Punjab & Haryana HC: Jurisdiction of district court under S 9 of guardian and wards Act is mixed question of law and fact

 It is evident from a bare reading of the above that the solitary test for determining the jurisdiction of the court under Section 9 of the Act is the 'ordinary residence' of the minor. The expression used is "Where the minor ordinarily resides". Now whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact. It may at best be a mixed question of law and fact, but unless the jurisdictional facts are admitted, it can never be a pure question of law, capable of being answered without an enquiry into the factual aspects of the controversy. The factual aspects relevant to the question of jurisdiction are not admitted in the instant case. There are serious disputes on those aspects to which we shall presently refer. {Para 14}

 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CR No. 3925 of 2024 (O&M)

Decided On: 07.01.2025

Sulbhi and Ors. Vs. Bhavnesh Kumar

Hon'ble Judges/Coram:

Deepak Gupta, J.

Citation:  MANU/PH/0001/2025,2025PHHC000299.

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Whether concept of forum convenience is applicable to wardship jurisdiction of court?

 We must remind ourselves of the settled legal position that the concept of forum convenience has no place in wardship jurisdiction. Further, the efficacy of the principle of comity of courts as applicable to India in respect of child custody matters has been succinctly delineated in several decisions of this Court. ...

66. The invocation of first strike principle as a decisive factor, in our opinion, would undermine and whittle down the wholesome principle of the duty of the Court having jurisdiction to consider the best interests and welfare of the child, which is of paramount importance. If the Court is convinced in that regard, the fact that there is already an order passed by a foreign Court in existence may not be so significant as it must yield to the welfare of the child. That is only one of the factors to be taken into consideration. The interests and welfare of the child are of paramount consideration. The principle of comity of courts as observed in Dhanwanti Joshi case [MANU/SC/0810/1998 : 1998(1) SCC 112], in relation to non-convention countries is that the

Court in the country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and consider the order of the foreign Court as only a factor to be taken into consideration. While considering that aspect, the Court may reckon the fact that the child was abducted from his or her country of habitual residence but the Court's overriding consideration must be the child's welfare.

4. In view of above, principle of comity of courts or principle of forum convenience alone cannot determine the threshold bar of jurisdiction. Paramount consideration is the best interest of child. The same cannot be subject-matter of final determination in proceedings Under Order VII Rule 11 of the Code of Civil Procedure.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2291 of 2018 (Arising out of SLP (C) No. 3090 of 2018)

Decided On: 20.02.2018

Jasmeet Kaur Vs. Navtej Singh

Hon'ble Judges/Coram:

A.K. Goel and U.U. Lalit, JJ.

Citation: 2018(5) MHLJ 584

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Whether court should reject plaint on ground of res judicata and limitation?

As per the consistent view held by the various Courts on the issue of res judicata and limitation, both these issues are required to be decided after the evidence is led by the parties. This is too early a stage or premature to reject the plaint under Order VII Rule 11(d) CPC on these grounds.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 7707 of 2014

Decided On: 22.01.2018

Ganesh Keshav Patole Vs. Sheetal Sikandar Darne and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2018(4) MHLJ 238

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Whether time to file written statement gets extended if application for rejection of plaint is filed?

Learned counsel for Defendant No. 1 then sought time to file written statement. This being a commercial suit, summons having been served upon Defendant No. 1 on 2nd May 2016, written statement ought to have been filed within 30 days from the date of service. In terms of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (‘Commercial Act’), an application has to be filed seeking extension of time beyond 30 days in terms of the proviso to Order V Rule 1 CPC. If such application is made, the Court can extend the time for reasons recorded in writing. However, such extension cannot even by a High Court on the original side be granted beyond 120 days from that date of service of summons. No such application has been made by Defendant No. 1.

14. Learned counsel for Defendants states that since the present application under Order VII Rule 11 of the CPC was filed, Defendant No. 1 was under the impression that till the disposal of the present application under Order VII Rule 11 of the CPC the written statement could not be filed. The above submission is misconceived. As far as the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (Commercial Courts Act) is concerned, the time for filing written statement does not get extended only because an application under Order VII Rule 11 of the CPC may be pending. Therefore, the submission of Defendant No. 1 is, therefore, misconceived. The right of Defendant No. 1 to file written statement stands closed.

In the High Court of Delhi at New Delhi

(Before S. Muralidhar, J.)

Navilan Merchants Pvt. Ltd. .v. Sejal Glass Ltd. & Ors.

C.S.(Comm.) 330/2016

Decided on September 7, 2016

Citation: 2016 SCC OnLine Del 6580

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Whether plaint can be rejected on ground of res judicata?

 In order to attract the provision of res judicata, there should not only be a sufficient pleading to that effect, but the plaint, the written statement, the issues involved in the earlier proceeding and the judgment of the earlier proceeding should be brought on record in accordance with the provision governing the field. (See, Md. Salie versus Md. Hanifa reported in MANU/SC/0510/1976 : AIR 1976 SC 1569 and V. Rajeshwari versus T.C. Saravanabava reported in MANU/SC/1057/2003 : (2004) 1 SCC 551.)

11. In case of Ishwar Dutta versus Land Acquisition Collector reported in AIR 2005 SC 3156, it is held that the principle of res judicata was based on the principle of estoppels.

