Allowed

Ganesh S Nayak v. Smt Ambika G Nayak

Karnataka HC11 Aug 2022RFA.CROB/8/2022

Case brief

AI extract

What is this about?

Two appeals and a cross objection against a decree in a suit for declaration were filed by a husband and wife. The High Court held that the Family Court had jurisdiction under the Family Courts Act, 1984. It allowed the appeals, set aside the Trial Court's decree, and remitted the matter to the Family Court for a fresh trial with expedited hearing.

What did the court decide?

Both appeals and cross objection allowed; impugned decree set aside; matter remitted to Family Court, Udupi; court fees refunded.

Ganesh S Nayak Vs Smt Ambika G Nayak — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF AUGUST, 2022

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PRESENT

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THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR

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AND

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THE HON’BLE MRS. JUSTICE M.G. UMA

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R.F.A NO.313 OF 2022 (DEC/INJ)

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C/W

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R.F.A CROB NO.8 OF 2022

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IN R.F.A NO.313 OF 2022

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BETWEEN :

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SMT. AMBIKA G. NAYAK W/O GANESH S. NAYAK D/O MR. K. VASUDEVA PRABHU AGED ABOUT 45 YEARS R/O HOUSE NO.43B ANANTHA NAGAR, MANIPAL UDUPI TALUK AND DISTRICT - 576 104. …APPELLANT

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(BY SHRI CHANDRASHEKAR, ADVOCATE)

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AND :

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SRI. GANESH S. NAYAK S/O SUNDAR S. NAYAK AGED ABOUT 50 YEARS R/AT 2-123, F/4 "SRI LAKSHMI GANESH" KOTEKAR POST, KUMPALA MANGALURU - 575 022. …RESPONDENT

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(BY SHRI M.S.VARADARAJAN, ADVOCATE)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 27.11.2021 PASSED IN OS NO.72/2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND ACJM, UDUPI, DECREEING THE SUIT FOR DECLARATION AND MANDATORY INJUCTION.

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IN R.F.A CROB NO.8 OF 2022

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BETWEEN :

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GANESH S. NAYAK S/O SUNDAR S. NAYAK AGED ABOUT 51 YEARS R/AT 2-123, F/4 "SRI LAKSHMI GANESH" KOTEKAR POST, KUMPALA MANGALORE - 575 022. … CROSS OBJECTOR

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(BY SHRI M.S.VARADARAJAN, ADVOCATE)

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AND :

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SMT. AMBIKA G. NAYAK W/O GANESH S. NAYAK D/O MR. K. VASUDEVA PRABHU AGED ABOUT 46 YEARS R/AT HOUSE NO.43B ANANTHA NAGAR, MANIPAL UDUPI TALUK AND DISTRICT - 576 104. …RESPONDENT

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(BY SHRI. CHANDRASHEKAR, ADVOCATE)

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THIS RFA CROB IS FILED UNDER 41 RULE 22 OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED 27.11.2021 PASSED IN OS NO.72/2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND ACJM, UDUPI, PARTLY DECREEING THE SUIT FOR DECLARATION AND INJUCTION.

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THIS RFA AND RFA CROB COMING ON FOR ADMISSION THIS DAY, P.S. DINESH KUMAR J , DELIVERED THE FOLLOWING:-

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JUDGMENT

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These two appeals are directed against the judgment and decree dated November 27, 2021, in O.S.No.72/2015 passed by the Additional Senior Civil Judge and ACJM, Udupi.

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RFA No.313/2022 is filed by the defendant-wife and RFA Crob.No.8/2022 is filed by the plaintiff-husband.

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For the sake of convenience, parties shall be referred as per their status before the Trial Court.

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Plaintiff and defendant are man and wife. Plaintiff filed the instant suit seeking declaration so far as Schedule A to F properties. Suit has been decreed. Feeling aggrieved, both plaintiff and defendant have preferred this appeal and cross-objection.

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Learned advocates on both sides submitted that the

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suit was instituted in the year 2015. The Family Court has been established in Udupi in the year 2021. As per Section 7(a) of the Family Courts Act, 1984,

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the Family Court has jurisdiction to try the suit. Therefore, the judgment and decree passed by the Trial Court is not sustainable in law.

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Shri Varadarajan, learned advocate for the plaintiff submitted that since the decree has been passed by a Court without jurisdiction, the same may be set-aside.

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Shri Chandrashekar, learned advocate for the defendant submitted that defendant desires to file an additional written statement as she could not give proper instructions to her advocate and also seeks permission to lead evidence.

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We have carefully considered the submissions of learned advocates on both sides and perused the records.

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Section 7 of the Family Courts Act, 1984, reads as

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follows;

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"7. Jurisdiction

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(1) Subject to the other provisions of this Act, a Family Court shall—

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(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and

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(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."

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Admittedly, the prayer in the suit filed by the husband is for a declaration. Defendant is the wife. Therefore, Family Court shall have jurisdiction to try the instant suit.

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In view of the above, the judgment and decree passed by the Trial Court is liable to be set-aside and hence, the following;

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ORDER

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(i) Both RFA No.313/2022 and RFA

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Crob.No.8/2022 are allowed;

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(ii) Judgment and decree dated November 27, 2021, in O.S.No.72/2015 passed by the Additional Senior Civil Judge and ACJM, Udupi, is set-aside;

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(iii) The matter is remitted to the Family Court, Udupi, to try the suit from the stage as it stood on the date of establishment of Family Court at Udupi; (iv) Learned Senior Civil Judge, Udupi, shall transfer the records to the Family Court, Udupi; (v) Registry shall refund the court fees under Section 64 of the Karnataka Court Fees and Suits Valuation Act, 1958, in both RFA and RFA Cross-objection; and (vi) Since the suit is of the year 2015, the Family Court, Udupi, shall expedite the hearing subject to load on its board.

No costs.

Sd/JUDGE

Sd/-

JUDGE

Ganesh S Nayak v. Smt Ambika G Nayak

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Ganesh S Nayak v. Smt Ambika G Nayak

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