As per case facts, a civil suit for maintenance under the Hindu Adoption and Maintenance Act was filed. Although a Family Court was established and gained exclusive jurisdiction over such ...
No Acts & Articles mentioned in this case
CREF-1-2025 (O&M) [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CREF-1-2025 (O&M)
Date of decision: 13.10.2025
Shakuntla and another
...Petitioners
Versus
Suresh and others
...Respondents
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
Present: Mr. Kewal Krishan, Advocate for the petitioners.
Mr. Harshit Nain, Advocate (through V.C.) and
Mr.Nitin Bhanwala, Advocate and
Mr.Bhavesh Ola, Advocate
for respondent-Suresh.
****
VIKAS BAHL, J. (ORAL)
INDEX
Sr.No. Paragraphs Pages
1. Background of the case 1 to 2 2 and 3
2. Two questions on which opinion
of this Court is sought
3 3 and 4
3. Undisputed facts of the case 6 and 7 5 to 11
4. Opinion regarding question no.1 8 to 10 11 to 13
5. Opinion regarding question no.2 11 to 18 13 to 22
6. Conclusion 19 and 20 22 and 23
CREF-1-2025 (O&M) [2]
BACKGROUND OF THE CASE
1. The present civil reference has been placed before this Court in
pursuance to the reference order passed by the Principal Judge, Family
Court, Fatehabad dated 10.07.2025.
2. Section 113 of Code of Civil Procedure, provides that any Court
may state a case and refer the same for the opinion of the High Court, and
the said Section further empowers the High Court to make any such order
thereon as it thinks fit. Further Order XLVI Rule 1 CPC also provides that
where, before or on hearing of a suit etc., any question of law or usage
having the force of law arises on which the Court trying the suit etc.
entertains a reasonable doubt, then the Court may draw up a statement of
facts of the case and the point on which doubt is entertained and refer such
statement with its own opinion on the point for decision of the High Court.
Section 113 of CPC and relevant portion of Order XLVI of CPC are
reproduced hereinbelow:-
“113. Reference to High Court.—Subject to such
conditions and limitations as may be prescribed, any Court
may state a case and refer the same for the opinion of the
High Court, and the High Court may make such order
thereon as it thinks fit:
[Provided that where the Court is satisfied that a case
pending before it involves a question as to the validity of any
Act, Ordinance or Regulation or of any provision contained in
an Act, Ordinance or Regulation, the determination of which is
necessary for the disposal of the case, and is of opinion that
such Act, Ordinance, Regulation or provision is invalid or
CREF-1-2025 (O&M) [3]
inoperative, but has not been so declared by the High Court to
which that Court is subordinate or by the Supreme Court, the
Court shall state a case setting out its opinion and the reasons
therefor, and refer the same for the opinion of the High Court.
Explanation.—In this section, “Regulation” means any
Regulation of the Bengal, Bombay or Madras Code or
Regulation as defined in the General Clauses Act,1897, (10 of
1897) or in the General Clauses Act of a State.]
ORDER XLVI
REFERENCE
1. Reference of question to High Court.—Where, before or on
the hearing of a suit or an appeal in which the decree is not
subject to appeal, or where, in the execution of any such
decree, any question of law or usage having the force of law
arises, on which the Court trying the suit or appeal, or
executing the decree, entertains reasonable doubt, the Court
may, either of its own motion or on the application of any of the
parties, draw up a statement of the facts of the case and the
point on which doubt is entertained, and refer such statement
with its own opinion on the point for the decision of the High
Court.”
It is under the abovesaid provisions that reference order has
been made by the Principal Judge, Family Court, Fatehabad.
3. A perusal of the reference order dated 10.07.2025 passed by the
Principal Judge, Family Court, Fatehabad would show that opinion of the
High Court is sought on two legal questions which are formulated
hereasunder:-
i) Whether the First Appellate Court i.e., Additional District
CREF-1-2025 (O&M) [4]
Judge, Fatehabad was competent to hear the appeal and the
cross-objection, challenging the judgment and decree dated
18.04.2022 passed by the Civil Judge (Junior Division),
Fatehabad vide which the suit filed by the plaintiffs under
Section 3(b)(ii) of the Hindu Adoption and Maintenance Act
was partly decreed?
ii) Whether once the judgment and decree dated 18.04.2022 has
been held to be passed without jurisdiction in view of the
provisions of the Family Courts Act, 1984 (hereinafter to be
referred as “the 1984 Act”), then the evidence recorded and
proceedings conducted before the Civil Judge, subsequent to
03.09.2019 could be taken into consideration or not by the
Family Court to whom the case was ultimately transferred?
