# Dheeraj v. Smt. Chetna Goswami

- **Citation:** (2024) 5 ILRA 2457
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-15
- **Case number:** First Appeal No. 373 of 2024
- **Bench:** Vivek Kumar Birla, Syed Qamar Hasan Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dheeraj-v-smt-chetna-goswami-52067
- **Pages:** 11

## Headnote

Family Law - Family Courts Act, 1984 -
Section 19 - Respondent (Wife) filed
petition - Guardians and Wards Act, 1890
- Section 25 - Family Court, Ghaziabad
seeking custody of her child - Appellant in
Writ Petition came to know through Court
Notice published in newspaper - Filed
application under Order VII Rule 11 read
with Section 151 of the Code of Civil
Procedure, 1908 - Raised Objection-Lacks
territorial jurisdiction to entertain the
case - Application Rejected - Hence,
instant appeal (Para - 1,3,4,5)

Held: The question whether the minor is
ordinarily residing at a given place is a
question of fact which cannot be decided
without an enquiry into the factual aspects of
the case. Moreover, the residence by volition
or by compulsion within the territorial
jurisdiction of the Court cannot be treated as
place of ordinary residence. The words
"ordinarily resides" are not identical and
cannot have the same meaning as residence
at the time of filing of the application for grant
of custody. The purpose of using the
expressions "where the minor ordinarily
resides" is perhaps to avoid the mischief that
minor may be forcibly removed to a distant
place, but still the application for minor's
custody could be filed within the jurisdiction
of the Court from whose jurisdiction he had
been removed. The scope of scrutiny at the
stage of consideration of an application under
Order VII, Rule 11 of Civil Procedure Code
1908 is confined only to the averments made
in the petition. (Para - 30, 32)

Appeal is dismissed. (E-13)

List of Cases cited:

## Text

5 All. Dheeraj Vs. Smt. Chetna Goswami
2457

28. Provisions of Section 4-K of the
UPID Act, inter alia, reads as under:

"4-K. Reference of disputes to
Labour Court or Tribunal - Where the
State Government is of opinion that any
industrial dispute exists or is apprehended, it
may at any time by order in writing refer the
dispute or any matter appearing to be
connected with, or relevant to, the dispute to
a Labour Court if the matter of industrial
dispute is one of those contained in the First
Schedule, or to a Tribunal if the matter of
dispute is one contained in the First Schedule
or the Second Schedule for adjudication.

Provided that where the dispute
relates to any matter specified in the Second
Schedule and is not likely to affect more than
one hundred workmen, the State Government
may, if it so thinks fit, make the reference to a
Labour Court."

29. A perusal of the above provisions reveal
that industrial dispute, contained in the First
Schedule, is required to be referred to a Labour
Court. The plea, sought to be raised by the
appellant-petitioner only on account of the fact
that reference was made to provisions of Section
16-A of the WJ Act and 2A of the Central ID Act
in the demand, before the Deputy Labour
Commissioner and in the claim before the Labour
Court, enumerating the events, which led to the
dismissal of the workman, wherein reference has
been made to the dispute pertaining to the
recommendations and implementation of the
Wage Board, by itself, cannot bring the subject
matter of dispute as that of wages, i.e., instead of
the same being in relation to the dismissal, the
same would be that of wages. The very fact that
the Labour Court has framed preliminary issue
about validity of the domestic enquiry also
substantiates the said aspect.

30. Insofar as, reliance placed on the
judgment in the case of Hind Filters Limited
(supra) is concerned, the subject matter of the
dispute referred by the Labour Commissioner as
noticed in para 10 of the judgment, pertains to
wages only, which is not the case in the reference
made in the present case, as such, the said
judgment has no application to the present case.

31. In view of the above facts situation, the
plea, raised by the appellant, wherein there is an
admission
pertaining
to
the
appropriate
Government being the State Government in light
of the decided cases of the appellant-organization
as laid down by learned Single Judge, the fresh
plea raised, based only on the indications made in
the demand and the claim, has no substance.

32. Consequently, no case is made out for
interference in the judgment impugned passed
by the learned Single Judge though on different
grounds. The appeal is, therefore, dismissed.

33. As the dispute is pending before the
Labour Court for over four years and it has not
yet proceeded even to the stage of crossexamination on the aspect of fairness of the
enquiry, the Labour Court is directed to proceed
with the matter with utmost expedition as the
termination pertains to the year 2016.
----------
(2024) 5 ILRA 2457
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.05.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE SYED QAMAR HASAN RIZVI, J.

