C.K. Buch, J.
1. The appellants are the original-defendants of Special Civil Suit No. 122 of 1999 pending in the Court of learned Principal Civil Judge (Senior Division), Mehsana and the respondents are the original plaintiffs who have filed the suit for partition alleging that the suit properties are undivided Hindu property and plaintiffs have share in that property and the same are in possession and enjoyment of the plaintiffs.
2. Chaudhary Mansangbhai was husband of plaintiff No. 1-respondent No. 1 herein and after his death on 23-10-1994, the plaintiffs-respondents are entitled for their share. The pedigree as mentioned in the plaint shows that Chaudhary Shankarbhai Kanjibhai was head of the family and managing the affairs of ancestral property received by him and details of immovable properties are also mentioned in Paragraph 3 of the plaint. It has been prayed in the plaint that certain movable properties are also in possession of defendants which are 'Stree Dhan' of plaintiff No. 1-Mafiben including the gold and silver ornaments, etc., and therefore, these movable properties also may be given to the plaintiffs. By moving application Exh. 5, the plaintiffs have prayed for amount of maintenance pending the hearing and final disposal of the suit for partition keeping in mind the scheme of Section 19 of the Hindu Adoptions and Maintenance Act. On the date of filing of the suit, plaintiff Nos. 2 and 3 were minor and plaintiff No. 1 prayed for maintenance pending the suit. It appears from the pleadings and the contents of application Exh. 5 that the plaintiffs prayed for maintenance by way of interim arrangement till they receive their legitimate share in the ancestral properties being members of Hindu Joint Family, more particularly, as members of the family in the capacity of heirs of deceased-Chaudhary Mansangbhai, because after getting their share being members of Hindu family, obviously they would not be entitled for maintenance from the family.
3. The Court irrespective of the prayer made in the application Exh. 5, allowed the said application vide its order dated 29-8-2002 and awarded Rs. 1,000/- of maintenance per month to plaintiff No. 1 and Rs. 500/- per month each to plaintiff Nos. 2 and 3 from the date of passing of the order till the final disposal of the suit with no order of costs. Though, the Court has passed the order on 29-8-2002 allowing the application Exh. 5, but the defendants did not pay any amount to the plaintiff, and therefore, the plaintiffs prayed for execution of the order passed and the notice of recovery application was served to the appellants/defendants on 13-8-2003 wherein the plaintiffs prayed that Rs. 1,10,000/- is payable and due to the plaintiffs.
4. According to the appellants-defendants they were not aware about the earlier order passed below Exh. 5, and therefore, they immediately applied for copy of the order and defendant No. 1 moved application below Exh. 64 on 25-9-2003 under Sections 151 and 114 read with Section 94 of the Civil Procedure Code, for reviewing the order passed below application Exh. 5 and to decide it afresh on merits. It was contended in the said application that order below application Exh. 5 was passed in absentia and also by playing fraud. The application Exh. 64 was preferred by defendant No. 1-Chaudhary Shankarbhai Kanjibhai who was expired pending the suit on 3-9-2007, whose death certification is annexed at Annexure-C. On plain reading of the application Exh. 64, it transpires that only Chaudhary Shankarbhai Kanjibhai had preferred application Exh. 64 and no other defendants are signatories in the application. The main request of defendant No. 1 in the application Exh. 64 was that the Court may review its order passed below application Exh. 5 observing that the said order was void, ab initio and the application Exh. 5 requires to be heard bi-partite and till the fresh decision that may be given by the Court, the execution of the order passed below Exh. 5 may be stayed. The learned Principal Senior Civil Judge, Mehsana vide order dated 5-11-2008 rejected the application Exh. 64.
5. Being aggrieved and dissatisfied with the order dated 29-8-2002 passed below application Exh. 5 as well as the order dated 5-11-2008 passed below Exh. 64, the appellants-defendants have preferred the present Appeal From Order along with Civil Application for condonation of delay caused in preferring the Appeal as well as Civil Application for stay.
