AO/327/2007 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 327 of 2007 WITH CIVIL APPLICATION No. 11980 of 2007 IN APPEAL FROM ORDER No. 327 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= DARSHANABEN WD/O PRAKASHBHAI RATILAL PANCHAL (DHARVA PARMAR) & 2 - Appellant(s) Versus SHANTIBHAI RATILAL PARMAR (DHARVA PARMAR) & 7 - Respondent(s) ========================================================= Appearance : MR AMIT N PATEL for Appellant(s) : 1 - 3. MR NILESH M SHAH for Respondent(s) : 1,3 - 4, 6, MR MB GANDHI for Respondent(s) : 2, 5,7 - 8. MR CHINMAY M GANDHI for Respondent(s) : 2, 5,7 - 8. AO/327/2007 2/8 JUDGMENT ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 11/07/2008 ORAL JUDGMENT 1. Appeal From Order No.327 of 2007 is admitted. 2. Mr.Nilesh M.Shah, learned advocate waives the service of notice of admission on behalf of the respondent Nos.1, 3, 4 and 6 and Mr.M.B. Gandhi, learned advocate waives the service of notice of admission on behalf of the respondent Nos.2,5,7 and 8. 3. With the consent of the learned advocate appearing on behalf of the respective parties, Appeal From Order is taken up for final hearing today. 4. In the present Appeal From Order, the appellants herein – original plaintiffs have challenged the order passed by the learned Chamber Judge, City Civil Court No.5, Ahmedabad dtd.16/7/2007 below notice of motion in dismissing the notice of motion mainly on the ground that the City Civil Court would not have any jurisdiction to entertain the suit in question in view of secs.7 and 8 of AO/327/2007 3/8 JUDGMENT the Family Courts Act. 5. The appellants herein original plaintiffs have filed Civil Suit No.1038 of 2004 in City Civil Court at Ahmedabad seeking various reliefs inter-alia for partition of the properties of Joint Hindu Family of the original defendants and for accounts as prayed in para 7 of the plaint. In the said suit, the plaintiffs have taken out notice of motion seeking temporary injunction restraining the defendants from transferring, alienating and/or assigning the movable and immovable suit properties and also seeking maintenance of Rs.10,000=00 per month during pendency of the suit. The defendants filed their reply at Ex.15. The appellants – original plaintiffs filed Affidavit-in- rejoinder at Ex.18. That the learned trial court passed ad- interim order directing the defendants to pay interim maintenance of Rs.10,000 per month to the original plaintiffs from the date of the suit regularly. The defendants resisted the notice of motion mainly on the ground that the City Civil Court at Ahmedabad would not have any jurisdiction in view of sec.7 and 8 of the Family Courts Act and the learned Chamber Judge, City Civil Court No.5, Ahmedabad by the impugned order dtd.16/7/2007 passed below notice of motion, accepted AO/327/2007 4/8 JUDGMENT the objections raised by the defendants and dismissed the said notice of motion by observing that in view of secs.7 and 8 of the Family Courts Act, the City Civil Court at Ahmedabad would not have any jurisdiction. Being aggrieved by and dissatisfied with the same, the appellants – original plaintiffs have preferred the present Appeal From Order. 6. Mr.Amit N. Patel, learned advocate appearing on behalf of the appellants – plaintiffs has vehemently submitted that the learned trial court has misguided itself on considering the maintenance sought by the plaintiffs in the notice of motion along with the other prayers. It is submitted that the learned trial court has misread and misinterpreted secs.7 and 8 of the Family Courts Act. It is submitted that when the suit is filed by the plaintiffs for partition of the property of the Hindu Undivided Family and for accounts, the City Civil Court at Ahmedabad would have jurisdiction to entertain the suit and the said dispute would not fall within secs.7 and 8 of the Family Courts Act and therefore it is submitted that the learned Chamber Jude has not decided the notice of motion on merits and therefore, it is requested to quash and set aside the impugned order and remand the matter to the trial court for deciding the AO/327/2007 5/8 JUDGMENT notice of motion on merits. 