First Appeal No. 373 of 2024

Dheeraj ...Appellant
Versus
Smt. Chetna Goswami ...Respondent

Counsel for the Appellant:
Satyendra Narayan Singh
2458 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondent:

Family Law - Family Courts Act, 1984 -
Section 19 - Respondent (Wife) filed
petition - Guardians and Wards Act, 1890
- Section 25 - Family Court, Ghaziabad
seeking custody of her child - Appellant in
Writ Petition came to know through Court
Notice published in newspaper - Filed
application under Order VII Rule 11 read
with Section 151 of the Code of Civil
Procedure, 1908 - Raised Objection-Lacks
territorial jurisdiction to entertain the
case - Application Rejected - Hence,
instant appeal (Para - 1,3,4,5)

Held: The question whether the minor is
ordinarily residing at a given place is a
question of fact which cannot be decided
without an enquiry into the factual aspects of
the case. Moreover, the residence by volition
or by compulsion within the territorial
jurisdiction of the Court cannot be treated as
place of ordinary residence. The words
"ordinarily resides" are not identical and
cannot have the same meaning as residence
at the time of filing of the application for grant
of custody. The purpose of using the
expressions "where the minor ordinarily
resides" is perhaps to avoid the mischief that
minor may be forcibly removed to a distant
place, but still the application for minor's
custody could be filed within the jurisdiction
of the Court from whose jurisdiction he had
been removed. The scope of scrutiny at the
stage of consideration of an application under
Order VII, Rule 11 of Civil Procedure Code
1908 is confined only to the averments made
in the petition. (Para - 30, 32)

Appeal is dismissed. (E-13)

List of Cases cited:

1. Jagdish Chandra Gupta Vs Dr. Ku. Vimla
Gupta, reported in AIR 2003 All 317

2. Manish Sehgal Vs Meenu Sehgal reported in
(2013) 202 DLT 87

3. Ruchi Majoo Vs Sanjeev Majoo reported in
(2011) 6 SCC 479
4. Jagir Kaur Vs Jaswant Singh reported in AIR
1963 SC 1521 : (1963) 2 Cri LJ 413

5. Prashant Chanana Vs Mrs. Seema alias Priya,
reported in AIR 2010 P&H 99

6. Kamla & ors. Vs KT Eshwara Sa & ors.,
reported in (2008) 12 SCC 661

7. Saleem Bhai & ors. Vs St. of Mah. and another
& ors., reported in (2003) 1 SCC 557

8. Srihari Hanumandas Totala Vs Hemant Vithal
Kamat & ors. reported in (2021) 9 SCC 99

(Delivered by Hon'ble Syed Qamar Hasan
Rizvi, J.)

1. This Appeal under Section 19 of the
Family Courts Act, 1984 arises out of the
judgment and order dated 18.03.2024
passed by the Additional Principal Judge,
Family Court No. 4, Ghaziabad in Misc.
Case No. 15/2021 under section 25 of the
Guardians and Wards Act, 1890 (Smt.
Chetna Goswami versus Dheeraj).

2. The grievance of the appellant is
that the learned Court below, vide
impugned order dated 18.03.2024, has
rejected his application filed under Order
VII Rule 11 of the Code of Civil Procedure,
1908.

3. The relevant facts of the case, in
brief, are that the respondent, Smt. Chetna
Goswami filed a petition having Case No.
15 of 2021 under section 25 of the
Guardians and Wards Act, 1890, before the
learned Family Court at Ghaziabad seeking
custody of her child, namely, Master Kunj
having date of birth as 18.08.2013.

4. The case of the appellant as
narrated in the writ petition is that after
coming to know about the case through
5 All. Dheeraj Vs. Smt. Chetna Goswami
2459
Court Notice published on 22.10.2021 in
the newspaper 'Rastriya Sahara', he
preferred an application under Order VII
Rule 11 read with Section 151 of the Code
of Civil Procedure, 1908, in Case No. 15 of
2021 pending before the Court of
Additional Principal Judge, Family Court
No. 4, Ghaziabad, inter alia, praying for the
dismissal of the aforesaid case filed by the
respondent under Section 25 of the
Guardians and Wards Act, 1890. The
ground taken by the Appellant in the said
application filed under Order VII Rule 11
of the Code of Civil Procedure, 1908 was
that Family Court at Ghaziabad lacks
territorial jurisdiction to entertain the said
case, as the minor is currently studying at
K.M. Public School (Senior Secondary),
Bhiwani, Haryana.

