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2006 DIGILAW 939 (GAU)

Renu Nath v. Bharati Devi

2006-10-19

TINLIANTHANG VAIPHEI

body2006
JUDGMENT T. Vaiphei, J. 1. This Revision petition under Article 227 of the Constitution is directed against the Order dated 04.10.2005 passed by the learned Addl. Deputy Commissioner, Shillong staying further proceedings of Civil Misc. Application (Mat) Case No. 7 (T) of 2004, arising out of Maintenance Case No. 7(T) 2004 under Section 10 of the Code of Civil Procedure. 2. I have heard Mr. DK Thapa, the learned Counsel for the Petitioner and Mr. S. Sen, the learned Counsel for the Respondent. 3. The facts giving rise to this Revision Petition are not in dispute. The Petitioner filed an application under Section 19 and 21 of the Hindu Adoption and Maintenance Act, 1956, (the Act for short) read with Section 151 of the Code of Civil Procedure before the learned Additional Deputy Commissioner, Shillong, being Civil Misc. Application (Mat) Case 7 (T) 2004 claiming maintenance allowance for herself and her three minor children from the opposite party. Her claim is founded on the facts that she is the lawfully wedded wife of (L) Prasun Kumar Nath, who was the son of the Respondent and that the three children, who are under her custody and care after the death of the said Prasun Kumar Nath, were born from her wedlock with the said Prasun Kumar Nath. Simultaneously, the Petitioner also filed an application before the same Court for grant of interim maintenance pending disposal of the main case. The Respondent resisted the interim application by filing her written objection claiming, inter alia, that the Petitioner is not the wife of her deceased son and that the interim application was hit by Section 10 of the Code of Civil Procedure inasmuch as the substantial issue i.e. whether the Petitioner is the wife of the deceased Prasun Kumar Nath involved in this application is also one of the substantial issues in Title Suit No. 43(T) 2002/ Misc. Case No. 83 (T) 2003 pending before the learned Assistant to the Deputy Commissioner, Shillong, which was filed prior to the filing of this application and, therefore, the interim application was liable to be stayed accordingly. It was contended by the Respondent that if the interim application was not stayed pending final determination of the said issue in Title Suit No. 43(T) 2002, it would result in inconsistent judicial findings. It was contended by the Respondent that if the interim application was not stayed pending final determination of the said issue in Title Suit No. 43(T) 2002, it would result in inconsistent judicial findings. A number of points have also been raised by the Respondent in her written objection with which we are not concerned herein. It may not be out place to point out here that the interim application was allowed by the learned Addl. Deputy Commissioner by his order dated 28.09.2004 and granted a maintenance of Rs. 3000/- per month to the Petitioner to be paid by the Respondent. This order was challenged by the Respondent in a Revision petition before this Court in CR(P) No. 44(SH) 2004 and the same was set aside by this Court by the order dated 29.11.2004 with a direction to the learned Addl. Deputy Commissioner to hear the parties on the issue of interim maintenance after taking into account the disputes raised by the parties in Title Suit No. 43 (T) 2002. On remand, the learned Addl. Deputy Commissioner after hearing both the parties held that since the question whether the Petitioner is the wife of the deceased was one of the direct and substantial issues common to both the proceedings i.e. the maintenance proceedings and Title Suit No. 43(T) 2002, the interim application ought to be stayed pending the decision of the Title Suit by the learned Assistant to the Deputy Commissioner, Shillong, which he accordingly did by the impugned judgment and order. The validity of this order is now under challenge in this application. 4. It is contended by Mr. DK Thapa, the learned Counsel for the Petitioner submits that the interim application filed by the Petitioner arose out of the application filed by the Petitioner under Section 19and 20 of the Act, that too, filed before the learned Addl. Deputy Commissioner, Shillong while the suit filed by the Petitioner before the learned Assistant to the Deputy Commissioner i.e. Title Suit No. 43(T) 2002 was one under the Specific Relief Act, 1963, and since these two proceedings are different proceedings under different provisions of law, the provision of Section 10 of the Code of Civil Procedure cannot be applied. He thus contended that the conclusion reached by the learned Addl. Deputy Commissioner to the contrary is wholly erroneous, which resulted in failure to exercise jurisdiction. He thus