1 C.R.A.162.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 162 OF 2011 Deelip S/o Limbaji Pingale, Age: 63 Years, Occup. Agril., R/o Pathardi, Tq. Kallam, District Osmanabad. ...APPLICANT VERSUS 1 Balasaheb S/o Deeliprao Pingale Age : 33 Years, Occup: Labour, R/o Pathardi, Tq. Kallam, District Osmanabad, now at present Hanumannagar, Ambejogai, Tq. Ambejogai, District Beed. 2 Nandkishor S/o Deeliprao Pingale Age : 35 Years, Occup: Business, R/o as above. 3 Janabai @ Vijaymala W/o Deeliprao Pingale Age : 59 Years, Occup: Labour, R/o as above. (Nos.1 to 3 Original Plaintiffs) 4 Shahu S/o Limbaji Pingale, Age : 70 Years, Occup.: Agril., R/o Pathardi, Tq. Kallam, District Osmanabad. 5 Vithal S/o Yeshwant Pingale, Age: 72 Years, Occup. : Agril., R/o as above. 2 C.R.A.162.11 6 Shivram S/o Vitharao Landge, Age:67 Years, Occup.: Agril., R/o as above. 7 Pandhari S/o Kerba Ghele Age : 65 Years, Occup.: Agril., R/o as above. 8 Mahesh S/o Ramkishan Thorbole, Age: 26 years, Occup.: Agril., R/o Gojwada, Tq. Washi, District Osmanabad. (Nos.4 to 8 Original. Defendants) 9 Narayan Yeshwant Kakade, Age : 55 Years, Occup: Agril., R/o Pathardi, Tq. Kallam, District Osmanabad. .RESPONDENTS ... Mr.S.G.Jadhavar,Advocate for applicant. Mr.G.J.Kore,Advocate for respondent Nos. 1 to 3. ... CORAM: S.S. SHINDE, J. RESERVED ON: 14TH SEPTEMBER, 2011 PRONOUNCED ON: 27TH SEPTEMBER, 2011 JUDGMENT : 1. This Civil Revision Application is filed challenging the order dated 21st June, 2011, below Exhibit 76 passed by the Civil Judge Junior Division, Kallam, District Osmanabad, in Regular 3 C.R.A.162.11 Civil Suit No. 80 of 2004. . The revision applicant herein is original defendant before the Civil Judge Junior Division, Kallam, District Osmanabad. The respondent Nos. 1 to 3 are the original plaintiffs, who filed Regular Civil Suit No. 80 of 2004 seeking partition and separate possession. 2. It is the case of the revision applicant that the revision applicant has no any concerned with respondent Nos. 1 to 3 and he has no any relation with respondent Nos. 1 to 3. The respondent Nos. 1 to 3 have unnecessarily filed Regular Civil Suit No. 80 of 2004 stating therein that respondent NO.3 is legally wedded wife of the revision applicant and respondent Nos. 1 and 2 are their children. According to the revision applicant, filing of Regular Civil Suit No. 80 of 2004, by the respondent Nos.1 to 3 is mere abuse of process of law. 4 C.R.A.162.11 . The revision applicant herein, after receiving summons in the suit, filed written statement and contested the suit filed by the original plaintiffs. In the said written statement, the revision applicant has also denied the marital status of respondent No. 3 and relationship with respondent Nos. 1 and 2. . It is further the case of the revision applicant that, on 3rd March, 2006, after going through the rival pleadings between the parties, the trial Court framed four issues for its consideration/determination. The revision applicant herein, on 18th March, 2010 has filed an application at Exhibit 76 to frame additional issue. After hearing parties, the trial Court framed additional issue No.3/A i.e. “Does plaintiff No.3 proves that she is legally wedded wife of defendant No.1?” . It is the case of the revision applicant that, as per the provisions of Hindu Marriage Act, 5 C.R.A.162.11 1955, the Civil Judge Senior Division has jurisdiction to entertain additional issue, framed by the trial Court. . After framing of additional issue, the revision applicant herein has filed an application under Order 7 Rule 10 of the Code of Civil Procedure and prayed before the trial Court to return the plaint and direct the respondent Nos. 1 to 3/original plaintiffs to file the suit before proper Forum. The respondent Nos. 1 to 3 herein filed their say and opposed the application at Exhibit 76 filed by the revision applicant. After hearing the revision applicant as well as respondent Nos. 1 to 3 herein, the trial Court rejected the application at Exhibit 76 by observing that the Civil Judge Junior Division has also having jurisdiction to entertain the issue No. 3/A. 3. It is the case of the respondent No.3 herein/original plaintiff No. 3 in her plaint, 6 C.R.A.162.11 particularly in para No.3 that, she is legally wedded wife of the revision applicant and her marriage was solemnized in the year 1974 at village Saundana. The marital status of respondent No.3 herein/original plaintiff No.3 and relationship of respondent Nos.1 and 2/Original Plaintiff Nos. 1 and 2 is denied by the revision applicant in the written statement. It is the case of the revision applicant that, respondent Nos.1 to 3 herein have no any concerned with the family of the revision applicant. 