( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.4165 OF 2001 SUIT NO.4165 OF 2001 SUIT NO.4165 OF 2001 Hansa Prafulchandra Dave C/o. Dr.Deepali R. Sanghavi, Gurudev Dattaguru Marg, Sector 17, Airoli, Navi Mumbai - 400 708 ...Plaintiff Versus 1. Prafulchandra Jayantilal Dave 5, Nigam Kutir, "Pushpa Niwas", Dr.Rajendra Prasad Road, Mulund (West), Mumbai-400 080 2. Housing Development Finance Corporation Ltd., Ramon House, 169, Backbay Reclamation, Churchgate, Mumbai - 400 020 ...Defendants Mr.Arshad Haindaday for the Plaintiff. None for the Defendants. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. ( 2 ) DATED : 16th December, 2008. DATED : 16th December, 2008. DATED : 16th December, 2008. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : . In the present Suit, Notice of Motion No.1062 of 2005 is pending. As the Notice of Motion No.1062 of 2005 was pending, I perused the plaint to ascertain the nature of the suit. On going through the plaint, question arose whether this Court shall have jurisdiction to try and entertain the present Suit on account of the averments in the plaint and the relief sought by the Plaintiff. As a result of this, I have heard learned Counsel Mr.Haindaday appearing on behalf of the Plaintiff to ascertain whether this Court has jurisdiction to try and entertain the present Suit. This exercise was required to be done in the absence of the Defendants as nobody appears on behalf of them. 2. The Plaintiff is the wife of Defendant No.1. The Plaintiff has filed this Suit to seek a declaration that the Plaintiff has exclusive title in respect of 290 equity shares (for short "said shares") of Defendant No.2-Company namely Housing Development Finance Corporation Ltd. The Plaintiff claims that she is the sole owner of the said shares and wants a declaration in that behalf. By prayer clause (b), the Plaintiff wants an order against Defendant No.2 ( 3 ) calling upon Defendant No.2 (for short "the said Company"), to correct the register of members by deleting the name of Defendant No.1 i.e. the husband of the Plaintiff. 3. Keeping in view the aforesaid prayers and the frame of the Suit, I have heard learned Counsel Mr.Haindaday to ascertain whether this Court has jurisdiction inspite of provisions of Family Courts Act, 1984 (for short "said Act"). Learned Counsel for the Plaintiff Mr.Haindaday submitted that as the present Suit is not exclusively between the Plaintiff-wife and Defendant No.1-husband, this Court will have jurisdiction. According to him since said company is also a party to the Suit, the provisions of the said Act would not be applicable to the facts of this case and that the Family Court will have no jurisdiction to try and entertain the present Suit and that this Court exercising ordinary original civil jurisdiction is the proper Court to entertain the Suit keeping in view the valuation of the Suit namely Rs.1,98,650/-. Learned Counsel Mr.Haindaday, therefore, submitted that this Court shall have jurisdiction to try and entertain the present Suit and that the Court should accordingly decide the matter on merits. ( 4 ) 4. I have considered the submissions advanced by learned Counsel Mr.Haindaday. Perusal of the plaint shows that the Plaintiff avers that she had paid the consideration for the said shares and therefore she alone is the owner of said shares. By the present Suit, the Plaintiff wants to negate the claim of Defendant No.1 in regard to the said shares though the name of Defendant No.1 is shown as the second holder in the said shares. In this connection, one can gainfully refer to the provisions of Section 7 Explanation clause (c) of said Act. The said clause ’C’ reads as under : "A suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them." 5. A perusal of this clause (c) and applying it to the facts of this case, it is clear that the present Suit relates to a dispute between Plaintiff-wife and Defendant No.1 her husband in regard to the property over which the Plaintiff is putting up her claim to the exclusion of Defendant No.1 In my view, the facts in the present Suit fairly fall within the ambit of clause (c) of explanation to Section 7 of the said Act. If this is the position, the Family Court alone shall have a jurisdiction to ( 5 ) try and entertain the present Suit. 6. Seeing the object clause of said Act, it is clear that Family Courts were to be established under the said Act to secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith and accordingly Family Courts have been established in accordance with the provisions of the said Act at various places including Mumbai. It is admitted by the Plaintiff that the cause of action in so far as the present Suit arose at Mumbai. A Family Court is functioning for the territory of Greater Mumbai since 1985. If this be so, the Plaintiff ought to have instituted the present Suit in the Family Court as the Family Court alone will have jurisdiction to try and entertain the present Suit. 7. It was sought to be argued by the learned Counsel Mr.Haindaday that because said company is impleaded as Defendant No.2, the Suit cannot be filed in the Family Court. It is well established that the averments in the plaint will decide the jurisdiction of Court. It is also required to be noted that the court has to consider the plaint as a whole and ascertain the nature of the dispute between parties to the suit and then arrive at final conclusion as ( 6 ) regards the jurisdiction of the Court. Merely because the said company is shown as Defendant No.2 it will not take away the jurisdiction of the Family Court. In the said Act, there is no provision which says that in a Suit where the Family Court will have jurisdiction in accordance with the provisions of Section 7, a party other than the husband and/or wife cannot be impleaded as a party Defendant. The test is whether the main dispute is between the husband and wife and some other party is joined as a party Defendant to get full relief in the Suit. In such a case merely because a person other than the husband and wife is joined as a party Defendant that would not take away the jurisdiction of the Family Court. The submission advanced by learned Counsel Mr.Haindadey is contrary to the intent and purpose of establishment of Family Courts. It would frustrate the purpose for which the Family Courts are established. The legislature enacted the said Act to see that the dispute between the husband and wife of various types as set out in explanation to section 7 of said Act are disposed of by a forum which is specially created. It is to be noted that if the nature of the suit is one falling within the ambit of said Act, the jurisdiction of other courts is specifically excluded by Section 8 of said Act. ( 7 ) 8. In view of the aforesaid discussion, I am of the view that merely because said company is joined as a party Defendant apart from the husband the jurisdiction of the Family Court is not taken away. 9. For the reasons mentioned aforesaid, I hold that this Court has no jurisdiction to try and entertain the present Suit. Consequently the plaint will have to be returned to the Plaintiff for filing it in the proper Court. It is clarified that no views are expressed on the merits of the claim of plaintiff over said shares. Hence the order. "O R D E R" "O R D E R" "O R D E R" (1). It is hereby observed that this Court has no jurisdiction to try and entertain this Suit. (2). It is ordered that the plaint be returned to the Plaintiff for filing it in the proper Court. (3). 19th January, 2009 is the date ( 8 ) fixed for the return of the plaint. Prothonotary & Senior Master, High Court, Bombay, shall return the plaint to the Plaintiff on 19th January, 2009. (4). In view of the aforesaid order, Notice of Motion No.1062 of 2005 does not survive and is accordingly disposed of with no order as to costs. (5). Liberty is granted to the Plaintiff to institute appropriate interim relief proceedings in that Court in which the plaint would be lodged. (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)