4. On 01.08.2025, this Court had passed the following order:-
“Present : By order.
* * * *
Order 46 Rule 3 CPC, which is relevant, is reproduced
hereunder:
“3. Judgment of High Court to be transmitted, and case
disposed of accordingly.— The High Court, after hearing
the parties if they appear and desire to be heard, shall
decide the point so referred, and shall transmit a copy of its
judgment, under the signature of the Registrar, to the Court
by which the reference was made; and such Court shall, on
the receipt thereof, proceed to dispose of the case in
conformity with the decision of the High Court.”
A perusal of the above Rule shows that same provides
CREF-1-2025 (O&M) [5]
that the parties in case they appear and desire to be heard, are
required to be heard before the reference is answered.
Apparently, since the present case has been put up in
pursuance of a reference order passed by the Principal Judge,
Family Court, Fatehabad, thus in all likelihood the parties
would not be aware of the date fixed in the present case and the
fact that it is listed for hearing today. Accordingly, the Registry
is directed to issue notice to the plaintiffs/petitioners as well as
the defendants/respondents, whose names and addresses are
mentioned on the first page of the order of reference dated
10.07.2025, for 02.09.2025.
To be taken up at 1:45pm.
1
st
August 2025”
5. In pursuance of the said order, Mr. Kewal Krishan, Advocate
has appeared for the plaintiff-wife and Mr. Harshit Nain, Advocate has
appeared for defendant-husband and have assisted the Court in adjudicating
the present matter.
UNDISPUTED FACTS OF THE CASE
6. Before this Court opines on the abovesaid two questions, it
would be relevant to refer to the undisputed facts of the present case, which
are detailed hereinafter in a chronological order:-
i) 04.12.2017
A suit under Section 3(b)(ii) of the Hindu Adoption and Maintenance
Act was filed by the plaintiffs i.e., Smt. Shakuntla, wife of Suresh
Kumar and Pooja, daughter of Suresh Kumar against Suresh Kumar,
Chief Medical Officer and State of Punjab before the Civil Court i.e.,
Additional Civil Judge (Senior Division), Fatehabad. Pauper
CREF-1-2025 (O&M) [6]
application was also filed along with the same. Prayer in the suit is
reproduced hereinbelow:-
“Suit under section 3(b)(ii) of Hindu Adoption and
Maintenance Act for awarding the marriage expenses thereby
directing the defendant No.1 to make the payment of Rs.10 Lac
for the marriage of the plaintiff No.2 as lumpsum amount for
the marriage of the plaintiff No.2, which is proposed to be
solemnized in the month of March 2018, by way of attachment
of salary and GPF, PPF/EPF Account of the defendant No.1
and creating charge over it, who is employed in General
Hospital Sangrur District Sangrur under the defendants No.2
and 3 and further suit for permanent injunction thereby
restraining the defendant No.1 from forcibly and illegally
getting release from his GPF, PPF account etc for any other
purpose and for using the same and the defendants No.2 and 3
be restrained from releasing any amount from the service
account to the defendant No.1 except the purpose of marriage
of the plaintiff No.2. On the basis of oral and documentary
evidence of every description.”
ii) 16.07.2018
Permission was granted to the plaintiffs to pursue the instant suit as a
pauper and accordingly the suit was registered.
iii) 01.05.2019
The trial Court, after recording the fact that there were no chances of
amicable settlement, framed the issues.
iv) 06.08.2019
The evidence of PW1-Pooja was recorded and evidence of PW2-
Shakuntla was partly recorded and the case was deferred for cross-
CREF-1-2025 (O&M) [7]
examination for 11.09.2019.
v) 03.09.2019
The Family Court at Fatehabad was established by this Court vide
endorsement no.695 Gaz.I/VI.F.8 dated 03.09.2019 and Ms.Aarti
Singh, Additional District and Sessions Judge, Fatehabad was posted
as Principal Judge, Family Court at Fatehabad.
vi) 05.09.2019
The District and Sessions Judge, Fatehabad, passed an order dated
05.09.2019 to the effect that all cases relating to family matters as
provided under the Family Courts Act, 1984 pending in various
Courts were withdrawn from the said Courts and were transferred to
the Court of Principal Judge, Family Court, Fatehabad, for disposal in
accordance with law. The Ahlmads were directed to send the case
files, complete in all respects to the transferee Court immediately.
