Partly allowed

Sri.Kashimsab S/O Hussainsab Mullannavar v. Smt.Khairunnisa W/O Kashimsab Mullannavar

Karnataka HC3 Sept 2020CRP/100027/2019

Case brief

AI extract

What is this about?

CRP against rejecting an application under Order VII Rule 11 CPC. Court allowed return of plaint to be presented before Family Court for adjudication on the question of legally wedded wife status, as per Section 7 Family Courts Act, while reserving liberty for parties.

What did the court decide?

Return of plaint to be re-presented before Family Court, Hubballi; appearance fixed on 12.10.2020; liberty to first respondent to protect her interest.

Sri.Kashimsab S/O Hussainsab Mullannavar… — Pension and Retirement Benefits | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 03^RD DAY OF SEPTEMBER 2020

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BEFORE

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THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD

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C.R.P. NO.100027/2019

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BETWEEN

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SRI.KASHIMSAB S/O HUSSAINSAB MULLANNAVAR AGE: 60 YEARS, OCC: RAILWAY DEPARTMENT, R/O PLOT NO.159, NURANI PLOT, RIGHT SIDE OF NEKAR NAGAR, LAKSHMI COLONY, NAVA AYODHYA NAGAR, HUBBALLI, DIST: DHARWAD-580001.

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... PETITIONER

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(BY SRI. SRINAND A. PACHHAPURE, ADV.)

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AND

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SMT.KHAIRUNNISA W/O KASHIMSAB MULLANNAVAR AGE: 59 YEARS, OCC: HOUSEHOLD WORK, R/O KAVALAGERI, TAL & DIST: DHARWAD-580001.

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DIVISIONAL RAILWAY MANAGER, SOUTH WESTERN RAILWAY, HUBBALLI, DIST: DHARWAD-580001.

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SENIOR DIVISIONAL PERSONAL OFFICER SOUTH WESTERN RAILWAY, HUBBALLI, DIST: DHARWAD-580001.

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... RESPONDENTS

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(BY SRI.R.H. ANGADI, ADV. FOR R1, SRI.AJAY U PATIL, ADV. FOR R2 AND R3)

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THIS CRP IS FILED UNDER SECTION 115 OF CPC, 1908, AGAINST THE ORDER DATED 02.08.2017 PASSED IN O.S.NO.609/2015 ON THE FILE OF THE III ADDITIONAL CIVIL JUDGE AND JMFC, HUBBALLI, REJECTING I.A. NO.V FILED UNDER ORDER VII RULE XI OF C.P.C.

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THIS CRP COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This petition is filed calling in question the order dated 02.08.2017 in O.S. No.609/2015 on the file of the III Additional Civil Judge and JMFC, Hubballi (for short, ‘the Civil Court’ ). The Civil Court by the impugned order has rejected the petitioner’s application under Order VII Rule 11 of CPC.

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The learned counsel for the petitioner submits that the first respondent has initiated the suit in O.S. No.609/2015 asserting that she is the legally wedded wife of the petitioner. The first respondent has filed this suit because the petitioner, who is an employee of the Railways, would be able to nominate a nominee for employment with the Railways after retiring on superannuation as per the scheme called “Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff” . The first respondent contends that the petitioner should nominate her because she is the legally wedded wife, but the petitioner is nominating another person. The lis between

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the parties for maintenance in other proceeding is pending consideration.

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The learned counsel submits that the central question in the suit would be whether the first respondent is the legally wedded wife of the petitioner and this question, given the provisions of Section 7 of the Family Courts Act, 1984, more specifically Section 7(1) explanation (b), will have to be decided only by the Family Court, Hubballi. The suit instituted before the Civil Judge would therefore be barred. Further, the learned counsel submits that the petition could be disposed of directing the return of the plaint to be presented before the Family Court, Hubballi with necessary directions.

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The learned counsel for the first respondent submits that indeed the petition could be disposed of directing the return of the plaint to be presented before the Family Court, Hubballi considering the application filed by the petitioner as an application under Order VII

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Rule 11 of CPC. The learned counsel also does not dispute that the questions whether the petitioner could indeed nominate for the benefit under the aforesaid scheme, and if the petitioner could nominate whether such nomination would be in accordance with the scheme are questions that will have to be decided by the Railway Authorities subject to the adjudication on the question whether the first respondent is the legally wedded wife of the petitioner. As such, the other respondents are proforma parties.

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The learned counsel for the first respondent submits that while directing return of the plaint this Court may reserve liberty to the first respondent to make necessary application to protect her interest for nomination under the Scheme subject to the decision in the suit as the first respondent’s application for temporary injunction is pending consideration. The learned counsel further submits that the respondent, given the present COVID-19 situation, is severely

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constrained therefore appropriate direction be issued to the petitioner to pay up-to-date maintenance.

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In rejoinder, learned counsel for the petitioner submits that the first respondent has indeed made an application for temporary injunction restraining the petitioner from nominating any person under the scheme, but this application is rejected and the rejection of this application has also been subsequently confirmed in the appeal filed by the first respondent. But he would have no objection, if subject to all just exceptions in law, the petitioner is given liberty to make such application before the Family Court, Hubballi after the plaint is re-presented. Insofar as the submission as regards non-payment of maintenance, learned counsel submits that he has instructions to state that in a parallel proceedings pending before this Court there is an interim order of stay insofar as a part of the amount granted by the Family Court. The petitioner in compliance with such interim order has been paying the maintenance.

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However, in the event of any default by the petitioner, the first respondent would be entitled to have recourse to every action as would be available in law.

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In the light of the consensus submission as regards an order for return of the plaint under Order VII Rule 10 of CPC, the following order is made without expressing any opinion on the merits of the suit.

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ORDER

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The petition is partly allowed treating the petitioner’s application before the Civil Court as an application under Order VII Rule 10 of CPC for return of plaint to be presented before the Family Court, Hubballi. The plaint in O.S. No.609/2015 on the file of the III Additional Civil Judge and JMFC, Hubballi is returned to be re-presented before the Family Court, Hubballi. The petitioner and the respondents shall appear before the Family Court, Hubballi on 12.10.2020 subject to the terms of SOP and neither shall seek fresh notice of the suit. The first respondent, subject to all exceptions in law, is given liberty to make such

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application as she could be advised before the Family Court, Hubballi to protect her interest.

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Sd/JUDGE

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Rsh

Sri.Kashimsab S/O Hussainsab Mullannavar v. Smt.Khairunnisa W/O Kashimsab Mullannavar

Case brief

What is this about?

What did the court decide?

Sri.Kashimsab S/O Hussainsab Mullannavar v. Smt.Khairunnisa W/O Kashimsab Mullannavar

Case brief

What is this about?

What did the court decide?

What the court decided

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