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2007 DIGILAW 726 (KAR)

R. Venkatdas v. Master Varun

2007-11-06

D.V.SHYLENDRA KUMAR

body2007
ORDER D.V. Shylendra Kumar, J. This revision petition is by the defendant in O.S. No. 470 of 2005 on the file of the Civil Judge (Junior Division), Mangalore who is facing a maintenance claim by his minor son in the suit and who land raised a preliminary objection regarding the maintainability of the suit before that Court for want of jurisdiction. 2. The Trial Court which and framed as issued on the preliminary objection as additional issue 1 having answered that issue in favour of the respondent-plaintiff and having held that the suit was very much maintainable before the Court for claiming the relief of maintenance in favour of the minor son of the petitioner, the present revision petition invoking the provision of Section 115 of the Civil Procedure Code, 1908. 3. Notice having been issued, the respondent has entered appearance. Revision petition is resisted. 4. I have heard Smt. Pushpalatha, learned Counsel for the petitioner and Sri Sanath Kumar Shetty, learned for the respondent. 5. Submission of Smt. Pushpalatha, learned Counsel for the petitioner is that the Court below does have jurisdiction as the parties did not reside within the territorial jurisdiction of the Court at Mangalore at the time of marriage not the husband and the wife lived together at Mangalore at any point of time; that the marriage having taken place at Chikmagalur and the petitioner being permanent resident of Chikmagalure, the cause of action if at all arose at Chikmagalure and instituting a suit claiming maintenance in a Court at Mangalore is one without jurisdiction as no cause of action arose at Mangalore and therefore, the Court below has committed on error of jurisdiction in entertaining the suit and answering the preliminary issue against the petitioner and therefore the order should be revised and the Court below directed to transfer the suit to a Court of competent jurisdiction. 6. 6. Per contra, Sri Sanath Kumar Shetty, learned Counsel for the respondent submits that the marriage between the spouses came to be dissolved in proceeding before the Court at Managalore and this is an undisputed aspect; that the minor son is residing with his mother at Mangalore; that the maintenance is to be paid to the minor son at the place of his residence and that a part of cause of action arises at Mangalore, not only because of the marriage having been dissolved before a Court at Mangalore but also due to the fact that the minor son who has filed the suit for maintenance is now residing at Mangalore. 7. Submission of Smt. Pushpalatha, learned Counsel for the petitioner is that even in such undisputed facts, the Court at Mangalore has no jurisdiction for the reason that no part of cause of actio arose at Mangalore not the defendant resides at Mangalore in which event, in terms of Section 20 of the CPC, the Court cannot entertain the suit for was of territorial jurisdiction; that the provisions of the Hindu Adoptions and Maintenance Act, 1956 having not provided for any deviation or an additional factor as one giving rise to the jurisdiction of the Court like it has been provided under the Hindu Marriage Act, 1955, the question of jurisdiction has to be necessarily decided by applying the provisions of Section 20 of the CPC; that since the defendant is not residing within the jurisdiction of the Court and no part of cause of action arise within the jurisdiction of the Court at Mangalore, the suit was not maintainable and therefore, the impugned order suffers from material irregularity and particularly, the Court has assumed jurisdiction where it had one. 8. This argument is countered by Sri Sanath Kumar Shetty, learned Counsel for the respondent by submitting that a part of cause of action does arise within the Court at Mangalore, assuming for argument’s sake, in the absence of any special provision made under the Hindu Adoptions and Maintenance Act, 1956, the provisions of Section 20 of the CPC alone applied and that submission is for the reason that the place where the marriage between the parties was dissolved, by that time, the minor son was with the mother and therefore necessarily a part of cause of action can said to arise at Mangalore. 9. 9. Though this argument is countered by the learned Counsel for the petitioner by submitting that, that cannot be added as an independent cause of action for the reason whether the marriage is dissolved or otherwise, the plaintiff-minor son, was entitled to claim maintenance from his defendant-father and therefore the dissolution cannot make any difference, I am of the view that dissolution of the marriage at Mangalore does make a difference for the reason but for the fact of dissolution of the marriage, perhaps the parties would have lived together and there would not have any occasion for the minor son to claim maintenance from the defendant in the suit. 10. This apart, I am also of the view that the submission of the learned Counsel for the respondent to the effect that the maintenance being payable to the minor son at a place where he resides and that amount the minor son receiving at Mangalore, it can be said that the Court as Mangalore has jurisdiction commends acceptance particularly for the reason that one cannot expect the minor child to move around scouting for jurisdiction and to compel to come to a place where the defendant resides. 11. Section 20 of the CPC which provides for institution of suits where the defendant resides or whole or part of the cause of action arises should be so construed on the aspect of part of cause of action arises so as to retain the jurisdiction of the Civil Court at the place where some part of cause of action arises and not be exclude the jurisdiction for the Court. The object of restricting jurisdiction to a place where the defendant resides is to ensure that the defendant who has to defend the suit is given a fair opportunity. Such object is not in any way defeated if the defendant in the suit has to face the suit claim in a Court at Mangalore, particularly as some part of cause of action had arisen even on the facts of the present case. Therefore, I am of the view that the learned Trial Judge is right in taking the view that the Court at Mangalore has jurisdiction to entertain the suit. No need or scope for interference. 12. No merit, Revision petition is dismissed levying costs of Rs. 1,000/- on the petitioner. Therefore, I am of the view that the learned Trial Judge is right in taking the view that the Court at Mangalore has jurisdiction to entertain the suit. No need or scope for interference. 12. No merit, Revision petition is dismissed levying costs of Rs. 1,000/- on the petitioner. Costs to be paid within two weeks failing which the amount can be recovered by executing the certificate to be issued by the registry as a decree of the Civil Court.