Sithara Mary Sunny v. Sharon Lee Jose

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 21[ST] DAY OF JUNE 2023 / 31ST JYAISHTA, 1945 REVIEW PETITION NO. 545 OF 2023** **AGAINST THE JUDGMENT DATED 13.04.2023 IN OP (FC) 196/2023 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/PETITIONER:** **SITHARA MARY SUNNY** **AGED 31 YEARS, D/O. SUNNY SEBASTIAN, MALIEAKKAL VEEDU, RUBY NAGAR, MANGANAMKARA, KOTTAYAM, NOW RESIDING AT THAMANNA, ISWAR NAGAR, MANIPAL, UDUPPI, KARNATAKA,, PIN – 576101. BY ADV B.SAINU** ## **RESPONDENT/RESPONDENT:** **SHARON LEE JOSE** **AGED 37 YEARS, S/O. K.G. JOSE, KOCHUTHODIYIL VEEDU, RAMAVARMAPURAMKARA, THRISSUR, PIN – 680631.** **BY ADV LATHEESH SEBASTIAN** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 05.06.2023, THE COURT ON 21.06.2023 DELIVERED THE FOLLOWING:** 2 Review Petition No.545 of 2023 in O.P.(FC) No.196 of 2023 ## **O R D E R** ## P.G. Ajithkumar, J. The petitioner in O.P.(FC) No.196 of 2023 has filed this Review Petition under Order XLVII, Rule 1 of the Code of Civil Procedure, 1908. She seeks to review the judgment dated 13.04.2023 by which that Original Petition was dismissed. 2. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 3. The petitioner is the respondent in O.P.(G&W) No.878 of 2019 on the file of the Family Court, Kollam. She filed I.A.No.20 of 2023 requiring the Family Court to take action for return of the said original petition for want of territorial jurisdiction to entertain that matter. The petitioner relying on the affidavit filed by the respondent in lieu of chiefexamination in O.P.(G&W) No.878 of 2019 had filed I.A.No.20 of 2023. According to the petitioner, the respondent admitted in the said proof affidavit that the petitioner along with the child at the time of filing said original petition, was not 3 Review Petition No.545 of 2023 in O.P.(FC) No.196 of 2023 residing within the territorial limits of the Family Court, Kollam. 4. The Family Court as per the order dated ## 15.03.2023 dismissed I.A.No.20 of 2023 holding as follows:- “4. In the light of the above order, all the cases have been taken up together and conducted the trial and after closing evidence, the cases now stands for final hearing. Thereafter, the present petition is filed. It is to be noted that there was already the order of the Hon'ble High Court to try all the cases together and to dispose them all together at the earliest opportunity. The present petition filed after posting the cases for final hearing is without any bona fides and is only to delay the proceedings. It is also to be noted that the name and address of the minor petitioner in MC comes within the jurisdiction of the Family Court, Kollam. Moreover, OP No.265/2018 pending before the Family Court, Thrissur was also transferred to this court, by the Hon'ble High Court. It is only for a short interval, for the purpose of her education, the petitioner along with the minor child, went to Manipal, Uduppi. In the above circumstances, I find no merits in the petition and the petition is liable to be dismissed.” 4 Review Petition No.545 of 2023 in O.P.(FC) No.196 of 2023 5. When the said order was challenged by the petitioner in O.P.(FC) No.196 of 2023, this Court did not accept the contention of the petitioner. In the judgment dated 13.04.2023 this Court observed that it was after the commencement of the joint trial in O.P.(G&W) No.878 of 2019 along with three other connected cases, the petitioner had raised the question regarding territorial jurisdiction. Further, it was observed that as per the order in Transfer Petition (C) Nos.290, 291 and 292 of 2021 the Family Court, Kollam was directed to try and dispose of the aforesaid cases together. 6. The petitioner would now contend that in the light of the admission of the respondent in the proof affidavit filed by him that the place of residence of the child at the time of filing of O.P.(G&W) No.878 of 2019 was Kottayam and not Kollam, the Family Court, Kollam would not get territorial jurisdiction. By virtue of the provisions of Section 9 of the Guardian and Wards Act, 1890 the court within whose jurisdiction the child ordinarily resides alone has jurisdiction. The concern of the petitioner is that when the Family Court, 5 Review Petition No.545 of 2023 in O.P.(FC) No.196 of 2023 Kollam decides the said case without having territorial jurisdiction, the decision rendered by the said court would be a _coram non judice_ and inoperative. It is contended that since O.P.