5. The learned Court below on the
basis of the averments made in the
application under Order VII Rule 11 of the
Code of Civil Procedure, 1908, passed a
detailed order dated 18.03.2024 whereby
the application filed by the appellant was
rejected. For a ready reference, extract of
the said order dated 18.03.2024 passed by
the Additional Principal Judge, Family
Court, Court No. 4, Ghaziabad is being
reproduced below:

"6- पत्ावली के अवलोकन से स्पि है मक प्राथटनी
की ओर से प्रस्तुत वाद मवपक्षी के मवरुद्ध अंतगटत धारा 25 गामजटयन
वाड्टस एक्ट प्रस्तुत वाद मवपक्षी के मवरुद्ध अंतगटत धारा 25 गामजटयन
वाड्टस एक्ट प्रस्तुत करके अपने नाबामलग पुत् कुंज की अमभरक्षा
मवपक्षी से हटाकर प्राथटनी को मदए जाने के अनुतोर् हेतु प्रस्तुत मकया
गया है। पत्ावली के अवलोकन से स्पि है मक मवपक्षी का स्थाई पता
आवास सं० जी-133, संजयनगर, सेक्टर-23 थाना कमवनगर,
जनपद गामजयाबाद है। मवपक्षी द्वारा पत्ावली में दामखल अपना
आधार काडट की छायाप्रमत के अवलोकन से स्पि है मक उसका स्थाई
पता जनपद गामजयाबाद है, मजससे मवपक्षी इन्कार नहीं करता है।
प्राथटना पत् 27 में के माध्यम से मवपक्षी का यह कहना है मक वतटमान
में उसका पुत् मभवानी, हररयाणा में मशक्षा ग्रहण कर रहा है व मवपक्षी
का अस्थायी पता मभतानी, हररयाणा है, मजसके समथटन में उसने
कागजात 36 ग/2 ता ग 36 / 5 दामखल मकए है। उक्त कागजात
के अवलोकन से यह स्पि होता है मक मभवानी, हररयाणा में मवपक्षी
का पता अस्थाई है जबमक उसका स्थाई पता जनपद गामजयाबाद में
है।

7- Section 9(1) Guardians and
Wards Act, 1890 deals with Court having
jurisdiction to entertain application. It
confers that if the application 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.

8- उक्त प्रामवधान से स्पि है मक न्यायालय की
क्षेत्ामधकाररता कमथत नाबमलग के स्थाई मनवास से ही मनधाटररत होगी
व इस कारण ही माननीय प्रधान न्यायाधीश द्वारा प्रस्तुत वाद दजट
रमजस्टर कर मवपक्षी को नोमटस प्रेमर्त मकया गया। कमथत नाबामलग
का स्थाई पता उसके मपता का स्थाई पता है, जो जनपद गामजयाबाद
का है, मजसे उभयपक्ष स्वीकार भी करते है। नाबामलग को पढ़ाई के
प्रयोजन से कही बाहर जनपद मभवानी हररयाणा ले जाए जाने से उसके
स्थाई मनवास के पते में कोई मवपरीत प्रभाव नहीं पड़ता है मवपक्षी के
आधार व कागज सं० 36 ग /2 में भी पता अस्थाई ही दजट है। धारा
25 गामजटयन एण्ड वाड्टस एक्ट के प्राथटना पत् के मनस्तारण में
न्यायालय को यह देखना है मक बछचे का भमवष्य मकसके पास सुरमक्षत
है व कौन उसके भलाई के मलए उत्तम पक्ष होगा। जनपद गामजयाबाद
के पररवार न्यायालय उक्त आदेश गुणदोर् पर पाररत करने का
क्षेत्ामधकार हामसल है।

9- उपरोक्त सम्पूणट मववेचना के आधार पर यह
मनष्कर्ट मनकलता है मक इस न्यायालय को प्रस्तुत वाद के सुनवाई का
क्षेत्ामधकार हामसल है व प्रस्तुत दावा आदेश 7 मनयम 11 मसमवल
प्रमिया संमहता के प्रामवधान में बामधत नहीं कहा जा सकता है व
तदनुसार प्राथटना पत् 27 में अन्तगटत आदेश 7 मनयत 11 मसमवल
प्रमिया संमहता मनरस्त मकये जाने योग्य है।
आदेि

मवपक्षी का प्राथटना पत् 27ग अंतगटत आदेश 7 मनयम
11 मसमवल प्रमिया संमहता मनरस्त मकया जाता है।

पत्ावली वास्ते सनुवाई प्राथटना पत् 26 ग
जवाबदावा/तनकी मदनांक 30-04-2024 को पेश हो/"

6. Being aggrieved by the aforesaid
order dated 18.03.2024, the appellant
preferred the instant appeal. While pressing
2460 INDIAN LAW REPORTS ALLAHABAD SERIES
the appeal, the learned Counsel for the
appellant most emphatically argued that the
learned Court below, without taking into
consideration the fact that when on
25.10.2023, the application under Order
VII Rule 11 read with Section 151 of the
Code of Civil Procedure, 1908 was filed
raising
the
question
of
territorial
jurisdiction on account of the fact that the
child lives in Bhiwani, Haryana and is
receiving his education there. As such,
petition under section 25 of the Guardians
and Wards Act,1890 could not be filed or
entertained in the Court having its
jurisdiction at Ghaziabad.

