MALATI DUTT Vs. SURENDRA NATH DUTT

JUDGEMENT

(1.) This rule is directed against an order dated 10 February 1941, passed by the District Judge of 24-Perganas in a divorce suit which was originally started in the Court of District Judge of Mymensingh, but was later on transferred to the Alipur Court under an order of Sen J. in exercise of matrimonial jurisdiction of this Court. The material facts are not in controversy and may be shortly stated as follows : The petitioner, one Malati Sudha, was married to the plaintiff-opposite party, Surendra Nath, on 18 January 1940, and the marriage was solemnized under Act 3 of 1872. On 1 August 1940, the husband instituted a divorce proceeding in the Court of the District Judge of Mymensingh and prayed for dissolution of the marriage on the ground of alleged misconduct of the wife with opposite party No. 2, Jyoti Prokash. The wife thereupon moved an application to this Court in its extraordinary original civil jurisdiction under Clause 13, Letters Patent, as well as under Section 8, Divorce Act, praying that the divorce suit pending before the Mymensingh Court might be transferred to this Court and tried in its ordinary original jurisdiction along with a maintenance suit, which was filed by her against her husband in this Court, and was still pending hearing. On this application a rule nisi was directed to be issued by Panck-ridge J. on 14th. August 1940 and the rule was heard by Sen J. sitting singly on 3 September following. The learned Judge directed by an order passed on that date that the divorce suit should be transferred from Mymensingh to Alipur and be heard and decided by the District Judge of 24-Perganas. It was further directed that a writ of commission should issue forthwith under the seal of this Court in its matrimonial jurisdiction to the District Judge of Mymensingh authorizing him to examine ten witnesses named in the writ including the opposite party himself as witnesses on his behalf. The said commission was made returnable to the Court of the District Judge of 24- Perganas on or before 11 November 1940.

(2.) In pursuance of this writ the District Judge of Mymensingh proceeded to examine the witnesses named therein. Objections were raised by the counsel appearing on behalf of the petitioner that the order made by this Court for examination of the witnesses on commission was without jurisdiction as Sen J. had no seisin of the case after he made an order of transfer. Complaint was also made on behalf of the petitioner that the District Judge of Mymensingh did not allow her counsel to cross-examine most of the witnesses that were examined on behalf of the opposite party. The District Judge overruled these objections and after the examination of the witnesses was finished the records of the divorce suit were transmitted to the Alipur Court and the suit was registered as original Suit No. 47 of 1940. The petitioner filed her written statement in due course and besides answering the allegation of disloyalty brought against her by her husband, she took the specific point that the Alipur Court had no jurisdiction to entertain or hear the suit.

(3.) On 17 January 1941 issues were framed by the District Judge of Alipur and issue 1 which raised the question of jurisdiction was heard as a preliminary issue by the Court on 10th February 1941. By his order passed on that date the District Judge decided this issue in favour of the plaintiff-opposite party and held that he had jurisdiction to try and determine the suit. It is against this order that the present rule has been obtained. It is conceded on both sides that apart from the order of transfer made by Sen J. the District Judge of Alipur would have no jurisdiction to entertain the suit. Mr. Banerji who appeared in support of this rule contended before us that the order of 9 our learned brother, Sen J., was without jurisdiction and that a Judge sitting on the original side of this Court was not competent to transfer a divorce suit from one District Court to another, over neither of which he could exercise any appellate jurisdiction. This power, it is said, could be exercised only by the appellate Bench of this Court which is empowered to deal with civil business arising from the particular district where the suit was pending. It is contended, therefore, that the order of Sen J. being void for want of jurisdiction could not confer any legal authority on the District Judge of Alipur to hear and determine the suit.