Deraji Malinga Naika v. Marati Kaveri

1. We do not think the decisions of the Courts below that the suit is not maintainable can be upheld. We think the case of Veeran v. Ayammah (2 Weir 615) was rightly decided, and that it cannot be distinguished on the ground suggested viz., that the objection to the jurisdiction of the Civil Court was not taken in the suit but in the subsequent magisterial proceedings. The order states expressly that the Magistrate's order for maintenance did not take away the jurisdiction of the Civil Courts. The same view was taken in Mahomed Ahid Ali Kumar Kadar v. Ludden Sahiba (I.L.R 14 Cal. 276). In Subhudra v. Basdeo Dube (I.L.R, 18 All. 29) the Judges treated the suit as one in which the plaintiff sought to have the maintenance order set aside. We see no reason why the present suit should be so treated or why a suit claiming the declaration which the plaintiff asks for is not maintainable.

2. As regards the objection that the plaintiff was entitled to ask for an injunction and omitted to do so, we think the objection fails on the ground pointed out in Mahomed Abid Ali Kumar Kadar v. Ludden Sahiba (I.L.R 14 Cal. 276) that he was not entitled to ask for an injunction.

3. The decrees of the Lower Courts must be set aside and the case must go back to the Court of first instance to be dealt with according to law.

4. Costs will abide the event.

5. Appeal allowed and case remanded.