JUDGMENT - Aggarwal R.L. J.-This Letters Patent Appeal is directed against the order allowing the appeal on technical grounds suo motu raised by the learned single Judge. The appeal was of the husband-Masood Sayed against order passed by the Bombay City Civil Court on 14th July 1980 directing the husband to pay to his wife Sukhda Sayed a sum of Rs. 750 per month for her maintenance with effect from 1st June 1979. 2. The relevant facts are that the wife is a Hindu and the husband is a divorcee Muslim. Their marriage was solemnized on 17th June 1978 under the Special Marriage Act, 1954. It appears that for about 18 months prior to their marriage, the parties had developed friendship and lived under the same roof. During that period, the husband had met with a serious motor car accident and he was nursed and looked after by his would be wife. The married life did not last long and within five months the wife filed a Matri­ monial Petition No. 853 of 1978 in the Bombay City Civil Court for restitution of conjugal rights and for alimony and /or maintenance at the rate of Rs. 2500 per month. She alleged that the husband was a man of considerable means having a fabrication factory in Bombay, immoveable properties at his native place in Madhya Pradesh, an Impala car besides a Jeep and estimated his income at Rs. 10,000 per month. These allegations were also made in the correspondence prior to the filing of the petition and the husband had con­ tended that he had no means whatsoever and that he was not in a position to meet the wife's demand. In the written statement, the husband denied the said allegations as to his property and income. His case was that he was earning about Rs. 500 to Rs. 600 from a petty contract work of fabrication and that he struggles for life in a Zopadapatti area of Janki Kutir, Juhu, which is a rented hut for Rs. 10 per month. According to him, he had purchased the said motor car with his savings from his employment with Tata Oil Mills Ltd. and had sufferred a loss of Rs. 40,000 on the said motor car and presently it was worth Rs. 2000. 10 per month. According to him, he had purchased the said motor car with his savings from his employment with Tata Oil Mills Ltd. and had sufferred a loss of Rs. 40,000 on the said motor car and presently it was worth Rs. 2000. The husband contended that the wife had been lured and she carried a wrong impression about his earning capacity of Rs. 10,000 and that she had married him with the mala fide intention of living a luxurious life at the cost of the husband without reciprocating her duty as a married woman. The husband admitted that prior to their marriage she took care of him when he had met with motor car accident. He alleged that he had suffer­ ed a loss and debt of Rs. 90,000 on account of the wife not providing him food at home and causing him mental tension and domestic worries. 3. The wife's petition for restitution of conjugal rights was allowed. As the husband did not take back the wife in the matrimonial home and did not take care to maintain her, the wife took out a Notice of Motion dated 12th March 1979 (bearing No. 1117 of 1979) in the said Matrimonial Petition No. 853 of 1978. The learned Judge of the City Civil Court who heard the said Notice of Motion, after examining the affidavits of the parties was of the view that they had not set out the particulars of income at all. The parties were represented by Advocates and were present at the hearing. The speaking order dated 29-1-1980 shows that the learned Judge took into consideration the procedural aspect of recording the evidence, but in order to dispose of the application expeditiously, he directed the parties to disclose particulars of income. Further, as the application was pending since 12th March 1979, the learned Judge directed the husband to pay Rs. 3750 on or before 19-2-1980 without prejudice to the rights of the parties. He further directed the husband to file his affidavit of income supported by documentary evidence. We have gone through the said order and it seems to us that the parties did not object to the application being disposed of on affidavits. The parties also did not express desire to examine themselves or any witness on their behalf. The parties submitted to the said order dated 29-1-1980 and filed their affidavits as directed. We have gone through the said order and it seems to us that the parties did not object to the application being disposed of on affidavits. The parties also did not express desire to examine themselves or any witness on their behalf. The parties submitted to the said order dated 29-1-1980 and filed their affidavits as directed. The learned Judge, on consideration of the material as disclosed On affidavits and after hearing the Advocates for the parties, assessed the income of the husband between Rs 1500 and Rs. 2000 per month and in that view of the matter, he fixed Rs. 750 per month for the maintenance of the wife. 4. Being aggrieved of the said order, the husband filed the above appeal in this Court. The learned Single Judge, who heard the appeal, it appears suo motu raised a question as to how after a matrimonial petition was disposed of, the party could apply for a permanent alimony by a Notice of Motion. The learned Judge was of the view that taking out such Notice of Motion was contrary to the practice that he had followed in the city Civil Court and that this was contrary to a number of judgments of Judges of that Court holding that once a matrimonial Petition is disposed of, applications for custody of children or for alimony are required to be by way of petition and not by Notice of Motion. As this view prevailed with the learned Judge, he did not go into the merits of the appeal and left it open to the wife to adopt proper proceedings as indicated by him in his judgment under appeal. 