultimately dismissed the application holding that such suit in a civil Court cannot be said to be barred and also observing that in the facts of the case there is cause of action to file the suit. Aggrieved by the said order the present C. R. P. is filed under Article 227 of the constitution of India. ( 3 ) SRI Ramesh, learned counsel representing the revision petitioner had drawn the attention of this Court to the provisions of Order VII Rule 11 (a) and (d) of CPC and would maintain that in the light of the provisions of the Hindu marriage Act, 1955 the suit of this nature can be said to be impliedly barred. ( 3 ) SRI Ramesh, learned counsel representing the revision petitioner had drawn the attention of this Court to the provisions of Order VII Rule 11 (a) and (d) of CPC and would maintain that in the light of the provisions of the Hindu marriage Act, 1955 the suit of this nature can be said to be impliedly barred. Even otherwise there is no cause of action and in view of the same the order made by the learned Principal Junior Civil Judge cannot be sustained. The learned counsel had drawn the attention of this Court to the reasons recorded by the learned judge and also the decisions which had been relied upon by the contesting parties. ( 4 ) ORDER VII Rule 11 of the CPC deals with rejection of plaint and Order VII rule 11 (a) specifies that the plaint shall be rejected in the following cases where it does not disclose a cause of action and order VII Rule 11 (d) specifies where the suit appears from the statement in the plaint to be barred by any law. The Apex Court in a recent decision in POPAT AND KOTECHA PROPERTY vs STATE BANK OF INDIA STAFF ASSOCIATION, 2005 (6) SCJ 582 had an occasion to deal with tin s aspect in elaboration. The Apex Court in fact had referred to SALEEM bhai AND OTHERS vs STATE OF MAHARASHTRA AND OTHERS, (2003) 1 SCC 557 I. T. C. LTD. , vs DEBTS RECOVERY APPELLATE TRIBUNAL, 1998 (2) SCC 70 roop LAL SATHI vs nachattar SINGH GILL, 1982 (3) SCC 487 t. ARIVANDANDAM vs T. V. SATYAPAL AND another, 1977 (4) SCC 467 and raptakos BRETT and CO. LTD vs GANESH PROPERTY, (1998) 7 SCC 184 . ( 5 ) THE learned counsel placed reliance on the decisions in ITRILOKCHAND modi AND ANOTHER vs OMPRAKASH JAISWAL, AIR 1974 PATNA 335 uma SHANKAR PRASAD SINGH vs SMT. RADHA DEVI, AIR 1967 PATNA 220 smt. PARWATI DEVI vs HARBINDRA SINGH, AIR 1980 RAJASTHAN 249. In shankarappa vs BASAMMA, AIR 1964 MYSORE 247 the learned Judge held that a suit by hindu wife for perpetual injunction restraining her husband from contracting second marriage, jurisdiction of Civil Court to entertain suit is not barred under the provisions of The Hindu Marriage Act, 1955. In RAJESWAR REDDY AND another vs LAKSHMI BAl, 1964 (2) AN. In shankarappa vs BASAMMA, AIR 1964 MYSORE 247 the learned Judge held that a suit by hindu wife for perpetual injunction restraining her husband from contracting second marriage, jurisdiction of Civil Court to entertain suit is not barred under the provisions of The Hindu Marriage Act, 1955. In RAJESWAR REDDY AND another vs LAKSHMI BAl, 1964 (2) AN. WEEKLY REPORTER 142 the learned judge of this Court where the first wife plaintiff filed a suit in civil Court for a declaration that the second marriage of her husband, the first defendant, with the second defendant is void under Section11 read with Section 5 of The Hindu Marriage Act, 1955 and the lower Court held that the suit was maintainable, held that there is nothing in the Hindu Marriage Act,1955 which takes away the civil right of a Hindu wife lo get a declaration as the one sought in the present case. The Division Bench of this Court in SATTAYYA vs AMMANNAMMA, 1971 (1) ALT 233 in a slightly different context decided the question whether the ordinary civil courts have no jurisdiction to entertain a suit for maintenance by a wife against her husband after the dismissal of a petition for restitution of conjugal rights by reason of the provisions of Sections 4 and 25 of The Hindu Marriage Act,1955. This aspect in a slightly different context came for consideration before the learned Judge of this Court in RAZIA BEGUM vs SAHEBZADI ANWAR BEGUM, AIR 1958 AP 195 which was carried to the Apex Court and the majority confirming the same in AIR 1958 SC 886 . It is no doubt true that these decisions relate to a case where the parties are Muslims. But, however the question of declaratory relief also had fallen for consideration. Reliance also can be placed on HARMOHAN SENAPATI vs KAMALA KUMARI SENAPATI, AIR 1979 ORISSA 51. The maintainability of suits relating to negative declaration of the matrimonial status had been considered in KRISHNA pal vs ASHOK KUMAR PAL, 1982 (2) CAL. L. J. 366 BALA vs VIJAYA, 1985 (1) DMC 124 (BOMBAY. Reliance also can be placed on HARMOHAN SENAPATI vs KAMALA KUMARI SENAPATI, AIR 1979 ORISSA 51. The maintainability of suits relating to negative declaration of the matrimonial status had been considered in KRISHNA pal vs ASHOK KUMAR PAL, 1982 (2) CAL. L. J. 366 BALA vs VIJAYA, 1985 (1) DMC 124 (BOMBAY. ( 6 ) ON a careful scrutiny of the pleading it cannot be said that the plaint is devoid of cause of action and also it cannot be said that on the reading of the averments of the plaint it can be said that the suit is either expressly or impliedly barred by any statute. No such exclusion of the civil court s jurisdiction at any stretch of imagination can be inferred from the provisions of the Hindu Marriage Act 1955. In the light of the Section 9 of the CPC and also section 34 of the Specific Relief Act,1963 this Court is of the considered opinion that both the grounds raised for the purpose of rejection of the plaint cannot be sustained. It is needless to say these are all questions, which may have to be decided on merits on trial not at this stage. Hence, this court does not see any illegality whatsoever in the impugned order which is questioned by way of C. R. P. under Article 227 of the Constitution of India. Accordingly, the c. R. P. shall stand dismissed at the stage of admission. No costs.