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Smt. Pushpa Vs. Gidumal - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision Petition No. 61 of 1980
Judge
Reported in1980WLN(UC)152
AppellantSmt. Pushpa
RespondentGidumal
DispositionPetition allowed
Cases ReferredHousing and Construction Co. (P) Ltd. v. Sarop Singh and Ors.
Excerpt:
civil procedure code section 115 and hindu adoption & maintenance act, 1956 - section 19--interim maintenance--enhancement of--interim maintenance order passed in 1977--expanses on articles of consumption & education nave increased--held, district judge exercised ms jurisdiction with material irregularity in not applying mind.;i am satisfied that the order under revision is not sustainable, as in passing the impugned order, the learned district judge has exercised his jurisdiction illegally or with material irregularity.;the object of grant of interim maintenance is to preserve the existence of an individual who is supposed to he not in a position to support himself/herself dependents. the interim maintenance was fixed on october 18, 1977, the application for enhancement of the..........for grant of maintenance to her and her minor son. there is no specific provision for the grant of interim maintenance under the act. but this court, in indar mal v. babulal , took the view that the court has inherent power to grant inch interim allowance in suitable cases under the act the learned district judge, by his order dated october 18, 1977 fixed rs. 130/- per month as interim maintenance for the petitioner and her son. it is relevant to mention here that this amount was fixed having regard to the assessment order of the income tax. the income was assessed at rs. 9,000/-. on august 2, 1979, an application under section 151 cpc was moved by the petitioner for enhancement of the interior maintenance. this application was supported by the affidavit of the petitioner. the.....
Judgment:

S.K. Mal Lodha, J.

1. This revision petition under Section 115 CPC is directed against the order dated January 7, 1980 passed by the learned District Judge, Jodhpur in Civil Original Suit No. 22 of 1979. This order will dispose of the revision petition finally.

2. A few facts leading to the filing of this revision petition may briefly be recounted here(sic) The petitioner is a widow daughter in-law of the respondent. She filed a suit under Section 19 of the Hindu Adoption and Maintenance Ace, (Act No. 78 of 1956) (hereinafter referred to as 'the Act'), for grant of maintenance to her and her minor son. There is no specific provision for the grant of interim maintenance under the Act. But this Court, in Indar Mal v. Babulal , took the view that the Court has inherent power to grant inch interim allowance in suitable cases under the Act The learned District Judge, by his order dated October 18, 1977 fixed Rs. 130/- per month as interim maintenance for the petitioner and her son. It is relevant to mention here that this amount was fixed having regard to the assessment order of the Income Tax. The income was assessed at Rs. 9,000/-. On August 2, 1979, an application under Section 151 CPC was moved by the petitioner for enhancement of the interior maintenance. This application was supported by the affidavit of the petitioner. The application for the enhancement of the interim maintenance was resisted by the non-petitioner. The learned District judge, by his order, dated January 7, 1980 has dismissed the application for enhancement of the interim maintenance dated August 2, 1979. Aggrieved, the petitioner has filed this revision petition under Section 115 IPC.

3. Having heard the learned Counsel for the parties, I am satisfied that the order under revision is not sustainable, as in passing the in pugned order, the learned District Judge has exercised his jurisdiction illegally or with material irregularity. Learned Counsel for the non-petitioner has stated that revisional jurisdiction under Section 115 CPC should not be invoked. He placed strong reliance on Golakhehari Kannugo v. Siu Bai and Anr. : AIR1966Ori58 , Hindustan Aeronautics v. Ajit Prasad : (1972)ILLJ170SC , Delhi Municipality v. Suresh Chandra : [1977]2SCR10 , Amit Singh v. Omprakash : AIR1978All15 and Hira Sharma v. Habibullah : AIR1979Pat232 . As I have already come to (sic) conclusion that the learned District Judge has exercised his jurisdiction illegally or with material irregularity it is not necessary to (sic)ontumber the judgment by discussing all these authorities in detail.

4. In DLF Housing and Construction Co. (P) Ltd. v. Sarop Singh and Ors. AIR 1971 SC2 42, the words used in Clause (c) of Section 115 CPC viz., 'illegally' and 'with material irregularity'' curie up for consideration before that Lordships of the Supreme Court. In that context, it was observed as under:

The words 'illegally' and' with material Irregularity' as used in Clause (c) do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the monret in which it is reached. The errors contemplated by this clause may relate either to breach of some provision of law or to material defects of procedure effecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with.

