Ghulam Ahmad Mir vs Shamima

Order dated: 20071999 passed by the City Munsiff, Srinagar has been challenged by the parties who are the husband and wife. Revision

petition No. 94/99 has been filed by Ghulam Ahmad Mir whereas, Revision Petition No. 95/99 has been filed by Mst. Shamima. Both these

revision petitions have arisen out of the suit filed by Mst. Shamima against her husband (Ghulam Ahmad Mir) praying that Plot No. 420 measuring

30' x 50' situated in Illahibagh colony Bachapora including a house constructed on its portion are her exclusive properties and the petitioner may be

perpetually restrained to interfere in her peaceful possession. Consequential relief in the nature of permanent injunction was also sought to the effect

that petitioner (Ghulam Ahmad Mir) may be restrained to use any force against her while she is discharging her official duties in SKIMS, Soura,

Srinagar, dwelling in the said disputed house or in parental house situated in village Narabal Tehsil Budgam. The averments made in the plaint are

that she was duped by the petitioner by marrying her while suppressing his earlier marriage with a living wife. The petitioner is a male nursing

attendant in the SKIMS (Srinagar) while respondent is a nurse. The above stated plot was purchased by both of them in half equal shares for a

consideration of Rs. 1,40,000/. On the eve of ""Nikha Nama"", the petitioner executed agreement on 300801997 whereby he relinquished his half

share in the said plot in favour of the respondent. Thereafter, the respondent constructed a house on a portion of the plot from her own finance.

The parties married on 31121997 and lived happily for some time. Their relations ran into rough weather when at the end of the year of 1998,

the parents of the respondent discovered that petitioner had a living wife in his ancestral home in village Trapy wherehe was oftenly visiting her. The

petitioner started maltreating the respondent. He tried to abduct her. Attempts were also made to divest her from possessing the title deed of the

plot. All efforts made by the respondent and her parents to have an repprochement ended in vain and all this have a cause of action to the

respondent to file the suit which was valued at Rupees Rs. 499/. The suit was filed in the court of learned District Judge, Srinagar who

assigned/transferred the same for trial to the City Munsiff, Srinagar. Petitioner Ghulam Ahmad Mir appeared before the trial court and filed the

written statement wherein preliminary objection was raised that the court lacked territorial jurisdiction to hear the suit as the subject matter was

immovable property situated within the limits of territorial jurisdiction of Munsiff's court, Ganderbal and that court had the jurisdiction to try it.

On the pleadings issue of law of preliminary nature was struck. The arguments of the counsel for the parties were heard. The trial court held that

Munsiff, Ganderbal had the territorial jurisdiction to try the suit. Accordingly, he made a reference to the learned District Judge, Srinagar for

passing the appropriate orders. The parties were directed to appear in that court on 23071999. They felt aggrieved of the order and both of them

have challenged the same by filing above stated revision petitions which shall be disposed of by this common order.

In revision petition No. 94/99, it is pleaded that the learned City Munsiff, Srinagar had admitted in the impugned order that he lacked territorial

jurisdiction to hear the suit so he ought to have returned the plaint under order 7 Rule 10 CPC to the respondent. He has not done so and as such

committed grave error by submitting the suit to the learned Principal District Judge, Srinagar for passing the appropriate orders. He has failed to

exercise jurisdiction vested in him under law by not returning the plaint. Not only that, another illegality was committed when the learned City

Munsiff, Srinagar granted interim direction by invoking the inherent jurisdiction vested under section 151 CPC to extent the operation of the interim

injunction granted on 06051999 till the matter was taken up by the learned District Judge, Srinagar. Such an order could not be passed because

learned City Munsiff, Srinagar was not in seisin of the matter as he had staved off himself to try the suit for want of jurisdiction. The learned District

Judge, Srinagar has not transferred the suit for trial under Section 24 CPC and in this way no territorial jurisdiction had been vested in the City

Munsiff, Srinagar.

In revision petition No. 95/99, the petitioner (Mst. Shamima) has challenged the impugned order by stating that the question of jurisdiction was a

mixed question of fact and law to be determined on the evidence of the parties but the impugned order was passed without hearing the counsel of

the petitioner and thus is illegal. The learned District Judge had assigned the case to the learned City Munsiff, Srinagar after satisfying himself that

the parties were employed in the SheriKashmir Institute of Medical Sciences, Soura Srinagar and the disputed house is situated in Illahibagh colony

A Munsiff by virtue of his appointment has territorial jurisdiction in the whole District and when the case was assigned by the learned District

Judge, the learned Munsiff, had the vested jurisdiction under section 22 (2) of the Civil Courts Act.

Heard the arguments.

Mr. Ghulam Murtaza, learned counsel has contended that the main relief claimed in the suit is with regard to the declaration that Mst. Shamima is

the exclusive owner of the disputed plot and the house constructed on a portion thereof. Consequential relief in the nature of perpetual injunction is

prayed that Ghulam Ahmad Mir be restrained to use any force against the person of Mst. Shamima while discharging her official duties (in SKIMS,

Soura, Srinagar) and while living in the disputed house or in the paternal house in village Narabal, Tehsil Budgam. The main relief stated above is

for the determination of the right or interest in the immovable property which is situated within the territorial limits of Munsiff, Ganderbal and under

section 16 of the CPC the suit has to be instituted where the subject matter is situated. The case in hand has not been transferred by the learned

District Judge to the court of City Munsiff, Srinagar while exercising the powers under section 24 CPC but the case was assigned under section 29

of the Civil Courts Act for disposal. A District Judge in his District has to distribute the business amongst the courts subordinate to him according

to their territorial and pecuniary limits. The assignment of the case in hand has been made in contravention to the spirit of section 29 of the Civil

Courts Act because in the proviso added to the section it is provided that no direction can be issued under this section to empower any court to

exercise any powers or deal with any business beyond the limits of the jurisdiction of the court to which civil business has been disturbed.

