1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.156 OF 2008 1. Mehrunnisa w/o Sayyed Asif age 32 years, occup.household r/of Dhanora, Taluka Ashthi, District Beed. 2. Abrar s/o Sayyed Asif, age 11 yrs.occupation education under guardianship of real Petitioners mother, Petitioner No.1, Original r/of as above. appellants/ plaintiffs versus 1. Sayyed Asif s/o Sayyed Abbas age 38 years, occupation Sect.Engineer, Panchayat Samiti, Irrigation Department, Palghar, District Thane, r/of Dongri, Sahyadri Building, 4th floor, Dr. Maheshwari Road, Mumbai- 400 009. 2. Sayyed Abbas s/o Sayyed Chandmiya age 68 years, occupation: retired Police Officer, r/of Mumbai, now at Nurani Colony, Behind Chiranjiv Hospital, Jamkhed, Taluka Jamkhed, Dist.Ahmednagar. 3. Irshadbee w/o Sayyed Abbas, age 63 years, occupation: household, r/of as above. 2 4. Sayyed Arif s/o Sayyed Abbas age 30 years, occupation : Policy Sipoy, r/o Dongri Police Line, Room N.10, Dr.Maheshwari Road, Mumbai - 400 009. 5. Sayyed Zuber s/o Sayyed Abbas, age 28 yrs.occupation:police Respondents/ Sipoy, r/of as above. Ori.Resps. -------------------------------------------------- Shri M.B.W.Khan, Advocate, for the Applicant. Shri S.S.Kazi, Advocate, for the Respondents. -------------------------------------------------- Coram: P.R. Borkar J. Date : October 9,2009. ORAL JUDGMENT 01. Revision Petitioners who are original Plaintiffs in Regular Civil Suit No.121 of 2005 are aggrieved by dismissal of their suit by the learned Civil Judge, Junior Division, Asthi, District, Beed, vide judgment and order dated 14.8.2008 on the ground that he has no jurisdiction to entertain the suit, the appeal filed by revision petitioners against which, being Reject Appeal No.14 of 2008 came to be rejected on 29.9.2008 by the District Court. 2. Briefly stated, Revision petitioner No.1 had married Respondent No.1 and Revision Petitioner No.2 was born to them. Respondent No. 2 and 3 3 are father and mother respectively of Respondent No.1 and Respondent Nos.4 and 5 are brothers of Respondent No.1. As per the certified copy of the plaint in R.C.S. No.121 of 2005 produced on record, the marriage of revision petitioner No.1 with Respondent No.1, took place on 26.11.2005 at village Dhanora Taluka Ashti District Beed. After marriage, revision petitioner No.1 went to reside at the house of Respondent No.1 at Jamkhed, District Ahmednagar and then they lived at Mumbai. It is further stated in plaint paragraph 4 that there were illegal demands made by Respondent No.1 to revision petitioner No.1 for money and on her inability to comply with the demand, he ill- treated her. Respondent No.1 was also speaking about his intention to remarry. On 30.8.1996, father of Revision Petitioner No.1 paid Rs. 60,000/= to Respondent No.1 and requested him not to ill-treat his daughter. However, in spite of payment, ill-treatment continued to revision petitioner No. 1. Ultimately revision petitioner No. 1 wrote letters to her father informing about the ill-treatment to her. According to revision petitioner, her father as per his capacity complied with the demands of Respondent No.1 and Respondent No. 1 purchased a flat in the name of Respondent No. 2 in Sahyadri building at Mumbai. It is further stated that on 4.10.1996, Revision petitioner No. 1 called her father as she was beaten by Respondent No.1 during her 4 pregnancy and illness and, therefore, father of Revision Petitioner No. 1 brought her at Dhanora, where she gave birth to revision petitioner No.2. Respondent No.1 refused to take her back and demanded money. In the circumstances, suit is filed by revision petitioner No.1 against Respondent No.1 for grant of maintenance to both the revision petitioners and also for keeping charge on the immovable properties of Respondents situated at Jamkhed, Taluka Jamkhed, District Ahmednagar. 3. Learned Civil Judge at the request of parties framed preliminary issue on the point of jurisdiction as below and answered the same in the negative by his detail order passed on 14.8.2008. "Whether this court has juris- diction to entertain this suit ?" 4. As against the said order of the learned trial court judge, present revision petitioners filed Appeal in the District Court, Beed, being Reject Appeal No.14 of 2008. On 16.9.2008, office of the District Court raised objection to the effect that on perusal of order and bill of cost of Lower Court it was seen that the point of territorial jurisdiction was framed as preliminary issue and the same has been answered by the trial court in the negative and, therefore, present 5 Regular Civil Appeal (Reject Appeal) was not maintainable and that the appellant may be heard on the point of maintainability of the appeal. On the basis of said office objection, the learned District Judge, on 29.9.2008, appears to have passed following order. "Heard Adv. The order impugned is not an appellable one . Hence, appeal can not be entertained." 5. Shri M.B.W Khan, learned Advocate for the revision petitioners criticised the order passed by the learned District Judge. He drew my attention to Order 41 Rule 11 of the Code of Civil Procedure, 1908 which gives power to the District Court to dismiss the appeal without notice to Lower Court. As per the said Rule, the Court after fixing day for hearing the appellant or his pleader and hearing him accordingly, if he appears on that day may dismiss the appeal. But, sub-rule 4 of rule 11 lays down that in case an appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief its reasons or grounds for doing so and a decree shall be drawn up in accordance with the judgment. 6. Shri S.S.Kazi, learned Counsel for the Respondents, vehemently submitted that as against the order of dismissal of suit by the trial court 6 which is under Order 7 Rule 11 of C.P.C. no regular appeal to District Court but revision would lie to High Court and, therefore, revision ought to have been filed directly in the High Court. 