Accordingly, the Civil Courts ceased to have jurisdiction to entertain
and try the abovesaid cases.
……. Admittedly, the file in question, although was required to
be sent to the Principal Judge, Family Court, Fatehabad, was not sent
and the trial continued.
vii) 11.09.2019
One PW i.e., PW-2 Shankuntla was fully examined.
viii) 05.10.2019
PW-3 Raj Kumar and PW-4 Vidyarati were examined.
ix) 05.11.2019
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PW-5 Rajbir Singh was partly cross-examined and his further cross-
examination was deferred.
x) 30.11.2019
PW-7 Harish was examined.
xi) 29.02.2020
PW-5 Rajbir Singh was fully examined and evidence of the plaintiff
was closed.
xii) 02.08.2021
DW-1 Suresh was examined.
xiii) 03.09.2021
Evidence of the defendant was closed after tendering the documents
Ex.D1 and D2.
xiv) 10.03.2022
Application filed by the plaintiff for additional evidence to produce
the marriage card in additional evidence was allowed subject to
payment of costs.
xv) 18.04.2022
The suit filed by the plaintiff was partly decreed by the Civil Judge
(Jr.Div.), Fatehabad. The relevant portion of the said judgment is
reproduced hereinbelow:-
“3. Relief.
The plaintiffs are entitled to relief of sum of Rs.3,38,421/- from
the defendant no.1. No interest shall be awarded on the said sum as it
is not commercial transaction.
CREF-1-2025 (O&M) [9]
Announced in open Court Civil Judge (Jr.Divn.),
18.04.2022 Fatehabad.
(UID No.HR-0563)
Note:- All 15 pages of this judgment have been duly checked and
signed by me.
Civil Judge (Jr.Divn.),
Fatehabad
(UID No.HR-0563)”
xvi) 16.05.2022
Notice issued in the Civil Appeal filed by the husband-Suresh Kumar
against the judgment and decree dated 18.04.2022 by the Ist Appellate
Court i.e., Additional District Judge, Fatehabad.
Xvii) 23.09.2022
Cross objections filed by the plaintiffs.
xviii) 24.01.2023
An application was filed for disposal of the appeal on the ground of
lack of jurisdiction as the judgment and decree of the Civil Judge
(Jr.Div.), Fatehabad was without jurisdiction in view of the provisions
of Sections 7 and 8 of the Family Courts Act, 1984.
xix) 25.07.2023
The operation of the judgment and decree dated 18.04.2022 was
stayed till further orders by the District Judge, Fatehabad.
xx) 08.05.2025
The Ist Appellate Court i.e., the Additional District Judge, Fatehabad
allowed the appeal filed by the appellant-husband and the cross
objections filed by the plaintiffs were disposed of and the judgment of
the Civil Judge (Jr.Div.), Fatehabad, was set aside and the suit filed by
CREF-1-2025 (O&M) [10]
the plaintiffs was sent to the Court of Principal Judge, Family Court,
Fatehabad for disposal in accordance with law. The relevant portion
of the said judgment is reproduced hereinbelow:-
“RELIEF:
15. As a sequel to the findings on Point for Determination,
the appeal filed by the appellant is allowed with no order as to
costs and the cross objections filed by respondents No.1 & 2 are
disposed off with no order as to costs, the impugned judgment
and decree dated 18.04.2022 passed by the Court of Ms. Udita,
the then learned Civil Judge (Junior Division), Fatehabad are
set aside and the suit filed by the respondents No.1 & 2
against the appellant is sent to the Court of learned Principal
Judge, Family Court, Fatehabad for disposal of the suit filed
by respondents No.1 & 2 under Section 3(b)(II) of Hindu
Adoption and Maintenance Act as per law. The parties are
directed to appear in the Court of learned Principal Judge,
Family Court, Fatehabad on 19.05.2025. Memo of costs be
prepared accordingly. Trial Court record complete in all
respect alongwith copy of judgment be sent to the learned
Principal Judge, Family Court, Fatehabad well before the date
fixed. Appeal file be consigned to record room after due
compliance.
Pronounced in the Open Court:
08.05.2025. (Amit Garg)
Additional District
Judge, Fatehabad.
