ORDER
Shubhada R. Waghmare, J.
1. This Civil Revision is filed against the order dated 5-2-2007 passed by ADJ, Gadarwara dismissing the application of the petitioners filed under Order 7 Rule 11, CPC. The applicants/petitioners had filed the application challenging the jurisdiction of the Trial Court to pass any order under Section 9 of the Guardians and Wards Act, 1890. By the said application, the petitioner had also prayed that since the minor Shubhank whose custody was being considered by the Court had not been impleaded as a party the suit was bad for non-joinder of necessary party.
2. Moreover, relying on a judgment passed in the matter of K.C. Shashidhar v. Smt. Roopa , Counsel for the petitioners stated that the jurisdiction would lie with the Court within whose jurisdiction the minor resided.
3. Also relying on Section 9 of the Guardians and Wards Act, 1890, which states thus:
9. Court having jurisdiction to entertain application. – (1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.
(2) If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property.
(Emphasis mine)
4. Counsel for the petitioners/applicants stated that Trial Court had erred in disregarding the provisions of Section 9 since the minor child Shubhank was living in Gotegaon, whereas, the application for grant of guardianship of his person by the father Babloo was filed at Gadarwara and hence, any order passed by the said Court would be without jurisdiction.
5. The respondents/non-applicant father had resisted this application under Order 7 Rule 11 on the basis that the Court at Gadarwara had jurisdiction to entertain the matter and the application was mere ploy to detract proceedings. So also an earlier application filed by the petitioners/applicants for transferring the instant matter to the Court of District and Sessions Judge, Narsinghpur had been turned down by the learned District Judge and hence, on the same ground application under Order 7 Rule 11 was not maintainable. Moreover, the child’s custody had been forcefully taken from him otherwise the place of residence of a male minor child is always with his father the natural guardian.
6. The Counsel for the applicants in the Trial Court had on the other hand relied on K.C. Shashidhar v. Smt. Roopa (supra), whereby the High Court had interpreted the Section 9 read with Section 25 of the Act. The custody of minor child was granted to the mother residing in another city with her parents and the place where the minor resides was considered to be where the minor ‘ordinarily resided with its mother’ and the Court had held that the Court of place of residence of mother would have jurisdiction to try suit. The term “ordinarily resides” was further held to mean normally the residence of minor should be taken as the place where the local guardian is residing.
7. Whereas in the matter of Vinayak Rao v. Shewta Rao 1997(1) MPLJ 27, this Court had held that the place of residence of child would generally be with mother of the minor and the Court where the mother resided had jurisdiction to try the matter.
8. Then considering above submissions, I find that application under Order 7 Rule 11 has been filed at the time of the final arguments as observed in the impugned order and since the applicants had already submitted to the jurisdiction of the Court at Gadarwara up to the stage of final arguments then they are estopped from taking objection to the jurisdiction of the Court at this stage.
9. This Court has in the matter of Pratyush Chaterjee v. Super Auto Forge Pvt. Ltd. and Anr. 2000(1) M.P.H.T. 458, held that objection to jurisdiction is mixed question of law and fact and can be raised by the defendant in their written statement to be decided by the Trial Court on merits in the light of the provisions of Sections 15 to 21 of the Code of Civil Procedure.
10. Then it was imperative that the petitioner should have raised the objection on the point of jurisdiction as a preliminary issue to be decided first if he found that the Court did not have a jurisdiction or competence and the Court would have decided the issue first. To make such an application at the fag end of the proceedings cannot be permitted in the interest of justice and on the basis of principles of natural justice and fair play. Moreover, the fact that earlier application for transfer had also been rejected by the District Judge, Narsinghpur, should not be lost sight off.
11. The Counsel for the petitioners/applicants has however, disputed the facts stating that objection to jurisdiction being question of law can be raised at any stage of the proceedings. However, the ground is available to the petitioner to be raised in appeal.
12. Counsel for the petitioner has relied on Keshav R. Thakur and Anr. v. Suchhibai (2005) 9 SCC 424. However, I find that said authority is tangentially off the point since in the said case, the Apex Court has granted custody of the child to the grand parents. However, the question of jurisdiction is not involved in the said case.
13. Then considering the submissions on the anvil of Pratyush Chaterjee v. Super Auto Forge Pvt. Ltd. and Anr. (supra), the petition is dismissed as sans merit. No order as to cost.