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2015 DIGILAW 796 (CAL)

Renuka Panda v. Ram Krishna Panda

2015-09-22

ASHIS KUMAR CHAKRABORTY

body2015
Judgment : Ashis Kumar Chakraborty, J. This is an application under Section 24 of the Code of Civil Procedure, 1908, (in short “the Code”) In this application, the petitioner has prayed for transfer of the application filed by her under Section 151 of the Code, in Matrimonial Suit No. 140 of 1985 before the learned Judge, 10th Bench, City Civil Court at Calcutta to the Family Court, District – Calcutta. The case of the petitioner in this application is stated below. The petitioner was married to the opposite party on September 28, 1972 and their marriage was solemnized in accordance with the Hindu custom rights and ceremonies under the Hindu Marriage Act, 1955. Out of the wedlock between the petitioner and the opposite party, on December 22, 1975 a girl child was born. In the year 1978, the opposite party instituted Matrimonial Suit No. 134 of 1978 before the learned Judge, 3rd Bench in the City Civil Court at Calcutta, against the petitioner claiming a decree for dissolution of marriage. On August 13, 1985 the opposite party withdrew the said Matrimonial Suit No. 134 of 1978. She used to stay at village - Parghata at Hasnabad , District- North 24 Parganas and the opposite party used to stay in Calcutta. However, the opposite party did not take her back at the matrimonial home. She made over certain papers containing her signatures to her advocate, as she was told that those will be necessary for taking steps for recovery of maintenance from the opposite party. In the year 2005, she learned that the opposite party has filed a suit being Title Suit No. 1581 of 2004 before the learned Judge, 5th Bench of the City Civil Court at Calcutta and after receipt of copy of the plaint filed in the said title suit, she came to learn that the opposite party had filed the above Matrimonial Suit No. 140 of 1985 before the learned Judge, 10th Bench, City Civil Court at Calcutta and obtained a decree for dissolution of marriage by divorce. After perusing the plaint filed in the said title suit, she came to learn that the said subsequent matrimonial suit was filed by the opposite party alleging that their marriage was under the Special Marriage Act, 1954. She never participated in the said Matrimonial Suit No. 140 of 1985. After perusing the plaint filed in the said title suit, she came to learn that the said subsequent matrimonial suit was filed by the opposite party alleging that their marriage was under the Special Marriage Act, 1954. She never participated in the said Matrimonial Suit No. 140 of 1985. According to her, the said decree of divorce dated March 25, 1986 is vitiated by fraud and a nullity. She filed an application before the learned 10th Judge, City Civil Court at Calcutta for recalling the said decree for divorce dated March 25, 1985. By an order dated January 21, 2014, the learned Judge, 10th Bench, City Civil Court at Calcutta rejected the said application on the ground that after the establishment of the Family Court, Calcutta under the Family Courts Act, 1984, the learned City Civil Court lacks the jurisdiction to entertain the said application for recalling of the said decree for divorce. She challenged the said order dated January 21, 2014 before this Court by filing a revisional application under Article 227 of the Constitution of India. By an order dated February 24, 2015, a learned Single Judge of this Court, dismissed the said revisional application after granting opportunity to the parties to take appropriate steps in accordance with law. Thereafter, she filed an application under Section 151 of the Code before the learned Judge, 10th Bench, City Civil Court at Calcutta, praying for inter alia, recalling of the said ex parte decree dated March 25, 1985 from the Court of the learned Judge, 10th Bench, City Civil Court at Calcutta to the appropriate Bench of the learned Small Causes Court at Calcutta. The petitioner is seeking transfer of the said application under Section 151 of the Code to the learned Family Court, Calcutta. In support of the application, Mr. Chandra submitted that the said application under Section 151 of the Code filed by the petitioner is a “proceeding” under Section 24 of the Code and in view of the provisions in sub-Section (5) of Section 24 of the Code, this Court has the jurisdiction to transfer the said application from the learned Judge, 10th Bench, City Civil Court at Calcutta, which lacks the jurisdiction to entertain the said application to the appropriate Bench of the learned Family Court, Calcutta. He also relied on the decision of this Court in the case of Power Grid Corporation of India Limited vs. Musluck Corporation & Ors. reported in (2015) 2 Cal LT 379(HC) However, Mr. Farhan Gaffar, appearing for the opposite party submitted that since the City Civil Court at Calcutta has no jurisdiction