P.R. Borkar, J.
1. This is an appeal preferred by the original respondent, directed against the order passed by the learned Judge, Family Court, Aurangabad in Petition No. B-19 of 2004 decided on 4.7.2005, to return Stridhan articles of the respondent-original petitioner as per the list given in the petition.
2. Briefly stated, it is the case of respondent Ujwala that the appellant and the respondent married at Deogaon Rangari, Tq. Kannad, District Aurangabad on 14.4.2003. At that time, the parents and relatives of the respondent Ujwala presented her moveable properties described in the list given in the application. On 26.3.2004 the present appellant asked the respondent to start electric pump but the respondent told him that she would do so after finishing the work at her hand. Enraged thereby, the appellant abused her and poured kerosene on her person and put her on fire. As a result, the respondent Ujwala sustained burn injuries. She was admitted in the Government Hospital at Aurangabad. A Criminal case was filed against the appellant for attempting to commit murder of the respondent. After treatment was over, the respondent Ujwala continued to live at Aurangabad with her maternal aunt. The respondent then requested the appellant to return her stridhan properties but he failed to do so and therefore, application is filed for return of stridhan articles which are worth Rs. 1,37,450/-
3. The respondent appeared in the matter by filing his written statement and denied that any such articles were presented to the respondent and contended that he was not in possession of the same. The other averments are also denied. Thus the written statement is of total denial and accordingly the issues were framed.
4. When the matter was fixed for arguments, an application at Exh. 42 was filed before the trial court stating that Family Court at Aurangabad has no territorial jurisdiction. However, the application was rejected on the ground that the application was presented at belated stage i.e. on the day when the final arguments of both the parties were already over. Reliance was also placed on the decision in the case of Sunita Ravi Sangavai v. Ravi Venkatesh Sangavai, reported in : 2004(5)BomCR898 . The case cited was for maintenance under the Hindu Adoption and Maintenance Act and it was held that wife is entitled to institute the proceeding at the place of her residence.
5. Heard advocate Shri. D.R. Kale-Patil for the appellant and advocate Shri. V.N. Damle, for the respondent. Perused the papers.
6. During the course of argument, it is argued on behalf of the appellant that the trial court committed an error in holding that the articles mentioned in the application were presented to the respondent and he is in possession of the same. It is also argued that the court has no territorial jurisdiction. The point of jurisdiction goes to the root of the matter and as such the appeal deserves to be allowed.
7. On the other hand, on behalf of the respondent, it is argued that in view of Section 21(1) of Code of Civil Procedure, the objection regarding jurisdiction should have been taken on/before framing of issues. There is no prejudice caused to the appellant and as such there is no merit in the application. It is further stated that the present respondent has examined herself and two more witnesses and their evidence deserves to be believed. It is customary in our society to present articles in the marriage; particularly utensils, household articles, cash and some ornaments are presented to the bride and the appeal deserves to be dismissed.
8. We may first turn to the issue regarding jurisdiction. It is no more disputed that after marriage on 14.4.2003 till the incident of 26.3.2004, the respondent Ujwala was residing with the appellant Ashok at village Wakdi, Tq. Newasa, District Ahmednagar. After suffering burn injuries, admittedly, the respondent was taken to GHATI (Government Hospital and Training Institute) hospital, at Aurangabad and thereafter she continued to live at Aurangabad with her aunt. The marriage had taken place at Deogaon Rangari, Tq. Kannad, District Aurangabad. Sections 16 to 21 of the Code of Civil Procedure, are relevant for our purpose. As per Section 16(f), suit for the recovery of moveable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate: As per Section 20(a) the suit can be instituted in the court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain. As per Section 20(c), the court within the local limits of whose jurisdiction the cause of action, wholly or in part arises, has jurisdiction. It is argued before us that the defendant resides at village Wakdi, Tq. Newasa, District Ahmednagar. The property is said to be with the appellant and as such at village Wakdi. The appellant resides at village Wakdi and works there. So the cause of action has also arisen at Wakdi and therefore, the Family Court Aurangabad has no jurisdiction.
