1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 22ND DAY OF APRIL, 2024 R

BEFORE

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

WRIT PETITION No.6789 OF 2023 (GM-FC)

BETWEEN:

1. SAMIULLA SAHEB
S/O LATE ABDUL GAFFAR
AGED ABOUT 56 YEARS,

2. MUBEEN TAJ
W/O SAMIULLA SAHEB
AGED ABOUT 46 YEARS.

BOTH ARE RESIDING AT:

NEXT TO JAMIYA MASJID MADANI MOHALLA
MAMBALLI POST AND HOBLI
YALANDUR TALUK
CHAMARAJANAGARA – 571 442.
... PETITIONERS

(BY SRI. MOHAMMED TAHIR, ADVOCATE)

AND:

MOHAMMED SAMEER
S/O REHAMUTHULLA
AGED ABOUT 28 YEARS
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R/AT DOOR NO.3146/2, 1ST STAGE

2ND CROSS, RAJIVNAGAR
MYSURU – 570 019.
... RESPONDENT

(BY SRI. H.A.PURUSHOTHAMA PRASANNA, ADVOCATE)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND

227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
IMPUGNED ORDER DTD 03/02/2023, PASSED IN G AND WC NO.
49/2021 BY THE HONBLE III PRL. FAMILY JUDGE AT MYSORE, AT
ANNEXURE-A.

THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED

FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE
COURT MADE THE FOLLOWING:-

ORDER

The petitioners are, defendants in G & W.C.No.49 of 2021,

they are before this Court calling in question an order dated

03-02-2023 passed by the III Additional Principal Family Judge,

Mysuru rejecting the application filed by the petitioners under Order

VII Rule 10 r/w Section 151 of the Code of Civil Procedure seeking

return of the plaint to be presented before an appropriate Court.

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2. Heard Sri. Mohammed Tahir, learned counsel appearing for

the petitioners and Sri H.A. Purushothama Prasanna, learned

counsel appearing for the respondent.

3. The facts, in brief, are as follows:-

The petitioners are the parents-in-law of the respondent.

Daughter of the petitioners and the respondent got married and

from the wedlock a child is born. The daughter of the petitioners

who is the wife of the respondent dies on 16-05-2021 and since

then it is the case of the petitioners that minor child is in their

custody. The respondent, father of the minor child, registers G &

W.C. petition before the Family Court at Mysuru in G & W.C. No.49

of 2021 on 21-12-2021 seeking custody of the minor child claiming

that the child should be with the father. The petitioners - the

defendants file an application seeking return of the plaint and

transfer of the case to a Court of appropriate jurisdiction. The

concerned Court, by its order dated 03-02-2023, rejected the

application filed by the petitioners. It is the rejection that has

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driven the petitioners/defendants to this Court in the subject

petition.

4. The learned counsel Sri. Mohammed Tahir appearing for

petitioners submits that the child is a resident at Yelandur,

Chamarajnagar District staying with grandparents/petitioners

herein. The respondent is a resident of Mysuru. The learned counsel

would submit that where the child resides would be the jurisdiction

of the Court and not where the relatives or the father or the mother

would reside. It is, therefore, his contention that the concerned

Court has erred in rejecting the application filed by the petitioners.

5. Per-contra, the learned counsel appearing for the

respondent would refute the submissions to contend that the

biological father resides in Mysuru. Merely because the child is in

the custody of the petitioners, after the death of their daughter,

would not clothe jurisdiction to the Court at Mysuru. He would

further contend that the application is filed by the defendants,

which would not be maintainable in terms of Order VII Rule 10 of

the CPC. Therefore, on the said ground, he seeks dismissal of the

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petition contending that the order does not warrant any

interference.

6. I have given my anxious consideration to the submissions

made by the respective learned counsel and have perused the

material on record.

7. The issue lies in a narrow compass. The afore-narrated

facts are a matter of record. The respondent registers G & W.C

case in G. & W.C. No.49 of 2021 seeking custody of the child who is

presently with the petitioners. After receipt of the notice from the

hands of the concerned Court, the petitioners/defendants preferred

an application in I.A.No.VII under Order VII Rule 10 r/w 151 of the

CPC for return of the petition for want of territorial jurisdiction. The

contentions are as narrated hereinabove. The concerned Court, by

its order dated 03-02-2023 rejects the application by the following

order:

“…. …. ….

