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Jyoti Prakash Banerjee Vs. Chameli Banerjee and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 4196 of 1973
Judge
Reported inAIR1975Cal260,79CWN332
ActsCode of Civil Procedure (CPC) , 1908 - Section 151 - Order 4, Rule 1 - Order 33, Rules 3 and 8; ;Hindu Adoption and Maintenance Act, 1956 - Sections 18 and 20
AppellantJyoti Prakash Banerjee
RespondentChameli Banerjee and anr.
Appellant AdvocatePadmabindu Chatterjee, ;Tarakumar Majumdar and ;Abja Keshab Chatterjee, Advs.
Respondent AdvocateAmitava Chaudhuri, Adv.
Cases ReferredMysore High Court. In Ramappa Parappa v. Gourwwa
Excerpt:
- .....it or otherwise affecting it. the inherent power has not been conferred upon the court, it is a power inherent in the court by virtue of its duty to do justice between the parties before it.' shah, j. in his dissenting judgment observed : 'inherent jurisdiction of the court to make order ex debito justitiae is undoubtedly affirmed by section 151 of the code but that jurisdiction cannot be exercised so as to nullify the provisions of the code. where the code deals expressly with a particular matter, the provision should normally be regarded as exhaustive.'23. in the light of the supreme court decision it is clear that inherent powers of the court which have been saved by section 151 may be exercised where no provision exists in the code for making necessary ad-interim orders in the.....
Judgment:

Mukherjea, J.

1. This Rule is directed against an order passed by a learned Subordinate Judge granting maintenance pendente lite to a wife and her minor son on an application made by her for leave to sue as a pauper for maintenance. The main application is still pending. The questions of law raised on behalf of the husband are as follows :--

(1) Is the Court competent to make an order for maintenance pendente lite onan application for leave to sue as a pauper before such leave is granted?

(2) Can an order for maintenance pendente lite be made at all in a suit for maintenance where the rights of the parties are governed by the Hindu Adoption and Maintenance Act?

2. To determine the first question it is necessary to consider some of the provisions of Order 33 of the Code of Civil Procedure which relate to suits by paupers. Rule 2 enjoins that every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits and that it shall be signed and verified in the manner prescribed for the signing and verification of pleadings. Rule 3 provides for presentation of the application to the Court and Rule 4 for examination of the applicant. Rule 5 provides for rejection of the application for permission to sue as a pauper on certain preliminary grounds. Rule 6 provides that where the Court sees no reason to reject the application on any of the grounds stated in Rule 5, it shall fix a day for receiving such evidence as the applicant may adduce in proof of his pauperism and for hearing any evidence which may be adduced in disproof thereof. Rule 7 prescribes the procedure at hearing. Sub-rule (3) of Rule 7 provides that the Court -shall allow or refuse to allow the applicant to sue as a pauper. Rule 8 provides as follows :--

'Where the application is granted, it shall be numbered and registered, and shall be deemed the plaint in the suit, and the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any court-fee (other than fees payable for service of process) in respect of any petition, appointment of a pleader or other proceeding connected with the suit.'

3. Rule 2 of Order 33 makes it clear that an application for permission to sue as a pauper is not a plaint, for otherwise no provision need have been made to enjoin that it shall contain the particulars required in regard to plaints in suits or that it shall be signed and verified in the manner prescribed for the signing and verification of pleadings. Moreover Rule 8 makes it clear that until and unless the application is granted, the application is not to be deemed a plaint.

4. Although the application is not to be regarded as a plaint before it is granted, can it be said that a suit is instituted by presenting the application? Rule 1 of Order 4 of the Code of Civil Procedure provides that every suit shall be instituted by presenting a plaint to the Court. Therefore, in the contemplation of Rule 1 an application for leave to sue as a pauper will not be a suit before leave is granted because at that stage the application is not to be treated as a plaint. Order 4, Rule 1 however does not stand in isolation. Order 33, Rule 1 of the Code says :

'Subject to the following provisions, any suit may be instituted by a pauper.'. To institute is to initiate. On examination of all the provisions of Order 33 it will be perfectly clear that a suit by a pauper is initiated by an application alone. The suit comes into existence as soon as the application is presented under Rule 3. That this is so, is supported by Rule 8 which provides that where the application is granted the suit shall proceed in all other respects as a suit instituted in the ordinary manner. If the suit has not come into existence before the application is granted it can hardly be said that the suit shall proceed thereafter as a suit instituted in the ordinary manner. The use of the word 'proceed' indicates that the suit is in existence before the application is granted. The suit is of course instituted not in the ordinary manner, that is to say, in the manner contemplated by Order 1, Rule 4 but in the extraordinary manner or out of the ordinary manner. The legal position therefore appears to be that by the presentation of an application under Order 33, Rule 3, a suit is instituted although the application is not to be treated as a plaint until leave is granted. Moreover Order 33, Rule 8 provides that if the application is granted it shall be deemed the plaint in the suit, meaning thereby that a suit is already in existence although there is no plaint in the suit until leave is granted.