12. When a proceeding based on particular cause of action has attained finality, the principle of res judicata applies. There is no hesitation in our mind to hold that the principle of res judicata is a mixed question of fact and law. (See, Kamala versus K.T. Eshwara Sa reported in MANU/SC/7542/2008 : (2008) 12 SCC 661.)

13. It is a settled proposition of law that the Court, at the time of considering an application under Order 7, rule 11 of the Code, shall confine itself to the averments made in the plaint and the documents annexed thereto. It shall not look into the defence of the defendants in order to find out as to whether the suit is barred by law. Therefore, the plaint cannot be rejected on the plea of being barred by principle of res judicata upon invocation of the provision contained under Order 7, rule 11 (d) of the Code.

IN THE HIGH COURT OF CALCUTTA

F.M.A.T. No. 737 of 2012 With C.A.N. No. 5500 of 2012

Decided On: 03.10.2012

 Mahamaya Paul Vs.  Dipak Kumar Mukherjee and Others

Hon'ble Judges/Coram:

Hon'ble Justice Shubhro Kamal Mukherjee and Justice Harish Tandon

Citation: (2013) 1 ICC 610, 

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Whether court can consider plea of res judicata raised in written statement while deciding application for rejection of plaint?

It is settled law that while deciding an application for rejection of plaint under clauses (a) and (d) of Order VII Rule 11 of the Code, the Court shall confine itself to the averments made in the plaint and the documents annexed or referred to the plaint and the averments made in the plaint are to be treated as true. It is also settled law that at the stage of deciding an application under Order VII Rule 11 of the Code, the averments in the plaint be read as a whole and the stand of the defendant in his written statement or in the application for rejection of the plaint is wholly immaterial. 
He further cited the decision in the case of Mahamaya Paul vs. Dipak Kumar Mukherjee & Ors. reported in MANU/WB/0881/2012 : (2013) 1 ICC 610, where the Division Bench of this Court held that it is well settled that a point of res judicata is a mixed question of fact and law and the plaint filed in a suit cannot be rejected on the plea of being barred by principle of res judicata upon invocation of the provision contained under Order VII Rule 11 of the Code. 

IN THE HIGH COURT OF CALCUTTA

C.O. 233 of 2017

Decided On: 17.04.2017

 Premal Sen and Ors. Vs. Ranjit Sen and Ors.

Hon'ble Judges/Coram:

Ashis Kumar Chakraborty, J.

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Whether application for rejection of plaint can be decided along with suit?

First Respondent filed an Election Petition challenging election of Appellant. On receipt of notice in Election Petition, Appellant filed Annexure-P/4-application for rejection of Petition, under Order VII Rule 11 of CPC, by way of a counter affidavit. Court declined to consider same on ground that there was no formal application and hence proceeded with trial. At that stage, Appellant filed Annexure-P/5-formal application for rejection of Election Petition on ground that Election Petition did not disclose any cause of action. That application as per impugned order was posted along with main petition. 

Held, while disposing of the Appeals: 

1. Stand taken by High Court in impugned order cannot be appreciated. An application under Order VII Rule 11 of CPC, can be filed at any stage, as held by this Court in Sopan Sukhdeo Sable and Ors. v. Assistant Charity Commissioner and Ors. MANU/SC/0071/2004. Only restriction is that the consideration of application for rejection should not be on basis of allegations made by Defendant in his written statement or on basis of allegations in application for rejection of plaint. Court has to consider only plaint as a whole, and in case, entire plaint comes under situations covered by Order VII Rule 11(a) to (f) of CPC, the same has to be rejected.[5] 2. Once an application is filed under Order VII Rule 11 of CPC, Court has to dispose of same before proceeding with trial. There is no point or sense in proceeding with trial of the case, in case the plaint (Election Petition in present case) is only to be rejected at threshold.[6] 3. Procedure adopted by Court is not warranted under law. Without disposing of an application under Order VII Rule 11 of CPC, the court could not proceed with trial. In that view of matter, impugned order was set aside. [9] 

The procedure adopted by the court is not warranted under law. Without disposing of an application under Order VII Rule 11 of the Code of Civil Procedure, the court cannot proceed with the trial. In that view of the matter, the impugned order is only to be set aside. Ordered accordingly.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5540 of 2016 

Decided On: 04.07.2016

R.K. Roja Vs. U.S. Rayudu and Ors.

Hon'ble Judges/Coram:

Kurian Joseph and Rohinton Fali Nariman, JJ.

Citation: AIR 2016 SC 3282,(2016)14 SCC 14

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Whether plaint can be rejected on ground that documents along with plaint were not supplied?

The next ground of attack is that the defendant were not supplied copies of the documents along with the plaint and, therefore, the plaint is liable to be rejected. There is nothing in Rule 11 of Order 7 to conclude that if the documents, on which the plaintiff rely, are not sent to the Defendant along with the copy of the plaint accompanying the summons, then the plaint is liable to be rejected.

HIMACHAL PRADESH HIGH COURT

Shobit Construction And Anr. Etc. vs T.K. International Ltd. on 7 March, 2005

Equivalent citations: AIR 2006 HP 4, 2006 (1) ARBLR 510 HP

Bench: K Sood

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