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Sarwan Ram Vs. Amar Nath and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 1941 of 1978
Judge
Reported inAIR1980P& H162
ActsCode of Civil Procedure (CPC), 1908 - Sections 151 - Order XXXVIII - Order 39, Rule 7; Hindu Adoptions and Maintenance Act - Sections 18 and 20
AppellantSarwan Ram
RespondentAmar Nath and anr.
Cases ReferredIn Padam Sen v. State of U.P.
Excerpt:
.....singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order..........according to the learned counsel for the petitioner; the trial court had no jurisdiction to grant interim maintenance even in the exercise of its inherent jurisdiction, under section 151, civil p.c.(hereinafter called the code), and that as yet, even the right of the plaintiff-respondent to get maintenance the petitioner and his brother, respondent no. 2, is to be determined, and there was no term of the gift deed as m the grant of maintenance to the plaintiff-respondent by the donees, though the latter who are collaterals of the former had been maintaining him till the filing of the suit and were even now prepared to maintain him if he lived with them in their house. it was also stressed that the observation of the trial court in the impugned order that the donees must have given.....
Judgment:
ORDER

1. Amar Nath, respondent, transferred immovable property comprising of a house and agricultural land in favour of the petitioner and respondent No. 2 by means of a registered gift deed, dated Feb. 20, 1962. Thereafter in 1976, he files a suit for maintenance at the rate of Rs. 200/- per mensem in forma pauperis against the donees. The application for permission to file the suit as a pauper has yet not been disposed of and the suit has not been registered as a regular suit. During the pendency of this pauper petition, an application for grant of interim maintenance during the pendency of the suit, was allowed by the trial Court vide the impugned order and the donees were held liable to pay maintenance to the plaintiff-respondent at the rate of Rs. 75 per month during the pendency of the suit The present revision petition is directed against the said order.

2. According to the learned counsel for the petitioner; the trial Court had no jurisdiction to grant interim maintenance even in the exercise of its inherent jurisdiction, under Section 151, Civil P.C.(hereinafter called the Code), and that as yet, even the right of the plaintiff-respondent to get maintenance the petitioner and his brother, respondent No. 2, is to be determined, and there was no term of the gift deed as M the grant of maintenance to the plaintiff-respondent by the donees, though the latter who are collaterals of the former had been maintaining him till the filing of the suit and were even now prepared to maintain him if he lived with them in their house. It was also stressed that the observation of the trial Court in the impugned order that the donees must have given undertaking to the plaintiff-respondent at the time the gift deed to maintain him, is tantamount to pre-judging the issue before the trial of the suit. Reliance has been placed a number of decisions of various High Courts to canvass the proposition that Section 151 of the Code, does not confer any right on the Court to grant interim maintenance and that the said provision was only procedural one whereas the right of maintenance, whether on permanent basis or of an interim nature, during the pendency of the suit, was in the domain of substantive rights for which the reliance must be placed on some statute.

3. Admittedly, the plaintiff-respondent, who gifted his entire property in favour of the petitioner and respondent No 2, is only a collateral of the donees and as such, the provisions of the Hindu Adoptions and Maintenance Act, (hereinafter called the Act), for the purpose of grant of maintenance are not attracted. The suit out of which the present revision petition has arisen has also not been instituted for the purpose of setting aside the gift deed, in dispute. In this suit, only future maintenance has been claimed. Thus, whether the plaintiff-respondent is entitled to maintenance of right under trial Court (sic). In these circumstances, the important question to be determined is Whether it is within the jurisdiction of the Court to grant interim maintenance under S. 151 of the Code on the analogy that where a case for interim attachment or interim injunction as provided under O. XXXVIII or O. XXXIX of the Code, is not made out, the Court is competent to grant relief relating to interim attachment or interim injunction, as the case may be, in the exercise of its inherent jurisdiction under S. 151 of the Code?

4. It was held by a Division Bench of the Madras High Court in Mahomed Abdul Rahman v. Tajunnissa Begum, AIR 1953 Mad 420; that in a suit for maintenance by the wife where the claim is hotly contested, the order of payment of interim maintenance is without jurisdiction and that there is inherent jurisdiction vested in Courts to grant interim relief regarding maintenance which properly ought to be granted only by a decree after determination of the points in controversy.

5. In Appanna G.v. G. Seethamma, AIR 1972 Andh Pra the wife filed a suit for past and future maintenance against her husband under the provisions of the Act. During its pendency an application under S 151 of the Code and S. 18 of the Act, for the grant of Rs 150/- per month as maintenance was filed. The trail Court awarded interim maintenance at the rate of Rs. 30/- per mensem. The said order was challenged in revision. The Division Bench therein held,--

'The inherent powers recognised by Section 151 cannot extend to matters other than procedural. The Court cannot resort to the provisions of S. 151 to encroach upon substantive rights of parties or in an interlocutary application, upon matters which await adjudication in the suit. No order under S. 151, Civil P.C. can be made except in aid of the suit.''

