IN THE HIGH COURT OF KERALA AT ERNAKULAM
RFA.No. 226 of 2010()
1. SEEMA D/O. SENAN, AGED 48 YEARS,
... Petitioner
Vs
1. K.S.JAYAGOPAL, AGED 52 YEARS,
... Respondent
2. CHAIRMAN, PIONEER SHOPPING
For Petitioner :SRI.M.P.RAMNATH
For Respondent :SRI.P.RADHAKRISHNAN (1)
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :04/08/2010
O R D E R
"C.R."
THOTTATHIL B. RADHAKRISHNAN
&
S.S.SATHEESACHANDRAN, JJ.
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R.F.A.NO.226 OF 2010
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Dated this the 4th day of August, 2010
J U D G M E N T
THOTTATHIL B. RADHAKRISHNAN, J.
This appeal is by the 1st defendant in O.S.No.473 of 2008
filed before the Sub Court, Ernakulam claiming certain reliefs,
which, in our view, fall within those matters enumerated under
Section 7 and the Explanation thereto, of the Family Courts Act,
1984, for short, the ‘FC Act’. At hearing, there is also no serious
dispute to this situation.
2. The marriage between the plaintiff and the 1st defendant
ended in a divorce. An apartment in a complex, of which, the
2nd defendant is a builder, stands in the name of the 1st
defendant, the divorced wife. The plaintiff sued for a declaration
that the said apartment was obtained by spending his funds and,
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therefore, he has title to that apartment. This squarely falls
within the matters enumerated in Section 7 of the FC Act,
notwithstanding the fact that the marital tie between the plaintiff
and the 1st defendant snapped even before the institution of the
suit. We find that the plaintiff and the then employees of the
2nd defendant builder were examined as PWs.1 to 3 and the son
of the couple was examined as DW1. Documentary evidence was
also let in. The suit was decreed. Counter claim of the 1st
defendant was dismissed. It is hence that the 1st defendant has
appealed.
3. Before proceeding on to the merit of the rival
contentions on the basis of pleading and evidence, we note that
long before the institution of the suit before the Sub Court, the
territory within which the apartment comes, was covered by the
notification constituting the Family Court, Ernakulam.
Obviously, therefore, the suit ought to have been laid only before
the Family Court, Ernakulam. This is the net effect of the
exclusion of jurisdiction resulting out of the operation of Section
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8 of the FC Act. This proposition is also not disputed.
4. However, the learned counsel for the parties suggested
that even if the court below did not have jurisdiction, the High
Court, as the appellate court under the Act, would have the
jurisdiction to try and decide the matter, and that, if for any
reason, the High Court is of the view that the matter could not
have been entertained by the Sub Court, it could be considered
for transfer to the Family Court drawing support from the
decision of the Apex Court in Nahar Industrial Enterprises
Ltd. v. Hong Kong Industrial Enterprises Ltd. ((2009) 8
SCC 646). It is also pointed out that the suit could be ordered
to be transferred in view of the power of this Court under
Section 24 (2) of the Code of Civil Procedure and the evidence
having been adduced before a judicial authority, the same could
be considered by the transferee court on orders by this Court.
5. At out request, Senior Adv.Sri.T.Krishnanunni very
graciously assisted us as amicus curiae and took us through the
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relevant provisions, elucidating the nuances thereof. He said
that the Family Court, do not have any appellate court other than
the High Court, is not part of any independent stream with a
hierarchy of courts or tribunals and, hence, the ratio of the
decision in Nahar’s case (supra) could be applied. He however,
rightly sounded that the exclusion of jurisdiction in terms of
Section 8 of the FC Act read in the light of Section 7 of the
FC Act tend to show that the Sub Court could not have
entertained the suit. He said that the conflict between different
High Courts as to whether a proceeding pending before a court
with no jurisdiction could be transferred, has been settled by the
1976 Amendments to the CPC by the introduction of sub section
(5) of Section 24. He rightly says that Section 24 (1), read in the
light of sub section (5) of Section 24 of the CPC enables the High
Court to transfer a matter pending before a court which has no
jurisdiction to a court which could have jurisdiction. Dilating on
the scope of sub section (2) of Section 24 of the CPC, he pointed
out that the jurisdiction of the High Court under Section 24 (2) is
co-extensive with its power under Section 24 (1) and, therefore,
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even in cases where suits are being transferred from courts
which have no jurisdiction, the transferring court, that is, this
Court, exercising power under Section 24, would be well within
authority to order as to whether the trial could proceed from the
stage to which it had already reached. He also indicated that,
unlike the District Courts or other lower courts exercising
jurisdiction under Section 24 of CPC, the High Court has also the
jurisdiction under Article 227 of the Constitution and this
supervisory power takes within its width and scope, the power to
do complete justice, as much as, the power to supervise includes
the power to transfer a case from one court to any court or
tribunal, which is under the supervisory jurisdiction of the High
Court.
