NISHA YADAV Vs. AJAY YADAV

JUDGEMENT

(1.) The present revision petition filed under Section 115 of Civil Procedure Code, 1908 is directed against the order dated 10/12/2012 passed by the Additional District and Session Judge, Behror, District Alwar (hereinafter referred to as 'the Court below') in Divorce Petition No. 233 of 2012, whereby the Court below has rejected the application of the petitioner filed under Order VII Rule 11 of CPC seeking rejection of the plaint.

(2.) It has been submitted by the learned counsel Mr. Pradeep Choudhary for the petitioner that the marriage of the petitioner with the respondent having not been solemnized at the Village Majara, Behror nor the petitioner, who is the respondent in the divorce petition, is residing at the said place, nor the parties had last resided together at the said place, the Court below had no jurisdiction to entertain the divorce petition filed by the respondent. According to him, the jurisdiction of the Trial Court is barred under Section 19 of the Hindu Marriage Act, 1955.

(3.) It cannot be gainsaid that the question of jurisdiction should be raised by the party at the earliest stage of the proceedings either by filing application under Order VII Rule 10 or by requesting the Court to decide the said issue as the preliminary issue under Order XIV Rule 2 of CPC. However, the plaint could not be rejected under Order VII Rule 11 on the ground of lack of jurisdiction as it would be a mixed question of law and facts. As per the settled legal position, the plaint could be rejected under Order VII Rule 11 (d), if from the statement made in the plaint, the suit appears to be barred by any law. The learned counsel for the petitioner having failed to point out any such bar under any law, the Court is of the opinion that the Trial Court has rightly rejected the application of the petitioner filed under Order VII Rule 11 of CPC. However, it will be open for the petitioner to file appropriate application as may be permissible under the law raising the issue of jurisdiction before the Trial Court, and the Trial Court shall decide such application if filed, in accordance with law.