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Mansaram Sharma Vs. Saraswati Devi - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 86 of 1976
Judge
Reported inAIR1977Ori55; 42(1976)CLT969
ActsHindu Marriage Act, 1955 - Sections 24; Orissa Divorce Rules - Rule 13; Code of Civil Procedure (CPC) , 1908 - Order 20, Rule 3 - Order 47, Rule 1
AppellantMansaram Sharma
RespondentSaraswati Devi
Appellant AdvocateH. Sen, Adv.
Respondent AdvocateR.C. Patnaik, ;P.N. Misra and ;S. Biswanath, Advs.
DispositionAppeal partly allowed
Cases Referred(Rama Santra v. Rani Soudamini Manjari Devi
Excerpt:
.....of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the..........of the respondent in the court below) till the disposal of the suit, and rs. 100/-towards litigation expenses. 3. the plaintiff-appellant has instituted title suit no. 7 of 1972 against his wife, the respondent in this appeal, for judicial separation. in this suit the respondent filed a petition under section 24 of the hindu marriage act for directing the appellant to pay her ad interim maintenance and litigation expenses. the impugned order has been passed on the said petition. 4. mr. sen, the learned counsel for the appellant, contends that the said petition filed by the respondent in the court below is not in accordance with rule 13 of the hindu marriage and divorce rules, 1956 framed by the orissa high court under the hindu marriage act, 1955, and so it was not within the.....
Judgment:

S. Acharya, J.

1. Notice for admission and hearing had been issued to the respondent. Mr. R. C. Patnaik appears for the respondent. The appeal is admitted.

With the consent of the counsel appearing for both the parties the appeal is taken up for hearing and on hearing them at length this appeal is disposed of by the following order:

2. This appeal is against an order passed by the court below directing payment of interim maintenance to the respondent at the rate of Rs. 60/- per month from 10-5-1972 (i.e., the date of appearance of the respondent in the court below) till the disposal of the suit, and Rs. 100/-towards litigation expenses.

3. The plaintiff-appellant has instituted Title Suit No. 7 of 1972 against his wife, the respondent in this appeal, for judicial separation. In this suit the respondent filed a petition under Section 24 of the Hindu Marriage Act for directing the appellant to pay her ad interim maintenance and litigation expenses. The impugned order has been passed on the said petition.

4. Mr. Sen, the learned counsel for the appellant, contends that the said petition filed by the respondent in the court below is not in accordance with Rule 13 of the Hindu Marriage and Divorce Rules, 1956 framed by the Orissa High Court under the Hindu Marriage Act, 1955, and so it was not within the jurisdiction of the court to entertain the said application. Rule 13 is as follows:--'Rule 13. Application for alimony and maintenance. -- (a) Every application for maintenance pendente lite permanent alimony and maintenance or for custody, maintenance and education expenses of minor children shall state the average monthly incomes of the petitioner and the respondent, the sources of these incomes, particulars of other movable and immovable property owned by them, the number of dependents on the petitioner and the respondent, and the names and ages of such dependents.

(b) Such application shall be supported by an affidavit of the applicant.'

The said application filed by the respondent in the court below no doubt shows that all the required particulars mentioned under Rule 13 have not been furnished in the said application. That application is also not supported by an affidavit of the respondent. So Rule 13 obviously has not been fully complied with. These defects, however, do not affect the initial jurisdiction of the court to entertain the said application. It is well settled that omission to comply with the requirements of rules in the Civil Procedure Code for drawing up or presentation of plaints does not affect the jurisdiction of the court to entertain the plaint and/or to proceed with the suit. So the omission to state the particulars and/or to furnish the affidavit as required under the said Rule 13 does not affect the initial jurisdiction of the court to entertain that application. The same view has been taken in Bhalu Naik's case reported in (1969) 35 Cut LT 532 = (AIR 1969 Orissa 236). Accordingly, the court was not without jurisdiction to entertain the said petition of the respondent and/or to proceed with the said matter and pass orders on the same. Moreover, in this case the court has passed the order mostly on the concession made by the appellant before the court below, as is evident from the impugned order, and so the above detects are of no consequence.

5. It is submitted by Mr. Sen that the concession of the appellant to pay interim maintenance and litigation expenses as mentioned in the impugned order was made under pressure exerted by the court below, and so this court should not act on the basis of the said concession. In the impugned order it is stated that 'the opposite party (the appellant herein) offers to pay interim maintenance at the rate of Rs. 50/- per month from the date of the suit besides litigation expenses of Rs. 100/-'. There is nothing in the impugned order or in the lower court records to show that the court below exerted any such pressure compelling the appellant to make the aforesaid concession. The petition under Section 24 of the Hindu Marriage Act was filed on 27-3-1976. Copy of the said petition was thereafter served on the opposite party, the appellant in this appeal. On 30-3-1976 the appellant appeared in court and prayed for time to file his counter to the said petition. The court on that date ordered that the matter be put up on 8-4-1976 for counter and hearing. On 8-4-1976 the impugned order was passed. There is nothing in the order sheet of the suit or of the Misc. Case No. 28/76 to show that the appellant on 8-4-1976 wanted time to file his counter to the said petition. There is also nothing on record to show that the appellant in the court below ever protested against the statement in the impugned order that he made the above concession regarding payment of interim maintenance and litigation expenses. If the appellant made the said concession under pressure of the court below as alleged by Mr. Sen, then the appellant could immediately have filed a petition in that court indicating that fact, or after the passing of the impugned order he could have filed a review petition stating the circumstances under which he made the said concession. In the Bank of Bihar case reported in AIR 1964 SC 377 their Lordships have observed that-

'Where a statement appears in the judgment of a court that a particular thing happened or did not happen before it, it ought not ordinarily to be permitted to be challenged by a party unless both the parties to the litigation agree that the statement is wrong, or the court itself admits that the statement is erroneous.' '

In the Division Bench decision reported in ILR (1962) Cut 673 (Rama Santra v. Rani Soudamini Manjari Devi) it has been observed that-

'When a judgment is supposed to be found on a misconception as to a concession made by an advocate, the proper procedure is to apply by way of review to the very court in whose jurisdiction the error is alleged to have crept in for a rectification of the mistake if any.'

As the appellant has not taken any such step it is not possible for me to accept as true the above allegation of the appellant's counsel.

6. In the court below the appellant offered to pay Rs. 100/- towards litigation expenses and interim maintenance at the rate of Rs. 50/- per month from the date of the suit. The respondent in the court below did not state on affidavit nor did she adduce any evidence regarding the financial capacity of the appellant. So without any material on record the court below was not justified in enhancing the monthly maintenance by any amount than what was conceded by the appellant. I, therefore, direct that the appellant will pay to the respondent towards her maintenance Rs. 50/- per month as conceded by him. He has to pay the arrear maintenance amount calculated at that rate from 10-5-1972 and shall continue to pay the same till the disposal of the suit. He has also to pay her Rs. 100/- towards her litigation expenses as conceded by him. The arrear maintenance amount from 10-5-1972 upto the end of June, 1976, has to be paid by the end of October, 1976. The maintenance amount for the month of July, 1976, shall be paid by the 15th of August, 1976, and the same for each succeeding month shall be paid by the 15th Of the following month. The litigation expenses of Rs. 100/- has to be paid by the end of September, 1976. The court shall take proper steps for the realisation of the aforesaid amounts from the appellant and payment of the same to the respondent as directed above.

7. The appeal is partly allowed. Each party will bear his own costs of this appeal. The L. C. R. be sent back to the court below immediately.


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