contended that the conclusion reached by the learned Addl. Deputy Commissioner to the contrary is wholly erroneous, which resulted in failure to exercise jurisdiction. In any case, according to the learned Counsel for the Petitioner, even if the main proceeding under Section 19 and 21 of the Act are stayed under Section 10 of the Code, the learned Addl. Deputy Commissioner acted with material illegality or has failed to exercise his jurisdiction in staying the interim maintenance application filed by the Petitioner. In support of his contention, the learned Counsel for the Petitioner relies on the decision of the Madhya Pradesh High Court in Jagdamba Oil Agency v. State of Madhya Pradesh (2006) 1 CCC 337 . in which it was held that even if trial of a suit is stayed in exercise of its power under Section 10 Code of Civil Procedure, the Court is not precluded from proceeding to hear the interlocutory application for temporary injunction. 5. On the other hand, Mr. Sen, the learned Counsel for the Respondent submits that when there is an identical issue in both the suits, namely, whether the Petitioner is the wife of the deceased son of the Respondent, further proceeding of the subsequent proceeding filed by the Petitioner would be oppressive or vexatious to the Respondent or at least would result in conflicting judicial decisions leading to miscarriage of justice. Alternatively, the learned Counsel for the Respondent contends that if this case is not covered by the provision of Section 10 of the Code regard being had of the identity of the subject matter and the field of controversy between the parties in the two cases, the learned Addl. Deputy Commissioner certainly has the power under Section 151 of the Code Ex debito justitiae to stay the subsequent proceedings. The learned Counsel for the Respondent accordingly submits that when the status of the Petitioner as the wife of the deceased has been strongly disputed by the Respondent and when there is no prima facie material to conclude that she is the wife of the deceased, the course adopted by the learned Addl. Deputy Commissioner, to keep the interim application in abeyance and wait for the final decision in Title Suit No. 43(T) 2002 is unassailable as otherwise gross injustice would be caused to the Respondent. Deputy Commissioner, to keep the interim application in abeyance and wait for the final decision in Title Suit No. 43(T) 2002 is unassailable as otherwise gross injustice would be caused to the Respondent. The learned Counsel for the Respondent points out that any findings given on the interim maintenance application regarding the status of the Petitioner is likely to cause prejudice to the case of the Respondent. He, therefore, submits that the impugned order does not suffer from any infirmity and is perfectly in order, which does not call for any interference from this Court. 6. I have carefully gone through the impugned order and examination of the impugned order does not spell out in clear terms as to whether the main application filed by the Petitioner under Section 19and 21 of the Act was stayed or not. All that can be said with certainly is that the learned Addl. Deputy Commissioner has stayed further proceeding of Civil Misc. Application (Mat) Case No. 7(T) 2004 i.e. the application for interim maintenance. However, the tone and tenor of the impugned order as well as the contentions raised at the bar seem to suggest that the main application under Section 19 and 21 of the Act has also apparently been stayed by the learned Addl. Deputy Commissioner in exercise of his power under Section 10 of the Code. Under the circumstances, I shall proceed to examine this Revision Petition on the assumption that the learned Addl. Deputy Commissioner stayed both the proceedings of the main application as well as the interim application. The first point which calls for consideration in this Revision petition then is whether, on the facts and circumstances of this case, the proceedings of the application under Section 19 and 21 of the Act which was filed by the Petitioner before the learned Addl. Deputy Commissioner subsequent to Title Suit No. 43 (T) 2002 filed by her before the learned Assistant to Deputy Commissioner can be stayed under Section 10 of the Code. Section 10 of the Code provides for stay of the suit under certain circumstance, which reads thus: 10. Deputy Commissioner subsequent to Title Suit No. 43 (T) 2002 filed by her before the learned Assistant to Deputy Commissioner can be stayed under Section 10 of the Code. Section 10 of the Code provides for stay of the suit under certain circumstance, which reads thus: 10. Stay of suit- No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court. 