(UID No.HR0162)”
xxi) 10.07.2025
Reference order passed by the Principal Judge, Family Court at
Fatehabad.
CREF-1-2025 (O&M) [11]
7. This Court would now opine upon the two questions which
have been referred for the opinion of this Court and have been formulated in
the earlier part of this Order.
8. OPINION REGARDING QUESTION NO.(i)
Whether the First Appellate Court i.e., Additional District Judge,
Fatehabad was competent to hear the appeal and the cross-
objection challenging the judgment and decree dated 18.04.2022
passed by the Civil Judge (Junior Division), Fatehabad vide which
the suit filed by the plaintiffs under Section 3(b)(ii) of the Hindu
Adoption and Maintenance Act was partly decreed?
9. Counsel appearing for the defendant (husband) as well as for
the plaintiff (wife) have stated that they had filed the appeal and cross-
objections before the Ist Appellate Court, as it was the said Court which was
competent to hear the appeal / cross objections, in which challenge was
made to the judgment and decree dated 18.04.2022 passed by the Civil
Judge (Jr.Div.), Fatehabad. It was further pointed out that the order dated
08.05.2025 passed by the Ist Appellate Court i.e., the Additional District
Judge, Fatehabad has not been challenged further and has attained finality. It
is a matter of settled law and procedure that the appeal against the judgment
and decree passed by the Court would lie to the Court which is authorized to
hear the appeals from the decision of the said Court. Thus, the
maintainability of the appeal would be dependent upon the Court which had
decided the case and the Court which is authorized to hear the appeals from
the decision of the said Court which decided the case. To exemplify, if a
District Consumer Forum entertains and adjudicates a criminal case with
respect to which the said District Consumer Forum has no jurisdiction, then,
CREF-1-2025 (O&M) [12]
the appeal from the said decision of the District Consumer Forum would lie
before the State Commission and would not lie before the Sessions Court,
although the District Consumer Forum has, by wrongly entertaining a
criminal case, decided the same.
10. In the present case, it is not in dispute that the civil suit which
was instituted in the year 2017 and was registered in the year 2018 was
decided by the Civil Judge (Jr.Div.), Fatehabad. It is also not in dispute that
the appeal and the cross objections against the said judgment and decree
were filed before the Ist Appellate Court. The said appeal was filed in view
of Section 96 of the Code of Civil Procedure, 1908, which provision is
reproduced hereinbelow:-
“96. Appeal from original decree.—(1) Save where otherwise
expressly provided in the body of this Code or by any other law
for the time being in force, an appeal shall lie from every
decree passed by any Court exercising original jurisdiction to
the Court authorized to hear appeals from the decisions of
such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with
the consent of parties.
[(4) No appeal shall lie, except on a question of law, from a
decree in any suit of the nature cognisable by Courts of Small
Causes, when the amount or value of the subject-matter of the
original suit does not exceed [ten thousand rupees].]”
A perusal of above provision would show that an appeal would
lie from every decree passed by any Court exercising original jurisdiction to
CREF-1-2025 (O&M) [13]
the Court authorized to hear appeals from the decision of such Court.
Indisputably, the Ist Appellate Court i.e., the Additional District Judge,
Fatehabad was the Court which was authorized to hear appeals from the
judgment and decree passed by the Civil Judge (Jr.Div.), Fatehabad while
exercising original jurisdiction. Thus, in the said circumstances, the appeal
and the cross-objections have been rightly entertained by the Ist Appellate
Court and the judgment of the Ist Appellate Court i.e., Additional District
Judge, Fatehabad, deciding the said case and holding the judgment and
decree dated 18.04.2022 to be without jurisdiction cannot be stated to be
either a nullity or having been passed without jurisdiction and thus, the first
question which arises for the opinion of this Court is answered accordingly
and it is held that the Ist Appellate Court i.e., the Additional District Judge,
Fatehabad, was competent to hear the appeal and the cross objections
challenging the judgment and decree dated 18.04.2022 passed by the Civil
Judge (Jr.Div.), Fatehabad.
11. OPINION REGARDING QUESTION NO.(ii)
Whether once the judgment and decree dated 18.04.2022 has been
held to be passed without jurisdiction in view of the provisions of
the Family Courts Act, 1984, then the evidence recorded and
proceedings conducted before the Civil Judge, subsequent to
03.09.2019 could be taken into consideration or not by the Family
Court to whom the case was ultimately transferred?