Mr. G.N. Gowhar, the learned counsel in rebuttal has argued that under section 22 of the Civil Courts Act, the local limits of the Munsiff,

Srinagar are deemed to be the local limits of the District of Srinagar and he had the jurisdiction to try the suit. He has further contended that

consequential relief was also sought in the suit that Ghulam Ahmad Mir should not interfere with the performance of the official duties of Mst.

Shamima and she performs her duties in SKIMS, Soura Srinagar which falls within the territorial jurisdiction of Munsiff, Srinagar and thus he had

the jurisdiction to try the suit.

After hearing the respective contentions of the counsel for the parties it becomes necessary to reproduce the relevant section 16 of the Code of

Civil Procedure and Sections 22 and 29 of the Civil Courts Act.

Section 16 of the Civil Procedure Code runs as:

Suits to be instituted where the subject matter sitaute: Subject to the pecuniary or other limitations prescribed by any law, suits.

a. for the recovery of immovable property with or without rent or profits;

b. for the partition of immovable property;

c. for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property;

d. for the determination of any other right to or interest in immovable property;

e. for compensation for wrong to immovalbe property;

f. for the recovery of movable property actually under distraint or attachment; shall be instituted in the Court within the local limits of whose

jurisdiction the property is situate;

Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may,

where the relief sought can be entirely obtained through his person obedience, be instituted either in the Court within the local limits of whose

jurisdiction the property is a situate, or in the Court within the local limits of whose jurisdiction defendant actually and voluntarily resides, or carries

on business, or personally works for gain.

Sections 22 and 29 of the Civil Courts Act are also reproduced :

Local Limits of jurisdiction .

(1). The local limits of the jurisdiction of a subordinate judge or Munsiff shall be such as the High Court may define.

(2) When the High Court post a subordinate judge or a Munsiff to a District the local limits of the District, in the absence of any directions to the

contrary, be deemed to be the local limits of his jurisdiction.

Power to distribute the business:Notwithstanding anything contained in the Code of Civil Procedure, every District Judge may by written order

direct that any civil business congnizable by his Court and the Courts under his control shall be distributed among such Courts in such manner as he

thinks fit; Provided that no direction issued under this section shall empower any Court to exercise any powers or deal with any business beyond

the limits of its jurisdiction.

A plain reading of section 16 of the CPC makes it clear that subject to the pecuniary or other limitations prescribed by law, the suit should

have been instituted where the subject matter is situated. Section 15 CPC enjoins that every suit shall be instituted in the court of lovest grade

competent to try it. From the persual of the plaint it is found that Mst. Shamima has not disclosed where the cause of action arose in her favour and

which court has the territorial and pecuniary jurisdiction. This was a mandatory requirement of law and the plaint suffers from legal deffect. The

only averment is that disputed plot bears No. 420 and is situated in Illahibagh colonyBachapora, Srinagar. The learned City Munsiff has referred

High Court notification No. 70 dated: 05101968 which states that Illahibagh where the disputed property is situated is in Halqa Bachapora which

is in the territorial limits of Munsiff, Ganderbal. He has also relied upon the report of the Patwari and the NaibTehsildar. The arguments advanced

by Mr. Gowhar that the territorial jurisdiction of a Munsiff under section 22 (2) of the Civil Courts Act should be deemed the local limits of the

District, pales into insignifiance in the presence of notification No. 70 dated: 05101968 when the local limits of the jurisdiction of Munsiff

Ganderbal have been defined by this Court. This has been done in pursuance to the mandates of the law as enshrined in section 22 (1) of the Civil

Courts Act and the argument is not attracted because there is no absence of any such direction. Proviso of section 29 of the Civil Courts Act is

clear that no direction can be issued by the District Judge empowering any court subordinate to it to exercise any powers or deal with any business

beyond the limits of this jurisdiction. A harmonious construction has to be given to section 29 of the Civil Courts Act with section 15 and 16 of the

CPC and the legal position which emerges is that every suit has to be instituted in the court of lowest grade competent to try it and the suit has to

be instituted for the determination of right or interest in immovable property where the subject matter is situated, depending upon the pecuniary or

other limits prescribed by any law. The City Munsiff, Srinagar on fact and law had found that he lacked territorial jurisdiction to try the suit t nd the

legal course open for him was to return the plaint under Order 7 Rule 10 CPC for presentation to the court in which the suit should have been

instituted. He thus failed to exercise the power vested in him under law and committed an illgality by passing the impugned order when reference

was made to the learned District Judge, Srinagar. In this view of the matter, revision petition No. 94/99 is accepted and the impugned order is set

aside. Revision petition No. 95/99 stands dismissed: the record of the City Munsiff, Srinagar be returned and the parties are directed to appear in

the said court on 29052000. The City Munsiff, Srinagar shall pass the appropriate orders under order 7 Rule 10 CPC. On the facts and the

circumstances of the case, the interim direction issued by the City Munsiff, Srinagar shall remain in force till the court of competent jurisdiction

passes the fresh orders.