Allowed

Smt Sumathi v. Sri M Bakthavatsala

Karnataka HC20 Dec 2023WP/1104/2023

Case brief

AI extract

What is this about?

The High Court allowed a writ petition setting aside an order that rejected an interim application challenging jurisdiction in a guardianship matter. It held that the matter should be transferred to the District Court at Sagar, as the minor ordinarily resides there, and directed the Senior Civil Judge, Shimoga, to transfer the file.

What did the court decide?

The impugned order dated 01.12.2022 was set aside; the application was allowed, and the matter was directed to be transferred to the District Court/Judge at Sagar.

Smt Sumathi Vs Sri M Bakthavatsala — Child Custody and Guardianship | Karnataka HC (2023)

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NC: 2023:KHC:46937 WP No. 1104 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO. 1104 OF 2023 (GM-FC)

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BETWEEN:

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SMT. SUMATHI W/O IRIYA, AGED 62 YEARS, SENIOR CITIZEN BENEFIT NOT CLAIMED, R/AT ATHODI VILLAGE, GENASINAKUNI VILLAGE, SAGARA TALUK, SHIVAMOGGA

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Digitally signed by SUMA B N Location: High Court of Karnataka

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KUM. PALLAVI B. V. D/O M. BHAKTAVATSALA, AGED 4 YEARS, REP. BY HER NEXT FRIEND AND GUARDIAN, SMT. SUMATHI, AGED 62 YEARS, W/O IRIYA, R/AT ATHODI VILLAGE, GENASINAKUNI VILLAGE, SAGARA TALUK, SHIVAMOGGA.

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…PETITIONERS

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(BY SRI.VENKATESH SOMAREDDI., ADVOCATE)

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AND:

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SRI M. BAKTHAVATSALA, AGED 40 YEARS, S/O V. MARISWAMY, R/AT BELAKAVADI VILLAGE, B. G. PURA HOBLI MALAVALLI,

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NC: 2023:KHC:46937 WP No. 1104 of 2023

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…RESPONDENT

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MANDYA.

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(BY SRI. RANGANATHA PRASAD. B.S., ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DTD. 01.12.2022 PASSED BY THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM AT SHIMOGGA IN G AND WC NO.9/2022, REJECTING I.A. NO.II FILED UNDER ORDER VII RULE 11 OF THE CODE OF CIVIL PROCEDURE, 1908 READ WITH SECTION 9(1) OF THE GUARDIANS AND WARDS ACT, 1890 SEEKING DISMISSAL OF PETITION ON THE GROUND OF WANT OF JURISDICTION, WHICH IS PRODUCED AS ANNX-F AND CONSEQUENTLY ALLOW I.A. NO.II FILED BY THE PETITIONER IN G AND WC NO.9/2022 ON THE FILE OF THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM AT SHIMOGGA.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Heard Sri. Venkatesh Somareddi, learned counsel appearing for the petitioners and Sri. Ranganatha Prasad. B.S. learned counsel appearing for the respondent.

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NC: 2023:KHC:46937 WP No. 1104 of 2023

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Petitioners are before this Court are being aggrieved by the order dated 01.12.2022 passed in G&MC.No.9/2022 on the file of Principal Senior Civil Judge and CJM, Shimogga, by which, the interim application in I.A.No.II filed by the petitioners herein under Order 7 Rule 11 of C.P.C., r/w Section 9(1) of G&MC has been rejected.

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The aforesaid petition in G&MC.No.9/2022 has

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been filed by the respondent under Sections 7, 10, 25 of the Guardians and Wards Act, 1890 seeking direction to Petitioner No.1 to return and deliver the custody of the minor child-petitioner No.2 to the respondent. On receipt of notice, the petitioners herein, filed an application under Order 7 Rule 11 r/w Section 9(1) of the Guardians and

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Wards Act, 1890, raising the issue of jurisdiction contending that the ward is resident of Athodi Village, Genasinakuni Village, Sagar Taluk, Shimoga District and that the filing of the petition before the District Judge at

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Shimogga was without jurisdiction. The Trial Court taking note of the said contention has rejected the

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4 - NC: 2023:KHC:46937 WP No. 1104 of 2023

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application on the premise that originally the petition was filed before the Principal District and Sessions Judge, Shimoga on 01.06.2022 and was registered as G&MC.No.9/2022 which was thereafter, made over to the Principal Senior Civil Judge and CJM Shimogga vide order dated 02.06.2022. As such the Court had jurisdiction.

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The learned counsel for the petitioners reitering the grounds urged in the memorandum petition submits that the reasoning assigned by the Court rejecting application is bereft of merits and without taking into consideration provision of law applicable the facts of the case. He submits the District Court within which the minor ward is residing shall have jurisdiction to entertain the petition of this nature and that minor is residing at Sagar, which has a District Court and the petition ought to have been filed before District Court at Sagar instead of filing before District Court at Shimoga. Hence, seeks for allowing the petition and setting aside the impugned order.

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NC: 2023:KHC:46937 WP No. 1104 of 2023

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Counsel for the respondent does not dispute the fact that, minor is residing at Sagar and there is a District

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Court at Sagar which has the jurisdiction over the matter.

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Section 9(1) of the GUARDIANS AND WARDS ACT, 1890, reads as under;

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"9. Court having jurisdiction to entertain application.—

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(1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.

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(2) If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property.

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(3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction."

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NC: 2023:KHC:46937 WP No. 1104 of 2023

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In view of the admitted position of minor child being residing with petitioner No.1 at Athodi Village, Genasinakuni Village, Sagar Taluk, Shimogga District and also in view of the admitted fact that there is a District Court at Sagar, the petition needs to be made over to the said Court.

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In view of the aforesaid factual and legal aspect of the matter impugned order is set aside. The application filed by the petitioners is allowed. The District Judge, Shimogga shall withdraw the matter from the file of Senior Civil Judge, Shimogga, and shall make it over to the District Court/Judge, at Sagar who shall proceed further in the matter from the stage where it is before the Senior Civil Judge, Shimogga.

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The District Court/Judge, Sagar to whom matter will be made over to, shall dispose of the matter as expeditiously as possible. Parties shall cooperate for

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NC: 2023:KHC:46937 WP No. 1104 of 2023

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expeditious disposal of the matter without seeking unnecessary adjournments.

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With the aforesaid observation, petition is

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disposed of.

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Sd/JUDGE

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PHM,RU List No.: 1 Sl No.: 21

Smt Sumathi v. Sri M Bakthavatsala

Case brief

What is this about?

What did the court decide?

Smt Sumathi v. Sri M Bakthavatsala

Case brief

What is this about?

What did the court decide?

What the court decided

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