8. As far as contention of respondents that as per

Sec.9 of Guardian and Ward's Act this petition has to be
fled before the court within jurisdiction of which the
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minor is residing is concerned, the case of respondent is not

sustainable and sec.9 of Guardian and Ward's Act is not
applicable to case on hand. Sec.9 of Guardian and Ward's Act, is
applicable where the petition for appointment of a guardian of a
minor or of his property is filed. Here in this case, the question
of guardianship or the property of minor is not involved.
Therefore, this case will not come within the purview of sec.9 of
Guardian and Ward's Act. Hence, the contention of the
respondents that this court has no territorial jurisdiction to
entertain the petition, is not acceptable. This petition is filed
for custody of minor son of petitioner. The fact that the
petitioner is natural guardian of minor and now the minor
is under custody of parents-in-law of petitioner are
undisputed facts. Hence, Sec.9 of Guardian and Ward's
Act is not applicable to case on hand.

9. More over, in this case, the respondents have

appeared before court on 16/04/2022 and are represented by
Advocate with permission of court. Thereafter, till 01/06/2022,
the respondents did not chose to file objections to main petition.
Thereafter, when case was posted for respondents' evidence,
the respondents came with application seeking permission to file
objections to main petition. However, this court has permitted
the respondents to file objections and posted the case for cross-
examination of Pw1 on 29/11/2022. When the matter was fixed
for cross-examination of Pw1, the respondents have come up
with present application raising objection with regard to
territorial jurisdiction of this court. As per provision of CPC., No
objection as to the place of suing shall be allowed by Court
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, and unless there has
been a consequent failure of justice. Therefore, it is clear from
perusal of materials on record that the respondent has not
raised objection with regard to territorial jurisdiction of this
court at the earliest possible opportunities immediately after
their appearance before court or before commencement of
evidence of petitioner and thereby they acquiesce the territorial
jurisdiction of court. More over, the respondent participated in
reconciliation process. The respondent waited till the case was
posted for cross-examination of Pw1. Then the respondents
have raised objections with regard to territorial
jurisdiction and filed this application. From these
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circumstances, it is clear that the case of petitioner that

the respondent wish to deprive the petitioner of his
company with his minor son and to cause delay in
disposal of the case, they are trying to drag on the matter
on one or the other reason is more probable. Perusal of
facts and circumstances of the case show that since the
minor is now aged about 1½ years, the petitioner being
natural guardian of minor son has every right to seek
custody of child. If the petition is not disposed of within
reasonable time, then there are chances of child to lose
love and affection of its father at right time, at right age.
The love & affection of father is necessary for overall welfare of
the child. For these reasons, it is opined that the application
filed by respondents at belated stage of the case, for return of
petition, is not maintainable. If this application is allowed, then
the rights of petitioner who is natural guardian of minor child
will be affected. Hence to avoid miscarriage of justice it is
necessary to reject application of respondents. For these
Reasons above point is answered in Negative.”
(Emphasis added)

The Court rejects the application on the score that Section 9 of the

Guardians and Wards Act, 1977 (‘the Act’ for short) is not

applicable to the fact situation and the case has travelled up to the

stage of cross-examination and the petitioners have not filed their

written statement to the main petition. The application so rejected,

is on the face of it, contrary to law. Section 9 of the Act reads as

follows:

“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.
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(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.”

(Emphasis supplied)

Section 9 permits filing of an application in the Court having

jurisdiction of the place in which the minor ordinarily resides.

Therefore, the law itself directs that the application for guardianship

of a minor should be filed before the Court where the minor child

resides, only that Court is conferred with jurisdiction. It is trite law

that a Court without jurisdiction, even if it has travelled upto the

stage of reserving the matter for its judgment, would be a

proceeding which is a nullity in law, as no amount of consent or

acquiescence, of the parties, would confer jurisdiction on any Court,

which does not have such jurisdiction. It is admitted that the

petitioners and the minor child are residing at Yelandur which

comes within the jurisdiction of Chamarajnagar District. It is again

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settled principle of law that it is not where the father or mother

resides that would confer jurisdiction, but it is where the child

resides.