9. Shri. Damle, the learned advocate for the respondent submitted that as per Section 19(iii-a) of the Hindu Marriage Act, 1955 the petition is tenable at the place where wife resides on the date of presentation of thepetition. It is no more disputed that the suit for recovery of possession of stridhan property is filed under Section 7 of the Specific Relief Act and therefore, we will have to follow the Rules contained in the Code of Civil Procedure for the purpose of determination of territorial jurisdiction of the Court. The reference was also made to Section 7(1)(a) r.w. (its) Explanation (c) of the Family Courts Act, 1984, but same shows that where the Family Court is established it would exercise jurisdiction exercisable by any District Court or subordinate court. Clause (c) covers proceeding in respect of property of the parties to the marriage or either of them. So it is clear that ordinarily territorial jurisdiction is with Civil Court Newasa, since no Family Court is established in Ahmednagar District.
10. Now, we may consider the legal provisions regarding the objection in respect of territorial jurisdiction. Section 21(1) of the Code of Civil Procedure 1908 is as follows:
21. Objections to jurisdiction - (1) No objection as to the place of suing shall be allowed by any appellate or Revisional 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.
There can be three categories of cases, where question of jurisdiction may arise. They are cases relating to (1) territorial jurisdiction or (2) pecuniary jurisdiction or (3) jurisdiction relating to subject. There is one more category of cases where the court has jurisdiction, but subject to fulfillment of a condition or on occurring of an event. The learned advocate for the appellant cited one such case, which was termed as a case of premature suit.
11. So far as the last category is concerned the learned advocate for the appellant referred to the decision of the Supreme Court in the case of Vithalbhai (P) Ltd. v. Union Bank of India reported in : AIR2005SC1891 , for proposition that no amount of waiver or consent can confer jurisdiction on a court which it inherently lacks or where none exists. However, in same para 20, the Hon'ble Supreme Court added that the filing of a suit when there is cause of action though premature does not raise a jurisdictional question. In para 21 it is observed that where the right to sue has not matured on the date of the institution of the suit an objection in that regard must be promptly taken by the defendant. On the other hand, if the defendant by his inaction amounting to acquiescence or waiver allows the suit to proceed ahead then he cannot be permitted to belatedly urge such a plea as that would cause hardship, may be irreparable prejudice to the plaintiff because of lapse of time. If the suit proceeds ahead and at a much later stage the court is called upon to decide the plea as to non-maintainability of the suit on account of its being premature, then the court shall not necessarily dismiss the suit. The Court would examine if any prejudice has been caused to the defendant or any manifest injustice would result to the defendant if the suit is to be decreed.
In para 22 of the said decision it is observed thus:
A plea as to non-maintainability of the suit on the ground of its being premature should be promptly raised by the defendant and pressed for decision. It will equally be the responsibility of the court to examine and promptly dispose of such a plea. The plea may not be permitted to be raised at a belated stage of the suit. However, the court shall not exercise its discretion in favour of decreeing a premature suit in the following cases:
(i) when there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event;
(ii) when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose;
(iii) if such premature institution renders the presentation itself patently void and the invalidity is incurably such as when it goes to the root of the court's jurisdiction; and
(iv) where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency. (See Samar Singh v. Kedar Nath.) One more category of suits which may be added to the above, is: where leave of the court or some authority is mandatorily required to be obtained before the institution of the suit and was not so obtained.
This case of Vithalbhai (P) Ltd. (supra) is cited by the learned advocate for the appellant relying on the observations in para 20, in which it is observed that no amount of waiver or consent can confer jurisdiction on a court which it inherently lacks or where none exists.
