Patna High Court

Patna High Court

Ramji Gir And Ors. vs Elaichi Devi on 1 February, 1974
Equivalent citations: AIR 1974 Pat 280
Author: S P Sinha
Bench: S P Sinha
ORDER
Shiveshwar Prasad Sinha, J.
1. The defendants are the petitioners in both these applications. This order will govern both of them. Civil
Revision No. 67 of 1973 is directed against an order dated the 7th of June, 1972, by which the plaintiff has
been granted maintenance. Civil Revision No. 974 of 1972, is directed against an order dated the 11th of
August, 1972, by which the quantum of maintenance has been determined. According to the learned Counsel
for the defendants the order granting maintenance was without jurisdiction and the order determining the
quantum thereof was much more so.
2. The relevant facts leading to the filing of these petitions are as follows:--
The plaintiff opposite party claiming to be the widow of one of the coparceners had filed a suit for partition of
the family estate which suit has been registered as Title Suit No. 35 of 1967 of the court of the Subordinate
Judge II, Patna and is pending disposal. On the 7th of June, 1968 the plaintiff filed an application for
appointment of a receiver and another application for grant of ad-interim maintenance. Both these petitions
were disposed of by an order dated the 28th of January, 1970. With regard to the petition for maintenance, the
learned Subordinate Judge observed:
"No direction can either be given in this suit at this stage for making provision of her maintenance."
The prayer for grant of maintenance was renewed by the plaintiff by an application dated the 2nd of May,
1972. This time by the impugned order dated the 7th of June, 1972, the learned Subordinate Judge held-
"The documents referred to above therefore go to show that the plaintiff may be taken for the present purpose
to be a member of the family and not as stranger as claimed on behalf of the defendants."
Having so held the learned Subordinate Judge further held that the plaintiff was entitled to maintenance. In
this order the quantum of maintenance was not fixed, but all the same it was observed that the quantum shall
be considered in presence of the lawyers for the parties at a later date. On the 11th of August, 1972, the
quantum of maintenance was fixed at Rs. 120/- per month.
3. Mr. Ghose appearing for the defendants petitioners has assailed the order dated the 7th of June, 1972, on
two grounds:
(1) That the order was hit by the principles of res judicata; and
(2) The court below had no jurisdiction to grant maintenance in a suit for partition. Mr. Ghose has assailed the
other order, namely, the order determining the quantum of maintenance, on the ground that it had been fixed
without any basis.
4. Replying to the contentions raised on behalf of the petitioners, it has been urged that the principle of res
judicata has no application to the order dated the 7th of June, 1972, because the previous order dated the 28th
of January, 1970, did not finally determine anything, much less about the status of the plaintiff to demand
maintenance. It was further submitted that the court below had the jurisdiction to grant ad interim
Ramji Gir And Ors. vs Elaichi Devi on 1 February, 1974
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maintenance. It could do so under its inherent powers to do justice. So far as the determination of quantum
was concerned, learned counsel for the opposite party sub-milted that the court having exercised its judicial
discretion in fixing the quantum, there was no reason to interfere with it. Thus, according to the learned
counsel for the opposite party none of these petitions had any merit which should, therefore, be dismissed.
5. Of the two contentions raised by Mr. Ghose concerning Civil Revision No. 67 of 1973, in my opinion, the
contention relating to the principles of res judicata hitting the impugned order in question, is not valid. By the
earlier order dated the 28th of January, 1970 all that the learned Subordinate Judge had held concerning the
grant of maintenance was that he had rejected the petition at that stage. Obviously, therefore, he did not
determine the rights of the parties concerning the grant or otherwise of maintenance. Since the right to claim
maintenance was not finally determined by that order, the principles of res judicata cannot apply, if prayer for
grant of maintenance is renewed at a later stage.
Mr. Ghose's second contention, however, has substance in it and must be upheld. It has to be borne in mind
that the suit in which the claim for maintenance has been made is a suit for partition of the family estate. It is
not a suit for maintenance or for the grant of alimony. The Code of Civil Procedure does not provide for grant
of interim maintenance in a partition suit. There are, no doubt, certain interim reliefs, permissible during the
course of a suit, such of those reliefs being appointment of receiver, grant of injunction, but there is no
provision for grant of interim maintenance pending the disposal of a partition suit. U.N. Sinha, C. J., as he
then was observed in the case of Rambujhawan Pathak v. Gauri Kant Pathak, AIR 1972 Pat 376 that-
"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."