8. The Apex Court interpreting Section 9 of the Act in the

case of RUCHI MAJOO v. SANJEEV MAJOO1 has held as follows:-

“…. …. ….

22. It is in the light of the above averments that the

question whether the courts at Delhi have the jurisdiction to
entertain a petition for custody of the minor shall have to be
answered.

23. Section 9 of the Guardians and Wards Act, 1890 makes a

specific provision as regards the jurisdiction of the court to
entertain a claim for grant of custody of a minor. While sub-section
(1) of Section 9 identifies the court competent to pass an order for
the custody of the person of the minor, sub-sections (2) and (3)
thereof deal with courts that can be approached for guardianship of
the property owned by the minor. Section 9(1) alone is, therefore,
relevant for our purpose. It says:

“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.”

24. It is evident from a bare reading of the above that

the solitary test for determining the jurisdiction of the court
under Section 9 of the Act is the “ordinary residence” of the
minor. The expression used is “where the minor ordinarily
resides”. Now whether the minor is ordinarily residing at a
given place is primarily a question of intention which in turn

1
(2011) 6 SCC 479
 10

is a question of fact. It may at best be a mixed question of

law and fact, but unless the jurisdictional facts are admitted
it can never be a pure question of law, capable of being
answered without an enquiry into the factual aspects of the
controversy.

25. The factual aspects relevant to the question of

jurisdiction are not admitted in the instant case. There are serious
disputes on those aspects to which we shall presently refer.

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 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. (Western-Knapp 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.)”

27. In Webster's Dictionary also the word “reside” finds a

similar meaning, which may be gainfully extracted:

“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.”
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28. In Annie Besant v. G. Narayaniah [(1913-14) 41 IA 314

: AIR 1914 PC 41] the infants had been residing in the district of
Chingleput in the Madras Presidency. They were given in custody of
Mrs Annie Besant for the purpose of education and were getting
their education in England at the University of Oxford. A case was,
however, filed in the District Court of Chingleput for the custody
where according to the plaintiff the minors had permanently
resided. Repeating the plea that the Chingleput Court was
competent to entertain the application Their Lordships of the Privy
Council observed: (IA p. 322)

“… The District Court in which the suit was instituted had

no jurisdiction over the infants except such jurisdiction as was
conferred by the Guardians and Wards Act, 1890. By the 9th
section of that Act the jurisdiction of the court is confined to
infants ordinarily resident in the district. It is in Their Lordships'
opinion impossible to hold that infants who had months
previously left India with a view to being educated in England
and going to the University of Oxford were ordinarily resident in
the district of Chingleput.”

29. In Jagir Kaur v. Jaswant Singh [AIR 1963 SC 1521 :

(1963) 2 Cri LJ 413] this Court was dealing with a case under
Section 488 CrPC 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 provision and held that “resides” implied
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.”

30. In Kuldip Nayar v. Union of India [(2006) 7 SCC 1] the

expression “ordinary residence” as used in the Representation of
the People Act, 1950 fell for interpretation. This Court observed:
(SCC p. 96, paras 243-46)
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“243. Lexicon refers to Cicutti v. Suffolk County

Council [(1981) 1 WLR 558 : (1980) 3 All ER 689 (DC)] to
denote that the word ‘ordinarily’ is primarily directed not to
duration but to purpose. In this sense the question is not so
much where the person is to be found ‘ordinarily’, in the sense
of usually or habitually and with some degree of continuity, but
whether the quality of residence is ‘ordinary’ and general,
rather than merely for some special or limited purpose.

244. The words ‘ordinarily’ and ‘resident’ have been

used together in other statutory provisions as well and as
per Law Lexicon they have been construed as not to require
that the person should be one who is always resident or carries
on business in the particular place.

245. The expression coined by joining the two words has

to be interpreted with reference to the point of time requisite
for the purposes of the provision, in the case of Section 20 of
the RP Act, 1950 it being the date on which a person seeks to
be registered as an elector in a particular constituency.

246. Thus, residence is a concept that may also be

transitory. Even when qualified by the word ‘ordinarily’ the
word ‘resident’ would not result in a construction having the
effect of a requirement of the person using a particular place
for dwelling always or on permanent uninterrupted basis. Thus
understood, even the requirement of a person being ‘ordinarily
resident’ at a particular place is incapable of ensuring nexus
between him and the place in question.”

