Karnataka High Court
Mulimani Sanna Basavarajappa vs Basavannappa on 27 November, 1958
Equivalent citations: AIR1959KANT152, AIR1959MYS152, ILR1959KAR105, (1958)36MYSLJ, AIR 1959 MYSORE 152
ORDER
1. This revision petition is presented against the order made by the court below directing the award of interim maintenance to the minor plaintiff by defendant 2, pending the disposal of a partition suit.
2. That suit was brought by the plaintiff claiming to be the son of defendant 2. Defendant 2 denied that the plaintiff was his son and repudiated the right of the plaintiff to a partition of the properties in his possession. During the pendency of that suit, the plaintiff made an application for the award of interim maintenance. The learned Civil Judge made an order directing defendant 2 to pay a sum of Rs. 25/- a month by way of interim maintenance.
3. In this revision petition, which is brought by defendant 2 it is contended by Mr. Motaiya, learned Advocate for the petitioner that the learned Civil Judge had no jurisdiction to make the order under revision. Mr. Motaiya contends that the learned Civil Judge, in a case like this where the claim of the plaintiff is disputed and not admitted, had no jurisdiction under the provisions of Section 151, of the Code of Civil Procedure under which section the Civil Judge made the order under revision, to make an interim order like the one which he has made.
4. It seems to me that this contention urged by Mr. Motaiya has to be upheld. As pointed out in Abdnl Rahman v. Tajunnissa Begum, , there is overwhelming authority for the position that when the claim made in the plaint is contested, the Court has no inherent jurisdiction to grant relief until that claim is determined on its merits and that can only be by the final hearing in the suit.
5. That was a case in which the defendant was directed to pay to the plaintiff a sum of Rs. 500/-by way of interim maintenance pending disposal of a suit in which the plaintiff claimed arrears of main-
tenance and future maintenance. The defendant denied that the plaintiff was his wife and disputed his liability to pay any maintenance. On the original side of the High Court of Madras, an order was made by the Judge who was hearing that suit, that interim maintenance should be paid by the defendant, as I have mentioned above.
In an appeal from that order to a Bench of that High Court, that order was set aside for the reason that to grant relief of that description on an interim application would he to grant the relief which can properly be granted only by the ultimate determination in the suit and the decree following thereof. If I may say so with great respect, that is the principle which also governs the present case.
The defendant in this case not having admitted that the plaintiff was his son, the Court had no jurisdiction under Section 151 of the Code of Civil Procedure to make any order granting interim maintenance to the plaintiff. An order to that effect is not one of those interim orders which a Court has jurisdiction to make under the provisions of the Code of Civil Procedure.
6. This revision petition is allowed and the order made by the learned Civil Judge is set aside. The Civil Judge will now proceed to dispose of the suit expeditiously. Having regard to the circumstances of this case, I make no order as to costs in this Court.
7. Revision allowed.