12. The learned advocate for the appellant has also placed reliance on the decision in the case of Bai Shakri v. Bapusinghji Takhatsinhji, reported in : AIR1958Bom30 . In the said case the appellant obtained a decree on promissory note in a suit filed by him against the respondent in the court of the Civil Judge at Himatnagar. A written statement was filed by the respondent, the Chief of Vasna State and in substance one of the contentions raised by him was that he was a Ruling Chief when the decree was passed and was, in absence of a certificate under Section 86 of the Civil Procedure Code, not liable to be sued in the Municipal Courts of this country. He did not however, appear at the hearing of the suit and decree was passed exparte. In execution petition a plea was raised that decree could not be executed against the respondent. In para 5, our High Court observed as follows:
(5) A judgment delivered by a Court not competent to deliver it, because there is no inherence of jurisdiction in it, cannot operate as res judicate and if the Court which passed the decree was not competent at all to do so, there can be little scope for the doctrine of res judicata tooperate. Where there is inherent want of jurisdiction in a Court, a decree passed by it is a nullity and if the decree is a nullity, no issue decided by the Court which passed the decree can operate as res judicata in any subsequent suit or proceedings; and a decree which is a nullity is incapable of execution.
In para 6 it is specifically stated that a distinction has to be drawn between the two positions, namely where there is a decree which is incapable of execution on the ground that it is a nullity because the Court which passed it had no inherent jurisdiction and the case where all that can be said is that the Court passing the decree had irregularly assumed jurisdiction. In the latter case it would not be competent to the executing Court to question the existence of jurisdiction in the Court which passed the decree.
Thus, in the present case, it is very clear that this is not a case where lack of jurisdiction was inherent and relating to subject matter of the suit. It is at the most a case of irregular exercise of jurisdiction. In the case of Vithalbhai (P) Ltd. (supra), on the date of the institution of the suit, the plaintiff was not entitled to the relief sought for in the plaint. In that case the suit was filed 20 weeks before the date on which lease was to expire by efflux of time, within the meaning of Section 111(a) of the Transfer of Property Act.
13. The third case cited by the learned advocate for the appellant is in the case of MOST REV. P.M.A. Metropolitan and Ors. v. Moran Mar Marthoma and Anr. reported in : AIR1995SC2001 . That was a case of Ecclesiastical nature. The dispute was between Patriarch of Antioch and Catholicos regarding spiritual and temporal powers. It was held that Patriarch was spiritually superior to Catholicos but spiritual powers had to be exercised by Patriarch in consultation with Catholicos. Question of Excommunication of Catholicos by Patriarch was considered. It was held that the civil court had no jurisdiction to adjudicate the dispute relating to religious faith or rights, but it has jurisdiction to decide the validity of exercise of rights in respect of such faith. Suit for declaration of character of church is maintainable in civil court in absence of ecclesiastical court and any statutory law governing such matters in India. In that case in para 27 it is observed that objection to the maintainability of the suit under Section 9 of the Civil Procedure Code was probably not raised in 1954 and 1959 and if raised was not pressed. But that by itself might not preclude defendant-appellant from raising it, even in the Supreme Court as the bar or lack of jurisdiction can be entertained, at any stage, since an order or decree passed without jurisdiction is non est in law. So as discussed earlier, that was the case where the question raised was not regarding territorial jurisdiction, but of inherent lack of jurisdiction.
14. The learned advocate for the respondent has also relied on the decision in the case of Pathumma and Ors. v. Kuntaian Kutty and Ors. reported in : [1982]1SCR183 . In the said case, in para 3 after referring to Section 21 of the Code of Civil Procedure, it is observed as follows:
In order that an objection to the place of suing may be entertained by an appellate or revisional court, the fulfillment of the following three conditions is essential:
(1) The objection was taken in the Court of first instance.
(2) It was taken at the earliest possible opportunity and in cases where issues are settled, at or before such settlement.
(3) There has been a consequent failure of justice.
All these three conditions must co-exist.
