Set aside exparte order in maintenance case - Deposits of arrears of interim maintenance - modified as parties both married respectively after divorce was granted = PETITIONER RESPONDENT C.SRIDHAR VS VENKATA VIJAYA - http://hc.ap.nic.in/csis/MainInfo.jsp?mtype=FCA&mno=29&year=2013

Set aside exparte order in maintenance case - Deposits of arrears of interim maintenance - modified as parties both married respectively after divorce was granted =
 Added to that, the appellant as well as the respondent are said to have married subsequent to the divorce between them.  
The feasibility of granting interim maintenance to the respondent at this stage does not exist.  
Hence, the FCA is partly allowed modifying the order under appeal to the effect that the appellant shall make a deposit of Rs.1,00,000/- (Rupees One lakh only) to the credit of O.P.No.626 of 2006 and the same shall be kept in fixed deposit initially for a period of one year.  
The trial Court shall dispose of the O.P., on merits as early as possible and the manner in which the amount shall be dealt with, would depend upon the outcome of the O.P. 
FCA 29 / 2013

FCASR 28194 / 2011
PETITIONERRESPONDENT
C.SRIDHAR  VSVENKATA VIJAYA
PET.ADV. : VENKATASWAMYRESP.ADV. : SUDHA
SUBJECT: JUDICIAL SEPARATION AND DIVORCEDISTRICT:  KRISHNA
THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY
AND
 THE HON’BLE SRI JUSTICE K.G.SHANKAR
F.C.A.No.29 of 2013

JUDGMENT : (Per Hon’ble Sri Justice LNR,J)

The marriage between the appellant and respondent took place on 13-03-2003.  However, they fell apart and the respondent filed two O.Ps.  O.P.No.626 of 2006 was filed under Section 18 of Hindu Marriage Act, (for short ‘the Act’) for maintenance at the rate of Rs.10,000/- per month against the appellant in the Court of Family Court, Vijayawada.  She has also filed O.P.No.519 of 2007 in the same Court, under Section 13 of the Act, for divorce.

O.P.No.519 of 2007 was decreed on 18-02-2010 and the decree became final.  Thereafter, an ex parte decree was passed in O.P.No.626 of 2006 on 09-12-2010 granting maintenance at the rate of Rs.5000/- per month to the respondent.

The appellant filed I.A.No.1482 of 2011 under Order 9 Rule 13 C.P.C., with a prayer to set aside the ex parte decree dated 09.12.2010.  He pleaded that his failure to attend the Court on that day was on account of a massive meeting that was held in the place, which is said to have blocked the access to the Court.  The trial Court allowed the I.A., through order, dated 23-03-2011 on condition that the appellant deposits arrears of interim maintenance that have accrued upto 15-04-2011.  The appellant feels aggrieved by the said condition.   Hence, this appeal.

Heard Sri P. Venkataswamy, learned counsel for the appellant and M/s. G.Sudha, learned counsel for the respondent.

This case presents certain peculiar features.  
Though both the petitions under Sections 13 and 18 of the Act were filed at the same time, the one filed under Section 18 of the Act was numbered first and the other one was numbered almost one year later. 
However, the petition filed under Section 13 of the Act was disposed of on 18-02-2010 and the other O.P., was kept pending.  The trial Court could have dealt with the matter of maintenance or alimony while granting divorce.  O.P.No.626 of 2006 was decreed ex parte on 09-12-2010.

The trial Court was also impressed with the reason assigned by the appellant as to his failure to attend the Court.  However, the condition is a bit onerous.  Added to that, the appellant as well as the respondent are said to have married subsequent to the divorce between them.  The feasibility of granting interim maintenance to the respondent at this stage does not exist.  
We are of the view that the ends of justice would be met, if the appellant is required to make a deposit of Rs.1,00,000/- to the credit of the O.P., making it subject to the result of the same. 

Hence, the FCA is partly allowed modifying the order under appeal to the effect that the appellant shall make a deposit of Rs.1,00,000/- (Rupees One lakh only) to the credit of O.P.No.626 of 2006 and the same shall be kept in fixed deposit initially for a period of one year.  
The trial Court shall dispose of the O.P., on merits as early as possible and the manner in which the amount shall be dealt with, would depend upon the outcome of the O.P. 
The miscellaneous petition filed in this appeal shall also stand disposed of.   There shall be no order as to costs.
               

_______________________
L. NARASIMHA REDDY, J.   



_______________________
                                                            K.G.SHANKAR, J.   

Dt:01.04.2013

rds/jsu

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515