7. The aforesaid provision provides that where the suit is instituted in a Court to which the Code applies, the Court shall not proceed with the trial of the suit if, first, the matter in the suit is also directly and substantially in issue in a previously instituted suit between the same parties, secondly, the previously instituted suit is pending: (a) in the same Court in which the subsequent suit is brought, or (b) in any other Court in India, etc., (c) thirdly, where the previously instituted suit is pending in any other Courts mentioned in the foregoing, such Court is a Court of jurisdiction competent to grant the relief claimed in the subsequent suit. The object of Section 10 is thus to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. Section 10 would apply only if the whole of the subject matter in both the suit is substantially identical and not merely when one of the issues in the two suits is identical. It is the pendency of the previously instituted suit that constituted the bar to the trial of the subsequent suit. That apart, in order that Section 10 may apply, the Court in the earlier suit must also have the jurisdiction to grant the relief claimed under the subsequent suit. In the instant case, it is manifestly clear that the application for maintenance under the Act, assuming it to be a suit, can be filed only before the learned Addl. That apart, in order that Section 10 may apply, the Court in the earlier suit must also have the jurisdiction to grant the relief claimed under the subsequent suit. In the instant case, it is manifestly clear that the application for maintenance under the Act, assuming it to be a suit, can be filed only before the learned Addl. Deputy Commissioner, Shillong, which has the power of a District Judge. Such an application could not obviously be entertained by a subordinate Court of the Assistant to the Deputy Commissioner in the State of Meghalaya nor can such Court grant the relief claimed by the Petitioner under Section 19 and 21 of the Act. In that view of the matter, there can be no doubt that the stay of the suit contemplated under Section 10 of the Code is not applicable to the instant case. Therefore, I find force in the contention of the learned Counsel for the Petitioner that the proceedings under Section 19 and 21 of the Act cannot be stayed under Section 10 of the Code by the learned Addl. Deputy Commissioner. 8. Unfortunately, the matter does not end here. It is a common ground of the parties that one of the substantial issues involved in Title Suit No. 43(T) 2002 pending before the learned Assistant to the Deputy Commissioner, Shillong and the Maintenance Case No. 7(T) 2004 pending before the learned Addl. Deputy Commissioner, both of which were filed by the Petitioner, is whether the Petitioner is the wife of the deceased Prasun Kumar Nath. Needless to say, the question of granting the final relief of maintenance to the Petitioner hinges upon the determination by both the Courts on this issue. If both the proceedings are allowed to continue simultaneously before two different Courts, there is a possibility of their reaching conflicting decisions which should be embarrassing. It must be noted that such decisions will not be decisions rendered in interlocutory application and will become binding upon both the parties. Such disastrous consequence must be avoided at any cost. In my opinion, the Court confronted by such a situation can always take recourse to the provision of Section 151 of the Code. Therefore, in cases not covered by Section 10 of the Code, the Court may, under exceptional circumstances, stay the subsequent suit or application under Section 151 of the Code. In my opinion, the Court confronted by such a situation can always take recourse to the provision of Section 151 of the Code. Therefore, in cases not covered by Section 10 of the Code, the Court may, under exceptional circumstances, stay the subsequent suit or application under Section 151 of the Code. In the instant case, there is some identity in the subject matter and field of controversy between the parties in both the two cases, though they may not be exactly identical in every particular. Nevertheless, it can be said that this is a case in which to allow the subsequent maintenance application to continue would be highly oppressive or vexatious or prejudicial to the case of the Respondent. In the view that I have taken the learned Addl. Deputy Commissioner might have improperly exercised his jurisdiction in invoking Section 10 of the Code in staying the maintenance application under Section 19 and 21 of the Act pending before him, but then the course of action adopted by him in the impugned judgment and order can nevertheless be saved by the provisions of Section 151 of the Code. To this extent, the impugned order staying the maintenance application under Section 19 and 21 of