The contention on the opposite side that interim maintenance can be granted under S. 18 of the Act, was also repelled and it was held,--

'Section 18 of Hindu Adoptions and Maintenance Act does not authorise the award of interim maintenance pending decision of suit in which the very claim to maintenance is in contest. The right of the wife to be maintained by the husband should not be confused with the power of the Court to award interim maintenance pending an action for maintenance where such right is in dispute. The Court has no power unless statute expressly confers such a power on it.'

6. In Sodagar Singh v. Smt. Harbhajan Kaur (1977) 79 Punj L,R 506 Narula C.J., held to the same effect that S. 151 of the Code is not a substantive provision conferring any right to get any relief and that the Act does not authorise the passing of any order for interim maintenance or litigation expenses.

7. On behalf of the plaintiff-respondent, reliance has been placed on a number of decisions of the various High Courts, discussed below, which however, do not have much relevance and do not lend support to his case in any manner.

8, In Totaram Iccharam Wani v. Dattu Mangu Wani AIR 1943 Boro 143, the plaintiffs had filed a suit for partition in forma pauperis. Before the application for leave to sue in forma pauperis had been considered ex parte Commissioners under O. XXXIX, R. 7 of the Code had been appointed by the trial Court. The said order having been challenged in revision, the contention raised was that till the suit was registered in a regular manner after the final disposal of the pauper application, interim order under O. XXXIX, R. 7 could not be passed. It was held that the pauper application was a continuation of the suit and the plaintiffs had the right to seek interim relief by way of injunction or the appointment of a receiver with regard to the property in dispute, before the pauper application was finally adjudicated upon. It is obvious, that the Court had the jurisdiction to grant interim injunction or to appoint receiver during the pendency of the suit under O. XXXIX, R. 7 of the Code.

9. In Ramappa Parappa Khot v. (Sourwwa, AIR 1968 Mys 270, a suit had been filed by the wife for setting aside three gift deeds executed by her husband in favour of his brother's sons and sister's son, and also for maintenance. The suit had been filed in forma pauperis. The pauper application had not yet been decided when the interim maintenance was allowed by the trial Court. The High Court of Mysore held that the jurisdiction of the civil Court to grant interim relief was not barred during the pendency of the pauper application. In regard to the right of maintenance to the life, it was held in paragraph 18 of the judgment, that the counsel for the defendants had not disputed the liability of the defendants to pay maintenance unless the defendants succeeded in their contention that the donor had made sufficient provision for the maintenance of his wife while executing the gift deeds. Thus, the order for interim maintenance was upheld in view of the peculiar facts of that case and that cannot serve as a precedent for holding that the civil Court has the jurisdiction to grant interim maintenance in a suit for maintenance.

10. In Jyoti Prakash Banerjee v. Chameli Banerjee, AIR 1975 Cal 260, a suit for maintenance had been filed by the wife and her minor children against the husband. Interim maintenance was allowed under S. 151 of the Code. It was held that the plaintiffs had a substantive right of maintenance under Ss. 18 and 20 of the Act and as such, interim maintenance could be allowed during the pendency of the pauper application.

11. In Vijay Pratap v Dukh Haran Nath, AIR 1962 SC 941, the only question for consideration was the scope and ambit of O. XXXIII, R. 5 of the Code for the purpose of disposal of the application to sue in forma pauperis. No question regarding issuance of any interim order was involved.

12. In Padam Sen v. State of U.P., AIR 1961 SC 218, during the pendency of the suit for the recovery of money, the defendants apprehending that the plaintiff would fabricate his books of account with respect to the payments made by them, applied for the seizure of the account books of the plaintiff. The trial Court appointed a Commissioner to seize those books of account. In pursuance thereof, the account books were seized. Thereafter, the plaintiff was convicted by the Special Judge under S. 165A, I.P.C., for having offered bribe to the Commissioner for being allowed an opportunity to tamper with those books of account The conviction was upheld by the High Court. In the criminal appeal before the Supreme Court, it was held by their Lordships that the civil Court had no inherent powers under S. 151 of the Code to appoint a Commissioner to seize the books of account in possession of the plaintiff. It was further held,--

'Powers saved by S. 151 are not powers over substantive rights which a litigant possesses. Party has full rights over his account books. Court cannot seize them forcibly'.

13. From a close perusal of the decisions relied upon on either side, it is evident that S 151 4: the Code confers only a procedural jurisdiction on the Civil Court. Unless the parties can show the existence of some substantive right, inherent powers of the Court under S. 151 of the Code cannot be invoked to issue any interim order relating to such substantive rights the existence of which has yet to be determined Keeping in view this settled principle of law it has to be held that the trial Court had no jurisdiction to grant interim maintenance to the plaintiff-respondent under the purported exercise of the inherent jurisdiction under S. 151 of the Code even if the equitable consideration regarding maintenance was in favour of the plaintiff-respondent who had parted with his property by way of gift.

14. For the reasons mentioned above, the revision petition is allowed and the order of the trial Court granting the interim maintenance is set aside. However, there will be no order as to costs.

15. Revision allowed.


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