Full Judgment
S.C. Pandey, J.
1. They are heard. This revision is directed against the order dated 23.11.1998 in Guardians and Wards Case No. 51 /98, passed by IVth Additional District Judge, Jabalpur. The impugned order dated 23.11.1998 decides the application under Order 39, Rules 1 and 2 of the Code of Civil Procedure as well as an application for grant of interim custody of the child Amit @ Sonu Shrivastava, aged about 7 years.
2. The Trial Court has rejected the application under Order 39, Rules 1 and 2 of the Code of Civil Procedure and has allowed the application under Section 12 of Guardians and Wards Act, 1890 (henceforth 'the Act'), directing the interim custody of the child Amit @ Sonu Shrivastava in favour of the non-applicants who are the father and grand-father of the child respectively. For this purpose, the Court had fixed the date for production of the child on 7.12.1998. Thereafter, by order of this Court dated 8.12.1998, passed in this revision, the operation of the impugned order dated 23.11.1998 was stayed and, therefore, it was not necessary for the applicants to produce the child before the Trial Court on 7.12.1998.
3. The main ground that has been raised in this revision is regarding the jurisdiction of the Trial Court for grant of interim custody of the child as well as the jurisdiction to decide the case finally under the provisions of the Act.
4. The learned Counsel for the applicant argued that the entire proceedings before the Trial Court were without jurisdiction because the original application under Section 10 of the Act was filed before the IVth Additional District Judge, Jabalpur. It is contended that under the provisions of the Act, the application could be filed only before the District Judge and not before IVth Additional District Judge, Jabalpur. It has been urged that the initial filing of the case by the applicants before the IVth Additional District Judge, Jabalpur as such was bad in the eyes of law and, therefore, all the proceedings before IVth Additional District Judge, Jabalpur, were without jurisdiction; and as such of no legal consequence in the eyes of law. For this reason, the impugned order is liable to be set aside.
5. The learned Counsel for the non-applicants, however, countered the argument of the learned Counsel for the applicants by saying that the application under Section 10 of the Act was filed by the applicants themselves and not by the non-applicants; and the non-applicants, in no way, are responsible for filing the application under the Act. They did not raise any objection to the filing of the application and the matter continued for three years without any objection on the part of the applicants or the non-applicants. The Court below had not decided the question of its own jurisdiction as the point was never raised before it. The applicants having taken a chance of success in the Court below are now raising this point for the first time before this Court. The alternative argument was that the IVth Additional District Judge, Jabalpur had jurisdiction to entertain the application under Section 10 of the Act, under the provisions of M.P. Civil Courts Act as the distribution memo made by the District Judge authorised him to entertain such applications under the Act.
6. It is necessary to decide whether this Court should exercise its discretionary powers under Section 115 of the Code of Civil Procedure in this civil revision, on a point which was never raised before the Trial Court, especially when the impugned order does not finally dispose of the proceedings pending before the Court below. The main question which has been decided against the applicant by the Court below is that the interim custody of the child shall be given in favour of the non-applicants. This order is not a final order as it is an order pending the final disposal of the petition under Section 10 of the Act. Only interim custody of the child, Amit @ Sonu Shrivastava has been granted in favour of the non-applicants.
7. This Court has not the benefit of the opinion of the Court below regarding its jurisdiction. The question whether the application under Section 10 of the Act was filed before the Additional District Judge or it was filed before the District Judge, Jabalpur is still to be decided as a question of fact by the Court below itself. This Court cannot record a finding either way unless the Trial Court applies its mind to this fact before deciding the question of its own jurisdiction. The point raised by the applicants regarding the jurisdiction of the Court below can still be raised by the applicants before IVth Additional District Judge, Jabalpur, themselves, and the Court below can decide the point of jurisdiction before passing the final order. In case, the Court below comes to conclusion that it had no jurisdiction to decide the application under Section 10 of the Act, it shall be entitled to pass all consequential orders as a result of lack of jurisdiction, if it comes to that conclusion. In the opinion of this Court, the point raised by the learned Counsel for the applicants would not occasion failure of justice or cause irreparable injury to the applicants because they are entitled to raise this point before the Court below.
8. For the aforesaid reasons, this Court comes to the conclusion that at this stage it is not necessary to interfere with the impugned order on the point of jurisdiction. No other point was raised before me. Accordingly, this revision fails and is hereby dismissed with no order as to costs. Both the parties are directed to appear before the Trial Court on 19th of July, 1999.
C.C. as per rules.