5. Shri Mehta, learned Advocate appearing for the appellant-wife, sub­ mitted that the learned Judge was not right in requiring the wife to file a petition under section 37 of the Special Marriage Act, 1954, as the section speaks of an application so also the preceding section 36 which relates to the alimony pendente lite. The learned Advocate also referred to section 38 relating to custody of children which uses the phraseology “upon application by Petition”. As against this, he drew our attention to sections 22, 23 and 27 which fall under Chapters V and VI of the said Act, referring to restitution of conjugal rights and judicial separation and divorce. The learned Advocate also referred to section 38 relating to custody of children which uses the phraseology “upon application by Petition”. As against this, he drew our attention to sections 22, 23 and 27 which fall under Chapters V and VI of the said Act, referring to restitution of conjugal rights and judicial separation and divorce. In these sections, the Legislature has specifically referred to the making of a Petition for the purpose of securing relief of restitution of conjugal right, judicial separation and divorce. The learned Advocate also drew our attention to the rules framed by the High Court under the said Act and submitted that the application by way of Notice of Motion was proper. The learned Advocate also contended that in the present case, after taking out Notice of Motion, a specific order dated 29-1-1930 was passed directing the parties to disclose the details of their income and assets on affidavit. On that footing, the parties had gone through a hearing. It was not the case of the husband that any prejudice was caused to him by adopting this procedure of moving the Court by way of Notice of Motion and not filing a Petition. No such grievance was made even before the learned Single Judge who heard the appeal and the question of maintain­ability of the Notice of Motion was taken by the learned Judge suo motu. In these circumstances, according to Shri Mehta, the learned Judge could have spared the wife from adopting fresh proceedings by way of a petition and considered appeal on merits. 6. The respondent-husband appeared in person. While arguing his case, he had not made the slightest grievance about the issue of alimony/maintenance having been decided on the basis of the affidavits. In fact, the husband expressed his anxiety for an early disposal of the matter as, according to him, he was not presently residing in Bombay and had come from the State of Madhya Pradesh to contest the matter. The husband had no handicap in understanding the technical aspect of the matter and in fact, submitted that his agony would be prolonged if we were to order recording of evidence. He was anxious to have a final conclusion of the matter. 7. The husband had no handicap in understanding the technical aspect of the matter and in fact, submitted that his agony would be prolonged if we were to order recording of evidence. He was anxious to have a final conclusion of the matter. 7. Now, having regard to the facts and circumstances of the present case and especially when no prejudice is alleged on either side in adopting the present proceedings by way of Notice of Motion, we do not think that the wife should be driven to file a petition when the parties did not desire to lead any evidence. We, are therefore, inclined to make a departure from the practice referred to by the Learned Single Judge about application under section 37 of the said Act being in the form of a Petition and not by way of Notice of Motion. We do not think that a rigid approach is required in making an application by way of Petition or Notice of Motion. We think that application for permanent alimony/maintenance can be conveniently disposed of by affidavits, if the parties choose this course, instead of the time consuming process of recording evidence. The learned Judge of the City Civil Court had given full opportunity to the parties to make their Affidavits and the parties made no complaint before the lower Court about this procedure. It was open to the parties to make an application for examining witnesses if they wanted to do so. We feel that the result would have been the same even if the party concerned had filed a petition and not taken out a Notice of Motion. Even in the petition it was open to the parties to apply to the lower Court to decide the issue on the basis of the pleadings and the docu­ ments relied upon by them. 8. On merits, Shri Mehta and the respondent husband appearing inperson referred to the various affidavits and documents which were relied before the learned Judge who heard the Notice of Motion. The respondent husband also referred to his affidavit dated 23-1-1981 filed in the present appeal, to which the appellant-wife has also given her say by her affidavit dated 8-2-1981. 