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Smt. Veena Lodha Vs. Narendra Mal Lodha - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 300 of 1976
Judge
Reported inAIR1977Raj134; 1976(9)WLN420
ActsRajasthan Civil Courts Ordinance, 1950 - Sections 10(3); ;Hindu Marriage Act, 1955 - Sections 19
AppellantSmt. Veena Lodha
RespondentNarendra Mal Lodha
Appellant Advocate N.M. Singhvi, Adv.
Respondent Advocate S.K. Mal Lodha, Adv.
DispositionRevision dismissed
Cases ReferredAjit Kumar v. Kannan Bala (supra
Excerpt:
.....act, section 13 and rajasthan civil courts ordinance 1950 - section 10(3)--proceeding under the hindu marriage act initiated before the district judge--dj. transfers case to the additional district judge--held, additional district judge is competent to try the case.; the proceedings under the marriage act are to be initiated before the district judge, hut once it is entertained by him it is certainly open to the district judge to assign or transfer the proceedings under section 10(3) of the rajasthan civil courts ordinance (vll) of 1950. the powers to assign or transfer the proceedings are in no way curtailed by the hindu marriage act. as a necessary corollary the proceedings under the hindu marriage act can be tried by the additional district judge on proper assignment of the same..........judge no. 1, jodhpur, has no jurisdiction to try the petition under section 13(1a)(ii) of the hindu marriage act as such petition could only be tried by the principal court of original jurisdiction, namely, the district court, jodhpur. the argument of the learned counsel for the petitioner is that unless there is a notification of the state government published in the official gazette authorising any other civil court to try the matters under the hindu marriage act, the district court is the only competent court to try such matters. in support of his contention, the learned counsel for the petitioner has relied upon kuldipsingh v. state of punjab, air 1956 sc 391 and janak dulari v. narain das, air 1959 punj 50.4. on the other hand, it is contended by the learned counsel for the.....
Judgment:
ORDER

M.L. Joshi, J.

1. This application wherein a show cause notice was given to the non-petitioner comes up for admission.

2. Heard learned counsel for the petitioner.

3. It is contended that the Additional District Judge No. 1, Jodhpur, has no jurisdiction to try the petition under Section 13(1A)(ii) of the Hindu Marriage Act as such petition could only be tried by the principal court of original jurisdiction, namely, the District Court, Jodhpur. The argument of the learned counsel for the petitioner is that unless there is a notification of the State Government published in the official gazette authorising any other Civil Court to try the matters under the Hindu Marriage Act, the District Court is the only competent Court to try such matters. In support of his contention, the learned counsel for the petitioner has relied upon Kuldipsingh v. State of Punjab, AIR 1956 SC 391 and Janak Dulari v. Narain Das, AIR 1959 Punj 50.

4. On the other hand, it is contended by the learned counsel for the non-petitioner that the Additional District Judge Ms jurisdiction in the instant case as the petition in this case, in the first instance, was presented to the District Judge, who transferred the same to the Additional District Judge. It is submitted that the District Judge has power under Section 10(3) of the Rajasthan Civil Courts Ordinance (VII) of 1950 to transfer a petition under the Hindu Marriage Act to the Additional District Judge. Once the petition is transferred by the District Judge to the Additional District Judge, the latter exercises the powers of the District Judge. According to the learned counsel for the non-petitioner the Additional District Judge is competent to exercise ell the powers which are conferred upon a District Judge and try the petition. In support of this contention, reliance has been placed on Pushpa Devi v. Radhey Shyam, AIR 1972 Raj 260 and Ajit Kumar v. Kanan Bala, AIR 1960 Cal 565.

5. I have given my careful consideration to the rival contentions put forth by the learned counsel for the either side. I may make mention of the decision of this court in Pushpa Devi v, Ra-dhey Shyam (AIR 1972 Raj 260). In this case exactly a similar point was raised before Kan Singh J., who has after taking note of Section 10 (3) of the Rajasthan Civil Courts Ordinance (VII) of 1950 held that once the petition under the Hindu Marriage Act is presented to the District Judge who transfers the same to the Additional District Judge, the latter is competent to exercise all the functions which are exercisable by the District Judge and competent to try the petition under the Hindu Marriage Act.