7. Mr.M.B. Gandhi, learned advocate appearing on behalf of the respondent Nos.2,5,7 and 8 has submitted that the plaintiffs have prayed for maintenance and therefore, the trial court has rightly observed and held that in view of secs.7 and 8 of the Family Courts Act, suit in the City Civil Court at Ahmedabad is not maintainable. Mr.Gandhi has further submitted that even otherwise the defendants are paying Rs.13,000=00 per month instead of Rs.10,000 per month to the plaintiffs towards maintenance, as the plaintiffs are their family members. Mr. Nilesh M. Shah, learned advocate appearing on behalf of the respondent Nos.1, 3, 4 and 6 has supported the appellants and submitted that the order passed by the learned Chamber Judge is absolutely illegal and on misinterpretation and misreading of secs.7 and 8 of the Family Courts Act. 8. Heard the learned advocates appearing on behalf of the respective parties. 9. It is not in dispute that the appellants – original plaintiffs have filed Civil Suit No.1038 of 2004 in the City Civil Court at Ahmedabad seeking various reliefs inter-alia for partition of the properties of Hindu Undivided Family of AO/327/2007 6/8 JUDGMENT the defendants and for accounts. In the said suit, the plaintiffs have taken out notice of motion seeking temporary injunction restraining the defendants from transferring, alienating and/or assigning the movable and immovable suit properties and also seeking Rs.10,000 per month towards interim maintenance during the pendnency of the suit. Thus, the main relief sought in the suit is for partition of the properties of the Hindu Undivided Family of the defendants and for accounts. Incidentally and by way of interim relief, by taking out notice of motion, the plaintiffs have prayed for Rs.10,000 per month towards their maintenance during the pendency of the suit. Thus, this court fails to appreciate that how the suit for partition of the properties of the Hindu Undivided Family and for accounts, would fall within the purview of secs.7 and 8 of the Family Courts Act. Secs.7 and 8 of the Family Courts act would not be applicable at all with respect to the dispute and the relief sought in the suit for partition of the properties and accounts. It appears that what is weighed with the learned Chamber Judge is the maintenance amount sought by the plaintiffs during the pendency of the suit. The learned Chamber Judge has lost sight of the fact AO/327/2007 7/8 JUDGMENT that the main reliefs in the suit is for partition of the properties of the Hindu Undivided Family and for accounts. Thus, the learned Chamber Judge has misread and misinterpreted the provisions of the Family Courts Act and has not properly appreciated and considered the main reliefs sought in the suit. The learned Chamber Judge has dismissed the notice of motion only on the aforesaid ground considering secs.7 and 8 of the Family Courts Act, by observing that the suit for aforesaid relief is not maintainable in the City Civil Court at Ahmedabad and has not decided the notice of motion on merits. Under the circumstances and for the reasons stated above, the impugned order passed by the learned Chamber Judge, City Civil Court at Ahmedabad below notice of motion requires to be quashed and set aside and the matter is to be remanded to the Chamber Jude for deciding the notice of motion on merits. 10.For the reasons stated above, the Appeal From Order succeeds. The impugned order passed by the learned Chamber Judge, City Court Court No.5, Ahmedabad dtd.16/7/2007 below notice of motion Ex.6/7 in Civil Suit No.1038 of 2004 is hereby quashed and set aside and it is observed and held that the City Civil Court at AO/327/2007 8/8 JUDGMENT Ahmedabad would have jurisdiction to entertain the Civil Suit No.1038 of 2004. The learned Chamber Judge is directed to decide and dispose of the notice of motion in Civil Suit No.1038 of 2004 on merits within a period of three months from the date of receipt of this order or on production of the certified copy of this order, under intimation to this Court. Appeal From Order is accordingly allowed. In the facts and circumstances of the case, there shall be no order as to costs. 11.In view of the disposal of the Appeal From Order, no order in the Civil Application. [M.R. SHAH, J.] rafik