8. On merits, Shri Mehta and the respondent husband appearing inperson referred to the various affidavits and documents which were relied before the learned Judge who heard the Notice of Motion. The respondent husband also referred to his affidavit dated 23-1-1981 filed in the present appeal, to which the appellant-wife has also given her say by her affidavit dated 8-2-1981. Shri Mehta also sought to rely upon a photostat copy of the General Power of Attorney dated 30-1-1980 granted by the husband in respect of his Industrial Gala No. 40-A in New Empire Industrial Estate, Kandvata Road, Andheri (East), Bombay 59 in respect of his business of manufacturing sheet metal fabrication in the name of style of J. K. Enterprises with machines, furniture, fixtures etc. in favour of Gunvantlal Nagardas Solanki and Shri Vallabhdas Relan, to show that the husband owns the said business carried on in the name of J. K. Enterprises. The respondent-husband sought to explain to us the circumstances in which the said document was executed. We, however, do not propose to take the said document into consideration as the same is not referred to in the affidavits before us. 9. On going through the affidavits and the material on record, it seems to us that the husband has not given a true picture of his income in his affidavit dated 10-4-1980. He has stated that his monthly income is Rs. 300 to Rs. 400. But when the matter had not reached the Court, the case of the husband in his letter dated 8-11-I978 in reply to the notice sent by the wife through her Advocate was that his monthly income was Rs. 900. In 1977, the husband had an occasion to file a claim in the Motor Accidents Claims Tribu­nal at Bombay, in which he stated that his monthly income was Rs. 2,000. Before us, the husband pointed out that this income of Rs. 2,000 was only for a period of three months, but his present income is in the range of Rs. 300 to Rs. 400 per month by way of salary from his uncle for looking after his agri­cultural property. It seems that the learned Judge Was influenced by the fact that the husband had sought to file his Income-tax returns for year 1977-78, 1978-79 and 1979-80 after the order dated 29-1-1980 directing the parties to disclose their assets and income. 300 to Rs. 400 per month by way of salary from his uncle for looking after his agri­cultural property. It seems that the learned Judge Was influenced by the fact that the husband had sought to file his Income-tax returns for year 1977-78, 1978-79 and 1979-80 after the order dated 29-1-1980 directing the parties to disclose their assets and income. The statement of Bank of India produced by the husband showed a withdrawal of Rs. 50,000 on 5-3-1980. The husband had also purchased an Old Impala car and on his own showing he had spent more than Rs. 30,000 in order to convert it into a diesel and to carry out other repairs. The husband was also running business in various names such as M/s. S. Masood Co., M/s. J. K. Enterprises and M/s. Masood Trading Co. having a turn-over of more than Rs. 2,00,000. He had also dealings with Air India, Indian Airlines, TISCO and TELCO. Relying upon these factors, the learned Judge found it difficult to believe the story of the husband that his monthly income was Rs. 300 to Rs. 400 and assessed it at Rs. 1,500 to Rs. 2,000. The husband argued before us that the learned Judge had no positive material to assess his income at Rs. 1,500 to Rs. 2,000 per month and therefore, the order ought to be quashed drawn by him on 5-3-1980 was required to be paid to his brother who had spent more than Rs. 50,000 on him during the period of three months when he was hospitalised in connection with the injuries suffered by him in a motor truck accident. Shri Mehta pointed out that in the affidavit filed pursuant to the order dated 29-I-I980, the husband had stated that the expenses for treatment were borne by his relatives, friends and well wishers and not by his brother. In this connection, Shri Mehta also pointed out that in the affidavit filed on 23-1-1981, the amount of Rs. 50,000 is alleged to have been given by the husband to his brother to enable him to invest the same in his brother's business. This indicates that it is difficult to place reliance on the husband's version about the state of his assets. The husband also seems to suggest that he had taken a loan of Rs. 30,000 for reconditioning the said motor car and that the amount of Rs. This indicates that it is difficult to place reliance on the husband's version about the state of his assets. The husband also seems to suggest that he had taken a loan of Rs. 30,000 for reconditioning the said motor car and that the amount of Rs. 30,000 is still payable by him. In fact, in the affidavit dated 23-1-1981, he has stated that he has taken a loan of Rs. 40,000/- from his sister for meeting the medical expenses in connection with the injuries sustainted by the husband in the accident and that he still owes that amount to his sister. The husband in his affidavit filed pursuant to the order dated 29-1-1980 stated that he had taken a loan of Rs. 90,000/- from various traders, relatives and well-wishers without mentioning their names and the amounts borrowed from them. The different stands taken by the husband seem to suggest that he does not desire to give a clear picture of his assets and liabi­lities. The various statements made by him are contradictory and they do not inspire our confidence. There is no doubt that the learned Judge had to make a certain amount of guess-work about the possible income or earning capacity of the husband. It is to be noted that the husband had not fairly placed the true state of his financial assets, liabilities and income. The husband on his own showing has entrusted to his brother a sum of Rs. 50,000- / for investment- The manner in which he has given different versions has made our tasks difficult and we find that he has failed to make out a case which calls for interference with the quantum of maintenances fixed by the lower Court. 10. Before concluding, we may point out that we were inclined to remand the matter back to the Learned Single Judge taking appeals from order, but the husband and the Learned Advocate for the wife requested that the appeal may be disposed of on merits and the parties be saved from further expenses. 11. In the result, the appeal is allowed. The order in appeal of the learned Single Judge dated 6th October 1980 is set aside and the order of the Learned Judge of City Civil Court dated I4th July 1980 is confirmed. The respondent-husband to pay the costs of this appeal. Appeal allowed.