Lalit Amonatya Vs. Dimabati Amonatya

- 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]. l. rath, j.1. this revision arises out of an order passed under section 125(1) cr.p.c. directing the petitioner to pay maintenance of rs. 75/- per mouth to the opposite party.2. mr. dhal appearing for the petitioner urges solely regarding the quantum or maintenance payable to the opposite party. admittedly, opposite party is the wife of the petitioner and the finding of the learned magistrate that she is compelled to live separately because of the ill-treatment and neglect of the petition is not assailed. it is however the submission of mr. dhal that since the petitioner led evidence of his monthly income in the average to be rs. 100/-, grant of maintenance of rs. 75/- per month is highly excessive. such a contention raised before the learned magistrate has been negatived he being of the view that the quantum of maintenance is necessary to be fixed as is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family and that on such consideration the need would not be less than rs. 74/- a month. there is no evidence that the petitioner is not capable of earning more. if an able-bodied man capable of earning more without any lawful excuse does not earn enough as is expected of him, it is not a ground for reduction of the quantum of maintenance payable to the wife. in these days, a sum of rs. 75/-per month is grossly inadequate as a maintenance amount for any standard of living. in that view of the matter, i do not find any reason to interfere with the impugned order.3. mr. dhal next makes submission that the petitioner is willing to maintain the opposite party. such a factor is not available to be considered by this court and if so advised the petitioner may take steps for the relief available to him under the proviso to section 125(3) and sub-sections (4) and (5) of the section.the revision is dismissed.