7. It has further been pleaded that on
18.03.2024, the learned Family Court has
dismissed the application filed under Order
7 Rule 11 of the Code of Civil Procedure,
1908 on the ground that the jurisdiction for
filing the Case shall be ascertained from the
permanent residence, which does not mean
permanent address of the ward. The
appellant has further submitted that the
Family Court has misinterpreted the
provisions of Section 9 (1) of the Guardians
and Wards Act, 1890 and has misconstrued
the expression "where the minor ordinarily
resides". It has further been submitted that
the question vested in the expression
"where the minor ordinarily resides" is a
mixed question of fact and law and the
same cannot be answered without holding
enquiry into the factual aspect of the
controversy.

8. Heard Sri Satyendra Narain Singh,
learned counsel for the appellant and
perused the material available on record.

9. The question that has culled out for
consideration in the instant appeal is
whether the learned court below has
committed any illegality while deciding the
application under Order VII Rule 11 of the
of the Code of Civil Procedure, 1908 by
interpreting the provisions of Section 9 of
the Guardians and Wards Act, 1890.

10. For the better appreciation of the
case, Section 9 of the Guardians and Wards
Act, 1890 is being reproduced below:

"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.

(2) If the application is with
respect to the guardianship of the property
of the 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."

11. From a bare reading of section 9
of the Guardians and Wards Act, 1890, it is
evident that sub-section (1) of Section 9
identifies the Court competent to pass an
order for the custody of the minor. Subsections (2) and (3) thereof deal with Courts
that can be approached for guardianship of
the property owned by the minor.

12. For determining the territorial
jurisdiction of the Court under section 9 of
the Guardians and Wards Act, 1890, the
5 All. Dheeraj Vs. Smt. Chetna Goswami
2461
expression "where the minor ordinarily
resides"
is
the
pivotal
point
for
consideration. The said expression has been
used in different contexts and has often
come up for interpretation before the courts
of law. While reading the said expression
"where the minor ordinarily resides", it is
imperative to see whether the minor is
ordinarily residing at a given place? This is
primarily a question of intention which, in
turn, is a question of fact. It may at best be
a mixed question of law and fact but unless
jurisdictional facts are admitted, it can
never be a pure question of law, capable of
being answered without any enquiry into
the factual aspects of the controversy.

13. While explaining the expression
"where the minor ordinarily resides", the
Hon'ble Supreme Court in the case of
Jagdish Chandra Gupta versus Dr. Ku.
Vimla Gupta, reported in AIR 2003 All
317, has been pleased to hold as under:

"19. The expression ordinarily
resides and residing at the time of the
application are not synonymous and
stipulate different situations which are not
inter-changeable. The place where the
minor ordinarily resides indicates a place
where the minor is expected to reside but
for the special circumstances. It excludes
places to which the minor may be removed)
at or about the time of the filing of the
application for the enforcement of the
guardianship and custody of the minor. The
place has to be determined by finding out
as to whether the minor was ordinarily
residing and where such residence would
have continued but for the recent removal
of the minor to different place."

14. Further, in the case of Manish
Sehgal versus Meenu Sehgal reported in
(2013) 202 DLT 87, rendered by the High
Court of Delhi and affirmed by the Hon'ble
Supreme Court of India vide its order dated
30.01.2014 in Manish Sehgal versus
Meenu Sehgal, S.L.P. (Civil) No(s). 15901590 of 2014; it has been held as follows:

"16. It is settled law that the
place of residence at the time of the filing of
the application under the Act does not help
to ascertain whether a particular court has
jurisdiction to entertain the proceedings or
not. The moving of minors from one place
to another and consequently from one
jurisdiction to another does not help the
party who raises the plea of jurisdiction.
The main question i.e. whether the minors
were ordinarily residing in any particular
place has to be primarily decided on the
facts of the particular case.

17. In view of the abovesaid facts
and circumstances as explained earlier, I
am of the view that the impugned order
cannot be interfered with. In view of facts
stated in the petition, it is clear that the
place where the children have gone to study
cannot be presumed
to be place of their
ordinary residence."

15. In the case of Ruchi Majoo versus
Sanjeev Majoo reported in (2011) 6 SCC
479, the Hon'ble Apex Court has examined
the purpose of the expression "ordinarily
resident" appearing in section 9 (1) of the
Guardians and Wards Act, 1890 and
observed as under:

"26....We may before doing so
examine the true purpose of the expression
"ordinarily resident" appearing in Section
9(1). This expression has been used in
different contexts and statutes and has often
come up for interpretation. Since liberal
interpretation is the first and the foremost
rule of interpretation it would be useful to
understand the literal meaning of the two
2462 INDIAN LAW REPORTS ALLAHABAD SERIES
words that comprise the expression. The
word "ordinary" has been defined by
Black's Law Dictionary as follows:

"Ordinary
(adj.).-Regular;
usual; normal; common; often recurring;
according to established order; settled;
customary; reasonable; not characterised
by peculiar or unusual circumstances;
belonging
to,
exercised
by,
or
characteristic of, the normal or average
individual."

