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Ramji Damla Jadhav vs Smt. Sangita Gajanan Jadhav And … on 14 March, 2019

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

Writ Petition No.7040/2016
(Ramji Damla Jadhav Vs. Smt. Sangita Gajanan Jadhav and another)
——————————————————————————————————–
Office Notes, Office Memoranda of Coram,
appearances, Court’s orders or directions Court’s or Judge’s orders.
and Registrar’s orders
Mr. Gaurav Singh Sengar, Advocate for the petitioner.
Mr. J.S.Wankhede, Advocate for respondent nos.1 and 2.

CORAM : Manish Pitale, J.

DATED : March 14, 2019.

By this Writ Petition, the petitioner (original
defendant no.1) has challenged order dated 14.03.2016
passed by the Court of Civil Judge Junior Division,
Mahagaon (trial Court), whereby application for interim
maintenance (Ex.30) filed by the respondent under
Section 151 of the Code of Civil Procedure, 1908 (CPC)
stood allowed.

2. The respondents herein have filed Regular
Civil Suit No.27/2014 for partition and separate
possession against the petitioner and other defendants.
The case of respondent no.1 is that she is the daughter-
in-law of the petitioner and that her husband has died
and further that she has right to claim partition in the
suit property. By way of said application at Ex. 30 the
respondents claimed that during the pendency of the
aforesaid partition suit, they are entitled to payment of
interim maintenance @ Rs.10,000/- per month from the
petitioner. By the impugned order, the trial Court has
held that the respondents are entitled for direction
under Section 151 of CPC to the petitioner for payment

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of maintenance of Rs.2000/- per month. A rider has
been added by the trial Court in the impugned order
that such payment of interim maintenance would be
subject to final out-come of Civil Suit and in case, suit
stands dismissed, the petitioner would be entitled for
restitution.

3. The main contention raised in the present writ
petition is that the said application filed by the
respondents under Section 151 of CPC ought not to
have been entertained by the trial Court and that when
jurisdiction exercised by the trial Court was under a
misconception of law, the impugned order was rendered
unsustainable. It was submitted that in a suit for
partition and separate possession, such an application
for interim maintenance could never be contemplated
and that the respondents were free to invoke the
provisions of specific statutes, including the Hindu
Adoption and Maintenance Act, 1956, particularly
Section 19 thereof, to seek maintenance from the
petitioner.

4. The respondents have opposed the said
contention raised on behalf of the petitioner by
contending that power under Section 151 of CPC could
certainly be exercised by the trial Court in the facts and
circumstances of the present case and that sufficient
care had been taken by the trial Court by directing that
if the suit was finally dismissed, the petitioner would be
entitled to restitution. In view of the same, it was
submitted that no prejudice was caused to the petitioner

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by trial Court passing the impugned order.

5. On the question as to the scope of exercise of
power by the Court under Section 151 of CPC, in the
case of State of Uttar Pradesh and others Vs. Roshan
Singh (Dead by LRs. and others : (2008) 2 SCC 488, the
Hon’ble Supreme has held as follows:-

“7. The principles which regulate the exercise of
inherent powers by a court have been highlighted in
many cases. In matters with which the Code of Civil
Procedure does not deal with, the Court will exercise
its inherent power to do justice between the parties
which is warranted under the circumstances and
which the necessities of the case require. If there are
specific provisions of the Code of Civil Procedure
dealing with the particular topic and they expressly or
necessary implication exhaust the scope of the powers
of the Court or the jurisdiction that may be exercised
in relation to a matter, the inherent powers of the
Court cannot be invoked in order to cut across the
powers conferred by the Code of Civil Procedure. The
inherent powers of the Court are not to be used for the
benefit of a litigant who has remedy under the Code of
Civil Procedure. Similar is the position vis-a-vis other
statutes.

8. The object of Section 151 CPC is to supplement
and not to replace the remedies provided for in the
Code of Civil Procedure. Section 151 CPC will not be
available when there is alternative remedy and same
is accepted to be a well-settled ratio of law. The
operative field of power being thus restricted, the
same cannot be risen to inherent power. The inherent
powers of the Court are in addition to the powers
specifically conferred to it. If there are express
provisions covering a particular topic, such power
cannot be exercised in that regard. The section
confers on the Court power of making such orders as
may be necessary for the ends of justice of the Court.
Section 151 CPC cannot be invoked when there is
express provision even under which the relief can be

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claimed by the aggrieved party. The power can only
be invoked to supplement the provisions of the Code
and not to override or evade other express provisions.
The position is not different so far as the other statutes
are concerned. Undisputedly, an aggrieved person is
not remediless less under the Act.”

6. The said position of law makes it clear that
power and jurisdiction under Section 151 of CPC can be
exercised by the Court when there is no alternative
provision available in the CPC for the applicant to claim
the relief that has been claimed in the present case and
when there is no provision prohibiting exercise of such
power by the Court. It has been observed that the same
position would apply to other statutes as well. Applying
the said position to the facts of the present case, it
becomes clear that the respondents could not have
applied under any other provisions of the CPC for the
relief of interim maintenance claimed by them. Even
under Section 19 of the Hindu Adoption and
Maintenance Act, 1956, the respondents could not have
obtained order of interim maintenance and in a suit for
partition and separate possession the respondents seek
to assert their right to share in the suit property. If the
suit stands allowed and the right of the respondents in a
share to the suit property is upheld, there can be said to
be nothing wrong in the grant of interim maintenance
as granted by the trial Court. It is only if the plea raised
on behalf of the petitioner that the suit property is self-
acquired property is upheld that the question of
justification for an order of interim maintenance would
arise.

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7. But, the trial Court in the present case has
been cautious enough to take care of the said
contingency by specifically directing that the direction to
pay maintenance of Rs.2000/- per month by the
petitioner to the respondents in the present case, shall
be subject to the final outcome of the suit and if the suit
is dismissed, the petitioner would be entitled for
restitution.

8. Considering the facts and circumstances of
the present case wherein a widow daughter-in-law is
seeking interim maintenance from her father-in-law for
herself and her minor daughter, in a pending suit for
partition and separate possession, it appears that the
trial Court has not committed any error in invoking
power under Section 151 of CPC to pass the impugned
order. This Court while exercising writ jurisdiction does
not deem it fit to interfere with the impugned order
passed by the trial Court.

9. Hence, the writ petition is dismissed.

JUDGE
ambulkar

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