Seema d/o Senan v. K.S. Jayagopal and Pioneer Shopping Complex Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN** **& THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **WEDNESDAY, THE 4TH AUGUST 2010 / 13TH SRAVANA 1932** **RFA.No. 226 of 2010()** **--------------------OS.473/2008 of II ADDL.SUB COURT,ERNAKULAM** **....................** ## **APPELLANT/1ST DEFENDANT:** **-----------------------------** **SEEMA D/O. SENAN, AGED 48 YEARS, DIRECTOR AL TAHTHEEB CONTRACTING COMPANY, P.O.BOX. 37100, NO. 107, PARTHAS BUILDINGS, ROLLA, SHRJAH, UAE REPRESENTED BY SON AND POWER OF ATTORNEY HOLDER VISHWAMITHRAN KUTTATH JAYAN.(HER ADD:WRONGLY SHOWN IN THE PLAINT &JDGT.AS PO 62076** **BY ADV. SRI.M.P.RAMNATH SRI.P.RAJESH (KOTTAKKAL)** ## **RESPONDENT(S)/PAINTIFF & 2ND DEFENDANT:** **-----------------------** **1. K.S.JAYAGOPAL, AGED 52 YEARS, S/O. SEKHARN, PRESENTLY RESIDING IN FLAT 806, PIONEER TOWERS, MARINE DRIVE, ERNAKULAM.** **2. CHAIRMAN, PIONEER SHOPPING COMPLEX LTD., PLOT NO. 1, SHANMUGHAM ROAD, MARINE DRIVE, ERNAKULAM.** **ADV. SRI.P.RADHAKRISHNAN (1) FOR R2 SRI.N.K.MOHANLAL FOR R1 SRI.T.KRISHNANUNNI (AMICUS CURIAE)** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **ORDERS ON I.A.NO.1312/2010 AND I.A.NO.1313/2010** **DISMISSED.** **4.8.2010 SD/- THOTTATHIL B. RADHAKRISHNAN, JUDGE SD/- S.S.SATHEESACHANDRAN, JUDGE** **/TRUE COPY/ P.A. TO JUDGE** **“C.R.”** ## **THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ.** **------------------------------R.F.A.NO.226 OF 2010 ----------------------------------Dated this the 4[th] day of August, 2010** ## **J U D G M E N T** ## **THOTTATHIL B. RADHAKRISHNAN, J.** This appeal is by the 1[st] defendant in O.S.No.473 of 2008 filed before the Sub Court, Ernakulam claiming certain reliefs, which, in our view, fall within those matters enumerated under Section 7 and the Explanation thereto, of the Family Courts Act, 1984, for short, the 'FC Act'. At hearing, there is also no serious dispute to this situation. 2. The marriage between the plaintiff and the 1[st] defendant ended in a divorce. An apartment in a complex, of which, the 2[nd] defendant is a builder, stands in the name of the 1[st] defendant, the divorced wife. The plaintiff sued for a declaration that the said apartment was obtained by spending his funds and, **RFA.226/10** **2** therefore, he has title to that apartment. This squarely falls within the matters enumerated in Section 7 of the FC Act, notwithstanding the fact that the marital tie between the plaintiff and the 1[st] defendant snapped even before the institution of the suit. We find that the plaintiff and the then employees of the 2[nd] defendant builder were examined as PWs.1 to 3 and the son of the couple was examined as DW1. Documentary evidence was also let in. The suit was decreed. Counter claim of the 1[st] defendant was dismissed. It is hence that the 1[st] defendant has appealed. 3. Before proceeding on to the merit of the rival contentions on the basis of pleading and evidence, we note that long before the institution of the suit before the Sub Court, the territory within which the apartment comes, was covered by the notification constituting the Family Court, Ernakulam. Obviously, therefore, the suit ought to have been laid only before the Family Court, Ernakulam. This is the net effect of the exclusion of jurisdiction resulting out of the operation of Section **RFA.226/10** **3** 8 of the FC Act. This proposition is also not disputed. 4. However, the learned counsel for the parties suggested that even if the court below did not have jurisdiction, the High Court, as the appellate court under the Act, would have the jurisdiction to try and decide the matter, and that, if for any reason, the High Court is of the view that the matter could not have been entertained by the Sub Court, it could be considered for transfer to the Family Court drawing support from the decision of the Apex Court in **Nahar Industrial Enterprises Ltd. v. Hong Kong Industrial Enterprises Ltd. ((2009) 8 SCC 646)** . It is also pointed out that the suit could be ordered to be transferred in view of the power of this Court under Section 24 (2) of the Code of Civil Procedure and the evidence having been adduced before a judicial authority, the same could be considered by the transferee court on orders by this Court. 5. At out request, Senior Adv.Sri.T.Krishnanunni very graciously assisted us as amicus curiae and took us through the **RFA.226/10** **4** relevant provisions, elucidating the nuances thereof. He said that the Family Court, do not have any appellate court other than the High Court, is not part of any independent stream with a hierarchy of courts or tribunals and, hence, the ratio of the decision in Nahar's case (supra) could be applied. He however, rightly sounded that the exclusion of jurisdiction in terms of Section 8 of the FC Act read in the light of Section 7 of the FC Act tend to show that the Sub Court could not have entertained the suit. He said that the conflict between different High Courts as to whether a proceeding pending before a court with no jurisdiction could be transferred, has been settled by the 1976 Amendments to the CPC by the introduction of sub section (5) of Section 24. He rightly says that Section 24 (1), read in the light of sub section (5) of Section 24 of the CPC enables the High Court to transfer a matter pending before a court which has no jurisdiction to a court which could have jurisdiction. Dilating on the scope of sub section (2) of Section 24 of the