Learned Counsel for the opposite party has urged that Section 151 of the Code of Civil Procedure could
always be utilised by the courts where Justice demanded its utilization. He referred to a decision in the case of
Nemai Chand Jain v. Smt. Lila Jain, AIR 1968 Cal 405 in which interim maintenance was granted with the
observations that-
"The jurisdiction of the court is attraced by filing a suit. The court has power to make interlocutory orders in
aid of a suit. Denial of status does not take away the jurisdiction of the court. Interim maintenance is not an
act of exercise of inherent jurisdiction. Interim maintenance is granted as an interlocutory relief in the suit."
My attention has also been drawn to an unreported decision of this court in Civil Revn. No. 1094 of 1965
(Pat), (Sukhlal Mahton v. Ram Kuer Devi) disposed of on 1-11-1966 in which in a suit for partition
maintenance was granted to the plaintiff and such grant of maintenance was upheld by this court.
6. The decision of the Calcutta High Court, AIR 1968 Cal 405 has no application to the instant case because
that is a decision not in respect of the grant of maintenance during the pendency of a title suit or grant of
maintenance in a suit for maintenance by the wife against her husband. Similarly the decision in Civil Revn.
No. 1094 of 1965 (Pat) has no application to the instant case because that decision followed upon the
interpretation of the terms of compromise under which maintenance was to be granted to the plaintiff. These
decisions, therefore, do not support the proposition raised by the learned Counsel for the opposite party that
the court in its inherent power under Section 151 of the Code of Civil Procedure could grant maintenance.
The Supreme Court in the case of Padam Sen v. The State of Uttar Pradesh, AIR 1961 SC 218 has described
the scope of Section 151 of the Code of Civil Procedure. It has been observed as under:
"The inherent powers of the court are in addition to the powers specifically conferred on the court by the
Code. They are complementary to those powers and therefore it must be held that the court is free to exercise
them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any
way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature.
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It is also well recognized that the inherent power is not to be exercised in a manner which will be contrary to
or different from the procedure expressly provided in the Code."
Their Lordships have further observed, which is a very significant observation concerning the scope of
Section 151-
"The inherent powers saved by Sec. 151 of the Code are with respect to the procedure to be followed by the
court in deciding the cause before it. These powers are not powers over the substantive rights which any
litigant possesses."
In one of the very old decisions of this court in the case of Gopal Saran v. Sita Devi. 5 Pat LT 560 = (AIR
1924 Pat 69) the question was whether in a suit regarding the rights conferred under a document the court in
exercise of its inherent power could grant ad interim maintenance. It was answered in the negative. The
following observations are relevant:
"As I have already stated this is not an application for maintenance nor is it an application for alimony
pendente lite. So much is admitted by the plaintiff.
XX XX XX
Section 151 of the Code saves the court's inherent power to make such orders as may be necessary for the
ends of justice or to prevent abuse of the process of the court, but I am not aware of any rule of law or equity
which requires, in the interest of justice, that a plaintiff suing to enforce a contract for the payment of money,
where the claim is disputed, should be awarded a portion of the amount claimed before his right has been
established by the suit brought for that purpose".
7. In the instant case, the position is absolutely alike as was the position in the case reported in 5 Pat LT 560 =
(AIR 1924 Pat 69) (supra) -- The plaintiff opposite party wants a share in the family estate and before her
right has been determined, she wants a share to be given to her. Such a prayer could not be allowed.
Provisions of Section 151 can be of no help in such a matter. I must, therefore, hold accepting the contention
raised on behalf of the petitioners that order dated the 7th of June, 1962, passed in the aforesaid title suit was
without jurisdiction and the grant of interim maintenance cannot be upheld. That order is accordingly set
aside.
Since the order for grant of interim maintenance is held to be without jurisdiction, the order quantifying the
maintenance is also set aside.
8. Thus the applications are allowed and both the impugned orders are set aside. In the circumstances of the
case, I do not propose to grant any cost.
Ramji Gir And Ors. vs Elaichi Devi on 1 February, 1974
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