7. A reference to page 593 of commentary on Order 7 Rule 11 of C.P.C. (by Justice C.K.Thakkar, Volume 3, 2005 Edition) can be made here, wherein several authorities including some Full Bench authorities, so also authorities of Bombay High Court are cited in which it has been stated that rejection under Order 7 Rule 11 of C.P.C. is appellabale as it amounts to decree. It is true that some other High Courts took a view that rejection is not appellable as it is not a decree. 8. Shri M.B.W. Khan, learned counsel for the revision petitioners relied upon Anubai w/o Vishnu vs. Vithoba Shripati 2004 (1) Mh.L.J. 545. In that case, requirements of decree are stated. It says that there must be adjudication, such adjudication must have been given in a suit, it must have determined the rights of the parties with regard to all or any part of the matter in controversy in the suit, such determination must be of a conclusive nature and there must be a formal expression of such adjudication. Advocate Shri Khan submitted that the trial court ought to have drawn decree of dismissal of suit. In fact, 7 when the court had no jurisdiction, it ought to have returned the plaint under Order 7 Rule 10 of C.P.C. for being presented to the court having jurisdiction to entertain the suit. So, on the face of impugned order, the learned trial court judge seems to be at an error. He ought to have passed order under Order 7 Rule 10 of C.P.C. since he had come to the conclusion that he had no jurisdiction to entertain the suit. 9. In my opinion, the District Court while rejecting appeal against the decision of the learned trial court judge on the point of jurisdiction, ought to have given reasons. In any case, this court is considering revision application against the impugned order and the basic question that needs consideration is, "whether the court of Civil Judge, Junior Division, Asthi, District Beed, has jurisdiction to entertain and try the suit?" 10. As per Section 16(c) of C.P.C., subject to pecuniary jurisdiction or other limitations prescribed by law, suits for charge on immovable property shall be instituted in the court within the local limits of whose jurisdiction the property is situate. The plaint in R.C.S. No.121 of 2005, the certified copy of which is produced and taken on record and marked as "X" for the purpose of identification, indicates that the 8 properties i.e. lands bearing Gat Nos. 690, 692, 660, 671, 661 and house properties bearing gram panchayat Nos. 90, 6160, 6157, 6158 and 6159 on which charge was sought to be kept, are situated at village Jamkhed, Taluka Jamkhed, District Ahmedngar. There was prayer for keeping charge over those properties for maintenance amount that was to be awarded and, therefore, the suit ought to have been filed in the Civil Court at Jamkhed. 11. Advocate Shri M.B.W. Khan submitted that as per Section 20(c) of C.P.C., revision petitioners are entitled to file suit where cause of action in whole or part thereof had arisen. It is clear that though the marriage took place at village Dhanora, Taluka Asthi, District Beed, still the fact remains that after the marriage, parties resided for some time at Jamkhed, District Ahmednagar and thereafter at Bombay until 13.10.1996. Thereafter, father of Revision petitioner No.1 brought her to village Dhanora and she delivered child-revision petitioner No.2 at Dhanora wherefrom Respondent No. 1 did not take her back nor made any provision for their maintenance. In this case, plaint itself shows that Respondent Nos. 1, 4 and 5 reside at Bombay and Respondent Nos. 2 and 3 reside at Jamkhed. As per section 20 (a) & (b) of C.P.C., suit ought to have been filed in the civil court at Jamkhed or at Bombay. 9 12. After considering the plaint, in my view, it cannot be said that any part of the cause of action had arisen at Dhanora so as to institute the suit in the civil court at Asthi, District Beed. Nothing happened at Dhanora, after marriage till desertion. In this view of the matter and particular having regard to section 16(c) of C.P.C, I am of the opinion that the trial court did not commit any error in observing that it had no territorial jurisdiction. 13. Shri S.S.Kazi, learned counsel for the Respondents, strongly submitted that Respondent No.1 has divorced Revision Petitioner No.1 and, therefore, she should not have filed suit for maintenance and her remedy is under Section 3(1) (a) of Muslim Women (Protection of rights on divorce) Act, 1986. However, the question of divorce is a disputed question of fact and Revision Petitioner No.1 denied that there was divorce. Since the learned Civil Judge, Junior Division, Asthi, District Beed, has held that he had no jurisdiction to entertain and try the suit and dismissed the same on that count, his observation on the issue of divorce are not binding on the parties. I am considering this civil revision application only on the point of territorial jurisdiction and leaving all question 10 open to be decided by appropriate court having jurisdiction. So far as revision petitioner No.2- son is concerned, Advocate Shri S.S.Kazi was fair enough to draw my attention to Section 370 of Mahomedan Law (Mulla's Principles of Mahomedan Law) wherein it is stated that father is bound to maintain son until son attains age of puberty. So, it can be said that revision petitioner No.2-son has right to get maintenance. 14. In the circumstances, revision petition is partly allowed. The order passed by learned Civil Judge, Junior Division, Asthi, District Beed on 14.8.2008 rejecting the suit for want of jurisdiction and the order of the learned District Judge, Beed, passed on 29.9.2008 rejecting Appeal No.14 of 2008 are set aside. It is held that since the court of Civil Judge, Junior Division, Asthi, had no jurisdiction, the plaint be returned under Order 7 Rule 10 of Code of Civil Procedure, 1908 for being presented in the court having jurisdiction. 15. Revision Application is accordingly disposed of. pnd/cra156.08 (P.R.BORKAR, J.)