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2009 DIGILAW 1356 (PNJ)

Om Parkash Asija v. Shafi alias Mandakini

2009-08-07

SHAM SUNDER

body2009
JUDGMENT Sham Sunder, J.:-This Regular Second Appeal is directed against the judgment and decree dated 06.06.2006, rendered by the Court of Civil Judge ( Junior Division), Abohar, vide which it decreed the suit of the plaintiff for grant of maintenance at the rate of Rs.3500/- per month from the date of suit till the date of retirement of the defendant i.e. 31.03.2002 and @ Rs.1500/- per month from 01.04.2002 till her marriage, against the defendant and also awarded a sum of Rs.2,50,000/- as marriage expenses, and the judgment and decree dated 13.12.2008, rendered by the Court of Additional District Judge, Ferozepur, vide which it dismissed the appeal and the cross-objections, filed by the defendant (now appellant). 2. The plaintiff (now respondent) is the daughter of the defendant (now appellant). She at the time of filing the suit, was minor. It was stated that the parties are governed by the provisions of Hindu Law. It was claimed that the plaintiff was unable to maintain herself. The defendant (now appellant) was stated to be Lecturer in Government M.R. College, Fazilka and drawing Rs.18000/- per month and also earning Rs.10,000/- per month from tuitions. It was further stated that the defendant (now appellant) had also a bank balance and other moveable and immovable properties. Accordingly, the maintenance to the tune of Rs.4000/- per month was claimed alongwith other expenses. The defendant was many a time asked, to pay the maintenance allowance and refrain from disposing of his property, but to no avail. On his final refusal, left with no alternative, a suit was filed. 3. The defendant, put in appearance, and contested the suit, by way of filing written statement, wherein, it was averred that the plaintiff had no locus standi and cause of action to file the suit; and that the suit was not maintainable. It was stated that the plaintiff was residing with her mother and she (mother) was earning Rs. 10,000/- per month. It was denied by the defendant that he was earning anything from tuitions. It was further stated that the defendant (now appellant) retired from service on 31.03.2002 and thereafter he was getting Rs.4500/- per month as pension. It was also denied by him that he(defendant) was earning any rental income, from immovable properties. It was admitted that the plaintiff (now respondent) is his minor daughter. The remaining averments contained in the plaint were denied, being wrong. 4. It was also denied by him that he(defendant) was earning any rental income, from immovable properties. It was admitted that the plaintiff (now respondent) is his minor daughter. The remaining averments contained in the plaint were denied, being wrong. 4. From the pleadings of the parties, the following issues were framed by the trial Court :- “1- Whether applicants are unable to maintain themselves ?OPP 2- Whether Manju Rani has no locus standi to file the present suit ? OPR 3- Whether the suit is not maintainable in the present form? OPR 4- Whether petitioners are entitled for maintenance from respondent, if so, at what rate ?OPP 5- Relief.” 5. The parties led evidence in support of their case. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the trial Court decreed the suit as stated above. 6. Feeling aggrieved, an appeal and cross-objections were filed by the defendant, which were dismissed by the Appellate Court, vide its judgment and decree dated 13.12.2008. 7. Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed, by the defendant/appellant. 8. I have heard the Counsel for the appellant, and have gone through and perused the documents on record, carefully. 9. The Counsel for the appellant, submitted that the maintenance granted by the Courts below, was on the higher side. He further submitted that after his retirement, the defendant (now appellant) was only getting pension at the rate of Rs.4500/- per month, and it was not at all possible for him, to pay a sum of Rs.1500/- per month, as maintenance. He further submitted that the appellant was still ready to keep the respondent, with him, but her mother was not allowing her to reside with him. He further submitted that the marriage of the respondent, was solemnized on 14/15.02.2009 by her mother, and the appellant was not even invited. He further submitted that the Courts below illegally decreed the suit. 10. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, in my considered opinion,the appeal deserves to be dismissed,for the reasons to be recorded hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others [2006(2) LAW HERALD (SC) 1414] :(JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at, by the trial Court, and first Appellate Court, even if, the same are grossly erroneous as the legislative intention, was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. The Courts below, on the basis of the evidence of Ram Lubhaya Sharma, Senior Clerk, M.R. Government College, Fazilka, (PW-1), Paramjit Singh, (PW-2), Kamal Kishore, Clerk, (PW-3), Hem Babu Sharma, Manager Gaushalla, Abohar, (PW-4), Gurdip Singh, Assistant, S.B.I., (PW-5), Manju Rani, mother of the plaintiff (now respondent), (PW-6) and the plaintiff, who appeared as her own witness as PW-7, as also the evidence produced by the defendant, came to the conclusion, that maintenance at the rate of Rs.3500/- per month, from the date of suit, till the date of retirement of the defendant i.e. 31.03.2002 and Rs.1500/- per month from 01.04.2002, till the marriage of the plaintiff (now respondent) as also the marriage expenses to the tune of Rs.2,50,000/-, if granted, would be reasonable. In my opinion, the Courts below did not grant maintenance and marriage expenses, at all, on the higher side. Whether the marriage of the respondent was performed by her mother or whether the father was not invited to the said marriage, was hardly of any consequence. It was the duty of the father to meet the expenses of maintenance as also of the marriage of the plaintiff, his minor daughter. The concurrent findings of fact, recorded by the Courts below, on the aforesaid points, being based on the correct appreciation of evidence, and law on the point, do not suffer from any illegality or perversity, warranting the interference of this Court. The concurrent findings of fact, recorded by the Courts below, on the aforesaid points, being based on the correct appreciation of evidence, and law on the point, do not suffer from any illegality or perversity, warranting the interference of this Court. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 11. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 12. For the reasons recorded above, the appeal being devoid of merit, must fail and the same stands dismissed with costs. ----------------