The word "reside" has been
explained similarly as under:

"Reside.-Live,
dwell,
abide,
sojourn, stay, remain, lodge. (WesternKnapp Engg. Co. v. Gilbank [129 F 2d 135
(CCA 9th Cir 1942)] , F 2d at p. 136.) To
settle oneself or a thing in a place, to be
stationed, to remain or stay, to dwell
permanently or continuously, to have a
settled abode for a time, to have one's
residence or domicile; specifically, to be in
residence, to have an abiding place, to be
present as an element, to inhere as a
quality, to be vested as a right. (Bowden v.
Jensen [359 SW 2d 343 (Mo Banc 1962)] ,
SW 2d at p. 349.)"

16. The Webster's Dictionary also
gives the word "reside" a similar meaning,
which may be gainfully extracted as
follows:

"1. To dwell for a considerable
time; to make one's home; live. 2. To exist
as an attribute or quality with in. 3. To be
vested: with in."

17. In the case of Jagir Kaur versus
Jaswant Singh reported in AIR 1963 SC
1521 : (1963) 2 Cri LJ 413, the Hon'ble
Apex Court while dealing with a case under
Section 488 of the Code of Criminal
Procedure, 1973 and the question of
jurisdiction of the court to entertain a
petition for maintenance. The Court noticed
a near unanimity of opinion as to what is
meant by the use of the word "resides"
appearing in the said provision and held
that "resides" implies something more than
a flying visit to, or casual stay at a particular
place. The legal position was summed up in
the following words: (AIR p. 1524, para 8)

"8. ... Having regard to the
object sought to be achieved, the meaning
implicit in the words used, and the
construction placed by decided cases
thereon, we would define the word 'resides'
thus: a person resides in a place if he
through choice makes it his abode
permanently or even temporarily; whether
a person has chosen to make a particular
place his abode depends upon the facts of
each case."

18. Further, in the case of Prashant
Chanana versus Mrs. Seema alias Priya,
reported in AIR 2010 P&H 99, it has been
observed that Section 9 (1) makes it clear
that it is the ordinary place of residence of
the minor which determines the jurisdiction
of a particular Court to entertain an
application for guardianship of the minor.
Such jurisdiction cannot be taken away by
temporary residence elsewhere at the date
of presentation of the challan.

19. Thus, a bare perusal of section 9
(1) of the Guardians and Wards Act, 1890
makes it apparent that it is the ordinary
place of residence of minor which
determines the jurisdiction of the Court for
entertaining an application for guardianship
of the minor. Such jurisdiction cannot be
taken away by temporary residence
elsewhere on the date of presentation of the
petition. The fact that the minor is found
actually residing at the place when the
application for the guardianship of the
5 All. Dheeraj Vs. Smt. Chetna Goswami
2463
minor is made does not determine the
jurisdiction of the Court.

20. Coming to the factual matrix of
the case, it would be apt to refer to the
pleadings made in the application as
preferred by the applicant under Order 7
Rule 11 of the Code of Civil Procedure,
1908 before the Court below. In Paragraph
4 of affidavit filed in support of application
under Order VII Rule 11 of the Code of
Civil Procedure, 1908, the appellant has
deposed that the minor is currently residing
at House No. 2644, Sector 13, Bhiwani,
Haryana for the purpose of pursuing his
studies at K.M. Public School (Senior
Secondary), Bhiwani, Haryana. Further, in
Paragraph No. 5 of the said affidavit, the
appellant has stated that the minor is
presently residing at House No. 2644,
Sector 13, Bhiwani, Haryana and was
residing at the same place on the date of
filing of the said case. He has further stated
that since the minor is not residing within
the territorial jurisdiction of the Family
Court
at
Ghaziabad,
the
respondents/plaintiff has no cause of action
against him and the learned Family Court at
Ghaziabad has no jurisdiction to entertain
the said case.

