Punjab-Haryana High Court
Tarlochan Singh vs Veerpal Kaur And Another on 28 October, 2010
Author: Alok Singh
Bench: Alok Singh
R.A.-C.R.-66-CII of 2009 (O&M) in -1-
C.R. No.429 of 2008
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
R.A.-C.R.-66-CII of 2009(O&M) in
C.R. No.429 of 2008
Date of Decision: 28.10.2010
Tarlochan Singh
......Petitioner
VERSUS
Veerpal Kaur and another
......Respondents
CORAM: HON'BLE MR. JUSTICE ALOK SINGH
-.-
Present: Mr. K.S. Boparai, Advocate
for the petitioner.
Mr. G.S. Toor, Advocate
for the respondents.
1. Whether Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporters or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
ALOK SINGH, J. (ORAL)
R.A.-C.R.-66-CII of 2009 (O&M) in -2- C.R. No.429 of 2008
1. Husband-petitioner has filed the present review petition seeking review of the order dated 15.12.2008 passed by this Court (Hon'ble Mr. Justice H.S. Bhalla, as the Lordship then was), whereby petition under Article 227 of the Constitution of India filed by the hus- band challenging the order dated 12.11.2007 passed by the Civil Judge (Sr. Division), Barnala, thereby granting pendente-lite mainte- nance to the wife @ Rs.2500/- p.m. in a suit under Section 18 of the Hindu Adoption and Maintenance Act, was dismissed.
2. Brief facts of the present case are that wife has filed one civil suit in the Court of learned Civil Judge (Sr. Division), Barnala un- der Section 18 of the Hindu Adoption and Maintenance Act (for brev- ity 'the Act'), claiming permanent maintenance from the husband. In a suit, wife has moved one application under Order 38 Rule 5 read with Order 39 Rules 1 and 2 C.P.C. praying to attach the property of the husband, mentioned in the application, or alternatively the hus- band be restrained from alienating the property by way of sale or mortgage etc. during the pendency of the suit for ensuring claimed maintenance.
3. Learned trial Court vide order dated 12.11.2007 has di- rected the husband/review applicant to pay the pendente-lite mainte- nance to the wife @ Rs.2500/- p.m. observing therein that charge stand created on the property of the husband pertaining to the pay- ment of pendente-lite maintenance. Order of the learned Civil Judge R.A.-C.R.-66-CII of 2009 (O&M) in -3- C.R. No.429 of 2008 dated 12.11.2007 was challenged before this Court invoking supervi- sory jurisdiction of this Court under Article 227 of the Constitution of India in a Civil Revision No.429 of 2008. Revision petition so filed by the husband/review applicant was dismissed by this Court vide order dated 15.12.2008.
4. I have heard learned Counsel for the parties and perused the record as well as relevant law.
5. Mr. K.S. Boparai, learned Counsel for the husband/review applicant argued that neither Order 38 nor Order 39 C.P.C. empow- ers the learned trial Court to grant pendente-lite maintenance in a suit under Section 18 of the Hindu Adoption and Maintenance Act. He further argued that in the application under Order 38 Rule 5 read with Order 39 Rules 1 and 2 C.P.C. no relief for pendente-lite mainte- nance was claimed, hence, learned trial Court has committed juris- dictional error while granting pendente-lite maintenance. He further argued that this Court has also not taken into consideration the fact that no relief can be granted by the learned trial Court which was never claimed in the application. He further stated that this Court while passing the order dated 15.12.2008 has failed to take into con- sideration the fact that pendente-lite maintenance cannot be granted either under Order 38 Rule 5 or under Order 39 Rules 1 and 2 C.P.C. Learned Counsel for the petitioner-husband fairly stated that al- though pendente-lite maintenance can be granted in a suit under R.A.-C.R.-66-CII of 2009 (O&M) in -4- C.R. No.429 of 2008 Section 18 of the Hindu Adoption and Maintenance Act in view of Section 151 C.P.C., however, in the present case, since no applica- tion was moved under Section 151 C.P.C. and no maintenance was claimed in the application, hence, Court had absolutely no jurisdiction to grant pendente-lite maintenance.
6. Undisputedly, the pendente-lite maintenance in a suit filed by the wife against the husband under Section 18 of the Hindu Adop- tion and Maintenance Act can be granted by the Court while invoking inherent jurisdiction under Section 151 C.P.C. read with Section 94
(e) C.P.C.
7. Section 94 C.P.C. reads as under:-
"94. Supplemental proceedings:- In order to prevent the ends of justice from being de- feated the Court may, if it is so prescribed--
(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security com-
mit him to the civil person;
(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property;
(c) grant a temporary injunction and in case of disobedience commit the person guilty R.A.-C.R.-66-CII of 2009 (O&M) in -5- C.R. No.429 of 2008 thereof to the civil prison and order that his property be attached and sold;
(d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;
(e) make such other interlocutory orders as may appear to the Court to be just and convenient."
8. From the perusal of Section 94(e) C.P.C., I have absolutely no doubt in my mind that Civil Court has every jurisdiction to pass such interlocutory orders which appear to the Court to be just and convenient in the interest of justice. In a suit claiming permanent maintenance under Section 18 of the Act if interim maintenance is not granted invoking Section 94(e) C.P.C. read with Section 151 C.P.C. then it would be very harsh for the wife and she may reached to the stage of starvation. Hence, in the interest of justice, Court is competent to pass interlocutory/interim order granting pendente-lite maintenance in a suit under Section 18 of the Act. Now question comes, as to whether power under Section 94(e) C.P.C. read with Section 151 C.P.C. can be invoked by the Court when wife has moved an application under Order 38 Rule 5 read with Order 39 Rules 1 and 2 C.P.C. for attaching the property of the husband or restraining the husband not to alienate the property without claiming any ad-interim maintenance in such application. I have absolutely R.A.-C.R.-66-CII of 2009 (O&M) in -6- C.R. No.429 of 2008
no doubt in my mind that even if a wrong provision is quoted in the application and Court finds that relief claimed is just and proper then Court has every power to grant such relief. I am of the further opinion that even if in an application relief for ad-interim maintenance has not been sought by the wife and wife has sought only attachment of the husband's property or has sought restraint order against the husband not to alienate the property in dispute, then Court has every jurisdiction that instead of attaching the property or to pass restraint order, direct the husband to pay pendente-lite maintenance which would be just and proper in view of Section 151 C.P.C. read with Section 94(e) C.P.C. Hence, I do not find any error in the order under review.
9. Learned Counsel for the petitioner at this stage states that wife has also getting ad-interim maintenance under Section 24 of the Hindu Marriage Act in a petition filed under Section 11 of the Hindu Marriage Act @ Rs.2500/- p.m., hence, granting of maintenance @ Rs.2500/- p.m. in the present suit would amount to payment of Rs.5000/- p.m. for the same period which is on higher side. I do not agree with learned Counsel for the petitioner. In today's time, Rs.5000/- p.m. is a merger amount. It is not denied that husband is having agricultural income and is reasonably a good landlord. Keeping in mind the status of the husband, if wife is getting Rs.5000/- p.m. in toto including the amount of maintenance under R.A.-C.R.-66-CII of 2009 (O&M) in -7- C.R. No.429 of 2008 Section 24 of the Hindu Marriage Act, it cannot be said to be on the higher side.
10. Review petition is dismissed accordingly.
( ALOK SINGH ) th 28 October, 2010 JUDGE ashish