(FC) No.196 of 2023 was dismissed without taking that into account, it is an error requiring review. ## 7. In **K.P.Ranga Rao v. K.V.Venkatesham** ## **[(2015) 13 SCC 514]** the Apex Court held as follows,- ## “7. We find that **Pathumma v. Kuntalan Kutty** - **[(1981) 3 SCC 589]** really concludes the matter before us. In paragraphs 5 and 6 of the judgment, it is stated as under: - “5. In order that an objection to the place of suing may be entertained by an appellate or revisional court, the fulfilment of the following three conditions is essential: - (1) The objection was taken in the court of first instance, (2) It was taken at the earliest possible opportunity and in cases where issues are settled, at or before such settlement, (3) There has been a consequent failure of justice. 6. All these three conditions must co-exist. Now in the present case Conditions 1 and 2 are no doubt fully satisfied; but then before the two appellate courts below could allow the objection to be taken, 6 Review Petition No.545 of 2023 in O.P.(FC) No.196 of 2023 it was further necessary that a case of failure of justice on account of the place of suing having been wrongly selected was made out. Not only was no attention paid to this aspect of the matter but no material exists on the record from which such failure of justice may be inferred. We called upon learned counsel for the contesting respondents to point out to us even at this stage any reason why we should hold that a failure of justice had occurred by reason of Manjeri having been chosen as the place of suing but he was unable to put forward any. In this view of the matter we must hold that the provisions of the sub-section above extracted made it imperative for the District Court and the High Court not to entertain the objection whether or not it was otherwise well founded. We, therefore, refrain from going into the question of the correctness of the finding arrived at by the High Court that the Manjeri Court had no territorial jurisdiction to take cognizance of the application praying for final decree”. 8. Obviously Section 21 will apply in the three situations mentioned therein. The first situation refers to the place of suing. The second situation refers to pecuniary limits of the Court's jurisdiction and the third refers to local limits of the Court's jurisdiction. In each of these cases it is stated that an Appellate Court or Revisional Court 7 Review Petition No.545 of 2023 in O.P.(FC) No.196 of 2023 shall not allow an objection to the place of suing (which refers to Section 16 in the present case) unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement. What follows is important. An objection as to place of suing cannot be allowed unless there has been a consequent failure of justice. (Underline supplied) 8. This question was considered by the Apex Court again in **Sneh Lata Goel v. Pushplata [(2019) 3 SCC** **594]** , where it was held that Section 21 of the Code makes it clear that an objection to the want of territorial jurisdiction does not travel to the root of or to the inherent lack of jurisdiction of a civil court to entertain the suit. Hence, it has to be raised before the court of first instance at the earliest opportunity, and in all cases where issues are settled, on or before such settlement. Moreover, it is only where there is a consequent failure of justice that an objection as to the place of suing can be entertained. Both these conditions have to be satisfied. 9. The Apex Court laid down the law in the aforesaid 8 Review Petition No.545 of 2023 in O.P.(FC) No.196 of 2023 decisions in the context of Section 21 of the Code. But that principle is applicable to the matrimonial disputes before the Family Courts, which are also cases of civil nature. The petition moved by the petitioner before the Family Court, Kollam, for return of the O.P.(G&W) No.878 of 2019, after the commencement of the trial, could not be entertained in the light of the aforesaid position law. 10. The apprehension of the petitioner is that if a decision is rendered by the Family Court, Kollam, it will be a nullity and inoperative for want of territorial jurisdiction. In **Hiralal v. Kalinath [AIR 1962 SC 199]** the Apex Court held that the objection as to local jurisdiction of a court does not stand on the same footing as an objection to the competence of a court to try a case. The competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand, an objection as to the local jurisdiction of a court can be waived and this principle has been given a statutory recognition by enactments like S.21 of the Code of Civil 9 Review Petition No.545 of 2023 in O.P.