O VII R 10 CPC | Can't Dismiss Suit At Threshold If Question Of Jurisdiction Is Question Of Fact Or Mixed Question Of Fact And Law: JKL High Court

The observations were made by a bench of Justice Rajesh Sekhri while hearing appeal against an order passed by Principal Judge Family Court, whereby a suit filed by the appellant had been rejected citing lack of jurisdiction.

Before the Family Court, the appellant had sought a decree of declaration that the divorce pronounced by him upon his wife on 22 April 2022 had attained finality after the expiry of three months period. Appellant/plaintiff had also ought declaration that the woman had no right or claim in the subject properties.

Questioning the order of rejection of suit by the Principal Judge Family Court the appellant argued that since parties to the suit are living at Srinagar, the marital dispute between them arose at Srinagar, divorce was also pronounced and communicated upon the woman and the property in question also falls within the territorial jurisdiction of the Family court, therefore, the order was illegal, arbitrary, perverse and perfunctory.

After considering the contentions at length, Justice Sekhri observed that the provisions of Section 27 read with Order V Rule 1(1) of CPC are amply clear that when a suit is "duly instituted" a summons may be issued to the defendant and the use of expression "duly instituted" has to be seen in the context of the provisions of Orders VI and VII of the Code.

It explained that the first proviso to Order V Rule 1(1) of the Code itself provides that a summons must not be issued when a defendant appears at the presentation of a plaint and admits the plaintiff‟s claim. In all other cases, when a suit has been duly instituted and is not hit by either Order VII Rule 10 or Order VII Rule 11 of the Code, summons have to be issued to the defendant, it underscored.

"Therefore, it was incumbent upon learned trial court to have issued summons to the defendant, particularly because the respondent/ defendant had not appeared at the time of presentation of the plaint and did not admit the claim of the appellant/plaintiff", the bench said.

It added that the obligation to dismiss a suit at the threshold or return a plaint for want of jurisdiction does not arise if the question of jurisdiction is a question of fact or a mixed question of fact and law, and the suit cannot be thrown overboard lock, stock and barrel without affording an opportunity to the plaintiff to establish the case.

The court noted that in this case not only the residence of the parties to the suit but the cause of action with respect to the matrimonial dispute also arose within the territorial jurisdiction of the trial court. It thus expressed displeasure over the hasty return of plaint by the trial court. Justice Sekhri quoted author Lewis Carroll, "We should not endeavour to hand out hasty decisions, “the hurrier I go, the behinder I get”.

Accordingly the bench allowed the appeal and the impugned order being devoid of merit was set aside. Trial court was directed to entertain the suit and proceed with the trial of the case in accordance with law.

Case Title: Dr Jahangir Iqbal Tantray Vs Farmeeda Akhter

Citation: 2023 LiveLaw (JKL) 33

Coram: Justice Rajesh Sekhri

Counsel For Petitioner: Mr Shuja ul Haq

Click Here To Read/Download Order