Disposed

Rubi v. Anitha

Madras HC30 Nov 2022CRP(MD)/1301/2022

Case brief

AI extract

What is this about?

Madras High Court held that a Civil Revision Petition under Article 227 is not maintainable when challenging D.V. Act proceedings without a jurisdictional defect. However, the court directed the Magistrate to dismiss unnecessary parties, waive personal appearance if represented, and dispose of the main case within six months. The petition was disposed of with no costs.

What did the court decide?

Directions to Magistrate to delete unnecessary parties, waive personal appearance if represented, and dispose of main case within six months; revision petition disposed with no costs.

Rubi Vs Anitha — Civil Procedure and Limitation | Madras HC (2022)

¶1

CRP(PD)(MD)No.1301 of 2022

¶2

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

¶3

DATED : 30.11.2022

¶4

CORAM:

¶5

THE HONOURABLE MR.JUSTICE B.PUGALENDHI

¶6

CRP(PD)(MD)No.1301 of 2022 and CMP(MD)Nos. 5355 and 5357 of 2022

¶7

Rubi

¶8

Star Stella

¶9

Ruban

¶10

... Petitioners

¶11

versus

¶12

Anitha ... Respondent

¶13

Civil Revision Petition filed under Article 227 of the Constitution of India, to allow the civil Revision Petition and strike off petition in D.V.C.No. 22 of 2022 on the file of the Learned Judicial Magistrate No. V, Tirunelveli

¶14

For Petitioners : Mr. C.K.M. Appaji For Respondent : Mr. K. Sivabalan

¶15

1/6

¶16

https://www.mhc.tn.gov.in/judis

¶17

CRP(PD)(MD)No.1301 of 2022

¶18

ORDER

¶19

This Civil Revision Petition is filed against the proceedings initiated by the respondent herein in D.V.C.No.22 of 2022 before the learned Judicial Magistrate No.V, Tirunelveli. The petitioners herein are respondents in D.V.C.No.22 of 2022.

¶20

The Hon'ble Full Bench of this Court, in the reference made in Crl.O.P.SR.Nos.31852 of 2022, etc. (batch), dated 17.11.2022, has answered as follows:

¶21

“A petition under Article 227 of the Constitution may still be maintainable if it is shown that the proceedings before the Magistrate suffer from a patent lack of jurisdiction. The jurisdiction under Article 227 is one of superintendence and is visitorial in nature and will not be exercised unless there exists a clear jurisdictional error and that manifest or substantial injustice would be caused if the power is not exercised in favour of the petitioner. (See Abdul Razak v Mangesh Rajaram Wagle

¶22

2/6

¶23

https://www.mhc.tn.gov.in/judis

¶24

CRP(PD)(MD)No.1301 of 2022

¶25

(2010) 2 SCC 432, Virudhunagar Hindu Nadargal Dharma Paribalana Sabai v Tuticorin Educational Society (2019) 9 SCC 538). In normal circumstances, the power under Article 227 will not be exercised, as a measure of self-imposed restriction, in view of the corrective mechanism available to the aggrieved parties before the Magistrate, and then by way of an appeal under Section 29 of the Act.”

¶26

The Hon'ble Full Bench of this Court has also held that the personal appearance of the parties shall not be insisted upon, if the parties are effectively represented through a counsel. The relevant portion is extracted as under:

¶27

“iv. Personal appearance of the respondent(s) shall not be ordinarily insisted upon, if the parties are effectively represented through a counsel. Form VII of the D.V. Rules, 2006, makes it clear that the parties can appear before the Magistrate either in person or through a duly authorized counsel. In all cases, the personal appearance of relatives and other third parties to the domestic relationship shall be insisted only upon

¶28

3/6

¶29

https://www.mhc.tn.gov.in/judis

¶30

CRP(PD)(MD)No.1301 of 2022

¶31

compelling reasons being shown. (See Siladitya Basak v. State of West Bengal (2009 SCC OnLine Cal 1903).”

¶32

This Civil Revision Petition is filed challenging the proceedings initiated by the respondent under Section 12 of the Protection of Women from Domestic Violence Act and not filed on the ground of lack of jurisdiction. Therefore, this Civil Revision Petition is not maintainable before this Court, as per the decision rendered by the Hon'ble Full Bench (cited supra). However, this Court is inclined to dispose of the Civil Revision Petition in the following terms:

¶33

(i) If the petitioners are having any grievance that they have been unnecessarily added as parties to the proceedings, it is open to them to file an application before the learned Magistrate to delete their names and if any such application is filed, the learned Magistrate shall decide the same, as per the decision of the Hon'ble Supreme Court in Kunapareddy v. Kunapareddy Swarna Kumari, reported in ( 2016) 11 SCC 774 .

¶34

4/6

¶35

https://www.mhc.tn.gov.in/judis

¶36

CRP(PD)(MD)No.1301 of 2022

¶37

(ii) If the petitioners are represented through a counsel, the learned Magistrate shall not insist on the personal appearance of the petitioners. However, the petitioners shall appear before the Court as and when their presence is required by the Court.

¶38

(iii) The learned Magistrate is directed to dispose of D.V.C.No.22 of 2022 as expeditiously as possible preferably within a period of six months from the date of receipt of a copy of this order.

¶39