CPC, he pointed out that the jurisdiction of the High Court under Section 24 (2) is co-extensive with its power under Section 24 (1) and, therefore, **RFA.226/10** **5** even in cases where suits are being transferred from courts which have no jurisdiction, the transferring court, that is, this Court, exercising power under Section 24, would be well within authority to order as to whether the trial could proceed from the stage to which it had already reached. He also indicated that, unlike the District Courts or other lower courts exercising jurisdiction under Section 24 of CPC, the High Court has also the jurisdiction under Article 227 of the Constitution and this supervisory power takes within its width and scope, the power to do complete justice, as much as, the power to supervise includes the power to transfer a case from one court to any court or tribunal, which is under the supervisory jurisdiction of the High Court. ## 6. In **Durgesh Sharma v. Jayshree ((2008) 9 SCC 648)** , the sweep of the authority under Section 24 of the CPC has been elaborately dealt with. It has also been cautioned, as a reminder, that the inherent powers are not to be exercised in all cases where there is power not otherwise provided for, particularly, **RFA.226/10** **6** when the scheme of the statutory provisions tend to indicate that a transfer is not contemplated. 7. A survey of the provisions from Section 15 to Section 25 of CPC would indicate that those provisions are intended to govern the place of suing on the basis of territorial jurisdiction while the question of pecuniary jurisdiction and the direction to institute a suit in the lowest court competent to try, are covered in the State of Kerala, by the provisions of the Kerala Civil Courts Act, 1957. But, here, we are faced with the situation, whether the issue is neither one of territorial jurisdiction nor of pecuniary jurisdiction. 8. Sections 7 and 8 of the FC Act read as follows: **7. Jurisdiction** :-(1) Subject to the other provisions of this Act, a Family Court shall- (a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time begin in force in respect of suits and proceedings **RFA.226/10** **7** of the nature referred to in the Explanation; and (b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends. ## 8. **Exclusion of jurisdiction and pending proceedings:-** Where a Family Court has been established for any area,- (a) no district court or any subordinate civil court referred to in sub-section (1) of Section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section; (b) no magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974); (c) every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974); (i) which is pending immediately before the establishment of such Family Court before any district court or subordinate court referred to in that sub-section or, as the case may be, before any magistrate under the said Code; and **RFA.226/10** **8** (ii) which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall transferred to such Family Court on the date on which it is established. 9. While it may be right that the Family Court does not belong to a category of tribunals constituted under a special enactment, where there is a hierarchy, inclusive also of appellate tribunals, we need to notice that the clear legislative command contained in Sections 7 and 8 of the FC Act is the interdiction against entertainment of matters enumerated under Section 7 and the Explanation thereto, by any other court, on and from the date on which a notification is issued in relation to a particular geographical limit or territory. Therefore, on and from that date, all other courts, which exercise jurisdiction in relation to that territory, would cease to have jurisdiction in relation to those matters. To put it otherwise, they lack the power to entertain, adjudicate and decide on the matters **RFA.226/10** **9** enumerated in Section 7 of the FC Act. This lack inherent jurisdiction is the result of the exclusion provided by the combination of Sections 7 and 8 of the FC Act. Such exclusion of jurisdiction deprives the power to entertain, try and/or decide the lis. In this view of the matter, recourse could only be, obviously, to Order 7 Rule 10 of the CPC, whereby, the plaint could be returned for presentation before the appropriate court. We would also have to take into account the fact that the procedure prescribed for trial of cases by the Family Court is regulated by the provisions of that Act and it would not be wise to order transfer under Article 227 of the Constitution of India, having noticed the clear non-availability to do so in terms of Section 24 of the CPC. 10. For the aforesaid reasons, we set aside the impugned decree and judgment and remit the case to the court below with a direction to return the plaint from that end in accordance with law. Since this order of remand is being made on noticing that the court below lacked competence to try the suit, we order **RFA.226/10** **10** refund of the whole of the court fee paid on this memorandum of appeal. No costs. 11. We record appreciation for the effective assistance rendered by Adv.Sri.T.Krishnanunni, as amicus curiae. We also appreciate the efforts taken by the learned counsel of the parties to place before us all possible aspects of the matter. Appeal is accordingly remanded. The parties shall appear before the court below on 2[nd] September, 2010. ## **THOTTATHIL B. RADHAKRISHNAN JUDGE** ## **S.S.SATHEESACHANDRAN JUDGE** prp **RFA.226/10 11**