5. Tn Manorama Dasi v. Sabita Dasi, AIR 1961 Cal 357 it was held by a Division Bench of this Court that in a pending pauper application the Court has no jurisdiction to grant in injunction under Order 39, Rule 1 as there is no pending suit at that time. In that case, the learned Judges held that pending the decision on the question of pauper-hood, the application by a minor to sue her step mother as a pauper for a declaration of a charge for her maintenance on the property of her deceased father and for an order restraining the step-mother from selling any property without the permission of the Court till the disposal of the suit, could be made under the inherent power of the Court which is saved by Section 151 of the Code of Civil Procedure. In Sonnammal v. Coimbatore Maha Jana Bank Ltd., AIR 1934 Mad 690 a Bench consisting of Madhavan Nair and Cornish, JJ. held that by operation of law a petition to sue as a pauper becomes converted into a suit when it is allowed by the Court.

6. In so far as it was held by those Bench decisions that an application for leave to sue as a pauper is not a suit until the application is granted those decisions must be regarded as unsound having regard to the provisions of Order 33. At all events, those decisions must be regarded as having been overruled by the decision of the Supreme Court in Vijai Pratap v. Dukh Haran Nath, AIR 1962 SC 94] where in connection with an application under Order 1, Rule 10 bya defendant to be transposed to the position of a plaintiff in an application for permission to sue as a pauper, the Court held that the application under Order 1, Rule 10 was maintainable. At page 945 of the Report, Shah, J. speaking for the Court observed :

'An application to use in forma pauperis is but a method prescribed by the Court for institution of a suit by a pauper without payment of fee prescribed by Court-fees Act. If the claim made by the applicant that he is a pauper is not established the application must fail. But there is nothing personal in such an application. The suit commences from the moment an application for permission to sue in forma pauperis as required by Order 33 of the Code of Civil Procedure is presented and Order 1, Rule 10 of the Code of Civil Procedure would be as such applicable in such a suit as in a suit in which court-fees had been duly paid.'

7. In view of the pronouncement of the Supreme Court in the aforesaid decision as also on a consideration of the provisions of Order 33 of the Code of Civil Procedure, the contention of the petitioner that the application for maintenance pendente lite is not maintainable during the pendency of the application for leave to sue as a pauper on the ground that there is no suit in which the application could be made, must be rejected.

8. The other contention raised on behalf of the petitioner, namely, that no application for maintenance pendente lite lies and the Court has no jurisdiction to make such an order having regard to the absence of any relevant provision in the Hindu Adoption and Maintenance Act, 1956 has to be considered. Learned advocate appearing on behalf of the petitioner pointed out that although there is a provision for maintenance pendente lite in Section 24 of the Hindu Marriage Act and for alimony pendente lite in Section 36 of the Special Marriage Act, no similar provision has been made in the Hindu Adoption and Maintenance Act 1956. He submitted that if it were the intention of the legislature that orders for maintenance pendente lite should be granted by Courts in cases which are governed by the Hindu Adoption and Maintenance Act, express provision might be reasonably expected to have been made by the legislature in that regard. The question raised by the learned advocate may be answered by pointing out that the Hindu Marriage Act and the Special Marriage Act primarily relate to marriage and not to maintenance. It was therefore necessary to provide expressly for maintenance or alimony pendente lite in those statutes. The Hindu Adoption and Maintenance Act relates primarily to adoption and maintenance. Sub-section (1) of Section 18 of the Act provides as follows :--

'18(1). Subject to the provisions of this Section, a Hindu wife, whether married before or after the commencement of this Actshall be entitled to be maintained by her husband during her life time.'

