GUPTA, J. - (1.) THIS appeal has been filed by the plaintiffs, against the order of the Family Court Jodhpur dt. 22. 6. 2007, dismissing the suit for injunction, under O. 7 Rule 11 C. P. C. The appellants are the wife, and daughter of the respondent.
(2.) THE appeal was filed time barred. THEn application under Section 5 was filed. Vide order dt. 25. 2. 2008 the delay was condoned. THEn vide order dt. 11. 3. 2008 it was directed, that the appeal be heard even without calling for the record, as the Family Court has decided the question of jurisdiction, which is a pure question of law, and the matter was posted for final disposal at admission stage itself. THEreafter when the matter came up on 17. 3. 2008, one of the Hon'ble Members of the Bench, which passed the earlier order, made an exception in the matter, then the matter came up before another Bench on 26. 3. 2008, and it was found, that since the suit has been dismissed under O. 7 Rule 11, for want of jurisdiction, for deciding question of jurisdiction, reading of plaint is the first requirement, and therefore despite order dt. 11. 3. 2008 record was ordered to be requisitioned, which was accordingly received. THEn, the matter was heard for final disposal on 23. 7. 2008, and arguments were concluded on 25. 7. 2008. From the record it transpires, that on 7. 6. 2007 the plaintiff filed an application before the learned trial Court, that the case had been fixed for passing order tomorrow, and she has learnt, that the husband and father in law have approached the Presiding Officer, and therefore, the main case be transferred to another Court. Then, on 8. 6. 2007, the counsel for the plaintiff pleaded no instruction on that application, and therefore, the application was dismissed by passing a separate order, noticing, that the arguments on the preliminary objection were heard on 15. 5. 2007, and the case was fixed for orders on 29. 5. 2007, on which date the Presiding Officer was on leave, and therefore, the case was adjourned to 4. 6. 2007. Meanwhile on 2. 6. 2007, another application was filed on the side of the plaintiff, that the learned counsel wants to argue the matter afresh. Thereupon the matter was heard afresh on 4. 6. 2007, and some case law was also cited, and the application clearly appears to have been filed only for obstructing the Court from passing the necessary orders. It is a different story, that a reply to this application was filed by the defendant, categorically denying the averments, and opposing the application. Be that as it may. The necessary facts of the case for the present purpose are, that the plaintiff-appellants filed a suit on 1. 5. 2007 in the Family Court, Jodhpur for permanent injunction, purporting to be one under Section 7 of the Family Court Act. The allegations in the plaint are, that the parties were married on 17. 12. 1998, the plaintiff No. 2 was born out of the wedlock 7 years of age, and since the date of marriage the plaintiff is living with the husband, and in-laws. It is alleged, that her parents performed good marriage according to their capacity, and since then she is living in the in-laws' house being D-5, Shashtri Nagar, Jodhpur. It is alleged, that she has two sisters-in-law, who are married. With this background it is alleged, that since marriage the behaviour of the husband is not good, he lives luxurious life, does not care for her, and that her husband and father in law addresses her abusively only, and carry no responsibility. The husband never showered any affection, rather his behaviour has been cruel. Then, one of the sisters in law, being Priya, who lives outside, talks on telephone for long with the plaintiff's mother in law, and instigates her. It is also alleged, that she has to demand every small thing from her parents; and then one incident was also narrated, that the plaintiff No. 2 fell ill, and the husband declined to take her to Doctor. It is also alleged, that in the house she along with her husband lives in upper storey, and while on the ground floor her father in law and mother in law live. It is then alleged, that her husband and father in law wants to dispossess her of the house, and from time to time obstructs her from using the kitchen, bed room, sitting room etc. , and ask her to quit the house, otherwise the belongings would be thrown away, and she would be killed. It is also alleged, that the husband proclaims to be intending to contact second marriage. With this sequence it is alleged, that on 30. 4. 