Madhya Pradesh High Court
Raghvendra Singh Choudhary vs Smt. Seema Bai on 1 February, 1988
Equivalent citations: AIR 1989 MADHYA PRADESH 259, (1988) 24 REPORTS 257, (1988) MATLR 348, (1988) 2 DMC 107, (1988) 2 HINDULR 483, (1988) JAB LJ 495, (1988) MPLJ 450, (1988) 2 CURCC 197, (1988) 2 DMC 315, (1990) 1 HINDULR 251, (1989) 1 DMC 89
JUDGMENT C.P. Sen, J.
1. This is an appeal by the appellant/husband under Clause 10 of the Letters Patent against the order granting pendente lite maintenance @ Rs. 250/- p.m. to the respondent/wife by the learned single Judge Under Section 24 of the Hindu Marriage Act, 1955, in First Appeal No. 31/87.
2. The appellant filed a petition for divorce Under Section 13 of the Hindu Marriage Act before the Additional District Judge, Narsinghpur. The respondent moved an application Under Section 24 of the Act in that petition for grant of maintenance pendente lite. The trial Court, after recording the evidence adduced by the parties, granted maintenance @ Rs. 100/- p.m. from the date of the Order. The decree for divorce was granted to the appellant by the trial Court and aggrieved by the decree, the respondent has preferred F. A. No. 31/87, which is pending in this court. She also moved an application Under Section 24 of the Act for payment of pendente lite maintenance @ Rs. 100/- p.m. It appears that the application was not opposed by the appellant, but the learned single Judge granted maintenance @ Rs. 250 p.m. besides Rs. 500/-
towards the litigation expenses.
3. According to the appellant the respondent having herself claimed maintenance @ Rs. 100/- p.m. the learned single Judge could not have awarded the maintenance at the higher rate of Rs. 250/-p.m. The amount awarded is without any material on record and is not rational to the income of the appellant. According to the respondent this letters patent appeal is not maintainable against the interlocutory Order for that purpose she relied on the decisions of this court in Kunwarji Sonkar v. Nirmalchand Sonkar, L.P.A. No. 151 of 1985, D/- 17-1-1986 and Chhunilal v. Agrawal and Co., 1987 MPLJ 165 : (AIR 1987 Madh Pra 172). In the first case this court by relying on a Full Bench decision of this court in Manohar v. Baliram, AIR 1952 Nag 357 and Punjab Soap Works v. H. Liver Ltd., 1962 MPLJ 240 : (AIR 1962 Madh Pra 356) held that no letters patent appeal lies against the interlocutory matter since it does not amount to a Judgment. Relying on the Judgment in the second case, this Court held that no letters patent appeal lies against the interlocutory order passed by a single Judge in appeal but letters patent appeal is maintainable against such Order passed in original proceedings by the single Judge.
4. We are of the view that the two decisions of this court cited above, do not lay down the correct law. In Shanti Kumar v. H. Insurance Co., AIR 1974 SC 1719 (Para 19), it was held as under : --
"In finding out whether the Order is a Judgment within Clause 15 it has to be found out that the Order affects the merits of the action between the parties by determining some right or liability. The right or liability is to be found out by the Court. The nature of the Order will have to be examined in order to ascertain whether there has been a determination of any right or liability. AIR 1935 Rang 267 (FB) Manohar v. Baliram case (AIR 1952 Nag 357) (FB) (supra). Overruled."
Therefore, it is clear that in the first decision of this Court cited above, this Court wrongly relied on the overruled decision Mahohar v. Baliram case (supra) and came to the conclusion that against interlocutory matters, no letters patent appeal lies. Again in Shah Babulal Khimji v. Jayaben, AIR 1981 SC 1786, the Supreme Court further held as under : --
"An order of the trial Judge refusing to appoint a Receiver or to grant an ad interim injunction is undoubtedly a judgment within the meaning of the Letters Patent both because Order 43, Rule 1 applied to internal appeals in the High Court and apart from it such an order even on merits contains the quality of finality and would therefore be a Judgment within the meaning of Clause 15 of the Letters Patent."
This decision has been distinguished in the aforesaid second decision of this Court by saying that it is essentially on the basis of the provision contained in Order 43, Rule 1 read with Section 104, C.P.C. and applies to internal appeals in the High Court against the Judgment of a single Judge in exerciseof originaljurisdiction. Though reference has also been made to the corresponding provision of Clause 15 of the Letters Patent of the Bombay High Court but the decision of the Supreme Court was independent of the provisions contained in Clause 15. It may be mentioned here that Clause 10 of the Letters Patent of the Nagpur High Court is similar to the aforesaid Clause 15 of the Bombay High Court. The Supreme Court has 'clearly mentioned in the Jugment that refusing to appoint a Receiver or to grant an ad interim injunction is undoubtedly a Judgment within the meaning of the Letters Patent. So the earlier view has been reiterated. However, in the aforesaid second decision of this Court it has wrongly been held that no letters patent appeal lies against the interlocutory Order passed in appeal by the single Judge of this Court, by referring to the aforesaid decision in Shah Babulal Khimji (supra) the Supreme Court made it applicable in cases of interlocutory Orders passed in original proceedings by the single Judge. Though that was a case arising out of the interlocutory Order in the original jurisdiction of the Bombay High Court, the Supreme Court has not laid down that no appeal lies against the interlocutory Order passed in appeal. Therefore, an appeal will lie against an interlocutory order if it is a Judgment. Clearly the Order passed Under Section 24 of the Hindu Marriage Act is a Judgment as it decides the question of maintenance during the pendency of the suit and, therefore, there is final adjudication so far this question is concerned and an appeal lies against such an order. We are fortified by the view taken by the Bombay High Court in Dinesh v. Usha, AIR 1979 Bom 173 that pendente lite maintenance Under Section 24 of the Hindu Marriage Act, 1955, raises controversy independently of the suit and decision thereon concludes controversy finally between parties and as such letters patent appeal is maintainable.
5. Regarding quantum of maintenance, the respondent claimed maintenance only @ Rs. 100/- p.m. and this was not opposed by the appellant. The trial Court has fixed maintenance after recording the evidence. It held that the appellant was then receiving Rs. 450/- p.m. and 1/3rd of the amount should be given as maintenance to the wife. It is not disputed that since then prices have increased and the salary has also been revised upwards. Usually pendente lite maintenance is granted at 1/5th of the husband's average net income after deducting the wife's income, if any. No material has been placed by either of the parties to show that what is the present income of the appellant. We can safely assume it Rs. 750/- p.m. and, therefore, 1/5th of the amount will come to Rs. 150/- p.m. So the order of the learned single Judge is modified by reducing the maintenance from Rs. 250A p.m. to Rs. 150/- p.m.
6. Accordingly, the appeal is partly allowed. In the circumstances of the case, there shall be no orders as to the costs.