9-10. This is merely a statutory recognition of the age-old principle of the traditional Hindu law that a husband is liable to maintain his wife throughout her life. If the husband is under an obligation to maintain his wife throughout her life it is difficult to see why a separate provision need be made for maintenance pendente lite. The greater includes the less. In our opinion, the absence of such a provision in the statute is only natural and therefore immaterial. Section 20 of the Act provides as follows :--

'20 (1) Subject to the provisions of this Section a Hindu is bound during his or her life time to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.

(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.'

11. Here again no separate provision appears to have been found necessary for granting maintenance pendente lite to minor children.

12. The question whether an order for maintenance pendente lite may be made in a suit for maintenance has to be examined from two angles viz., whether there is any substantive right in the wife or the minor child to be maintained pendente lite by the husband or the father and secondly, if such a right exists what is the procedure available for enforcement of that right.

13. In our opinion, the substantive right to maintenance is conferred by Section 18 and Section 20 of the Hindu Adoption and Maintenance Act.

14. It is true that there is no provision in the statute or in the Civil P. C. for making an application in a suit for maintenance pendente lite. In some cases, as for example, in : AIR1951Cal357 such an order was made under inherent powers or in other words, under the provision of Section 151 of the Code of Civil Procedure.

15. In Subbaya v. Kandaswami. AIR 1935 Mad 105 it was held that in a petition suit an order granting interim maintenance to a party is within the jurisdiction of the Court under Section 151 of the Code of Civil Procedure, In Mabommed Abdul Raha-man v. Tazunnisa Begum, : AIR1953Mad420 , a Bench of Madras High Court presided over by Rajamannar, C, J. held that the Civil P. C. confers certain powers on the Court to grant relief in interim proceedings, such as for example, power to issue injunction, attachment before judgment or appointment of receiver. Where such a relief is claimed, the Code prescribes the condition on which such order could be granted. But apart from such powers, there is no inherent jurisdiction in Courts to grant interim relief which properly ought to be granted only by the decree after determination of the points in controversy.Therefore in a suit for maintenance by the wife where the claim is hotly contested, an order for payment of interim maintenance is without jurisdiction, The learned Judges relied on the decisions in Latchanna Dora v. Malludora, AIR 1941 Mad 55 and Gopal Saran v. Sita Devi, AIR 1924 Pat 69. In the first case, the plaintiff filed a suit to recover possession of certain properties, or in the alternative, for partition. During the pendency of the suit he made an application for award of interim maintenance. A learned single Judge of the Madras High Court held that the Court had no jurisdiction to make such an order when the claim is in dispute. In the Patna case the plaintiff brought a suit to enforce a charge upon certain properties belonging to her husband which were charged with payment of annuity of Rs. 30,000/- to her payable by monthly instalments under a deed executed by him. The plaintiff made an application for appointment of a Receiver of the property charged with the payment of the annuity and asked for a direction to pay to the plaintiff a fixed sum per month as the Court should think fit pending the disposal of the suit. The Court held that there is no rule of law or equity which requires, in the interest of justice that a plaintiff suing to enforce a contract for the payment of money, where the claim is disputed, should be awarded a portion of the amount claimed before his right has been established by the suit brought for that purpose.

16. The Court was of the view that when the claim is in dispute, such an order could not be made under the Court's inherent power which has been saved by Section 151 of the Code. The learned Chief Justice was however careful to observe 'It is important to bear in mind however, that the suit is not one for maintenance nor is there any claim for alimony pendente lite.' In K. S. Sabra-mani Iyer v. Padmavathi Animal, AIR 1954 Trav-Co 123 it was held following the Bench decision reported in : AIR1953Mad420 that an order awarding interim maintenance can be passed only under Order 12. Rule 6 to the extent of the amount admitted by the defendant and that the Court has no inherent jurisdiction to pass such an order for a larger amount. In Muniammal v. Ranganatha, : AIR1955Mad571 it was held that the ratio of the case decided in : AIR1953Mad420 was that interim maintenance should not be granted in suits for maintenance or partition where the status and the right of the claimant are hotly contested supported by a volume of prima facie evidence. The Court held that it does not mean that whenever the contesting defendant merely denies the claim of the plaintiff and raises a contest, interim reliefs must be denied, which in fitting cases can be granted under Section 151 of the Civil P. C.