2007, her husband and in-laws threatened to kill her, and forcibly wanted to dispossess her. Thereupon a first information report was lodged, and proceedings under Section 107 and 116 (3) Cr. P. C. were initiated. It is alleged, that thus the house in which she is living is the matrimonial home, and being wife, she is entitled to live in the matrimonial home. It is legal obligation on the part of the husband to provide residence, and the husband is bound to provide matrimonial home to his wife. It is also alleged, that the wife has no other house to live, and under Hindu Laws she has right to live in the matrimonial home. With these allegations, cause of action is said to have arisen, and the suit has been filed for permanent injunction, praying that the defendant be restrained not to dispossess the plaintiff from the house in which she is living along with daughter, her possession be maintained, she should be allowed to use all apartments in the house, and should not interfere in her exclusive possession, either himself, or through others, and that the defendant be restrained from alienating the house in any manner. On service, the defendant filed an application, alleging that in view of the provisions of Section 7 of the Family Court Act, the present suit for injunction is not maintainable, and that, the plaintiff, on these very allegations, has already filed application before the Judicial Magistrate, therefore, she could not prosecute parallel remedies as well. With this, it was prayed, that either the suit be dismissed, or it be returned to the plaintiff. Learned trial Court dismissed the suit under O. 7 Rule 11, as noticed above. After discussing the various case law cited at the bar, and finding, that the plaintiff's case is, that the house is a matrimonial home, while according to the defendant the house is of his father, and within the meaning of Explanation (c) to Section 7 (1) of the Family Courts Act, the dispute is not alleged to be with respect to the property of the parties or of either of them, and therefore, the suit is not cognizable by this Court. It has also been found, that on the basis of alleging the house to be matrimonial home, she cannot maintain the present suit before the Family Court. Then it has been noticed, that there is inconsistency in the pleading also, inasmuch as she claims to be in joint possession, while in the relief she claims a decree for protection of exclusive possession. Then, it has also been observed, that from the averments it transpires, that the claim is based on the Protection of Women from Domestic Violence Act, apart from the fact, that she could take proceedings under Section 18 of the Hindu Adoptions and Maintenance Act. Thus, the suit was dismissed.
(3.) WE have heard learned counsel for the parties, and have gone through the various case law, cited on either side, as well as the record. At the outset learned counsel for the appellant contended, that the plaintiffs' claim is not under Section 18 of the Hindu Adoptions and Maintenance Act, rather their claim is covered by Explanation (c) to Section 7 (1 ). It was contended by the learned counsel for the appellant, assailing the impugned order on merits, that the order is bad on every count, inasmuch as learned trial Court has found the claim of the plaintiff to be contradictory, and did not find the Court to be having jurisdiction. As a matter of fact there is no contradiction, nor any inconsistency, or vagueness, as the pleadings are more than clear. So far as lack of jurisdiction is concerned, even in that event, the learned trial Court could not dismiss the suit, rather it was required to be returned for presentation before appropriate Court, in view of Order 7 Rule 10 C. P. C. Then it was submitted, that since the questions considered by the learned trial Court are mixed questions of fact and law, and therefore, appropriate issue on that should have been framed, and thereafter the issues should have been decided as a preliminary issue during trial, instead of dismissing the suit at the threshold under Order 7 Rule 11, as the Order 7 Rule 11 is not attracted. Learned counsel relied upon following judgments, to substantiate his contentions:- (1) Nagaraj & Anr. vs. Ammayamma reported in 2002 (1) Civil Court Cases-110; (2) Anand Govind Bhide vs. Smt. Rohini Bhide reported in I (2001) DMC-646 Then, a Supreme Court judgment in K. A. Abdul Jaleel vs. T. A. Shahida reported in 2003 (2) HLR-295 = RLW 2003 (3) SC 461. Then, another judgment of Hon'ble the Supreme in Mayar (H. K.)Ltd. & Ors. vs. Owners & Parties, Vessel M. V. Fortune Express & Ors. reported in 2006 (1) WLC (SC) Civil-619. Learned counsel also relied upon a judgment of Hon'ble the Supreme Court in Ramesh vs. Bipin Vadilal Mehta, reported in (2006)5 S. C. C. 638, to contend, that even the question of limitation is a mixed question of law and fact, and suit could not be dismissed under O. 7 Rule 11 C. P. C. ;