MOHAMMAD ABBAS MALLIK Vs. TAHERA KHATOON

JUDGEMENT

(1.) The opposite par-tics filed an application under Order 33, Rule 1 of the Code of Civil Procedure (hereinafter called the Code) for permission to sue in forma pauperis. The sole defendant in the suit is the petitioner in this civil revision application. Opposite Party No. 1 is his wife and Opposite Parties 2 and 3 are their children. The suit is for maintenance. The petitioner resisted the application filed by the opposite parties, inter alia, on the ground that the Court at Biharsharif had no jurisdiction to try the suit and, consequently, the application, as the parties were married at Patna and not at Biharsharif. The petitioner wanted the learned Subordinate Judge, in whose Court the application was pending, to decide the point of jurisdiction as a preliminary issue. The Court below, following certain decisions, took the view that at the stage of deciding the pauperism of the plaintiffs-petitioners the issue as to jurisdiction could not be decided. The defendant has come up in revision.

(2.) The issue as to jurisdiction on the ground of lack of pecuniary jurisdiction or territorial jurisdiction is of the same kind. It means objection to the place of suing within the meaning of Section 21 of the Code. At some stage or the other the issue has got to be tried out; but the question for consideration is whether the issue should be tried out before the plaint is regularly admitted in accordance with Order 33, Rule 8 of the Code or whether it should be tried thereafter.

(3.) There is a direct Bench decision of this Court in Gupteshwar Missir v. Chaturanand Missir, AIR 1950 Pat 309. B.P. Sinha, J., (as he then was), with whom Raj, J., agreed, on a consideration of various decisions, expressed the view at page 311, column 1--