(emphasis supplied by me)

5. Learned Counsel far the non-petitioner has shown the copies of the application dated August 2, 19(sic)9 and the reply there to dated October 26,1979. Paras 2,3 and 4 of the application are as under

2- ;g gS fd mDr vkns'k ikfjr djokus ds Ik'pkr izkFkhZ dh lEifRr es gd o fgLlk crkdj tks okn yk;k x;k gS mldh vk; es dkQh o`f) gqbZ gS vkSj tks vk;dj fu/kkZfjr o'kZ 1977&78 dks vlsLVesUV fd;k x;k gS mles izfroknh dh vkenuh 17753 :0 vkadh tkdj fu/kkZfjr fd;k x;k gS A tks igys ls dgh nqxuh jkf'k es cjkcj vkenuh gksuk izFke n`f'V ls izrhr gksrk gS A

3- ;g gS fd izkFkhZ Loa; o mlds iq= ftlds ckcr 18&10&1977&78 mins'k fn;s x;s Fks muds [kjps eS ojnh gqbZ vkSj lkFk gh lkFk eagxkbZ Hkh rsth ls vHkh gky gh ls ch gS A izkFkhZ;k dk iq= vc cM+k gqvk gS vkSj og vc nwljh Dykl] rhu dsth o izFke d{kk ikl dj pyk x;k gS A ftlls mldh Qhl o fdrkcks ds [kjps es o`f) gqbZ gS vkSj izkFkhZ;k Loa; Hkh bl o'kZ lsdsUM+jh ijh{kk ikl dj gk;j lsdsUMjh dh rS;kjh dj jgh gS A

;g gS fd bu lc ds ckotwn Hkh ;g okn nQk 19 fgUnw ,Mki'ku ,.M esUVsusl ,DV 1956 ds izko/kkuks ds rgr gksus ls izkFkhZ;k vius gd o fgLls rd dh vkenuh izfroknh ls ikus dh dkuwuu gdnkj gS vkSj vizkFkhZ ds nkf;Ro gS og mues fgLlks ds lEifRr ls oafpr u j[ks D;ksfd vizkFkhZ Loa; rks vPNk thou chrkdj eSkt mMkrs gS vkSj izkFkhZ;k dks mldh mruh lEifRr o vkenuh ds ckn Hkh nksusk oDr jskVh Hkh pykuk :Ik;s 130@& es laHko ugh gSS A

The learned District Judge, in the impugned order, observed at under:

esjh lEifRRk es] bl U;k;ky; }kjk fnukad 18&10&1977 dsk ikfjr fd;s x;s vkns'k es ifjorZu djus dh dksbZ vko;'drk ugh gS A vk; ekg izfrekg ;k o'kZ izfoo'kZ cnyrh jgrh gS cnyrh gqbZ vk; ds vuqlkj le; le; ij fuokZg HkRrs es ifjorZu djuk mfpr izrhr ugh gksrk gS AfuokZg HkRrs dh jkf'k es ifjorZu rHkh fd;k tkuk pkfg, tcfd blds fy, Ik;kZIr ;qfDr;qDr dkj.k gsk A ,slk dksbZ Ik;kZIr vk/kkj izkfFkZuh dh vksj ls izLrqr ugh fd;k x;k A

A perutal of the application dated August 2, 1979 shows that the petitioner has given various reasons for enhancing the interim amount of maintenance fixed by the order dated October 18, 1977. It was not sufficient for the learned District Judge to have merely mentioned that there is no adequate reasons for altering the interim maintenance which was fixed by the order dated October 18, 1977. The object of grant of interim maintenance is to preserve the existence of an individual who is supposed to be not in a position to support himself/herself or dependents. This principle is equally applicable for enhancement of the interim maintenance in case it is proper to do so and this can only be done after taking into consideration the various factors on the basis of which the party maker an application for enhancement of the interim maintenance. It should also not be lost sight of that the interim maintenance was fixed on October 18, 1977, the application for enhancement of the interim maintenance was made on August 2, 1979 stating the facts relating to the increase of income and rise of prices of the articles of daily consumption and that the son of the petitioner has grown up and is reading in IInd Class, IIIrd K.G. and has passed 1st Glass and for the purpose of paying fees, purchasing books, enhancement of the amount has become necessary. The leaned District Judge will apply his mind to each of the facts on the basis of which, the enhancement of the interim maintenance has been claimed by the petitioner and thereafter, to pass an appropriate order afresh on the application dated August 2, 1979 filed for enhancement of the interim maintenance. For the reasons mentioned above, I am constrained to allow this revision petition and set aside the order cat(sic)ch January 7, 1980 of the learned District Judge Jodhpur. The learned District Judge, Jodhpur is directed to dispose of the petitioner's application August 2, 1979 afresh in accordance with the law and in the light of the observations made herein above.


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