22. Furthermore, the appellant has
also mentioned in Paragraph 3 of the
application filed under Order VII Rule 11
of the Code of Civil Procedure, 1908, that
the minor is presently residing at House No.
2644, Sector 13, Bhiwani, Haryana for the
purpose of education. For a better
appreciation of the case, Paragraph 3 of the
said application is reproduced hereinbelow:

"3. यह मक मास्टर कुंज वतटमान में के०एम०
पमब्लक स्कूल सीमनयर सैकेंडरी मभवानी हररयाणा में अपनी पढाई
करने के मलये मकान ने0-2644. सैक्टर-3 मभवानी हररयाणा में
मवपक्षी के पास रहता है। और मकान नं0-2644 सेक्टर 13
मभवानी हररयाणा से ही प्रमतमदन मशक्षा पाने के मलये अपने स्कूल में
आता जाता है/" (emphasis supplied)

23. From the description of address of
the appellant/defendant as mentioned in the
affidavit filed in support of the application
under Order VII Rule 11 of the Code of
Civil Procedure, 1908, it is evident that
House No. 2644, Sector-3, Bhiwani,
Haryana is his current address while he
mentioned his address as G-133, Sanjay
Nagar, Sector-23, Police Station Kavi
Nagar, District Ghaziabad. The relevant
portion of the affidavit is being extracted
below:

"शपथपत् ओर से धीरज पुत् श्री ओमप्रकाश आयु
करीब 35 वर्ट मनवासी जी- 133 संजयनगर सैक्टर-23, थाना
कमवनगर मजला गामजयाबाद उत्तर प्रदेश हाल मनवासी मकान नं02644 सैक्टर-13, मभवानी हररयाणा मनम्न प्रकार है/"
 (emphasis supplied)

24. Moreover, from a perusal of the
pleadings, it is crystallised that the
appellant himself has admitted that Master
Kunj is currently residing at House No-
2644 Sector-13, Bihwani, Haryana for the
purpose of pursuing his Education at K.M.
Public School (Senior Secondary) along
with him.

25. Be that as it may, it is noteworthy
that the question of jurisdiction has been
challenged by the appellant by way of filing
of an application under Order VII Rule 11
of the Code of Civil Procedure, 1908 which
provides for rejection of plaint under
certain specified conditions. Rule 11 of
Order VII of the Code of Civil Procedure,
1908 is extracted below:

"11. Rejection of plaint. -
2464 INDIAN LAW REPORTS ALLAHABAD SERIES

The plaint shall be rejected in the
following cases:-

(a) where it does not disclose a
cause of action;

(b) where the relief claimed is
undervalued, and the plaintiff, on being
required by the Court to correct the
valuation within a time to be fixed by the
Court, fails to do so;

(c) where the relief claimed is
properly valued, but the plaint is returned
upon paper insufficiently stamped, and the
plaintiff, on being required by the Court to
supply the requisite stamp-paper within a
time to be fixed by the Court, fails to do so;

(d) where the suit appears from
the statement in the plaint to be barred by
any law:

(e) where it is not filed in
duplicate

(f) where the plaintiff fails to
comply with the provisions of rule 9

Provided that the time fixed by
the Court for the correction of the valuation
or supplying of the requisite stamp-paper
shall not be extended unless the Court, for
reasons to be recorded, is satisfied that the
plaintiff was prevented by any cause of an
exceptional nature form correcting the
valuation or supplying the requisite stamppaper , as the case may be, within the time
fixed by the Court and that refusal to extend
such time would cause grave injustice to the
plaintiff."

26. In the case of Kamla and others
versus KT Eshwara Sa and others,
reported in (2008) 12 SCC 661, the Hon'ble
Supreme Court has been pleased to observe
as under:

"21. Order 7 Rule 11(d) of the
Code has limited application. It must be
shown that the suit is barred under any
law. Such a conclusion must be drawn
from the averments made in the plaint.
Different clauses in Order 7 Rule 11, in
our opinion, should not be mixed up.
Whereas in a given case, an application
for rejection of the plaint may be filed on
more than one ground specified in various
sub-clauses thereof, a clear finding to
that effect must be arrived at. What would
be relevant for invoking clause (d) of
Order 7 Rule 11 of the Code are the
averments made in the plaint. For that
purpose, there cannot be any addition or
subtraction. Absence of jurisdiction on
the part of a court can be invoked at
different stages and under different
provisions of the Code. Order 7 Rule 11
of the Code is one, Order 14 Rule 2 is
another.

22. For the purpose of invoking
Order 7 Rule 11(d) of the Code, no
amount of evidence can be looked into.
The issues on merit of the matter which
may arise between the parties would not
be within the realm of the court at that
stage. All issues shall not be the subject-
matter of an order under the said
provision."

27. It is settled law that for invoking
clause (d) of Order VII Rule 11 of the
Code of Civil Procedure, 1908, only the
averments made in the plaint would be
relevant and thus, for this purpose, there
cannot be any addition of subtraction. The
issue of merits of the matter would not be
within the realm of the court as the court
at that stage will not consider any
evidence or enter a disputed question of
fact or law. While dealing with the
application under Order 7, Rule 11 of the
Civil Procedure Code, 1908, the averments
made in the plaint alone are to be seen. It
is also trite that jurisdiction is a mixed
question of law and fact, and a plaint should
5 All. Dheeraj Vs. Smt. Chetna Goswami
2465
not ordinarily be rejected on the ground of
jurisdiction, without framing a distinct
issue and taking evidence.

