Rambujhawan Pathak And Ors. vs Gauri Kant Pathak And Anr.

on 22 February, 1972

Patna High Court Patna High Court Rambujhawan Pathak And Ors. vs Gauri Kant Pathak And Anr. on 22 February, 1972 Equivalent citations: AIR 1972 Pat 376 Author: U Sinha Bench: U Sinha ORDER U.N. Sinha, C.J. 1. This, application has been filed by the defendants and it is directed against an order passed by the trial Court, by which defendant No. 1 has been ordered to pay Rs. 50 per month as maintenance to the plaintiffs. The plaintiffs have instituted a suit for partition and Plaintiff No. 1 is the son of defendant No. 1. In that suit, the plaintiffs filed two applications before the trial Court, one praying that defendant No. 1 be restrained from transferring the lands involved in the suit and from cutting down and selling trees standing thereon, and the other was for appointment of a receiver during the pendency of the suit. In the second application, an alternative prayer was made to the effect, that, defendant No. 1 be called upon to meet the plaintiffs' cost of maintenance. The plaintiffs" prayer, last mentioned, has been allowed to the effect as stated above. 2. Learned counsel for the petitioners complain of the order for payment of maintenance. A counter-affidavit has been filed on behalf of opposite party No. 1 giving the history of the disputed land, amongst other matters, and a reply to the counter-affidavit has been filed on behalf of one of the petitioners. The main point in the case is whether the Court below was right in directing defendant No. 1 to pay maintenance to the plaintiffs. Having heard learned counsel for the parties, I am of the opinion that the order passed by the trial Court cannot be sustained. Having refused to entertain the plaintiffs' petition for appointment of a receiver and the application for injunction, the trial Court should not have, so light-heartedly, directed the payment of maintenance in a suit for partition, without giving any reasons at all. The suit may last for years and years and defendant No. 1 may be greatly inconvenienced by the order of payment of maintenance, with the direction, that in default of three consecutive payments, a third person receiver may be appointed. As a matter of fact, the Court below has not indicated as to any provision of law under which the plaintiffs of a partition suit are entitled to maintenance, during the pendency of the suit. 3. In the result, the application must succeed and the impugned order, dated the 22nd December, 1969, is set aside. There will be no order for costs.

Indian Kanoon - http://indiankanoon.org/doc/1404259/