to entertain the said application under Section 151 of the Code, the instant application under Section 24 of the Code is not maintainable. In support of his contention, Mr. Gaffar relied on a decision of the Supreme Court in the case of Neha Arun Jugadar & Anr. Vs. Kumari Palak Diwan Ji reported in AIR 2011 SC 1164 . I have considered the facts and circumstances of the case as also the submission of both Mr. Chandra and Mr. Gaffar appearing for the respective parties. In the instant case, the application of the petitioner which is sought to be transferred to the Family Court, Calcutta is an application of for recalling of a decree for divorce passed by the learned Judge, 10th Bench, City Civil Court at Calcutta before the establishment of the Family Court, Calcutta under the Family Courts Act, 1984. In an application filed earlier, both the learned Judge, 10th Bench, City Civil Court at Calcutta and this Court held that the learned Judge, 10th Bench, City Civil Court at Calcutta that after the establishment of the Family Court, Calcutta under the Family Courts Act, 1984, the City Civil Court at Calcutta lacks the jurisdiction to entertain the said application. All the records relating to the Matrimonial Suit No. 134 of 1978 in which the decree for divorce dated March 25, 1986 was passed, are lying in the City Civil Court at Calcutta. No doubt the application filed by the petitioner before the learned Judge, 10th Bench, City Civil Court at Calcutta recalling of the said decree for divorce dated March 25, 1986 is a “proceeding” under clauses (a) and (b) of sub-Section (1) and sub-Section (5) of Section 24 of the Code. No doubt the application filed by the petitioner before the learned Judge, 10th Bench, City Civil Court at Calcutta recalling of the said decree for divorce dated March 25, 1986 is a “proceeding” under clauses (a) and (b) of sub-Section (1) and sub-Section (5) of Section 24 of the Code. In view of the provisions contained in Sections 7 and 8 of the Family Courts Act, 1984, after the establishment of the Family Court, Calcutta, the City Civil Court at Calcutta has ceased to have any jurisdiction to entertain any suit or proceeding in the nature covered by (a) to (g) of Explanation to sub-Section (1) of Section 7 of the Family Courts Act, 1984, which include a suit or proceeding for dissolution of marriage. An application for recalling of a decree for dissolution of marriage is a “proceeding” under clause (a) of the Explanation to sub-Section (1) of Section 7 and clause (a) of Section 8 of the Family Courts Act, 1984. Now, sub-Section (5) of Section 24 of the Code, which has been inserted by the Amendment Act of 104 of 1976 and has come into effect from February 01, 1977 in clear and unambiguous language confers jurisdiction upon the learned District Judge and the High Court to transfer any suit or proceeding under clause (a) and (b) of sub-Section (1) of Section 24 of the Code, from a Court which has no jurisdiction to try it. Thus, there cannot be any doubt in view of sub-Section (5) of Section 24 of the Code, this Court has the jurisdiction to transfer the application filed by the petitioner before the learned Judge, 10th Bench, City Civil Court at Calcutta for recalling the said decree to the Family Court, Calcutta. In the case of Power Grid Corporation of India (supra), this Court held that in view of sub-Section (5) of Section 24 of the Code, the District Judge and the High Court has the jurisdiction to transfer a suit or proceeding from a Court which has no jurisdiction to try it, to a Court of competent jurisdiction. So far as the decision of the Supreme Court in the case of Neha Arun Jugadar (supra) cited by Mr. So far as the decision of the Supreme Court in the case of Neha Arun Jugadar (supra) cited by Mr. Gaffar, it appears that the notice of the Court was not drawn to the provisions contained in sub-Section (5) of Section 24 of the Code and the said decision does not apply in the instant case involving scope and effect of sub-Section (5) of Section 24 of the Code. For all the foregoing reasons, the application being C.O. 1315 of 2015 is allowed. The application filed by the petitioner in Matrimonial Suit No. 140 of 1985 under Section 151 of the Code of Civil Procedure, 1908, is withdrawn from the Court of the learned Judge, 10th Bench, City Civil Court at Calcutta and the same is transferred to the Court of the learned Principal Judge, Family Court, Calcutta. The learned Chief Judge, City Civil Court at Calcutta is directed to forthwith transmit all the records in Matrimonial Suit No. 140 of 1985 together with copy of the application of the petitioner under Section 151 of the Code of Civil Procedure to the Court of the learned Principal Judge, Family Court , Calcutta. With the above directions C.O. 1315 of 2015 stands disposed of. However, there will be no order as to costs. Urgent certified photostat copy of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.