Orissa High Court
Smt. Sarasa Patra And Anr. vs Ch. Kashinath Patra on 18 June, 2004
Equivalent citations: 98(2004)CLT230
Author: P.K. Tripathy
Bench: P.K. Tripathy
JUDGMENT P.K. Tripathy, J.
1. This writ petition has been filed challenging to the legality and the correctness of the order passed by the Civil Judge (Senior Division), Bhubaneswar on 21.4.2001 in Title Suit No. 208 of 1996 and the confirming judgment delivered on 11.10.2002 by the Additional District Judge, Fast Track Court No. 2, Bhubaneswar in C.R. No. 15/5 of 2002.
2. Petitioners are the plaintiffs and the opposite party is the defendant in Title Suit No. 208 of 1996. Plaintiff No. 1 is the wife and plaintiff No. 2 is the son of the defendant. Plaintiffs have filed the aforesaid suit inter alia for the declaration that defendant is not entitled to evict them from the suit house or to sell it to strangers and to permanently injunct him in that respect. Plaintiffs filed Misc. Case No. 220 of 1996 under Order 39, Rules 1 and 2, C.P.C. for temporary injunction. Notwithstanding the objection of the defendant that the suit property is his self acquired property and he has every right to alienate the suit land and that he is required to do so because of the conduct of the plaintiff No. 2 in not providing maintenance to him, learned Civil Judge granted temporary injunction. Defendant preferred Misc. Appeal No. 79 of 1996 and that was dismissed in the lower appellate Court. Defendant then filed Civil Revision No. 114 of 1998 in this Court but the Civil Revision was not admitted. While disposing of that Civil Revision, this Court observed that :
"Considering the facts and circumstances of the case this Court does not find any infirmity in the impugned order. It is obvious that if the petitioner is permitted to sell the suit property to any third party the very purpose of the suit will be defeated. Accordingly, this Court is not inclined to admit this civil revision. However, the petitioner is given liberty to make appropriate application before the Trial Court for his maintenance on the basis of agreement, if any, and if such application is made the trial Court will consider the same in accordance with law keeping in view that he has been restrained from selling his share."
3. Thereafter, defendant filed an application purporated to be under Section 151, CPC with the prayer to direct the plaintiff No. 2 to pay him maintenance @ Rs. 6,000/- per month, in accordance with the agreement, i.e., the family settlement made in the family of plaintiffs and defendant on 16.11.1985. The Courts below have passed the impugned orders allowing monthly maintenance @ Rs. 6,000/-in view of the above quoted observation of this Court and the terms and conditions in the said family settlement document, a xerox copy of which has been annexed to the writ petition as Annexure-1.
4. Learned counsel for the petitioner argued that the impugned order is illegal and without jurisdiction in as much as the provision in Section 151, CPC is mainly procedural enabling the Court to invoke the inherent power to save the proceeding from abuse of process of Court and therefore, a substantive relief cannot be granted by invoking that provision. In support of that contention, he relies on the ratio in the case of Gorivelli Appanna v. Gorivelli Seethamma, AIR 1972 A.P. 62. Learned Counsel for the petitioners further argued that equity does not stand in favour of the petitioners in as much as the family settlement document, Annexure-1, indicates that the total family property and assets were valued at Rs. 1,16,000/- and while receiving his share including the furniture and wooden articles etc. it was settled that a total sum of Rs. 18,000/- in three equal instalments of Rs. 6,000/- was to be received by the defendant. Such amount having already been paid to the defendant the later has no legitimate claim over the suit properties and apart from that the circumstances in which the plaintiffs agreed to the recital regarding payment of monthly maintenance @ Rs. 6,000/- that has been explained in the plaint and in that respect proper relief has also been sought for in the suit. Accordingly, he argued that when the relevant averment in Annexure-1 is in dispute and an issue has been framed, grant of interim maintenance on the basis of that clause is impermissible and that would amount to pre-judging the issue. Accordingly, he argued to set aside the impugned orders of maintenance. Incidentally, he also argued that defendant is not a person in distress and he has sufficient properties to maintain livelihood and under such circumstance, the plea of destitution is a myth.
5. Learned counsel for the defendant-opposite party on the other hand argued that in the case of Khadal Penthi v. Hulash Dei and Anr., AIR 1989 Orissa 137. Full Bench of this Court has propounded that interim maintenance can be granted by invoking the power under Section 151, CPC. Therefore, the contrary ratio of the Andhra Pradesh High Court has no binding precedent. He further argued that in the case of Asa Nand and Ors. v. Baldev Raj and Anr., AIR 1975 Allahabad 139, it has been propounded that in a suit for partition, under suitable circumstances, application for maintenance by adult member is entertainable under Section 151, CPC. He argued that the said ratio is consistent to the ratio in the case of Khadal Penthi (supra), and that view may be followed. Learned counsel for the opposite party further argued that when the defendant has been deprived to enjoy his self acquired property including the house and the business and that is under the control and management of the plaintiffs and particularly plaintiff No. 2, and when there is no property left with the defendant for sustaining his livelihood the defendant in the old age of 77 years cannot be asked to wait till the result of the suit and to suffer the starvations in the intervening period. Accordingly, he argued that law, justice and equity strongly stands in his favour to sustain the order of maintenance in the manner in which that has been allowed in his favour. He further argued that looking to such facts and circumstances only the above quoted observation was made by the High Court in Civil Revision No. 114 of 1998. Accordingly, he prayed to dismiss the writ petition.
6. In a case of present nature, writ jurisdiction under Article 226 or 227 or under both should be invoked in appropriate but exceptional circumstances. The jurisdiction to issue writ under Article 226 and the power of Superintendent's of the High Court under Article 227 are meant to keep the inferior Courts and Tribunals within the bounds of their authority and to see that adjudication made by them be in a legal and proper manner. Therefore, unless the impugned order is found to be in violation of any principle of law or by suffering from jurisdictional error as provided in Section 115, CPC, writ jurisdiction is not to be invoked. Judging the impugned order on the basis of such settled principle of law this Court finds that order passed by the Court below relating to interim maintenance under Section 151, CPC, is based on both recital in Annexure-1 and the above noted observation made by this Court.
7. The backbone of resistance to the legality and propriety of the impugned order is the ratio of the Division Bench of Andhra Pradesh High Court in the above noted case of Gorivelli Appanna (supra). As rightly argued by the defendant-opposite party the ratio in the case of Khadal Penthi (supra) entitles a Court to entertain an application under Section 151, for the purpose of grant of interim maintenance. Once that position of law has been settled by this Court, the order impugned is found to be not suffering from illegality. The factual finding of the Court below in support of the interim order of maintenance being not on the basis of perversity but on the basis of prima facie acceptance of the recital in Annexure-1, therefore, that is not found to be unjust or improper. Apprehension of the petitioner is that before decision of the relevant issue grant of interim maintenance on the basis of recital in Annexure-1 amounts to pre-judging of the issue. That is a mis-apprehension inasmuch as the Court below such has taken such view prima faciely. Therefore, at the time of trial that issue shall be decided on the basis of evidence on record and notwithstanding the order of grant of interim maintenance on the basis of recital in Annexure-1. This clarification is sufficient to take away the apprehension in the mind of the petitioner.
8. For the reasons indicated above, this Court does not find any reason to interfere with the impugned order and therefore, the writ petition is dismissed.