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Judgments of Supreme Court of India and High Courts

Keshavrao Narayanrao Bahurupi vs Arunabai Keshavrao Bahurupi on 24 August, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.

SECOND APPEAL NO.527 OF 2007

APPELLANT: Keshavrao S/o Narayanrao Bahurupi,
(Ori.Deft
aged about 58 years, Occ- Service, R/o
on R.A.)

Warud, Tq. Warud, Distt. Amravati.

-VERSUS-

RESPONDENTS: Arunabai Keshavrao Bahurupi,
(Ori. Plff.
aged about 48 years, Occ – Agriculturist,
on R.A.)

R/o Khanapur, Bhitkheda, Tq. Achalpur,
Distt. Amravati.

Shri A. V. Bhide, Advocate for the appellant.
Shri A. S. Sonare, Advocate for the respondent.

CORAM: A.S. CHANDURKAR, J.

DATED: 24
AUGUST, 2018.

th

ORAL JUDGMENT :

1. This appeal under Section 100 of the Code of Civil

Procedure, 1908 has been admitted on the following

substantial question of law:

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Whether the first appellate Court fell in error
in enhancing the amount of maintenance
from Rs.2000/- to Rs.5000/- without there
being any appeal or cross objection on behalf
of the plaintiff?

2. The appellant is the original defendant in the suit

that was filed by the respondent under Section 18(1) of the

Hindu Adoption and Maintenance Act, 1956. According to

the original plaintiff, she was married with the defendant on

23-5-1975. On account of illtreatment, she was compelled to

reside separately from her husband. According to the

plaintiff, the defendant was serving as a Senior Professor and

was earning good salary and therefore, a claim of Rs.6000/-

per month towards the maintenance came to be made.

3. In the written statement the claim was denied. It

was pleaded that the plaintiff and the defendant never

resided together and that the plaintiff was in a position to

maintain herself. The trial Court after considering the

evidence on record partly decreed the suit and directed the

defendant to pay sum of Rs.2000/- per month as

maintenance from the date of the suit. Being aggrieved the

defendant filed an appeal challenging the said judgment.

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The appellate Court dismissed the appeal but in exercise of

powers under provisions of Order XLI Rule 33 of the Code of

Civil Procedure, 1908 (for short, the Code) enhanced the

amount of compensation from Rs.2000/- per month to

Rs.5000/- per month. This amount of enhancement was to

be paid till the retirement of the defendant from service after

which the amount of Rs.2000/- per month was directed to be

paid. Being aggrieved the defendant has challenged the said

judgment.

4. Shri A. V. Bhide, learned Counsel for the appellant

by placing reliance upon the decision in Tummalla Atchaiah

vs. Venka Narasingarao AIR 1978 SC 725 submitted that the

appellate Court was not justified in taking recourse to the

provisions of Order XLI Rule 33 of the Code. The plaintiff

having accepted the amount of maintenance @ Rs.2000/- per

month, in the appeal filed by the defendant that amount

could not be enhanced. It was submitted that if no appeal

would have been filed, the plaintiff would have been satisfied

with the amount of maintenance as granted by the trial

Court.

5. Shri A. S. Sonare, learned Counsel for the

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respondent supported the impugned judgment. Relying upon

the decisions in Koksingh v. Smt. Deokabai AIR 1976 SC 634

and Pralhad and others vs. State of Maharashtra and another

2011 (2) Mh.L.J. 519, it was submitted that the provisions of

Order XLI Rule 33 of the Code gave wide powers to the

appellate Court to modify the decree and pass such order

which in law ought to have been passed. It was further

submitted that the enhanced amount of maintenance was

only to be paid till the retirement of the appellant and that

the appellate Court had itself directed payment of Rs.2000/-

per month after retirement.

6. I have heard the learned Counsel for the parties at

length and I have perused the impugned judgments. It is not

in dispute that against the decree passed by the trial Court

awarding a sum of Rs.2000/- per month as maintenance it is

only the defendant who had filed the appeal. In that appeal

the appellate Court after finding that the defendant was

earning good salary and the fact that there was no person

dependant on him, directed payment of Rs.5000/- per month

till the defendant’s retirement. In Pralhad and others (supra)

it has been held by the Hon’ble Supreme Court that

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provisions of Order XLI Rule 33 of the Code are enabling

provisions which empower the appellate Court to pass any

order which ought to have been made as the case may

require. The expression “order ought to have been made”

would mean an order which justice of the case requires to be

made. In the present case, the appellate Court found that the

amount of Rs.2000/- per month could be enhanced to

Rs.5000/- per month till the retirement of the defendant.

The record indicates that when the suit was filed the

defendant was aged about 54 years and when the suit was

partly decreed he had just retired from service. The period of

this grant of enhanced amount of maintenance was therefore

only for a period of four years. It cannot be lost sight of that

the claim as made by the plaintiff was Rs.6000/- per month

towards maintenance. The ratio of the decision in Koksingh

(supra) also supports the case of the respondent. In the

peculiar facts of the present case, it cannot be said that the

power exercised by the appellate Court to direct payment of

maintenance of amount of Rs.5000/- per month till the

retirement of the defendant deserves to be interfered with.

7. As regards decision relied upon by the learned

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Counsel for the appellant, the facts of the case indicate that

in the suit for setting aside a registered assignment deed a

decree for cancellation of that deed on the plaintiff’s paying

an amount of Rs.13,000/- to the defendant was passed by the

trial Court. The defendant challenged that judgment. The

plaintiff did not file any cross objection. The defendant’s

appeal was dismissed but a finding was recorded that only a

sum of Rs.7600/- was paid by the defendant to the plaintiff.

It is in those facts that it was held that the appellate Court

could not have modified the decree of the trial Court. The

ratio of that decision therefore does not support the appellant

in the present facts.

8. In the light of aforesaid discussion, the substantial

question of law is answered by holding that the appellate

Court did not commit any error in enhancing the amount of

maintenance from Rs.2000/- per month to Rs.5000/- per

month in exercise of powers under Order XLI Rule 33 of the

Code especially when there was material on record to justify

that enhancement.

9. As a result, the judgment of the appellate Court

does not deserve to be interfered with. That judgment is

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confirmed. The appellant is granted time of four months to

satisfy the decree which requires him to pay enhanced

amount till his retirement. The Second Appeal is dismissed.

No costs.

JUDGE

//MULEY//

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