ABDUL KADAR IBRAHIM Vs. DULANBIBL

JUDGEMENT

(1.) The plaintiff filed this suit in the Court of the Subordinate Judge of Bhiwandi for restitution of conjugal rights against the defendant and for an injunction restraining her from marrying any other person pending the disposal of the suit. He was met with the plea that the questions at issue in the suit were rest judicata by reason of a decree passed by Mr. Justice Davar in High Court Suit No. 399 of 1908 and that therefore under Section 11 of the Code of Civil Procedure the Bhiwandi suit could not be tried. The High Court suit of 1908 was for a declaration that the defendant was the duly married wife of the plaintiff and for an injunction restraining a marriage alleged to be contemplated between her and one Abdul Gafur a defendant in the High Court suit. Three of the issues in that suit were as follows :-(a) Whether the Court has jurisdiction to try the suit as against the first defendant? (b) Whether the first defendant did not become a member of the Hanaf section or about April 1907 1 (c) Whether the plaintiff has been validly married to the first defendant?

(2.) At the first hearing it was discovered that although it was stated in the plaint that only a part of the cause of action had arisen in Bombay and that the Court would have jurisdiction to try the suit after leave under class. 12 of the Letters Patent had been granted, no leave had in fact been obtained and upon that ground the first of the issues above set out was raised. The learned Judge, however, proceeded with the trial of the case upon the merits, and decided the issues as to the conversion of the first defendant and as to the question of her marriage with the plaintiff in the first defendant s favour.

(3.) He then proceeded to discuss the issue relating to jurisdiction and held that the Court had no jurisdiction in consequence of leave not having been obtained and that the suit on that ground must fail. The decree which was drawn up only records the dismissal of the suit on the ground that the alleged marriage of the plaintiff with the first defendant was not valid and binding upon her, but a reference to the judgment shows that the Court held that there was no jurisdiction.