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2016 DIGILAW 2996 (ALL)

MUNESH SINGH v. VINAY PAL SINGH

2016-08-31

PANKAJ MITHAL

body2016
JUDGMENT Hon’ble Pankaj Mithal, J.—A couple Ashwani Singh and Smt. Geetu Singh were residing at Saharanpur alongwith their minor son Aditya Singh @ Adi, now aged about 2 and 1/2 years. 2. The husband Ashwani Singh happened to be originally resident of Meerut whereas the wife Geetu Singh of Bareilly. 3. On 16.11.2014 Geetu Singh died in Saharanpur at her residence and in connection with her death, her husband Ashwani Singh and parents of the husband Smt. Munesh Singh and Pitamber Singh were arrested. In these circumstances, as there was no one to take care of the minor, he was given in custody of Prem Prakash, maternal uncle (Mama) of the husband, who lived at Meerut. Accordingly, the minor started living with Prem Prakash at Meerut w.e.f. 16.11.2014 after the unfortunate death of his mother. Later the parents of the husband were released on bail but he himself continues to be in jail. 4. The maternal grandfather (Nana) Vijay Pal Singh of the minor on 9.12.2014 moved an application under Section 7 and 8 of the Guardians and Wards Act, 1890 in the Court of District Judge, Saharanpur for his appointment as the guardian of the minor and his property. In the said application, the father and the grandparents of the minor and maternal uncle of the father of the minor, were all arrayed as the defendants. 5. The parents of the father of the minor on being released from jail moved an application taking an objection that the proceedings for appointment of the guardian of the minor are not maintainable at Saharanpur and that as the minor is ordinarily resident of Meerut, the Court at Meerut alone would have jurisdiction over the matter. 6. The application after contest has been rejected on 17.2.2016 by the impugned order passed by the Court below. 7. I have heard Sri Manish Goyal learned counsel for the revisionists and Sri R.D. Yadav, learned counsel appearing for the respondent No. 1. 8. The respondent No. 2 and 3 had not participated in the proceedings in the Court below and are treated to be non contesting parties for the purpose of adjudication of this revision. 9. Sri Yadav raised an objection that the order is appealable under Section 47 of the Act and the revision is not maintainable. 10. 8. The respondent No. 2 and 3 had not participated in the proceedings in the Court below and are treated to be non contesting parties for the purpose of adjudication of this revision. 9. Sri Yadav raised an objection that the order is appealable under Section 47 of the Act and the revision is not maintainable. 10. Section 47 of the Act provides for the types of orders passed under the Act which are appealabe to the High Court. The list of appealable orders does not specify that an order passed regarding the jurisdiction of the Court is appealable. 11. Sri Yadav submits that the order is appealable under Clause (b) of Section 47 of the Act. 12. The aforesaid clause provides for an appeal against the order passed under Section 9 (3) of the Act directing for returning of the application for the appointment of a guardian. The order impugned is not an order directing for return of the application under Section 9 (3) of the Act rather it is an order rejecting application raising objection to territorial jurisdiction. Accordingly, it is not appealable under Section 47 of the Act. 13. Sri Yadav has next argued that the order impugned is not revisable as it is interlocutory in nature. 14. There is no doubt that the order impugned is interlocutory in nature. It is not appealable as held above. However, by the said order, the Court below has finally decided one stage of the proceedings regarding jurisdiction of the Court and a such it falls within the category of the case decided. 15. The order impugned rules about the jurisdiction of the Court to entertain application under Section 7/8 of the Act and as such decides the issue of jurisdiction. 16. It is settled law that any issue decided by the trial Court in a suit is revisable, if no appeal is provided against it. Accordingly, as the impugned order decides the issue of jurisdiction of the Court finally, it is a case decided and revisable under Section 115 CPC. 17. In view of the above, the objection that the impugned order is not revisable is overruled and the revision is held to be maintainable. 18. Accordingly, as the impugned order decides the issue of jurisdiction of the Court finally, it is a case decided and revisable under Section 115 CPC. 17. In view of the above, the objection that the impugned order is not revisable is overruled and the revision is held to be maintainable. 18. The submission of Sri Manish Goyal, learned counsel for the revisionists is that under Section 9 of the Act an application for an appoint of a guardian of a person of the minor and of his property can be filed in the district Court where the minor ‘ordinarily resides’ or in a district having jurisdiction of a place where he has property. Since in the present case at the relevant time i.e. at the time of filing the application, the minor was admittedly residing at Meerut, the Court at Saharanpur has no jurisdiction to decide the same. 19. Sri Yadav contends that the minor at the time of incident in which his mother died was living at Saharanpur where his father was working, therefore, the Court at Saharanpur alone has the jurisdiction over the matter. 20. Section 9 (1) of the Act provides that in respect of guardianship of a person of minor, the application shall be made to the district Court having jurisdiction of the place where the minor ordinarily resides. In other words, the jurisdiction of the Court for the purpose of filing an application for appointment of a guardian of the person of a minor would depend upon the place where the minor ordinarily resides. 21. Section 9 (2) of the Act lays down that in respect of the guardianship of the property of the minor, the application may be made either to the district Court where the minor ordinarily resides or to the district Court having jurisdiction of a place where the property of the minor is situate. 22. A combined reading of both the sub-sections 1 and 2 of Section 9 of the Act would reveal that in both the cases the application for guardianship of a person of the minor and his property would lie before the district Court having jurisdiction of the place where the minor ordinarily resides. 