FAO No.2059 of 2007 - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CM Nos.2698 & 2699-CII-2009 in FAO No.2059 of 2007 DATE OF DECISION: 02.02.2009 **** Pritam Singh and another . . . . Appellants VS. Jugraj Singh . . . . Respondent **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.Rahul Chhatwal, Advocate for the appellants. Mr.Dinesh Nagar, Advocate for the respondent. **** RAKESH KUMAR JAIN J.(ORAL) CM Nos.2698 & 2699-CII-2009 Dismissed as not pressed. MAIN CASE This appeal is directed against the order passed by Civil Judge (Sr.Div.) Muktsar dated 14.3.2007 on a petition filed under Section 7 of the Guardians and Wards Act, 1890 (in short ‘the Act’). The dispute in this case is between the father and the maternal grand parents in respect of the custody of two minor children, namely, Arshdeep Kaur, aged two years and Surinder Singh, aged about one month. FAO No.2059 of 2007 - 2 - Jugraj Singh (respondent) father of the aforesaid minors, averred in para 4 of his petition that “the ordinary residence of minors is village Udekaran so this Hon’ble Court has got jurisdiction to try and hear the present petition.” Pritam Singh and Gurnam Kaur (paternal grand-parents of the minors), in their reply averred in para 4 that para 4 of the petition is formal but in para 3 of the reply, it is alleged that the minors are residing at Jaito and not at Udekaran. Therefore, the petition is liable to be dismissed. On the basis of the pleadings and evidence led by both the parties, the question arose before the Court below to decide as to whether the Court at Muktsar has got the territorial jurisdiction. Learned trial Court, however, observed that “Admittedly, there was no objection regarding jurisdiction in written statement. Even otherwise, the petitioner is natural father of the minors. He is residing at Muktsar. Therefore, the natural place of residence of the minors is also at Muktsar. As such, this Court has jurisdiction to decide the matter.” In the present appeal, the first and foremost argument raised by the learned counsel for the appellant is that the Court at Muktsar had no territorial jurisdiction to decide the petition. The learned counsel for the appellant referred to provisions of Section 9 of the Act, which reads as under: “9. Court having jurisdiction to entertain application - (1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. FAO No.2059 of 2007 - 3 - (2) If the application is with respect to the guardianship of the property of minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property. (3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction.” Learned counsel for the appellant relied upon decision of the Supreme Court in the case of “Pooja Bahadur vs. Uday Bahadur” 1999(3) RCR(Civil) 219 and also relied upon the decision of this Court in the case of “Anju Bala vs. Vipin Oberoi” 2004(1) PLR 468, to contend that only that Court has territorial jurisdiction to try and decide the petition under Section 7 of the Act, where the minors ordinarily resides. In case of Anju Bala (supra), minor was residing with mother at Faridkot, whereas, the petition was filed at Jagadhari by his father. This Court took the view that in view of mandatory provisions of Section 9 of the Act, Courts at Jagadhari have no jurisdiction to entertain the petition and found that the petition is not maintainable. Learned counsel for the appellant further contends that since the minors were residing at Jaito which falls within the territorial jurisdiction of the Court at Faridkot and are not residing at village Udekaran which falls within the territorial jurisdiction of FAO No.2059 of 2007 - 4 - the Court at Muktsar, therefore, the Court at Muktsar has no territorial jurisdiction to decide the application filed under Section 7 of the Act. Faced with this contention of the learned counsel for the appellant, learned counsel for the respondent has submitted at the bar that the impugned order may be set aside and he may be permitted to file appropriate application before the Court having the jurisdiction to try and hear the petition under Section 7 of the Act. After giving my thoughtful consideration to the submission made by both the learned counsel for the parties, I am of the view that the present appeal deserves to be allowed because both the minors are residing at Jaito which falls within the territorial jurisdiction of the Court at Faridkot. Thus, the Court at Muktsar had no territorial jurisdiction to decide the petition filed by the respondent. In view of the above discussion, the present appeal is allowed and the impugned order is set aside. However, keeping in view the welfare of the minors and the fact that the matter has only been decided on the point of jurisdiction, the respondent is granted permission to file appropriate petition, if so advised, before the Court having the jurisdiction to decide the present petition. No costs. (RAKESH KUMAR JAIN) February 2, 2009 JUDGE vivek