As
is apparent from the facts noted hereinabove, the respondents no.1 and 2 had filed the application before the learned Judicial Magistrate First Class, Kodinar in June, 2005. At the relevant time, the petitioner was residing within the limits of the jurisdiction of the said Court. Subsequently, the application came to be dismissed for default. However, later on, the same was restored by order dated 12th April, 2007 passed in revision by the Fast Track Court at Veraval. The case of the petitioner is that on the date of restoration, the petitioner was already transferred to village Khambhalia, Taluka Visavadar, hence, the Court at Kodinar would lose jurisdiction to decide the matter. In the opinion of this Court, the moment the application was restored, the same would relate back to the date of the application. On the day when the application was made, the petitioner admittedly was residing at village Vitthalpur of Kodinar Taluka. Therefore, it cannot be said that the application was filed before a Court not having jurisdiction to entertain the matter. Merely because the petitioner has now shifted to another place would not mean that the Court which had jurisdiction when the application was made, would lose jurisdiction to entertain and decide the matter. If such a contention is accepted, it would lead to an absurd situation whereby every time the petitioner is transferred from one place to another, the Court which has jurisdiction when the application was filed, would lose jurisdiction. In the circumstances, this Court finds no infirmity in the impugned orders passed by the Courts below so as to call for any interference by this Court.
Gujarat High Court
Himmatbhai vs Bhagwanbhai on 31 March, 2011
1. By
this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the order dated 03rd July, 2009 passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No.3, Veraval in Revision Application No.37 of 2008 affirming the order dated 28th August, 2008 passed by the Principal Civil Judge and Judicial Magistrate First Class, Kodinar below application Exh.23 in Criminal Miscellaneous Application No.79 of 2005 whereby the application made by the petitioner raising the contention that the said Court had no jurisdiction to entertain the application has been rejected.
2. The
facts stated briefly are that the respondents no.1 and 2 who happen to be the parents of the petitioner and the respondent no.3 had filed an application under Section 125 of the Code of Criminal Procedure for maintenance against the petitioner and the respondent no.3 in the Court of learned Judicial Magistrate First Class at Kodinar which came to be registered as Criminal Miscellaneous Application No.79 of 2005. It appears that the said application came to be dismissed on 18th March, 2006 on the ground of absence of the petitioners. Subsequently, the same came to be restored vide order dated 12th April, 2007 passed in a revision application filed by the respondents no.1 and 2. It appears that at the time when the order of restoration was passed, the petitioner, who is a primary teacher, was transferred from village Vitthalpur of Kodinar Taluka to village Khambhalia of Visavadar Taluka. The petitioner, therefore, moved an application (Exh.23) in Criminal Miscellaneous Application No.79 of 2005 contending that the Court at Kodinar would have no jurisdiction to entertain the application inasmuch as only the Court where the petitioner was residing would have jurisdiction to entertain and decide the application. In support of his case, the petitioner had placed reliance upon a decision of the Supreme Court in the case of Vijay Kumar Prasad vs. State of Bihar and others [2004 Criminal Law Journal 2047].
3. The
learned Judicial Magistrate, vide the impugned order dated 28th August, 2008, rejected the said application. The petitioner carried the matter in revision before the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No.3, Veraval who, vide the impugned order dated 03rd July, 2009, rejected the revision application and directed that the Criminal Miscellaneous Application be heard within a stipulated period of time. Being aggrieved, the petitioner has moved the present petition challenging the aforesaid orders.
4. Heard
Mr. Gaurang Bhatt, learned advocate for the petitioner. It is submitted that on the day when the petitioner was transferred from Taluka Kodinar to Taluka Visavadar, no application for maintenance was pending against the petitioner; that on the day when the application came to be restored, the petitioner had already shifted to village Khambhalia at Visavadar Taluka. Hence, the Court at Kodinar would have no jurisdiction to entertain the application under Section 125 inasmuch as neither the petitioner nor his brother were residing within the limits of the jurisdiction of the Court at Kodinar. Great stress was placed upon the decision of the Supreme Court in the case of Vijay Kumar Prasad (supra) wherein it has been held that parents cannot be placed on the same pedestal as that of the wife or the children for the purpose of Section 126 of the Code; that an application by the father or the mother claiming maintenance has to be filed where the person from whom maintenance is claimed lives. It is accordingly submitted that the application for maintenance was required to be filed at the place where the petitioner or his brother from whom maintenance was claimed were living; that at the time when the application came to be restored, neither the petitioner nor his brother were living within the limits of the jurisdiction of the Trial Court at Kodinar. Hence, the said Court has no jurisdiction to entertain and decide the application under Section 125. In the circumstances, both the Courts below had erred in rejecting the application made by the petitioner.
5. As
is apparent from the facts noted hereinabove, the respondents no.1 and 2 had filed the application before the learned Judicial Magistrate First Class, Kodinar in June, 2005. At the relevant time, the petitioner was residing within the limits of the jurisdiction of the said Court. Subsequently, the application came to be dismissed for default. However, later on, the same was restored by order dated 12th April, 2007 passed in revision by the Fast Track Court at Veraval. The case of the petitioner is that on the date of restoration, the petitioner was already transferred to village Khambhalia, Taluka Visavadar, hence, the Court at Kodinar would lose jurisdiction to decide the matter. In the opinion of this Court, the moment the application was restored, the same would relate back to the date of the application. On the day when the application was made, the petitioner admittedly was residing at village Vitthalpur of Kodinar Taluka. Therefore, it cannot be said that the application was filed before a Court not having jurisdiction to entertain the matter. Merely because the petitioner has now shifted to another place would not mean that the Court which had jurisdiction when the application was made, would lose jurisdiction to entertain and decide the matter. If such a contention is accepted, it would lead to an absurd situation whereby every time the petitioner is transferred from one place to another, the Court which has jurisdiction when the application was filed, would lose jurisdiction. In the circumstances, this Court finds no infirmity in the impugned orders passed by the Courts below so as to call for any interference by this Court.
6. For
the foregoing reasons, the petition fails and is accordingly summarily dismissed.
(
Harsha Devani, J. )
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