17. In M. S. Basavarajappa v. Basavannappa, AIR 1959 Mys 152 a learned single Judge of the Mysore High Court relying on the decision in : AIR1953Mad420 held in asuit for partition where the minor plaintiff claimed to be a son of the defendant and the defendant denied that the plaintiff was his son and contested bis right to claim partition, that the Court cannot under Section 151 of the Code of Civil Procedure grant the plaintiff any relief by awarding interim maintenance.

18. In Nemi Chand Jain V. Smt. Lila Jain. : AIR1968Cal405 a Division Bench of this Court, dissenting from the view expressed in : AIR1953Mad420 and AIR 1959 Mys 152 held that the Court can pass an order granting interim maintenance to the wife in a suit for arrears of maintenance and future maintenance instituted by her when the wife succeeds in establishing a prima facie case for the order. When the jurisdiction of the Court is attracted by filing a suit, the Court has power to make interlocutory orders in aid of the suit. In delivering the judgment of the Court to which I was a party, A. N. Ray, J. observed : 'interim maintenance is not an act of exercising inherent jurisdiction. Interim maintenance is granted as an interlocutory relief in the suit.' In Tarini Gupta v. Gouri Gupta, : AIR1968Cal567 the same Bench re-affirmed the principles underlying the earlier decision. Ray, J. in delivering the judgment of the Court upheld the contention that the right of a wife to claim maintenance flows from Section 18 of the Hindu Adoption and Maintenance Act. The learned Judge observed : 'If there is a general right under the statute to claim maintenance, in my opinion it follows that also during the pendency of the suit she has a right to claim maintenance. There is a right to claim maintenance because she is the wife. Secondly, the right to claim maintenance is being asserted in the suit and thirdly, there is a right to claim maintenance till the suit is determined and followed by decree.' At paragraph 19 of the judgment, Ray, J., observed that the power of the Court to grant maintenance is derived from the Hindu Adoption and Maintenance Act 1956 as also the general provisions in Hindu law and said 'The power of the Court does not flow from Section 151 of the Code of Civil Procedure. Section 151 confers power on the Court to make orders in relation to administration of justice and the Court has always inherent power to make such orders. It was said by counsel for the appellant that the order of grant of interim maintenance would have the effect of conferring a substantive right of maintenance. The order is not made under Section 151 of the Civil P. C. The order is made in a suit with reference to the provisions of Hindu Law and the provisions of the 1956 statute.' In paragraph 7 of the judgment, A. N. Ray, J. said : 'if a claim is denied that would not take away the jurisdiction of the Court to make interim orders in a suit for maintenance. The jurisdiction of the Court does not depend on the denial of a case by the defendant. It is one thing to say that the Court declines tomake an order in a case where facts aredisputed and quite another thing to say that the court has no jurisdiction to make an order because the claim is contested.'

19. In G. Appanna v. G. Seethamma, : AIR1972AP62 the Court dissented from the views expressed in those Bench decisions of the Calcutta High Court and followed the decision of the Madras High Court reported in : AIR1953Mad420 . Reddy, J. expressed the view that the inherent powers recognised by Section 151 cannot extend to matters other than procedural. The Court cannot resort to the provisions of Section 151 to encroach upon substantive rights in an interlocutory application upon matters which await adjudication in the suit.

20. The learned Judge further observed :

'Section 18 of Hindu Adoption and Maintenance Act does not authorise the award of interim maintenance pending decision of the claim to maintenance in contest in the suit. 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.'

21. In Monoharlal Chopra v. Seth Hiralal, : AIR1962SC527 in which a question of the Court's inherent power to issue a temporary injunction came up for consideration, a majority of Judges speaking through Raghubar Dayal, J. observed : 'It is well settled that the provisions of the Code are not exhaustive for the simple reason that the legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression 'if it is so prescribed' (in Section 94) is only this that when the Rules prescribe the circumstances in which the temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interest of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of Section 94 were not there in the Code, the Court could still issue temporary injunction but it could do that in the exercise of its inherent jurisdiction. No party has a right to insist on the Court's exercising that jurisdiction and the Court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. It is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of Section 94 of the Code have their effect and not in taking away the right of the Court to exercise its inherent power.'

22. In paragraph 23 of the report the learned Judge said: 'Section 151 itself saysthat nothing in the Code would be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court, it is a power inherent in the Court by virtue of its duty to do justice between the parties before it.' Shah, J. in his dissenting judgment observed : 'inherent jurisdiction of the Court to make order ex debito justitiae is undoubtedly affirmed by Section 151 of the Code but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive.'