12. From the abovesaid detailed facts, it is clear that the Family
Court at Fatehabad was established on 03.09.2019 and on 05.09.2019, the
District and Sessions Judge, Fatehabad had passed an order transferring all
the cases, as were required under Section 7 and 8 of the Family Courts Act,
CREF-1-2025 (O&M) [14]
1984 to the Principal Judge, Family Court, Fatehabad. Till 03.09.2019, the
evidence of one PW i.e., PW-1 was recorded and the evidence of second
witness i.e., PW-2 was partly recorded. It is after 03.09.2019 that the
evidence of remaining plaintiff witnesses, including cross-examination of
PW-2, was recorded and the evidence of the defendant was also recorded
subsequent to the said date. The question that arises for consideration is as to
whether the evidence recorded and the proceedings conducted subsequent to
03.09.2019 can be taken into consideration or not by the Family Court to
whom the matter has been transferred for final adjudication.
13. Section 8 of the Family Courts Act, 1984 provides that where a
Family Court has been established for any area, then no District Court or any
subordinate Civil Court referred to in sub Section (1) of the Section 7 shall,
in relation to such area, have or exercise any jurisdiction in respect to any
suit or proceedings referred to in the explanation to the said sub section.
Section 8 of the Family Courts Act, which is relevant for consideration, is
reproduced hereinbelow:-
“8. Exclusion of jurisdiction and pending proceedings.—
Where a Family Court has been established for any area,—
(a) no district court or any subordinate civil court referred to
in sub-section (1) of section 7 shall, in relation to such area,
have or exercise any jurisdiction in respect of any suit or
proceeding of the nature referred to in the Explanation to that
sub-section;
(b) no magistrate shall, in relation to such area, have or
exercise any jurisdiction or powers under Chapter IX of the
Code of Criminal Procedure, 1973 (2 of 1974);
CREF-1-2025 (O&M) [15]
(c) every suit or proceeding of the nature referred to in the
Explanation to sub-section (1) of section 7 and every
proceeding under Chapter IX of the Code of Criminal
Procedure, 1973 (2 of 1974),—
(i) which is pending immediately before the establishment
of such Family Court before any district court or
subordinate court referred to in that sub-section or, as
the case may be, before any magistrate under the said
Code; and
(ii) which would have been required to be instituted or
taken before such Family Court if, before the date on
which such suit or proceeding was instituted or taken,
this Act had come into force and such Family Court had
been established,
shall stand transferred to such Family Court on the date on
which it is established.”
The abovesaid section also provides that the cases which are
required to be taken before the Family Court under the 1984 Act and were
pending immediately before the establishment of such Family Court before
any District Court or subordinate Court would stand transferred to such
Family Court on the date on which it is established. The said provision thus
excludes the jurisdiction of the District Court or subordinate Civil Courts
with respect to the matters which the Family Court is required to decide
under 1984 Act after the establishment of the Family Court in the area
concerned.
14. Section 7 of the Family Courts Act provides that the Family
Court shall have and exercise all the jurisdiction exercisable by any district
court or any subordinate civil court under any law for the time being in force
CREF-1-2025 (O&M) [16]
in respect of suits and proceedings of the nature referred to in the
Explanation provided in Section 7(1). Clause (f) of the said explanation
provides for a suit or proceeding for maintenance. Section 7 of the Family
Courts Act is reproduced hereinbelow:-
“7. Jurisdiction.—(1) Subject to the other provisions of this
Act, a Family Court shall— (a) have and exercise all the
jurisdiction exercisable by any district court or any
subordinate civil court under any law for the time being in
force in respect of suits and proceedings of the nature referred
to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction
under such law, to be a district court or, as the case may be,
such subordinate civil court for the area to which the
jurisdiction of the Family Court extends.
Explanation.—The suits and proceedings referred to in this
sub-section are suits and proceedings of the following nature,
namely:—
(a) a suit or proceeding between the parties to a marriage for a
decree of nullity of marriage (declaring the marriage to be null
and void or, as the case may be, annulling the marriage) or
restitution of conjugal rights or judicial separation or
dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a
marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with
respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in
circumstance arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of
any person;
CREF-1-2025 (O&M) [17]
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the
person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court
shall also have and exercise—
(a) the jurisdiction exercisable by a Magistrate of the first class
under Chapter IX (relating to order for maintenance of wife,
children and parents) of the Code of Criminal Procedure, 1973
(2 of 1974); and
(b) such other jurisdiction as may be conferred on it by any
other enactment.”