15. As back as in 1954 in the case of Kiran Singh and Ors. v. Chaman Paswan and Ors. reported in : [1955]1SCR117 following observations are made:
The policy underlying Sections 21 and 99, C.P.C. and Section 11 of the Suits Valuation Act is the same, namely that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act.
16. In the case of Hira Lal Patni v. Sri Kali Nath, reported in AIR 192 SC 199, it is observed in para 4 that it is well settled that the objection as to the local jurisdiction of a court does not stand on the same footing as an objection to the competence of a court to try a case. Competence of a court to try a case goes to very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand an objection as to the local jurisdiction of a court can be waived and this principle has been given a statutory recognition by enactments like Section 21 of the Code of Civil Procedure. So the case of Hira Lal (supra) clearly shows that the distinction has to be made between objection as to the local jurisdiction of the Court to entertain the suit or proceeding and the case where there is inherent lack of jurisdiction and all the cases cited by the learned advocate for the appellant are of latter category.
17. In the case of R.S.D.V. Finance Co. Pvt.Ltd. v. Shree Vallabh Glass Works reported in : AIR1993SC2094 , it is laid down that all three conditions of Section 21(1) of Code of Civil Procedure should be satisfied. Those conditions are; (1) that such objection should be taken in the Court of first instance at the earliest possible opportunity; (2) in all cases where issues are settled then at or before such settlement of issues; and (3) there has been a consequent failure of justice. In the case before Their Lordships, though the first two conditions were satisfied, the third condition of failure of justice was not satisfied and therefore, Their Lordships refused to interfere. In the present case, the issue regarding the lack of territorial jurisdiction of the Family Court was raised for the first time when the matter was at the stage of argument. It is clear that in the issues framed at Exh.6, there are no issue regarding territorial jurisdiction nor such issue was raised in the written statement which was filed at Exh.5. We have specifically asked advocate Shri. Kale-Patil, for the appellant as to what was the consequent failure of justice but he was unable to satisfy us.
18. Admittedly, in this matter, the parties were represented by the advocates before the trial court. There does not appear any reason to hold that the parties did not get full opportunity of hearing. In para 8 of the R.S.D.V. Finance (supra), the Supreme Court observed that Their Lordships were clearly of the view that there was no failure of justice to the defendant decreeing the suit decreed by the learned Single Judge of the Bombay High Court, on the contrary it would be totally unjust and failure of justice to the plaintiff in case such objection relating to jurisdiction was to be maintained as allowed by the Division Bench in its appellate jurisdiction. In this case, if we hold at this stage that the plaint/petition should be returned for proper presentation, the parties would be forced to approach another court and to lead fresh evidence and then get the decision. It would be nothing but forcing both the parties to waste time, energy and money. So we are of the opinion that even though we have come to a conclusion that the Family Court, Aurangabad had no territorial jurisdiction to entertain the petition for return of stridhan, still by not raising the objection regarding jurisdiction at the appropriate stage and in absence of any failure of justice, we are not inclined to interfere with the order of the trial court on the count of lack of territorial jurisdiction.
