KSHETRIMAYUM NINGOL THONGRAM ONGBI MEMA ALIAS MEMCHA DEVI Vs. THONGRAM PRAFULLO SINGH AND ANR.
LAWS(GAU)-1994-6-25
HIGH COURT OF GAUHATI (FROM: IMPHAL)
Decided on June 01,1994

Kshetrimayum Ningol Thongram Ongbi Mema Alias Memcha Devi Appellant
VERSUS
Thongram Prafullo Singh And Anr. Respondents

JUDGEMENT

A.K. Patnaik, J. - (1.)THIS is a revision under Section 115 of the Code of Civil Procedure, 1908 by the Plaintiff/Petitioner against the order dated 27.1.1994 of the learned Subordinate Judge, Manipur West dismissing Original Suit No. 14 of 1993 filed by the Plaintiff/Petitioner.
(2.)THE facts of the case are that the Plaintiff/Petitioner filed Original No. 14 of 1993 in the Court of learned Subordinate Judge, Manipur West for declaration and permanent injunction against the Defendant/opposite parties. The case of the Plaintiff in the suit was that she was the widow by one Sri Thongram Tomba Singh who was serving as Headmaster of the Government Keiruk U.J.B. School and died in service on 29.6.1988. On the death of her husband, the Plaintiff was given family pension by the Government of Manipur with effect from 29.6.1988 and she continued to enjoy the family pension till the month of July, 1991. Thereafter, the said family pension was suddenly withheld by the Government. On enquiry, the Plaintiff received information in February, 1993 that the family pension was being withdrawn by the Defendant No. 1 on the basis of an affidavit to the effect that, the Plaintiff was remarried on 2.8.1991. Since the Plaintiff was denied the benefit of family pension she filed the aforesaid suit with the following reliefs:
(a) A decree for declaration that she is the only person to receive and enjoy the family pension as per rule;

(b) A decree for declaration that the Defendant No. 1 has no right and title or authority of law to receive, and enjoy the family pension at the cost of the Plaintiff;

(c) A decree for permanent injunction to restrain the Defendant No. 1 or his agent to receive and enjoy the family pension;

(d) Costs of litigation;

(e) Any other relief or reliefs which may be awarded to the Plaintiff be given to her in the facts and circumstances of the case.

The aforesaid plaint, as it appears from the order sheet maintained by the learned Subordinate Judge Manipur West, was accepted by the Court on 22.6.1993 and summons were issued to the Defendants. The Defendants after entering appearance in the said suit filed their written statement taking inter alia the plea that the Plaintiff had married various persons and in fact had also left the house of the father of the Defendants, who was also the husband of the Plaintiff. Thereafter, the Defendants filed an application under Order -VI Rule 17 of the Code of Civil Procedure, 1908 for amendment of their written statement and as per the said petition, the Defendants proposed an amendment to the written statement to the effect that the Plaintiff was never a widow/wife of Mr. Tomba Singh, the deceased father of the Defendant. It appears from the order sheet that no order has been passed by the learned Subordinate Judge on the said application of amendment. In the meanwhile, by order dated 27.1.1994 the suit was dismissed by the learned Subordinate Judge on the ground that the Family Court and not the Civil Court had jurisdiction to try the suit.

(3.)MR . N. Kerani Singh, learned Counsel for the Plaintiff/Petitioner submits that the impugned order dated 27.1.94 would show that the suit has been dismissed on an application filed by the Defendants/opposite parties on the ground that the suit was barred under Section 7 of the Family Courts Act, 1984 and that the Family Court had jurisdiction over this dispute, Mr. Kerani submits that after the plaint was accepted, it was not open for the learned Subordinate Judge to dismiss the suit without complying with the provision of order XIV Rule 2 of the Code of Civil Procedure, 1908. On the basis of the said provision of the Code of Civil Procedure, 1908, Mr. Kerani submits that since a written statement had been filed by the Defendants and an application had been filed by the Defendants for dismissing the suit on the ground of jurisdiction or bar created by the Family Courts Act, 1984, the Court should have first framed a preliminary issue if it come to the conclusion that the case would be disposed of on such a preliminary issue, and the issue was one of law only relating to the jurisdiction of the Court or a bar to the suit created by law.


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