15. In the present case, the suit filed by the plaintiffs is under
Section 3 (b) (ii) of the Hindu Adoption and Maintenance Act and a perusal
of the prayer clause, which has been reproduced in the earlier part of the
present order, and the averments made in the plaint would show that the
same is a suit of the nature falling under Section 7(f) of 1984 Act. The
finding of the Ist Appellate Court on the said aspect is not under challenge
and is not disputed and is in accordance with law. Since after 03.09.2019,
the Civil Court ceased to have subject matter jurisdiction to try the suit in
question, thus, the evidence recorded by the Civil Court subsequent to
03.09.2019 and also the proceedings carried on subsequent to the said date
cannot be stated to be valid and cannot be considered by the Family Court
and thus, the proceedings subsequent to 03.09.2019 would have to be
conducted afresh. The Division Bench of Bombay High Court in its
judgment dated 22.11.2000 passed in LPA-116-2000 titled as “Anand
CREF-1-2025 (O&M) [18]
Govind Bhide vs. Rohini Bhide” reported as 2001(1) DMC 646 had, in a
case arising under the Family Courts Act, 1984, after taking into
consideration Section 8 and Section 20 of the Family Courts Act observed
that once the City Civil Court ceased to have jurisdiction to entertain, try or
decide the said suit from the date the Family Court was established, then the
evidence recorded by the City Civil Court after that date could not be taken
into consideration unless the parties consent to the same. The relevant
portion of the said judgment is reproduced hereinbelow:-
“44……….We have, therefore, no alternative but to do what the
law requires and expects us to do. However inconvenient it
may be to the parties, in view of the provisions of the Family
Courts Act, 1984, in our opinion, the S.C. Suit No. 3378 of
1983, filed in the City Civil Court at Bombay, stood
transferred to the Family Court with effect from 7.10.1989 as
the City Civil Court ceased to have jurisdiction to entertain,
try or decide the said suit from that day. Needless to say that
any evidence recorded by the City Civil Court after that day
cannot be taken into consideration unless the parties consent
to it. It is clarified that we have not expressed any opinion on
the merits of the case.
45. In the result, we pass the following order :
(a) Appeal is allowed.
(b) Impugned order dated January 24, 2000 passed by
the learned Single Judge in First Appeal No. 377 of 1990
and the judgment and order dated 22/28.2.1990 passed
by the City Civil Court in S.C. Suit No. 3378 of 1983 are
quashed and set aside.
(c) S.C. Suit No. 3378 of 1983 shall stand transferred to
the Family Court with immediate effect to be heard and
CREF-1-2025 (O&M) [19]
disposed of in accordance with law.
(d) Any evidence recorded, or order made, by the City
Civil Court on and after the establishment of Family
Court that is on and after 7.10.1989, shall not be
considered by the Family Court, unless parties agree
that such evidence may be taken into consideration for
disposal of the suit.
(e) The Family Court shall dispose of the suit as
expeditiously as possible.
(f) In the circumstances of the case, there shall be no
order as to costs.
Appeal allowed.”
16. In the abovesaid case, the suit was filed in the year 1983 and at
the time when the suit was filed, the City Civil Court had the jurisdiction to
decide the said suit. The competent Family Court in the said case was
established on 07.10.1989. The case was not transferred to the Family Court
as in the present case and the City Civil Court vide judgment dated
22/28.02.1990 decreed the suit. In the said circumstances, the abovesaid
judgment was passed by the Division Bench of the Bombay High Court. An
argument raised before the Division Bench of the Bombay High Court to the
effect that since the suit was pending since 1983 and the evidence had also
been recorded and thus, instead of going into question of jurisdiction, the
case should have been decided on the basis of evidence on record, was
noticed but was rejected although the Court was alive to the fact that the
same would cause some inconvenience to the parties. In the present case, it
would be relevant to note that this Court in view of the observations made
CREF-1-2025 (O&M) [20]
by the Division Bench of Bombay High Court in the aforesaid case had put
it to the counsel appearing for the plaintiff and the defendant, as to whether
they have any objection to the evidence which has already been recorded, to
be read as evidence before the Family Court and on the said aspect, the
counsel for the defendant (husband) has raised an objection.