(FC) No.196 of 2023 Procedure. 11. The Apex Court in **Hasham Abbas Sayyad v. Usman Abbas Sayyad [(2007) 2 SCC 355]** held that a distinction must be drawn between a decree passed by a court that has no territorial or pecuniary jurisdiction in the light of Section 21 of the Code of Civil Procedure; and a decree passed by a court having no jurisdiction in regard to the subject matter of the suit. Whereas in the former case, the appellate court may not interfere with the decree unless prejudice is shown, ordinarily, the second category of the cases would be interfered with. This principle was reiterated in **K.P.Ranga Rao v. K.V.Venkatesham and others [(2015) 13 SCC 514].** 12. Therefore, when a case has been tried by a court on the merits and judgement rendered, it should not be liable to be reversed purely on technical ground of lack of territorial jurisdiction, unless it had resulted in failure of justice. Whether there would be prejudice if the Family Court, Kollam decides O.P.(G&W) No.878 of 2018 is not a matter for 10 Review Petition No.545 of 2023 in O.P.(FC) No.196 of 2023 consideration at this stage. The petitioner does not rather plead also about a possibility of prejudice in the event of the Family Court, Kollam decides O.P.(G&W) No.878 of 2019. That case is being tried by the Family Court, Kollam along with three other cases between the same parties. That too, on the basis of a direction of this Court. In the said circumstances, the contention of the petitioner that the judgement dated 13.04.2023 in O.P.(FC) No.196 of 2023 by which this Court refused to interfere with the order of the Family Court rejecting the petitioner’s plea for return of O.P. (G&W) No.878 2019 for want of territorial jurisdiction does not suffer from any error. 13. In **Meera Bhanja v. Nirmala Kumari Choudhury [(1995) 1 SCC 170]** the Apex Court held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1 of the Code. 14. In **Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715]** the Apex Court, in the context of the power of review 11 Review Petition No.545 of 2023 in O.P.(FC) No.196 of 2023 under Order XLVII, Rule 1 of the Code held that, a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error that is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order XLVII, Rule 1 of the Code. In the exercise of the jurisdiction under Order XLVII, Rule 1 of the Code, it is not permissible for an erroneous decision to be “reheard and corrected”. A review petition has a limited purpose and cannot be allowed to be “an appeal in disguise”. 15. In **Lily Thomas v. Union of India [(2000) 6 SCC 224]** the Apex Court reiterated that, the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated as an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. 16. In **Anantha Reddy N. v. Anshu Kathuria [(2013) 15 SCC 534]** the Apex Court held that, the review 12 Review Petition No.545 of 2023 in O.P.(FC) No.196 of 2023 jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/judgment does not call for a review. The mistake apparent on record means that the mistake is self-evident, needs no search, and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit the rehearing of the matter on merits. 17. The Apex Court in **S.Madhusudhan Reddy v. V.Narayana Reddy and others [2022 SCC OnLine SC 1034 : 2022 (5) KLT SN 18]** held that the court’s jurisdiction of review is not the same as that of an appeal. A judgment can be open to review if there is a mistake or an error apparent on the face of the record, but an error that has to be detected by a process of reasoning, cannot be described as an error apparent on the face of the record for the Court to exercise its powers of review under Order XLVII, Rule 1 of the Code. 18. In the light of the law laid down in the aforesaid decisions, the conclusion is irresistible. The Review 13 Review Petition No.545 of 2023 in O.P.(FC) No.196 of 2023 Petition lacks merits. Accordingly, the Review Petition is dismissed. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr