Disposed

Manjula, v. C.P.Suresh Kumar

Kerala HC4 Dec 2019OP (FC)/604/2019

Case brief

AI extract

What is this about?

The High Court of Kerala rejected the petitioner's petition under Article 227 complaining of lack of territorial jurisdiction in a guardianship matter. The Court held that the objection was raised at the fag end of the trial, violating Section 21 of the CPC, and was therefore deemed waived, with no prejudice to the petitioner as visitation rights were directed to be exercised at the petitioner's r

What did the court decide?

The petition was dismissed; the Family Court was directed to dispose of the original petition within one month.

Manjula, Vs C.P.Suresh Kumar — Child Custody and Guardianship | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE K.HARILAL

¶4

¶5

THE HONOURABLE MR.JUSTICE C.S.DIAS

¶6

WEDNESDAY, THE 04TH DAY OF DECEMBER 2019 / 13TH AGRAHAYANA, 1941

¶7

OP (FC).No.604 OF 2019

¶8

PETITIONER/PETITIONER:

¶9

MANJULA, AGED 46 YEARS, W/O.C.P.SURESH KUMAR, RESIDING AT NANDA GOKULA, KANNEERTHODU, KOLLIYA, KOTTEKKAR VILLAGE, KOTTEKKAR P.O., MANGALORE, KARNATAKA - 575 022. BY ADVS. SRI.C.RAJENDRAN SMT.R.S.SREEVIDYA

¶10

RESPONDENT/RESPONDENT:

¶11

C.P.SURESH KUMAR, AGED 51 YEARS, S/O.KRISHNAN (LATE), MANJULALAYAM, CHERALAM, POOVALAPPIL, THIMIRI VILLAGE, THIMIRI P.O., HOSDURG TALUK, KASARAGOD - 632 512. (IN THE MATTER OF JISHNU, MINOR CHILD, AGED 14 YEARS).

¶12

R1 BY ADV. SRI.SURESH KUMAR KODOTH R1 BY ADV. SRI.K.P.ANTONY BINU

¶13

THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 04.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶14

OP (FC).No.604 OF 2019

JUDGMENT

Dias, J

The respondent in O.P.No.429/2017, on the files

¶19

of the Family Court, Kasaragod, is the petitioner

¶20

in this original petition.

¶21

This original petition is filed under Article 227 of the Constitution of India, challenging Ext.P4

¶22

order. The petitioner is aggrieved by the dismissal of I.A.No.537/2019 holding that the Family Court, Kasaragod has the territorial jurisdiction to try the original petition and further that the question of territorial jurisdiction is a

¶23

mixed question of fact and law.

¶24

According to the petitioner, she is residing with the child in Mangalore and that the application

¶25

was filed questioning the maintainability of the

¶26

OP (FC).No.604 OF 2019

¶27

¶28

original petition before the Family Court,

¶29

Kasaragod, on the ground that the Court lacks territorial jurisdiction, as the child is ordinarily residing in Mangalore. Section 9 of the Guardian

¶30

and Wards Act, 1890 mandates that an original

¶31

petition can only be filed before the court where

¶32

the child ordinarily resides.

¶33

We have heard Sri.C.Rajendran, the learned

¶34

counsel appearing for the petitioner and Sri.Suresh Kumar Kodoth, the learned counsel

¶35

appearing for the respondent.

¶36

On going through the impugned order, it is seen

¶37

that I.A.No.537/2019 was filed by the petitioner questioning the maintainability of the original petition on the issue of territorial jurisdiction,

¶38

only after the examination of PW1.

¶39

OP (FC).No.604 OF 2019

¶40

¶41

Section 21 (1) of the Code of Civil Procedure reads

¶42

as follows:-

¶43

21. Objections to jurisdiction .-[(1)]No

¶44

objection as to the place of suing shall be

¶45

allowed by any Appellate or Revisional

¶46

Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.[emphasis

¶47

supplied]

¶48

Reading of the above statutory provisions makes

¶49

it abundantly clear that the issue of territorial jurisdiction has to be taken in the Court of the

¶50

first instance at the earliest possible opportunity,

¶51

at or before the settlement of issues.

¶52

OP (FC).No.604 OF 2019

¶53

¶54

This Court in Ayyappan Pillai G. v. State of Kerala

¶55

and another [2009 (2) KLT 985] has held that if

¶56

the objection as to the place of suing is not taken at the earliest point of time, the objection will be

¶57

deemed to be expressly and impliedly waived.

¶58

In view of the fact that the petitioner has raised

¶59

the issued only at fag end of trial, the objection as to territorial jurisdiction is deemed to be expressly and impliedly waived.

¶60

The Family Court has rightly concluded that the application is highly belated and is hit by Section 21 of the Code of Civil Procedure. We also

¶61

find that no prejudice is caused to the petitioner by the impugned order because the respondent-

¶62

father has been directed to exercise his visitation

¶63

rights at the petitioner's residence at Mangalore.

¶64

OP (FC).No.604 OF 2019

¶65

¶66

Thus, we do not find any compelling

¶67

circumstances warranting the exercise of supervisory jurisdiction as enshrined under Article 227 of the Constitution of India.

¶68

11.Considering the fact that the case is at the fag end of trial, we direct the Family court, Kasaragod, to dispose of O.P.No.429/2017 as expeditiously as possible, at any rate, within a period of one month from the date of production

¶69

of a copy of this judgment.

¶70

The O.P.(FC) is disposed of accordingly.

¶71

Sd/- K.HARILAL, JUDGE

¶72

sd/- C.S.DIAS, JUDGE

¶73

AMV/04/12/2019

¶74

OP (FC).No.604 OF 2019

¶75

¶76

APPENDIX

¶77

PETITIONER'S/S EXHIBITS:

¶78

EXHIBIT P1 A TRUE PHOTOCOPY OF THE PETITION IN O.P.NO.429/2017 OF THE FAMILY COURT, KASARAGOD. EXHIBIT P2 A TRUE PHOTOCOPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE FAMILY COURT, KASARAGOD DATED 19/08/2019. EXHIBIT P3 A TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT DATED 19/08/2019. EXHIBIT P4 A TRUE PHOTOCOPY OF THE ORDER IN I.A.NO.537/2019 IN O.P.NO.429/2017 DATED 06/09/2019 OF THE FAMILY COURT, KASARAGOD.

¶79

RESPONDENTS EXHIBITS : NIL

¶80

TRUE COPY P.A.TO JUDGE

Manjula, v. C.P.Suresh Kumar

Case brief

What is this about?

What did the court decide?

Manjula, v. C.P.Suresh Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Arun Subramoniam Vs Kalaivani

M/S. K.V. Associates Vs C.a.Aminabi

Jose Vs Praveena

Shinoj Sebastian Vs Nijila Thomas

Shibu Kunjumon Vs the Secretary

Shibu Vs Sreevidhya