17. The Division Bench of the Kerala High Court in the case of
Kinarullaparambath Abdul Azeez and others vs. Valiyaparambath Vasu
and others, Op (RC) No.99, 100, 101 and 102 of 2019 decided on
22.07.2019 had observed that the trial without subject matter jurisdiction is
no trial at all and cannot have any sanctity of a valid trial and the end result
of such a trial is a non-est decree or order and had further observed that in
such circumstances, the oral evidence recorded during the vitiated trial
cannot assume any significance or validity to be called a deposition recorded
during the judicial proceedings. It was thus held that the transferee Court
would have to conduct de novo trial and that the evidence recorded by the
Court having no subject matter of jurisdiction could not be used for deciding
merits of the case. The relevant portion of the said judgment is reproduced
hereinbelow:-
“16. Another question arising for consideration is about the
utility of evidence recorded by a Nyayadhikari in the course of
trial of rent control petitions without having subject matter
jurisdiction. It is trite that a trial without subject matter
jurisdiction is no trial at all and it cannot have any sanctity of
a valid trial. The end result of such a trial is a non-est decree
or order. Such a trial process is vitiated because the defect in
CREF-1-2025 (O&M) [21]
the jurisdiction goes to the root of the Court's authority. When
a trial before a court without jurisdiction over the subject
matter results in a null, void and non-est decree or order, it
will be very clear that the oral evidence recorded during the
vitiated trial cannot assume any significance or validity to be
called a deposition recorded during a judicial proceedings.
17. The term "judicial proceedings" is not defined in the Indian
Evidence Act, 1872 ( in short 'the Evidence Act'). In many
decisions, it has been held that "judicial proceeding" includes
any proceeding in the course of which evidence is or may be
legally taken on oath. Judicial proceeding is "any proceeding in
the course of which evidence is or may be taken or in which any
judgment, decree, sentence or final order is passed on recorded
evidence". It has aslo been stated that a judicial proceeding
means a proceeding in which judicial functions are being
exercised. It is therefore vividly definite that a proceeding
whereby Nyayadhikari disposing of rent control petitions
without subject matter jurisdiction can never be regarded as a
judicial proceeding since the lack of jurisdiction goes to the
root of the matter.
xxx xxx xxx
…..Resultantly, the captioned original petitions are
disposed as follows :
Gram Nyayalaya, Kunnummel Block, Kuttyadi is directed
to transmit the records in the rent control petitions
referred to above to the Rent Control Court, Nadhapuram
for trial and disposal in accordance with law. Prayers
made in the original petitions seeking a declaration that
the petitioners are entitled to execute the orders passed
by Gram Nyayalaya in rent control petitions are declined
for the aforementioned reasons. Likewise, prayers in the
CREF-1-2025 (O&M) [22]
original petitions to direct the Rent Control Court to
consider the depositions of witnesses recorded by Gram
Nyayalaya in the eviction proceedings as substantive
piece of evidence are also declined.
The Gram Nyayalaya shall notify the parties about the date of
return of the eviction petitions so as to enable them to come and
receive the same for presentation before appropriate court.
All pending interlocutory applications will stand closed.”
18. Keeping in view the above said facts and circumstances, this
Court is of the view that the evidence recorded and the proceedings
conducted before the Civil Judge (Jr.Div.), Fatehabad subsequent to
03.09.2019 cannot be taken into consideration by the Family Court to whom
the case has been ultimately transferred and the second question is
accordingly answered.
CONCLUSION
19. This Civil Reference is thus disposed of with the conclusion
that the Ist Appellate Court i.e., the Additional District Judge, Fatehabad,
was competent to hear the appeal and the cross objections challenging the
judgment and decree dated 18.04.2022 passed by the Civil Judge (Jr.Div.),
Fatehabad and that the proceedings conducted before the Civil Judge
(Jr.Div.), Fatehabad subsequent to 03.09.2019 cannot be taken into
consideration by the Family Court to whom the case has been ultimately
transferred and the Family Court would thus proceed with the case from the
stage as it was on 03.09.2019 and after giving due opportunity to both the
parties to lead their evidence afresh would adjudicate the case, in accordance
with law.
CREF-1-2025 (O&M) [23]
20. The Registrar of this Court is directed to transmit a copy of the
present judgment to the Court by which reference has been made, in
accordance with law, for further necessary action.
(VIKAS BAHL)
JUDGE
October 13, 2025
Pawan/Davinder Kumar
Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
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