28. In the case of Saleem Bhai and
Others versus State of Maharashta and
Others, reported in (2003) 1 SCC 557, the
Hon'ble Supreme Court held that the
averments in the plaint are germane and the
relevant facts which need to be looked into
for deciding an application under Order VII
Rule 11 of the Civil Procedure Code, 1908
are the averments in the plaint. For a ready
reference, Paragraph 9 and 10 of the said
judgment is quoted hereinbelow,

"9. A perusal of Order VII Rule
11 C.P.C. makes it clear that the relevant
facts which need to be looked into for
deciding an application thereunder are the
averments in the plaint. The trial court can
exercise the power under Order VII Rule 11
C.P.C. at any stage of the suit-before
registering the plaint or after issuing
summons to the defendant at any time
before the conclusion of the trial. For the
purposes of deciding an application under
clauses (a) and (d) of Rule 11 of Order VII
C.P.C. the averments in the plaint are
germane; the pleas taken by the defendant
in the written statement would be wholly
irrelevant at that stage, therefore, a
direction to file the written statement
without deciding the application under
Order VII Rule 11 C.P.C. cannot but be
procedural
irregularity
touching
the
exercise of jurisdiction by the trial court.
The order, therefore, suffers from nonexercising of the jurisdiction vested in the
court as well as procedural irregularity.
The High Court, however, did not advert to
these aspects.

10. We are, therefore, of the view
that for the aforementioned reasons, the
common order under challenge is liable to
be set aside and we, accordingly, do so. We
remit the cases to the trial court for
deciding the application under Order VII
Rule 11 C.P.C. on the basis of the averments
in the plaint, after affording an opportunity
of being heard to the parties in accordance
with law."

29. The Hon'ble Supreme Court in the
case of Srihari Hanumandas Totala
versus Hemant Vithal Kamat and Others
reported in (2021) 9 SCC 99, has been
pleased to deal the scope of Order VII Rule
11 of the Code of Civil Procedure, 1908 and
has laid down as under:

"24. In a more recent decision of
this Court in Shakti Bhog Food Industries
Ltd. v. Central Bank of India and Another, a
three Judge bench of this Court, speaking
though Justice AM Khanwilkar, was
dealing with the rejection of a plaint under
Order 7 Rule 11 by the Trial Court, on the
ground that it was barred by limitation. The
Court referred to the earlier decisions
including in Saleem Bhai v. State of
Maharashtra, Church of Christ Charitable
Trust (supra), and observed that: (Church
of Christ Charitable Trust case, SCC p.
714, para 11)

"11..... It is clear that in order to
consider Order 7 Rule 11, the court has to
look into the averments in the plaint and the
same can be exercised by the trial court at
any stage of the suit. It is also clear that the
averments in the written statement are
immaterial and it is the duty of the Court to
scrutinize the averments/pleas in the plaint.
In other words, what needs to be looked into
indeciding such an application are the
averments in the plaint. At that stage, the
pleas taken by the defendant in the written
statement are wholly irrelevant and the
matter is to be decided only on the plaint
averment. These principles have been
2466 INDIAN LAW REPORTS ALLAHABAD SERIES
reiterated in Raptakos Brett & Co. Ltd. v.
Ganesh Property, (1998) 7 SCC 184 and
Mayar (H.K.) Ltd. v. Vessel M.V. Fortune
Express, (2006) 3 SCC 100."

25. On a perusal of the above
authorities, the guiding principles for
deciding an application under Order 7 Rule
11(d) can be summarized as follows:

25.1. To reject a plaint on the
ground that the suit is barred by any law,
only the averments in the plaint will have to
be referred to;

25.2. The defense made by the
defendant in the suit must not be considered
while
deciding
the
merits
of
the
application;

25.3. To determine whether a suit
is barred by res judicata, it is necessary that
(i) the 'previous suit' is decided, (ii) the
issues in the subsequent suit were directly
and substantially in issue in the former suit;
(iii) the former suit was between the same
parties or parties through whom they claim,
litigating under the same title; and (iv) that
these issues were adjudicated and finally
decided by a court competent to try the
subsequent suit; and

25.4. Since an adjudication of the
plea of res judicata requires consideration
of the pleadings, issues and decision in the
'previous suit', such a plea will be beyond
the scope of Order 7 Rule 11 (d), where only
the statements in the plaint will have to be
perused."

