Raj Kumar Burnwal Vs. Tuni Devi

- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. .....under section 24 of the hindu marriage act has not exercised his discretion judicially and in accordance with law.4. mr. k.p. deo, learned counsel appearing on behalf of the respondent, on the other hand, submitted that it is an admitted fact that the respondent is legally married wife and the husband has deserted her and forced her to reside in her parental house. the petitioner has maliciously filed the suit for restoration of conjugal life, though he does not want to keep the respondent with him. it has been submitted that the respondent has got no source of income of her own and she is not able to meet the necessary legal expenses and is unable to maintain herself. it has been submitted that the court below has fixed a bare minimum amount of rs. 1500/- as alimony to the respondent though it is not possible for one to maintain on the paltry sum of rs. 1500/- in these days of high inflation. learned counsel submitted that rs. 500/-per month towards monthly expenses of the court proceeding is also at the lower side. the court below should have granted more amount for properly meeting the court expenses.5. after hearing learned counsel for the parties and perusing the records, i find that learned court below, after due consideration on every aspect and after considering the submission that the petitioner is a business man and he has been running two big grocery shops at jhumri telaiya and he has also got income from agriculture, has passed the order directing the petitioner to pay rs. 1500/- per month as alimony and rs. 500/- per month to meet the litigation expenses. in that view, the decision in smt. padmavathi and others (supra) is not applicable to the facts of the instant case.6. i find no error or illegality in the impugned order so as to intervene in exercise of jurisdiction under article 227 of the constitution of india. this writ petition is, accordingly, dismissed.7. since the opposite party respondent has to defend this application, which has.....