23. 22. A combined reading of both the sub-sections 1 and 2 of Section 9 of the Act would reveal that in both the cases the application for guardianship of a person of the minor and his property would lie before the district Court having jurisdiction of the place where the minor ordinarily resides. 23. In view of the above, in order to ascertain the jurisdiction of the Court where the application under Section 7/8 of the Act in the instant case has to be moved is to decide the place where the minor ‘ordinarily resides’. 24. The phrase “the minor ordinarily resides” used in Section 9 of the Act is crucial for determining the jurisdiction of the District Court for the purposes of filing an application under Section 7/8 of the Act for the appointment of a guardian of a minor. 25. There is no dispute that at the time of the incident dated 16.11.2014 when the mother of the minor died, he was residing at Saharanpur with her parents where his father was working. However, at the time when the application for appointment of guardian was filed he was actually residing at Meerut with the maternal uncle (Mama) of his father in whose custody he was entrusted as his mother had died and the father was put behind the bars. 26. In the peculiar facts and circumstances of the case, it would be seen that the minor was residing at Saharanpur and that he started living at Meerut under the compelling circumstances. 27. Section 9 of the Act does not use the phrase “ordinarily residing” rather uses the phrase “ordinarily resides”. The expression “ordinarily resides” and “ordinarily residing” are not synonymous and are not interchangeable but contemplates two different situations. 28. The two phrases have a distinct meaning. The expression “ordinarily residing” is of present continuous tense and denotes the actual place of living whereas the expression “ordinarily resides” refers to the place where a person is expected or supposed to be living. A place of living under compulsion howsoever long it may be cannot be treated as a place where the person ordinarily resides. 29. A place of permanent abode of a person or where he actually resides or is supposed to reside is the place of his ordinary residence. A place of living under compulsion howsoever long it may be cannot be treated as a place where the person ordinarily resides. 29. A place of permanent abode of a person or where he actually resides or is supposed to reside is the place of his ordinary residence. It normally follows that the children of such a person would be deemed to ordinarily reside at the same place. Since the parents of the minor in the present case were residing and having a permanent abode at Saharanpur irrespective of their place of origin, they would to be treated as ordinarily residing at Saharanpur. Accordingly, the minor would also be deemed to be ordinarily residing at that place. 30. The place where the minor was forced to shift to live with the maternal uncle (Mama) of his father that is Meerut on account of the unfortunate and tragic death of his mother would not make him to be ordinarily resident of the said place. 31. In Jagdish Chandra Gupta v. Dr. Kumari Vimla Gupta, AIR 2003 All 317 , a Learned Single Judge of this Court observed that the place where the minor ordinarily resides means a place where he is expected to reside but for the special circumstances and it excludes the places to which he may be removed at or about the time of the presentation of application for appointment of guardian. The test is to find out the place where the minor was ordinarily residing and where his residence would have continued but for his removal to a different place. 32. The facts of this case reveal that the minor was residing at Saharanpur with his parents. He was removed from there and shifted to Meerut on account of compelling circumstances otherwise he would have continued to live at Saharanpur had the unfortunate tragic incident leading to the death of his mother had not taken place. Therefore, the place of shifting of the minor under compulsion would not be regarded as the place where he ‘ordinarily resides’ and that Saharanpur alone would be the place of his residence. 33. The expression “where minor ordinarily resides” used in Section 9 of the Act come up for consideration before the Supreme Court in the case of Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479 . 33. The expression “where minor ordinarily resides” used in Section 9 of the Act come up for consideration before the Supreme Court in the case of Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479 . The Court held the place of ordinary residence of a person depends much on the intention of the person whether he wants to make the place as his ordinary abode. 34. In the case at hand neither the minor nor his parents ever had any intention to make Meerut their place of ordinary residence or abode or that of the child. They were living in Saharanpur and were having their abode at that place but for the aforesaid the unfortunate and tragic incident. 35. Accordingly, Saharanpur was the place where the minor ordinarily resided before his shifting to Meerut under the compelling circumstances. 36. In view of above, the Court below has not committed any error of law or jurisdiction in rejecting the application/objection raised by the revisionist regarding the jurisdiction of the Court. 37. This apart there is another aspect of the matter. The High Court in exercise of powers under Section 24 C.P.C. is competent to shift a case from one Court of the district to a Court of competent jurisdiction in another district. Therefore, even if the aforesaid case for any reason does not lie at Saharanpur or is treated to be within the jurisdiction of Meerut, it would stand transferred to Saharanpur to facilitate its decision where the maternal grand-father of the minor had chosen to file the application under Sections 7 and 8 of the Guardians and Wards Act, 1890 as any shifting of the case from Saharanpur to Meerut would not only cause inconvenience and delay but would also give rise to apprehension to the applicants that they will not get justice at Meerut where the contesting opposite parties are residing. 38. In view of the aforesaid facts and circumstances, I find no reason to disturb order impugned passed by the Court below and dismisses the revision with no order as to costs.