31. Reference may be made to Bhagyalakshmi v. K.

Narayana Rao [AIR 1983 Mad 9], Aparna Banerjee v. Tapan
Banerjee [AIR 1986 P&H 113], Ram Sarup v. Chimman Lal [AIR
1952 All 79], Vimla Devi v. Maya Devi [AIR 1981 Raj 211]
and Giovanni Marco Muzzu (Dr.), In re [AIR 1983 Bom 242], in
which the High Courts have dealt with the meaning and
purport of the expressions like “ordinary resident” and
“ordinarily resides” and taken the view that the question
whether one is ordinarily residing at a given place depends
so much on the intention to make that place one's ordinary
abode.”

(Emphasis supplied)
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The Apex Court clearly holds that in matters of custody, the

residence of the child would ordinarily decide the jurisdiction.

Ordinary residence would depend upon intention of the parties to

make the child stay in that place which would be a matter of

evidence. It is apposite to refer to a judgment of the High Court of

Madras, to which I am in complete agreement of, the High Court of

Madras in the case of C.NARASARAJU V. S.RAMESH2 has held as

follows:

“…. …. ….

14. It is well settled that the question whether one

is ordinarily residing at a given place depends so much on
the intention to make that place one's ordinary abode. In
this case, there is a clear admission in the Original
Petition by the Respondent himself that the custody of
the minor child was with the Revision Petitioner herein
right from his birth at Mysore. Therefore, I hold that the
ordinary residence of the minor, in this case, is Mysore
where the Revision Petitioner is residing and having the
custody of the minor child right from the date of his birth.
The Revision Petitioner has also proved the custody of the minor
with him from the date of his birth and he has also admitted the
child in L.K.G. in a school at Mysore. Under those
circumstances, the Court below erred in dismissing the
Application filed by the Revision Petitioner herein praying to
pass an order returning the Original Petition filed by the
Respondent herein to be presented before the proper Court
having jurisdiction for adjudication of the matter in controversy
between the parties hereto. The order passed by the Court
below is also not sustainable in the light of the decision of the
Honourable Supreme Court reported in Ruchi Majoo v. Sanjeev

2
2011 SCC OnLine Mad 2088
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Majoo, 2011 (3) CTC 873 (SC) : 2011 (6) SCC 479. Therefore,
the Court below has no jurisdiction to entertain the Petition filed
by the Respondent.”

(Emphasis supplied)

The High Court of Madras was interpreting Section 9 of the Act. The

circumstances projected before the High Court of Madras are

somewhat similar to what bears projection in the case at hand. The

High Court of Madras follows the judgment of the Apex Court in the

case of RUCHI MAJOO supra.

9. The learned counsel for the respondent has placed heavy

reliance upon Section 20 of the Code of Civil Procedure to contend

that the cause of action should be in terms of what is ascribed

therein. Therefore it becomes necessary to notice Section 20 of the

CPC and its interpretation in harmony with special enactments by

the Apex Court and other High Courts. Section 20 of the CPC reads

as follows:

“20. Other suits to be instituted where defendants

reside or cause of action arises.—Subject to the limitations
aforesaid, every suit shall be instituted in a Court within the
local limits of whose jurisdiction—
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(a) the defendant, or each of the defendants where there

are more than one, at the time of the commencement
of the suit, actually and voluntarily resides, or carries
on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at
the time of the commencement of the suit, actually and
voluntarily resides, or carries on business, or personally
works for gain, provided that in such case either the leave of
the Court is given, or the defendants who do not reside, or
carry on business, or personally works for gain, as aforesaid,
acquiesce in such institution; or

(c) The cause of action, wholly or in part, arises.

*****
Explanation.—A corporation shall be deemed to carry on
business at its sole or principal office in India or, in respect of
any cause of action arising at any place where it has also a
subordinate office, at such place.”

