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2021 DIGILAW 361 (AP)

C. C. Reddy v. C. Savitramma

2021-06-28

M.VENKATA RAMANA

body2021
JUDGMENT M Venkata Ramana, J. - Upon hearing Sri N.Subba Rao, learned counsel for the appellant, this matter is being disposed of at the stage of admission having regard to the parameters and application of Section 100 CPC. 2. The appellant is the husband of the respondent. Their marriage was celebrated on 17.02.1991 at Sri Someswara Swamy Temple, Punganur. Within two years of this marriage there were disturbances in between this couple. The respondent began to stay with her parents at Basivinayunipalle of Punganur Taluq, Chittoor District. The appellant was a teacher and had the benefit of upgradation in service leading to becoming a headmaster in the state of Karnataka. He is a resident of Sanganahalli, Bangarupeta Taluq, Kolar District, Karanataka State. 3. O.S.No.13 of 2003 was filed by the respondent against the appellant on the file of the Court of the learned Senior Civil Judge, Punganur for grant of maintenance and it was decreed. In the appeal preferred by the appellant in A.S.No.24 of 2006 on the file of the Court of the learned II Additional District Judge, Chittoor at Madanapalle, the decree and judgment of the trial Court was slightly modified whereby, Rs.2,500/- per month was awarded towards maintenance and Rs.500/- per month towards residence. The appellant has been paying the amount so awarded. 4. M.C.No.30 of 1995 and M.C.No.5 of 1996 were also filed by the respondent against the appellant where the Court of the learned Judicial First Class Magistrate at Punganur awarded maintenance in favour of the respondent and against the appellant, which amounts were taken into consideration while passing the decree in O.S.No.13 of 2003 and A.S.No.24 of 2006. 5. On the ground that there has been escalation in the cost of living, the respondent instituted O.S.No.121 of 2012 on the file of the Court of the learned Senior Civil Judge, Punganur to enhance the maintenance to Rs.12,000/- per month and Rs.1,500/- per month towards residence from October, 2012, to create charge over the plaint schedule properties. By the decree and judgment dated 07.08.2015, Rs.8,000/- was granted towards maintenance per month from August, 2015 for life in favour of the respondent and against the appellant. The relief relating to creating charge over the plaint schedule properties was denied. 6. By the decree and judgment dated 07.08.2015, Rs.8,000/- was granted towards maintenance per month from August, 2015 for life in favour of the respondent and against the appellant. The relief relating to creating charge over the plaint schedule properties was denied. 6. Against this decree and judgment, the appellant presented A.S.No.62 of 2015 on the file of the Court of the learned II Additional District Judge, Chittoor at Madanapalle. The learned appellate Judge upon reappraisal of the material and evidence on record confirmed the grant of maintenance awarded by the trial Court in favour of the respondent and against the appellant. 7. It is against this decree and judgment, the present 2nd appeal is preferred by the appellant. 8. Sri N.Subba Rao, learned counsel for the appellant, contended that the Courts below did not take into consideration the material on record and failed to appreciate the fact that no material was placed by the respondent to support her claim for enhancement of maintenance amount. The learned counsel further contended that though the maintainability of the suit is questioned by the appellant raising a specific plea, no issue was settled by the trial Court therefor nor the appellate Court considered this question in right perspective in violation of Order-14 and Order-41 CPC respectively, which is a vitiating factor requiring consideration at this stage. Contentions are also raised by the learned counsel stressing on the question of territorial jurisdiction of the trial Court as well as the appellate Court in entertaining the suit, since the appellant is a resident of the State of Karnataka and since the suit was instituted at Punganur in the State of Andhra Pradesh. Thus contending that there are substantial questions of law to consider in this second appeal, a request is made for its admission under section 100 CPC. 9. In the backdrop of the material, it has to be considered now whether the case on hand is requiring consideration at this stage on the questions raised on behalf of the appellant in terms of Section 100 CPC or that this matter is purely based on the fact situation. 10. The 1st question relating to want of territorial jurisdiction for the trial Court to consider the suit, is not sound. In the sense, the parties entered into the litigation earlier to the institution of the suit in O.S.No.121 of 2012. 10. The 1st question relating to want of territorial jurisdiction for the trial Court to consider the suit, is not sound. In the sense, the parties entered into the litigation earlier to the institution of the suit in O.S.No.121 of 2012. At no stage, this question of want of territorial jurisdiction for the trial Court to entertain the suit apparently was raised. The present litigation is an offshoot of grant of maintenance earlier by the trial Court and confirmed by the appellate court, for the purpose of enhancement in the amount of the maintenance. Even as seen from the judgments of both the Courts below, the appellant did not canvass this question of want of territorial jurisdiction. Any objection relating to place of suing should be raised at the earliest possible opportunity viz., in the Court of first instance in terms of Section 21 CPC and not, either at the appellate stage or at the stage of revision. Consequently, this objection cannot stand at this stage when preferring a second appeal. Therefore, it is not the substantial question of law on which the appellant can assert to present this second appeal. 11. The next question is maintainability of the suit basing on want of cause of action. When the claim of the respondent is based on the decrees and judgments earlier in her favour, considering the amounts awarded therein towards maintenance and for residence, there is justification for her to present her claim by means of another suit for enhancement. Appropriate evidence was let in on behalf of the respondent and which the appellant also tried to resist leading evidence. Both the Courts below considered the status of the appellant being headmaster and relying on Ex.A6-salary certificate Rs.41,470/- per month was the salary, which the appellant was drawing then while in service. The appellate Judge went a step further in justifying award of this maintenance relying on Kulbushan Vs. Rajkumari and another, (1970) 3 SCC 129 . Basing on this ruling, upon the ratio that 25% of husband's net salary could be the just and appropriate basis to award maintenance befitting the status of the parties as well as the capacity of the appellant to pay such amount, the enhancement directed by the trial Court was confirmed in the 1st appeal. 12. Basing on this ruling, upon the ratio that 25% of husband's net salary could be the just and appropriate basis to award maintenance befitting the status of the parties as well as the capacity of the appellant to pay such amount, the enhancement directed by the trial Court was confirmed in the 1st appeal. 12. One of the contentions of the learned counsel for the appellant is that the appellant is no more in service and he would find hard to meet the decretal claim. Being a Government teacher, he is entitled for pension. The evidence on record from the respondent also makes out that he has certain landed property, owning of which is not specifically denied by him at the trial. 13. Therefore, on the questions of fact when there are clear findings in this context, sitting in second appeal, this Court should be slow to interfere unless a substantial question of law is made out thereon. 14. Nor in the circumstances it can be stated that the trial Court and appellate Court failed to follow Orders- 14 and 41 CPC respectively in settling the appropriate issues or points for determination. 15. Hence, being satisfied that there are no substantial questions of law to consider and determine in this second appeal upon consideration of the decree and judgment of the appellate Court, this second appeal has to be dismissed at the stage of admission. 16. In the result, the second appeal is dismissed at the stage of admission. Consequently, the decrees and judgments of the Courts below stand confirmed. No costs. 17. As a sequel, pending miscellaneous petitions, if any, stand closed. Interim orders, if any, stand vacated.