S.B. Sakrikar, J.
1. Applicant (appellant) has directed this appeal against the judgment and the decree dated 30.8.2000 passed by IIIrd ADJ, Ujjain in Civil Suit, No. 78A /95, thereby dismissing the petition filed on behalf of the appellant for grant of divorce against the respondent under the provisions of Section 13 of the Hindu Marriage Act.
2. The facts of the case in brief are that the appellant has filed a petition before the Trial Court against the respondent for grant of a decree of divorce oh the ground of desertion and cruel behaviour of the respondent under the provisions of Section 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act. On service of notice of the respondent, she opposed the application on various grounds. On behalf of the respondent the objection with regard to the jurisdiction of the Trial Court was also raised. The learned Trial Court, on the pleadings of the parties, framed issues and recorded the evidence of both the parties. The learned Trial Court, by the impugned order, dismissed the application filed on behalf of the appellant and recorded findings on all the issues, framed in the case. Aggrieved by the impugned judgment of the Trial Court, the appellant has filed this appeal.
3. The only contention of the learned Counsel for appellant is that the Trial Court has recorded a finding on Issue No. 5 with regard to the jurisdiction of the Court in favour of the respondent. As such, when the Trial Court records a finding on Issue No. 5 that the Court has no jurisdiction to adjudicate the application filed on behalf of the appellant, the Trial Court should not have recorded the findings on other issues and should not have dismissed the application filed on behalf of the appellant for grant of decree of divorce. The legal and the proper course available to the Trial Court was to return the plaint (original petition) to the applicant (appellant) for presentation to the proper Court under the provisions of Order 7, Rule 10 of the C.P.C
4. The learned Counsel for non-applicant submitted that he does not have any objection if this appeal is allowed on the ground to return the plaint for presentation to the proper Court under Order 7, Rule 10, C.P.C. in view of the findings recorded by the Trial Court as Issue No. 5
5. Considering the submission of the learned Counsel for parties and on perusal of the impugned judgment, the submission of the learned Counsel for appellant deserves to be accepted. When the Trial Court by recording a finding on Issue No. 5 comes to the conclusion that no cause of action accrued to the appellant for filing the petition for grant of decree of divorce against the respondent within the jurisdiction of the Court at Ujjain, then, the Trial Court should not have recorded findings on other issues and should not have dismissed the petition filed on behalf of the appellant for grant of decree of divorce. The proper course for the Trial Court was to record findings on Issue No. 5 and in view of the said finding the original petition should have been returned to the appellant (petitioner) for presentation to the proper Court under the provisions of Order 7, Rule 10, C.P.C. Needless to say that the Court having no jurisdiction to adjudicate the petition filed on behalf of the appellant, does not have jurisdiction to record the findings on the other issues and dismissing the application filed on behalf of the appellant for grant of divorce.
6. Consequently, this appeal is allowed. The impugned judgment and the decree of the Trial Court is set aside. The findings on Issue No. 4 only recorded by the Trial Court are upheld and in the result the Trial Court is directed to return the plaint (petition) to the appellant (petitioner) for presentation to the proper Court under the provisions of Order 7, Rule 10 of the C.P.C. The appellant has unnecessarily filed a petition against the respondent in a Court having no jurisdiction to try the application and unnecessarily forced her to contest the petition as also this appeal. As such, the appellant is directed to pay Rs. 2,000/- by way of special cost as also pay the cost of the original suit as also in this appeal to the respondent and shall bear his own cost. The Counsel fee for this appeal is fixed at Rs. 1,000/- to each of the party, on filing certificate. Schedule of cost be drawn up accordingly.