30. The question whether the minor is
ordinarily residing at a given place is
primarily a question of fact which cannot be
decided without an enquiry into the factual
aspects of the case. Moreover, the residence
by volition or by compulsion within the
territorial jurisdiction of the Court cannot
be treated as place of ordinary residence.
The words "ordinarily resides" are not
identical and cannot have the same
meaning as residence at the time of filing of
the application for grant of custody. The
purpose of using the expressions "where
the minor ordinarily resides" is perhaps to
avoid the mischief that minor may be
forcibly removed to a distant place, but still
the application for minor's custody could be
filed within the jurisdiction of the Court
from whose jurisdiction he had been
removed or in other words where the minor
would have continued to remain but for his
removal.

31. In the case of Ruchi Majoo versus
Sanjeev Majoo reported in (2011) 6 SCC
479, the Hon'ble Supreme Court while
considering section 9(1) of the Guardians
and Wards Act, 1890 has held that solitary
test for determining the jurisdiction of the
Court under section 9 Guardians and Wards
Act, 1890 is ordinary residence of the
minor. The expression used in section 9 (1)
is "where the minor ordinarily resides".
Whether the minor is ordinarily residing at
a given place is primarily a question of
intention which in turn is a question of fact.
It may at best be mixed question of law and
fact. It has further been held that unless
jurisdictional facts are admitted, the
question "where the minor ordinarily
resides" can never be pure question of law,
capable of being answered without an
enquiry into the factual aspects of the
controversy. (emphasis supplied)

32. In the instant case, the factum of
'ordinary residence' of the minor is a
disputed question of fact and thus, the
question whether the Court at Ghaziabad
has territorial jurisdiction to entertain the
petition under Section 25 of the Guardians
and Wards Act, 1890 is a mixed question of
law and fact. The aforesaid question cannot
be determined without holding an enquiry
into the factual aspects of the controversy
5 All. Smt. Mridula Singh Vs. L.D.A.
2467
and without framing a distinctive issue in
this regard. The scope of scrutiny at the
stage of consideration of an application
under Order VII, Rule 11 of Civil
Procedure Code 1908 is confined only to
the averments made in the petition. Thus,
the question whether the Court has
territorial jurisdiction being mixed question
of law and fact cannot be decided by way
of an application under Order VII, Rule 11
of the Civil Procedure Code, 1908.

33. In view of the deliberations made
in preceeding paragraphs and also the
factual matrix of the case, this court is of
the considered opinion that the learned
Court below has rightly rejected the
application filed by the appellant-defendant
under Order VII Rule 11 of the Civil
Procedure Code, 1908. The present Appeal
does not call for any interference by this
Court. Accordingly, the same is dismissed,
being devoid of merits.

34. However, it is made clear that this
Court has not expressed any opinion on the
merits of the case and the observations in
the present judgment are only for the
purpose of deciding the present appeal and
will have no bearing on the adjudication of
the
case
and/or
any
other
related
proceedings. It is further provided that
while deciding the issue of its' territorial
jurisdiction, the learned Court below shall
not, in any manner, be influenced by the
finding recorded by it on the subject
regarding the place of residence in the
impugned order dated 18.03.2024 and shall
decide the same on merit, strictly in
accordance with law.
----------
(2024) 5 ILRA 2467
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.05.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ-C No. 1002479 of 2010

Smt. Mridula Singh ...Petitioner
Versus
L.D.A. ...Opp. Party

Counsel for the Petitioner:
Sudeep Seth, Brijesh Kumar Singh

Counsel for the Opp. Parties:
D.K. Upadhyaya, Ajaay Kumar Singh, Dipesh
Shukla,
Mahendra
Pratap
Singh,
Naveen
Chandra Upadhyay, Rajesh Singh Chauhan

A. Transfer of Property Act, 1882 -
Sections 105 & 107 - Registration Act,
1908 - Sections 17(1)(d) & 49 - Effect of
Non-Registration of Lease Deed - A lease
deed dated 05.12.2000, executed in favor
of the petitioner for a period of 30 years,
with an annual rent reserved, required
mandatory registration under S. 17(1)(d)
of the Registration Act and S. 107 of the
Transfer of Property Act, 1882. The Court
held
that
in
the
absence
of
such
registration, the lease deed did not confer
any right, title, or interest in the property
upon the petitioner. Further, as per S. 49
of the Registration Act, the unregistered
lease deed is not admissible in evidence to
establish any right under the transaction
of the lease between the parties. (Para 42)

B. Transfer of Property Act, 1882 -
Sections 113 & 116 - Waiver of Notice to
Quit - Effect of Holding Over: Mere
acceptance of rent by the L.D.A. does not
constitute an act of intention to treat the
garden lease as subsisting, nor does it
create a tenancy by holding over. Despite
rent acceptance, the L.D.A. repeatedly
asked the petitioner to vacate the land and
initiated
eviction
proceedings.
After
issuing a notice to vacate, no further rent
was
accepted
by
the
L.D.A.
Held,
acceptance of rent cannot be construed as
a waiver of notice or an intention to
continue
the
lease.
The
petitioner's