23. In the light of the Supreme Court decision it is clear that inherent powers of the Court which have been saved by Section 151 may be exercised where no provision exists in the Code for making necessary ad-interim orders in the interest of justice. Even according to Shah, J. an. order can be made in exercise of the Court's inherent power ex debito justitiae where the Code does not expressly provide for making the order. It is not in dispute that there is no express provision in the Civil P. C. for making an order for maintenance pendente lite although a substantive right has been conferred by Section 18 and Section 20 of the statute on the wife to claim maintenance throughout her life and on minor children during their minority. In my opinion, an order for maintenance pendente lite in enforcement of the substantive right of maintenance may be made by the Court in exercise of its inherent powers. I desire to add that on further consideration of the matter I am of the opinion that the order for interim maintenance can be made and is made under inherent powers of the Court and the observation in the Bench decision reported in : AIR1968Cal567 that the order is made not under Section 151 of the Code but by way of interlocutory order in aid of the suit is not apposite. The order is no doubt made in aid of the suit. The question is what is the source of the power to make the order? No doubt, the substantive right is conferred by Sections 18 and 20 of the Hindu Adoption and Maintenance Act, but the right has to be enforced by a proceeding for interim maintenance. In such a proceeding an order can only be made either in exercise of some statutory power or in exercise of the inherent power of Court which has been saved by Section 151 of the Code of Civil Procedure. As no specific provision has been made in the statute for making an order for interim maintenance, the Court makes the order in exercise of its inherent powers in enforcement of the right of interim maintenance which is included in the general right of the wife to be maintained by her husband throughout her life and by the children during their minority. We respectfully agree with the learned Judges of the Andhra Pradesh High Court where they say that Section 151 cannot confer any substantive right. The question before us is one only of procedure. In our opinion an order for interim maintenance can be made in exercise of inherent powers in aid of a suit for maintenance in which the rights of the parties are governed by Hindu Adoption and Maintenance Act.

24. In this connection we may refer to a recent decision of the Mysore High Court. In Ramappa Parappa v. Gourwwa, AIR 1968 Mys 270, the learned Judge held that the power created by Section 151 is an independent power, uncontrolled by other provisions of the Code. That power could be exercised even if there is another specific provision in the Code authorising an order such as the one which is sought under Section 151. The learned Judge referred to the decisions in : AIR1953Mad420 and AIR 1954 Trav-Co 123 and observed : 'both these decisions proceeded on the assumption that the power to direct payment of interim maintenance emanates exclusively from the provisions of Rule 6 of Order XII of the Code of Civil Procedure. What was overlooked, if I may say so with great respect, in these decisions was that that power was also a part of the inherent power created by Section 151 of the Code of Civil Procedure, the exercise of which was to no extent controlled by Rule 6 of Order XII or any other provision of the Code. It is now firmly established as can be seen from the decision of the Supreme Court in : AIR1962SC527 that the power created by Section 151 is a power uncontrolled by the other provisions of the Code. That power could be exercised even if there is another specific provision in the Code authorising an order such as the one which is sought under Section 151.'

25-26. The learned Judge held that an order for interim maintenance could be validly made under Section 151 of the Code of Civil Procedure.

27. We may now sum up the legal position as we understood it. The right to interim maintenance is a part of the right conferred by Section 18 and Section 20 of the Hindu Adoption and Maintenance Act. In a suit for maintenance that right can be enforced. Ubi Jus ibi remedium. The right to interim maintenance can be enforced by an application in aid of the suit and an order can be validly made by the Court on such an application in exercise of its inherent power which has been saved by Section 151 of the Code of Civil Procedure. Needless to say, that the power should be exercised by the Court only in a proper case where the petitioner has satisfied the Court that she has a good prima facie case to entitle her to such an order.

28. In the view we have taken, we do not see any reason why we should interfere with the order made by the learned Subordinate Judge except that we feel that having regard to the present income of the petitioner, the quantum of maintenance has been fixed at too high a figure. We are of opinion that in the interest of justice, the amount should be reduced to Rs. 150/- per month for the wife and Rs. 150/- per month for the son. In the view we have taken, the order of the learned Judge is varied only to the extent that the petitioner will pay interim maintenance at the rate of Rs. 150/- per month to each of the respondents. The maintenance payable to the respondent No. 2 is directed to be paid to the respondent No. 1. There will be no order for costs.

Janah, J.

29. I agree.


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