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James Francis Dillon and ors. Vs. Holy Cross Social Service Centre - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberCivil Appeal No. 26 of 1984
Judge
Reported inILR1985Delhi564
ActsGuardian and Wards Act, 1890 - Sections 7
AppellantJames Francis Dillon and ors.
RespondentHoly Cross Social Service Centre
Advocates: Jagdeep Kishore, Adv
Cases ReferredSatbir Singh v. Rajbir Singh
Excerpt:
the guardians and wards act, 1980 - sections 7 & 26--whether the delhi high court has the jurisdiction to entertain a petition for appointment of a gurdian;this petition user the guardians and wards act was filed in the high court praying for appointment of joint guardians of a minor girl. relying on air 1954 punjab 274 and dismissing the petition on the ground that the delhi high court did not have original jurisdiction to entertain such a petition.;under section 5 of the delhi high court act, 1956, the high court has ordinary original civil jurisdiction in a civil suit value of which exceeds rupees one lakh. a petition under the guardians and wards act, for appointment of guardian does not fall under this category. it has, thereforee, to be seen as to what was the justification..........in the code of civil procedure and include a high court in the exercise of its ordinary original civil jurisdiction. mr. j. kishore referred to a decision of supreme court in lakshmi kant pandey v. union of india : [1984]2scr795 and submitted that delhi high court has ordinary original civil jurisdiction to entertain the present petition. this judgment of the supreme court merely refers to the aforesaid provisions under the guardians and wards act and is not helpful to decide as to whether delhi high court has ordinary original civil jurisdiction in the matter. (3) delhi high court was constituted under the delhi high court act, 1966. section 5 of this act is relevant : '5.jurisdiction of high court of delhi--(1) the high court of delhi shall have, in respect of the territories for.....
Judgment:

D.P. Wadhwa, J.

(1) This is a petition under Sections 7 and 26 of the Guardians and Wards Act, 1980. The petition contains various averments regarding the petitioners' who seek to be appointed as joint guardians and so also of the minor girl. It is not necessary for me to go into the merits of the case. When the petition came before me for admission, though I directed issue of notice to the Indian Council of Child Welfare and also directed issue of citation in the daily 'Statesman' I was not certain about the jurisdiction of this Court to entertain the present petition. Arguments were, thereforee, addressed by Mr. J. Kishore, learned counsel for the petitioners

(2) Under Section 4(5) of the Guardians and Wards Act, 1980, 'the Court' means . . . . the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a parrents to be a 'guardian' and the District Court has been defined in Section 4 Sub-section 4 of this Act and it has the meaning assigned to that expression in the Code of Civil Procedure and include a High Court in the exercise of its ordinary original civil jurisdiction. Mr. J. Kishore referred to a decision of Supreme Court in Lakshmi Kant Pandey v. Union of India : [1984]2SCR795 and submitted that Delhi High Court has ordinary original civil jurisdiction to entertain the present petition. This judgment of the Supreme Court merely refers to the aforesaid provisions under the Guardians and Wards Act and is not helpful to decide as to whether Delhi High Court has ordinary original civil jurisdiction in the matter.

(3) Delhi High Court was constituted under the Delhi High Court Act, 1966. Section 5 of this Act is relevant :

'5.Jurisdiction of High Court of Delhi--(1) The High Court of Delhi shall have, in respect of the territories for time being included in the Union Territory of Delhi, all such original, appellate and other jurisdiction as, under the law in force immediately before the appointed day, is exercisable in respect of the said territories by the High Court of Punjab. (2) Notwithstanding anything contained in any law for the time being in force, the High Court of Delhi shall also have in respect of the said territories ordinary original civil jurisdiction in every suit the value of which exceeds rupees one lakh.'

(4) The High Court has thus ordinary original civil jurisdiction in civil suit the value of which exceeds rupees one lakh. The present petition certainly does not fall under this category. One has, thereforee, to see as to what was the jurisdiction exercised by the High Court of Punjab. There is High Courts (Punjab) Orders, 1947, which refer to jurisdiction of the High Court of Punjab (East Punjab). Clause 5 would be relevant :

'5.The High Court of East Punjab she'll be a Court of record, and shall have, in respect of the territories for the time being included in the province of East Punjab and in the Province of Delhi, all such original, appellate and other jurisdiction as under the law in force immediately before the appointed day, is exercisable in respect of the said territories by the High Court at Lahore.'

(5) Ultimately, thereforee, one has to fall back upon the Letters Patent constituting the High Court of Judicature at Lahore. Clauses 9 and 12 are relevant and these are as under :

'9.And we do further ordain that the High Court of Judicature at Lahore shall have power to remove, and to try and determine, as a Court of extraordinary original jurisdiction, any suit being or falling within the jurisdiction of any Court subject to its super- intendance when the said High Court may think proper to do so, either on the agreement of the parties to that effect, or for purpose of justice, the reasons for so doing being recorded on the proceedings of the said High Court. 12. And we do further ordain that the High Court of Judicature at Lahore shall have the like power and authority with respect to the persons and estates of infants, idiots and lunatics within the Provinces of the Punjab and Delhi as that which was vested in the Chief Court of the Punjab immediately before the publication of these presents.

(6) The reference to Clause 12 of the Letters Patent as to what was the jurisdiction vested in the Chief Court of Punjab, there is a detailed discussion in the Division Bench Judgment of the Punjab High Court in Satbir Singh v. Rajbir Singh . As a matter of fact this judgment is a complete answer to the issue before me. This was also a case under the Guardians and Wards Act and filed in the Punjab High Court for appointment of the petitioners as guardians of the minor. After examining all aspects of the law as to jurisdiction of the Punjab High Court, it was held that Punjab High Court had no ordinary original civil jurisdiction to entertain the petition under the Guardians and Wards Act. I feel bound by this judgment.

(7) Mr. J. Kishore then contended that since the High Court under Clause 9 of the Letters Patent could remove and try a petition under the Guardians and Wards Act pending in the District Court, it can be said that the High Court had such jurisdiction. This argument, though attractive, cannot be accepted. I cannot possibly equate extraordinary original jurisdiction of the High Court to that of ordinary original civil jurisdiction. As a matter of fact this argument was also noted In the judgment of the Punjab High Court in Satbir Singh's case and rejected.

(8) I would, thereforee, hold that High Court has no ordinary original civil jurisdiction to entertain the present petition and it is, thereforee, returned to the petitioners for them to file in the Court of competent jurisdiction.

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