(Emphasis supplied)

In terms of Section 20 of the Code of Civil Procedure, a suit can be

instituted at a place where the cause of action arises be it in part or

in full, but when it comes to special enactments which have

overriding effect on any other general law, the special enactment

would prevail is what is held by the High Court of Kerala in the case

of ANOOP VIJAY v. ARUNIMA P.T.3. The High Court of Kerala

holds as follows:

3
2021 SCC OnLine Ker 267
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“18. Section 20 of the Act gives the Family Court Act

an overriding effect over all other laws. The overriding effect
of the Act under Section 20 and the applicability of CPC
made subject to the provisions of the Act, makes it
abundantly clear that, the intention of legislature was to
give exclusive jurisdiction to the Family Courts Act. Coupled
with the aforesaid statutory provisions, is the applicability of
the principle of special law prevailing over the general law.
In the instant case, the Family Courts Act is a special law
while the CPC is the general law. So viewed, the forum for
execution created under the Family Courts Act will prevail over the
forum specified under the CPC.”

I am in respectful agreement with what is rendered by the High

Court of Kerala. Therefore, the concerned Court ought to have
taken note of this fact and allowed the application filed by the
present petitioners/defendants therein.

10. Yet another submission is made by the learned counsel

for respondent that an application under Order VII Rule 10 of the

CPC could not have been maintained by the present petitioners/the

defendants before the concerned Court. I decline to accept the said

submission. Order VII Rule 10 of the CPC reads as follows:

“10. Return of plaint.—(1) 356[Subject to the provisions

of Rule 10-A, the plaint shall] at any stage of the suit be
returned to be presented to the Court in which the suit should
have been instituted.

357
[Explanation.—For the removal of doubts, it is hereby
declared that a court of appeal or revision may direct, after
 17

setting aside the decree passed in a suit, the return of the plaint
under this sub-rule.]

(2) Procedure on returning plaint.—On returning a

plaint the Judge shall endorse thereon the date of its
presentation and return, the name of the party presenting it,
and a brief statement of the reasons for returning it.”

Order VII Rule 10 of the CPC permits filing of an application for

return of plaint. Sub-section (1) of Section 10 permits the

concerned Court to return the plaint to be presented before the

Court in which the suit should have been instituted. The procedure

to be followed on returning the plaint is dealt with under sub-

section (2) of Section 10. Order VII Rule 10 of the CPC touches

upon the jurisdiction of a Court to have entertained a suit. The

question of jurisdiction cuts at the root of the matter, and if the

Court has no jurisdiction territorial or otherwise, to entertain a

plaint, it cannot. Who brings up the issue before the concerned

Court is immaterial, as Order VII Rule 10 of the CPC nowhere

indicates that it is only to be filed by the plaintiff and not the

defendant. What is brought to the notice of the Court qua

jurisdiction is what is important and not who brings it. In a given

case, a defendant/s has/have a right to file application or even raise

an oral objection for raising grounds based on Order VII Rule 10 or

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Order VII Rule 11 of the CPC. The Court cannot direct the

defendant to file a written statement for raising objections, if he

does not desire to do so. But if he chooses to do so, it is an

altogether a different circumstance, which is not the circumstance

in the case at hand.

11. The present application in the case at hand under Order

VII Rule 10 of the CPC, is filed by the defendant. Though the Court

does not reject the application on the said ground of it being filed

by the defendant, since the submission is made, I have deemed it

appropriate to consider the said submission and answer it holding

that the defendant also has a right to file an application seeking

return of the plaint under Order VII Rule 10 of the CPC, for want of

jurisdiction of a particular Court, to try the suit. The submission

that it is the right of the plaintiff only, stands repelled.

12. In the light of the preceding analysis and the judgments

rendered by the Apex Court and that of other High Courts and the

undisputed fact that the child is residing within the jurisdiction of

Chamarajnagar District, the concerned Court ought to have

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answered the application under Order VII Rule 10 of the CPC in

favour of the petitioners/defendants, as the Court before which the

main petition is presented did not have territorial jurisdiction.

13. For the aforesaid reasons, the following:

ORDER

(i) Writ Petition is allowed.

(ii) The order dated 03-02-2023 passed by the III

Additional Principal Family Judge, Mysuru in G & W.C.
49 of 2021 stands quashed.

(iii) The Application – I.A.VII filed by the petitioners under

Order VII Rule 10 r/w Section 151 of the CPC is
allowed. The petition/plaint is directed to be returned,
for it to be filed before the Court having appropriate
jurisdiction – where the child is residing.

Sd/-
JUDGE
Bkp
CT:SS