19. That takes us to the next question, whether the impugned order passed by the trial court was proper and sustainable on evidence on record. It is argued before us that except bare words of the respondent Ujwala and her brother P.W. 3 Walmik Mogal, there is no other substantial evidence. They examined P.W. 2 Ankush Vidhate as a person, who had gifted two chairs in the marriage. But his evidence is also material in as much as, it is the case of the appellant that there was no separate marriage ceremony as such; but the two sides gathered for settlement of marriage and at the time of betrothal ceremony itself, the marriage was performed. That is denied by the respondent Ujwala, her brother and witness Ankush Idhate. They stated that the marriage was performed subsequent to the betrothal ceremony and not on same day. The list of articles presented to respondent Ujwala Exh. 30 is stated to be in the hand writing of Walmik Mogal, the brother of respondent Ujwala. P.W.3 Walmik proved the list as in his hand writing and proved contents of the list. Respondent Ujwala supported the evidence of her brother by referring to the list. Her father was Gramsevak. He was in service when the marriage had taken place. Ujwala was 5th daughter. Her all four elder sisters were already married. Her father had also agricultural land, which was acquired by the Government before deposition in the March, 2005. 20. Ankush Vidhate is the husband of cousin of Ujwala. Being a relative, his presence in the marriage was natural. If we have regard to the list, except item Nos. 53 and 54, which are pedals expenses of Rs. 11,000/-and gift of Rs. 65,000/- to the appellant Ashok Kale, (which must be the dowry amount), the remaining articles appear to be Stridhan. The total value of the articles is stated to be Rs. 1,37,450/-. If we delete those two items placed at Sr. Nos. 53 and 54, the value of remaining articles is Rs. 61,450/-
21. On the other hand, the appellant examined himself at Exh. 35 and stated that the marriage was performed in a simple way at the time of betrothal ceremony itself and nothing was given in the marriage. Only 3 to 5 persons had come with him to attend the marriage. It is argued before us that 7/12 extract at Exh. 21 and 22 show that the family of the appellant own shares in the lands admeasuring 3 hectare 14 Ares and 3 hectare 58 Ares. The appellant examined witness Subhash Kale at Exh. 38 and he stated that he was living 2/3 fields away from the field of the appellant. He was not aware if anything was given or received in the marriage. The marriage was performed at the time of betrothal ceremony. He admitted in the cross-examination that the appellant was M.A. He had come to the Court with the appellant. It is also suggested that the appellant was serving as teacher and earning Rs. 5000/- per month. This witness had not gone with the appellant to see the girl. No wedding card or invitation was given to this witness. So it is doubtful whether really, this person attended the marriage ceremony.
22. The court can take cognizance of custom in our society that in the marriage ceremony, relatives, friends and acquaintances give gifts and presents. Similarly, the parents also provide utensils, ornaments, bedding and other household articles as per their own financial capacity to the bride in the marriage. Even bridegroom party presents ornaments like Mangalsutra, and sarees to bride. It cannot be believed that the boy, who was of marriageable age, having Degree of M.A., having landed property and who is stating to be serving as teacher, would not be given anything in the marriage.
23. The learned Judge of the Family Court had an occasion to see the witnesses and test their demeanour. She has rightly believed respondent Ujwala and her witnesses and the list Exh. 30. It is argued that there is no evidence that articles as mentioned in the list were actually taken to the house of the appellant. It is stated that we cannot believe that the brother of the respondent had himself taken the articles to the house of the appellant. From the list we do not find anything suspicious. It is argued that ink used in writing of middle page of the said list, is different. But we find that that middle page appears to be one more copy of the items mentioned on first and last page and it contains only 44 articles. P.W.3 Walmik Mogal stated that he studied upto H.S.C. He also admitted the change of ink. He also stated that there is his signature on the list at Exh.30. However, nothing is brought on record to come to a conclusion that list was in any way false or spurious. The trial court has considered all aspects. In the facts and circumstances of the case, in our opinion, the trial court ought not to have allowed items at Sr. Nos. 53 and 54, which are regarding marriage expenses and dowry amount that could not be Stridhan. This is specifically conceded at the time of argument by the learned advocate Shri. Damle, before this Court. In view of the above, we direct that the items except at Sr. No. 53 and 54, are Stridhan and the respondent Ujwala shall be entitled to receive the same back. To that extent we allowed the appeal.
24. Thus, in the aforesaid facts and circumstances, the appeal is partly allowed. Appellant to hand over articles at Sr. No. 1 to 52 and at Sr. No. 55 mentioned in the list incorporated in the original petition itself, or an amount equal to valuation of those items within a month from the date of this order. The total value of the articles is Rs. 61,450/-.
25. Family Court appeal is accordingly disposed of in the above terms.