6. In Durgesh Sharma v. Jayshree ((2008) 9 SCC 648),
the sweep of the authority under Section 24 of the CPC has been
elaborately dealt with. It has also been cautioned, as a reminder,
that the inherent powers are not to be exercised in all cases
where there is power not otherwise provided for, particularly,
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when the scheme of the statutory provisions tend to indicate that
a transfer is not contemplated.
7. A survey of the provisions from Section 15 to Section 25
of CPC would indicate that those provisions are intended to
govern the place of suing on the basis of territorial jurisdiction
while the question of pecuniary jurisdiction and the direction to
institute a suit in the lowest court competent to try, are covered
in the State of Kerala, by the provisions of the Kerala Civil
Courts Act, 1957. But, here, we are faced with the situation,
whether the issue is neither one of territorial jurisdiction nor of
pecuniary jurisdiction.
8. Sections 7 and 8 of the FC Act read as follows:
7. Jurisdiction:-(1) Subject to the other
provisions of this Act, a Family Court shall-
(a) have and exercise all the jurisdiction
exercisable by any district court or any
subordinate civil court under any law for the time
begin in force in respect of suits and proceedingsRFA.226/10 7
of the nature referred to in the Explanation; and
(b) be deemed, for the purposes of
exercising such jurisdiction under such law, to be
a district court or, as the case may be, such
subordinate civil court for the area to which the
jurisdiction of the Family Court extends.
8. Exclusion of jurisdiction and pending
proceedings:- Where a Family Court has been
established for any area,-
(a) no district court or any subordinate civil
court referred to in sub-section (1) of Section 7
shall, in relation to such area, have or exercise any
jurisdiction in respect of any suit or proceeding of
the nature referred to in the Explanation to that
sub-section;
(b) no magistrate shall, in relation to such
area, have or exercise any jurisdiction or powers
under Chapter IX of the Code of Criminal
Procedure, 1973 (2 of 1974);
(c) every suit or proceeding of the nature
referred to in the Explanation to sub-section (1) of
section 7 and every proceeding under Chapter IX
of the Code of Criminal Procedure, 1973 (2 of
1974);
(i) which is pending immediately before the
establishment of such Family Court before any
district court or subordinate court referred to in
that sub-section or, as the case may be, before any
magistrate under the said Code; andRFA.226/10 8
(ii) which would have been required to be
instituted or taken before or by such Family Court
if, before the date on which such suit or
proceeding was instituted or taken, this Act had
come into force and such Family Court had been
established, shall transferred to such Family Court
on the date on which it is established.
9. While it may be right that the Family Court does not
belong to a category of tribunals constituted under a special
enactment, where there is a hierarchy, inclusive also of
appellate tribunals, we need to notice that the clear legislative
command contained in Sections 7 and 8 of the FC Act is the
interdiction against entertainment of matters enumerated under
Section 7 and the Explanation thereto, by any other court, on
and from the date on which a notification is issued in relation to
a particular geographical limit or territory. Therefore, on and
from that date, all other courts, which exercise jurisdiction in
relation to that territory, would cease to have jurisdiction in
relation to those matters. To put it otherwise, they lack the
power to entertain, adjudicate and decide on the matters
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enumerated in Section 7 of the FC Act. This lack inherent
jurisdiction is the result of the exclusion provided by the
combination of Sections 7 and 8 of the FC Act. Such exclusion of
jurisdiction deprives the power to entertain, try and/or decide
the lis. In this view of the matter, recourse could only be,
obviously, to Order 7 Rule 10 of the CPC, whereby, the plaint
could be returned for presentation before the appropriate court.
We would also have to take into account the fact that the
procedure prescribed for trial of cases by the Family Court is
regulated by the provisions of that Act and it would not be wise
to order transfer under Article 227 of the Constitution of India,
having noticed the clear non-availability to do so in terms of
Section 24 of the CPC.
10. For the aforesaid reasons, we set aside the impugned
decree and judgment and remit the case to the court below with
a direction to return the plaint from that end in accordance with
law. Since this order of remand is being made on noticing that
the court below lacked competence to try the suit, we order
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refund of the whole of the court fee paid on this memorandum of
appeal. No costs.
11. We record appreciation for the effective assistance
rendered by Adv.Sri.T.Krishnanunni, as amicus curiae. We also
appreciate the efforts taken by the learned counsel of the parties
to place before us all possible aspects of the matter.
Appeal is accordingly remanded. The parties shall appear
before the court below on 2nd September, 2010.
THOTTATHIL B. RADHAKRISHNAN
JUDGE
S.S.SATHEESACHANDRAN
JUDGE
prp
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