4. It is the contention of the revision applicant that since last 30 years respondent Nos. 1 to 3 kept quiet about relationship with the revision applicant and without any documentary evidence filed Regular Civil Suit No. 80 of 2004, only with intention to harass the revision applicant. It is the case of the revision applicant that, the provisions of Hindu Marriage Act only confers power on the Civil Judge Senior Division to try the additional issue, therefore, the trial Court 7 C.R.A.162.11 was not correct in entertaining the application at Exhibit 76 by exercising his discretion under Specific Relief Act. Therefore, according to the revision applicant the order passed by the trial Court below Exhibit 76, in Regular Civil Suit NO. 80 of 2004, is not sustainable. 5. The learned counsel appearing for the revision applicant submitted that, additional issue framed by the trial Court below Exhibit 52 i.e. “Does plaintiff prove that she is legally wedded wife of defendant No.1? cannot be considered or adjudicated by the Civil Judge Junior Division. It is submission of the counsel appearing for the revision applicant that in view of provisions under Hindu Marriage Act Civil Judge Senior Division has jurisdiction to entertain the suit. The learned counsel further submitted that the Civil Revision application deserves to be allowed. 6. Respondent Nos.1 to 3 have filed their 8 C.R.A.162.11 affidavit-in-reply in the Civil Revision Application. It is stated that, respondent Nos. 1 to 3 herein are original plaintiffs and they had filed Regular Civil Suit No. 80 of 2004 for partition and separate possession of the suit property. The respondent Nos. 1 and 2 herein are the sons of revision applicant, whereas respondent No.3 is legally wedded wife. It is further stated that respondent Nos. 1 to 3 herein have filed Regular Civil Suit No. 80 of 2004 for partition and separate possession of the property and they are not claiming any relief as per Hindu Marriage Act. It is further stated that, present revision applicant only to harass the respondents and only to prolong the matter, with malafide intention filed this Civil Revision Application to stall the proceedings before the trial Court. . It is further submitted that the Civil Revision Application is not maintainable and the applicant herein can file Misc. Appeal as provided under the relevant provisions of law. 9 C.R.A.162.11 . It is further submitted that the trial Court has rightly rejected the application filed by the revision applicant. In support of his submission, learned counsel appearing for respondent Nos.1 to 3 placed reliance on the judgment in the case of Smt. Rajeshbai and others Vs. Smt. Shantabai, reported in AIR 1982 Bombay 231, the learned Single Judge of this Court taken a view that, ”Issue as to validity of marriage arising before Civil Court in suit or other proceedings, can be decided by that Court and provisions of Section 5(i) and Sections 11 and 25 of the Hindu Marriage Act is no bar to decide such proceedings. Therefore, according to the learned counsel appearing for the respondents, the point raised in this Civil Revision application is covered by the authoritative pronouncement of this Court in the decision cited supra. The learned counsel appearing for respondents also placed reliance on the judgment in the case of Devki Antharjanam Vs. Narayanan Namboodiri and another reported in AIR 2007 Kerala, 38(1) and submitted that suit for 10 C.R.A.162.11 partition between husband and wife, wherein son is party, is maintainable before Civil Court and plea that only Family Court has jurisdiction cannot be accepted. Therefore, learned counsel appearing for respondent Nos. 1 to 3 submitted that the Civil Revision Application is devoid of any merits and same may be rejected. 7. In this Civil Revision application, the contention of Revision applicant is that additional issue framed by the trial Court below Exhibit 52 i.e. “Does plaintiff prove that she is legally wedded wife of defendant No.1? cannot be considered or adjudicated by the Civil Judge Junior Division. It is submission of the counsel appearing for the revision applicant that in view of provisions under Hindu Marriage Act Civil Judge Senior Division has jurisdiction to entertain the suit and Civil Judge Junior Division, has no such jurisdiction. 8. The point which is raised by the counsel 11 C.R.A.162.11 appearing for the revision applicant has been considered by this Court, in the case of Smt. Rajeshbai and others Vs. Smt. Shantabai cited supra, this Court has taken a view that issue as to validity of marriage arising before Civil Court in suit or other proceeding can be decided by that Court. 8. In the present case the plaintiffs have filed suit for partition and separate possession. Therefore, main relief which is claimed, in Regular Civil Suit NO. 80 of 2004, filed by the respondent Nos. 1 to 3 herein is for partition and separate possession of suit property. Additional issue framed by the concerned Court is not the main relief in the said Civil Suit. The plaintiffs have sought main relief of partition and possession in Regular Civil Suit NO. 80 of 2004. Therefore, the same Court can decide the additional issue, while adjudicating main controversy raised in the suit by the plaintiffs. Therefore, in my opinion, Civil Revision 12 C.R.A.162.11 application is devoid of any merits and the same stands rejected. Sd/- [S.S. SHINDE, J.] MTK