the Act need not be interfered with. 9. The next question which falls for consideration is whether the impugned order staying the application for interim maintenance arising out of Maintenance Case No. 7(T)04 is also sustainable in law. In my judgment, the answer must be in the negative. Passing of an order for interim maintenance can not be equated proceeding with the trial of the case. Admittedly, under Section 19and 21 of the Act, there is no provision for the grant of interim maintenance. Consequently, when no application has been filed by either of the parties for annulment of their marriage, etc., under the provisions of the Act, the Petitioner cannot certainly invoke the provisions of Section 24 of the Act for grant of pendente lite maintenance and expenses of the proceedings. But, as noted earlier, in Jagdamba Oil Agency (Supra), the Madhya Pradesh High Court has held that even when a trial of a suit is stayed, the Civil Court is not precluded by Section 10 of the Code from proceeding to hear interlocutory application like application for temporary injunction. But, as noted earlier, in Jagdamba Oil Agency (Supra), the Madhya Pradesh High Court has held that even when a trial of a suit is stayed, the Civil Court is not precluded by Section 10 of the Code from proceeding to hear interlocutory application like application for temporary injunction. Though the instant case is not one for temporary injunction, I do not see why the underlying principles therein cannot be held applicable to an application for grant of interim maintenance under Section 151 of the Code since such an application can also fall within the four comers of an interlocutory application. However, a case having a direct bearing on this point can be found from the decision of the Full Bench of the Orissa High Court in Khadal Penthi v. Hulash Dei and Anr. wherein it was held that in respect of a suit for maintenance (not being a proceeding under the Hindu Marriage Act filed by the wife against the husband) though there is no express provision for grant of interim maintenance, the Court has inherent power to pass such order as may be necessary; to meet the ends of justice. In that case, though the Defendant therein denied marital relationship, the documents in the case prima facie established the marriage, the grant of interim maintenance by the Trial Court was upheld. 10. It is interesting to note that in that case their Lordships held that an application for maintenance under Section 18 of the Act is a suit of civil nature and the Civil Court has jurisdiction to entertain and try the suit under Section 9 of the Code. It was further held therein that the right of a Hindu wife to be maintained by her husband as declared and recognized under Section 18 of the Act is an enforceable right which can be enforced in a suit in a Civil Court. I am in respectful agreement with their Lordships of the Orissa High Court in holding that the Courts have inherent power to pass an order for interim maintenance in an application for maintenance under Section 19 and 21 of the Act filed by the wife. I am in respectful agreement with their Lordships of the Orissa High Court in holding that the Courts have inherent power to pass an order for interim maintenance in an application for maintenance under Section 19 and 21 of the Act filed by the wife. Since the passing of an interim order does not mean proceeding with the trial of the suit, the stay of the suit in exercise of the inherent jurisdiction under Section 151 of the Code will not preclude the Court from entertaining an application for interim maintenance independently. In the view that I had taken, the approach of the learned Addl. Deputy Commissioner in staying further proceeding in Civil Misc. Application (Mat) 7 (T) 2004 is wholly erroneous and amounts to failure to exercise jurisdiction. As noted earlier, keeping in view the object of interim maintenance, it is incumbent upon the learned Addl. Deputy Commissioner to proceed with and dispose of such application on merit. These findings will be, needless to say, prima-facie in nature and will always be subject to the outcome of the main case as and when the same is finally determined. 11. For what has been stated above, this Revision petition is partly allowed. The stay of Maintenance Case No. 7(T) 2004 is hereby affirmed. However, that part of the order staying the application for interim maintenance being Civil Misc. Application (Mat) Case No. 7(T) 2004 is set aside. The learned Addl. Deputy Commissioner, Shillong, shall now proceed with the application for interim maintenance and dispose of the same on merit after hearing both the parties. The impugned order dated 14.10.2004 shall stand modified to the extent indicated above. The parties are directed bear their own costs.