6. I am entirely in agreement with the view taken by Kan Singh J. Under Section 19 of the Hindu Marriage Act all that is required is that the proceedings under the Act is to be started in the court of the District Judge and that the District Judge alone would have the power to entertain it. To put it differently, the proceedings under the Hindu Marriage Act are to be initiated before the District Judge, but once it is entertained by him it is certainly open to the District Judge to assign or transfer the proceedings under Section 10 (3) of the Rajasthan Civil Courts Ordinance (VII) of 1950. The powers to assign or transfer the proceedings are in no way curtailed by the Hindu Marriage Act. As a necessary corollary the proceedings under the Hindu Marriage Act can be tried by the Additional District Judge on proper assignment of the same under Section 10 (3) of the Rajasthan Civil Courts Ordinance (VII) of 1950.

7. It has, however, been contended that the view taken by Kan Singh J. is no longer good in view of the decision rendered by the Supreme Court in Kuldipsingh v. State of Punjab (AIR 1956 SC 391). I have carefully perused the Supreme Court case and having perused it I am of the opinion that the case is distinguishable. In the Supreme Court case the appeal was directly filed before the Additional District Judge and it was not a case of the nature which was transferred by the District Judge to the Additional District Judge, in fact it was a case of direct presentation of the appeal to the Additional District Judge which could not have been justified unless the Additional District Judge had a co-ordinate authority with the District Judge.

8. It is true that the Supreme Court while dealing with the provisions of the Punjab Civil Courts Act has held that under the Act the court of Additional Judge end so also the court of Additional District Judge would be a separate and distinct class of court from the court of District Judge. But these observations should be taken to be limited to the facts before the Hon'ble Supreme Court. As stated earlier the case before the Supreme Court was not one of transfer by the District Judge but was a case of direct presentation. But that is not the case here. In the present case the proceedings were initiated before the District Judge, Jodhpur as required by Section 19 of the Hindu Marriage Act. Once that requirement is complied with, then it is open to the District Judge to assign the same under Section 10 (3) of the Rajasthan Civil Courts Ordinance (VII) of 1950. The Supreme Court authority, therefore, does not overrule the view taken by Kan Singh J.

9. The learned counsel for the petitioner then cited Janak Dulari v. Narain Das (AIR 1959 Punj 50). I am unable to agree with the view taken by the judges of the Punjab High Court as in my view the construction put by them on Supreme Court authority is open to question. It may be stated that the Supreme Court itself has expressly adverted to the power of transfer of the proceedings by the District Judge when he is validly seized with it to the Additional District Judge and the Additional District Judge will be competent to deal with such proceedings when there was a valid assignment of the proceedings to him. In this view of the matter, I respectfully dissent from the view taken by the Punjab High Court. The Calcutta High Court in Ajit Kumar v. Kannan Bala (supra) explained the ratio decidendi laid down by the Supreme Court. I am in agreement with the view taken by the Calcutta High Court. Once the proceedings under the Hindu Marriage Act are initiated before the District Judge, he (District Judge) has power to assign or transfer the same to the Additional District Judge as there is nothing in the Hindu Marriage Act or Under any other law to curtail the power of the District Judge to transfer the proceedings. Indeed Section 10 (3) of the Rajasthan Civil Courts Ordinance specifically authorises the District Judge to assign or transfer any proceedings pending before him to the Additional Judge who is in fact Additions! District Judge in the instant case. Consequently I hold that the learned Additional District Judge has jurisdiction to try the petition under the Hindu Marriage Act transferred to him by the learned District Judge.

10. In the result, the revision has no force and is dismissed summarily. There shall, however, be no order as to costs.


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