Delhi High Court
Ms. Alisha Chaudhary vs Sh. Tarun Chaudhary on 6 April, 2009
Author: Manmohan Singh
Bench: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
+ IA No.2781/2009 in IPA No.7/2008
Judgment reserved on: 30th March, 2009
% Judgment decided on : 6th April, 2009
Ms. Alisha Chaudhary ......Plaintiff
Through : Mr. M.M. Kalra, Adv.
Versus
Sh. Tarun Chaudhary .....Defendant
Through: Mr. S.S. Jauhar, Adv.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? No.
2. To be referred to Reporter or not? No.
3. Whether the judgment should be reported No.
in the Digest?
MANMOHAN SINGH, J.
1. By this order, I shall dispose of the application under Section 151 CPC filed by the plaintiff praying inter alia that the defendant be directed to make the payment of Rs.68,000/- per semester from January, 2009 onwards and other fees of the university and pocket expenses of Rs.5,000/- per month and to further pay it till the final disposal of the case.
2. The plaintiff is the eldest daughter of the defendant and has filed the suit for recovery of maintenance and marriage expenses against the defendant. The plaintiff is studying in University of Petroleum and IPA No.7/2008 Page 1 of 5 Energy Studies at Deharadun and is the student of integrated B. Tech five years course and MBA (Oil & Gas) and is in the second year. The plaintiff is dependent on her father for food, residence, education and for her marriage. It is alleged that her college fee is Rs.68,000/- per semester and hostel charges are Rs.36,000/-. In addition, the University bus charges are Rs.12,500/- per year. The plaintiff also requires Rs.5000/- per month as day to day expenses for her maintenance etc. The mother of the plaintiff does not have sufficient means to pay the school fees.
3. During the pendency of the suit, the plaintiff filed IA No.3184/2006 under Section 20 of the Hindu Adoption and Maintenance Act, 1956 for ad interim maintenance. Vide order dated 5th August, 2008 this Court directed that the defendant to bear the college fees of the plaintiff from 1.8.2008 to 31.3.2009 along with the hostel charges for the above said period. The plaintiff has also filed an application being IA No.3183/2008 under Order 33 Rule 1 and 2 CPC read with Section 151 CPC to allow the applicant to file the present suit as an indigent person. It is listed for hearing before Joint Registrar for 24th April, 2009 for conducting an enquiry in respect of indigency of the petitioner.
4. The defendant has paid a sum of Rs.95,567/- to the counsel for the plaintiff in the name of Alisha Chaudhary vide bank draft No.467642 dated 23rd August, 2008.
5. It is contended by the plaintiff that the plaintiff received a bill/fees reminder on 1st November, 2008 for payment of fees for the IPA No.7/2008 Page 2 of 5 semester of January to June, 2009 and the defendant has only made the payment from August, 2008 to December, 2008. The plaintiff sent a letter to the counsel of the defendant on 5 th January, 2009 for the payment of the abovesaid fees but the defendant failed to pay the amount. It is submitted that the plaintiff is not moving contempt application against the defendant as she has regards for her father.
6. The plaintiff submits that the he has paid fees for the said period as the last date was expiring and now requested the defendant to remit back the said against the payment receipt filed in the present proceedings.
7. The defendant in the reply has submitted that this Court does not have the jurisdiction to decide the present case as the cause of action has not arisen within the territorial jurisdiction of this Court. It is submitted that the plaintiff has failed to lead any evidence to show that she does not possess enough resources or means to raise funds to pay the court fees and other expenses. It is stated that the requisite notice under the provision of Order XXXIII of CPC has not been sent to the government pleader and therefore, the application for filing suit as indigent person is not maintainable and no interim orders can be passed. It is submitted that the defendant has already paid and deposited with the plaintiff the amount of fees till 31.3.2009 as per the break up given to him in pursuance to the orders passed by this Court on 5 th August, 2008.
8. In rejoinder to the application, the plaintiff stated that she has filed the process fee and the notice has already been sent to the IPA No.7/2008 Page 3 of 5 government pleader as required in the application under Order XXXIII.
9. The plaintiff averred that the defendant is employed with M/s. Clark Son, a shipping broker company having its local office at 124/125 Rectangle, D-4, Saket District Centre, Behind Saket Circle, New Delhi and is getting a package of around Rs.40 lac p.a. besides other benefits.
10. Under Section 20 of CPC, the suit can be instituted in a court within the local limits of whose jurisdiction the defendant at the time of commencement of the suit, actually and voluntarily resides, or carries on business or personally works for gain. The defendant is gainfully employed at Delhi on the date of filing of the suit. Thus, the contention of the defendant that this Court has no jurisdiction cannot be accepted.
11. Regarding the other contention of the defendant that the plaintiff has not produced any evidence to support her plea of indigency and therefore, no interim order can be passed. It has been specifically held in the cases of Vijai Pratap Singh vs. Dukh Haran Nath and Anr.; AIR 1962 SC 4941, Jyoti Prakash Banerjee vs. Chameli Banerjee & Anr., AIR 1975 Cal. 260 and Smt. Gian Devi vs. Shri Amar Nath Aggarwal; ILR (1975) 1 Delhi 811 that even when the suit is filed as an indigent person and application under Order XXXIII to sue as forma pauperis is pending, a suit stands instituted on filing such an application under Order XXXIII Rule 3 CPC and therefore, application for interim maintenance was maintainable and could be maintained even when the application to sue as forma pauperis was still not decided.
IPA No.7/2008 Page 4 of 5
12. An application for grant of interim maintenance during the pendency of a pauper application is an application for an interlocutory order and therefore, Section 94(e) of CPC applies. There are no restrictions in the Code regarding passing of such interlocutory orders. The same provisions of law apply to the pauper applications as apply to suits and hence order of interim maintenance can be passed pending pauper application. Therefore, the contention of the defendant to the extent that no interim maintenance can be granted at this stage, stands rejected.
13. Notice to the Govt. pleader has already been sent by the plaintiff and enquiry regarding the indigency of the plaintiff is pending before Joint Registrar on 24th April, 2009. In view of the case law cited above, this Court can pass interim orders during the pendency of indigent application.
14. The defendant is directed to make the payment of Rs.68,000/- per semester in terms of the orders passed by this Court on 5th August, 2008 and to further pay the fees of the plaintiff alongwith hostel charges, bus fees and out of pocket expenses @ Rs.5,000/- p.m. till the disposal of IA No.3184/2008 (U/s 20 of Hindu Adoption & Maintenance Act) without prejudice to the rights and contentions of the respective parties as an interim measure.
The application stands disposed of.
MANMOHAN SINGH, J APRIL 06, 2009 SD IPA No.7/2008 Page 5 of 5