6. This Court (Coram : M. R. Shah, J.) vide order dated 30-12-2008 has allowed the application for condonation of delay and condoned the delay of 2219 days by detailed speaking order and fixed the appeal as well as application for stay for admission hearing. Thereafter, on 21-1-2009 this Court (Coram : M. R. Shah, J.) has admitted the appeal and allowed the application by staying the order dated 29-8-2002 passed below application Exh. 5 in S.C.S. No. 122 of 1998.
7. Mr. P.S. Dave, learned Advocate for the appellants-original defendants submitted that the application Exh. 64 preferred by defendant No. 1-Chaudhary Shankarbhai Kanjibhai had expired prior to passing of the order in that application so the order under challenge can be said that the order was passed against the dead person, therefore it does not binding to the rest of appellants-defendants. It is further submitted that while dealing with the application for condonation of delay, this Court has considered all the relevant aspects, and therefore, by taking liberal view it has been accepted that the order below application Exh. 5 was passed in absentia and the learned lower Court ought to have reviewed the order and accorded opportunity to the defendants to meet with the allegations made in the suit as well as application Exh. 5. It is further submitted that the respondents-original plaintiffs are not entitled for amount of maintenance in a suit for partition. The proceeding under Section 19 of the Hindu Adoptions and Maintenance Act, are independent proceedings and to be decided on merit and on evaluation of evidence, and therefore, while dealing with application preferred under Order 39, Rules 1 and 2 and Section 151 of C.P.C., the maintenance could not have been awarded.
8. It is also pointed out by the appellants-defendants that on 23-10-2001, the defendants approached the Court by moving application Exh. 46 in the suit and prayed that they have not been supplied the copy of documents relied upon by the plaintiffs-respondents, and therefore, they were not able to get the written statement prepared and praying that they may be given some time praying and no order ought to have been passed below application Exh. 5 observing that there is no resistance from the defendants. It is argued that the order passed below application Exh. 5 is not based on any evidence in reference to the income from the suit land, as well on the basis of evidence showing that the property possessed and enjoyed by the Chaudhary Shankarbhai are ancestral property and deceased-Chaudhary Mansangbhai had any share as a member of the Hindu Undivided Family. It is further submitted that order passed application below Exh. 5 is infirm and same may therefore be quashed and set aside.
9. It is argued that the order passed below application Exh. 64 is also bad in law and the learned trial Judge has erroneously concluded that there is no justification in the application Exh. 64. The prayer made by the defendant No. 1 in application Exh. 64 falls in the category of the application praying for review of the order and considering the proceedings drawn it is possible for the Court to conclude that other side was not aware about the pendency of the application Exh. 5; nor about the prayer made therein and the Court can review the order passed below application Exh. 5. It is also argued that the order passed below application Exh. 5 is reviewable order, and therefore, application Exh. 64 was required to be allowed.
10. It is further submitted that after the death of Chaudhary Shankarbhai Kanjibhai, rest of the other appellants-defendants have right to carry the cause. Undisputedly, after preferring application Exh. 64, Chaudhary Shankarbhai Kanjibhai was expired and all the legal heirs of Shankarbhai are defendants in the suit, and therefore, appeal cannot be said to be infirm-appeal.
11. It is further submitted that on perusal of the copy of the plaint which is at Annexure-B it indicates that on the date of filing of the suit, defendant Nos. 3, 4 and 5 were minor and defendant No. 1-Chaudhary Shankarbhai Kanjibhai was joined as party defendant in his own capacity as well in capacity of guardian of minor defendant Nos. 3, 4 and 5. The defendants who have gained majority obviously can continue the grievance that was raised by defendant No. 1-Chaudhary Shankarbhai Kanjibhai, and therefore, the lower Court ought not to have thrown away the application Exh. 64 by holding that as the present application was not filed within the prescribed period of limitation and while hearing of the present application, the defendant No. 1 was expired on 2-9-2007 and there was no legal heirs in the application except defendant Nos. 2 to 5, the application does not maintainable to continue further.
12. On the other hand, Mr. Viral J. Dave, learned Advocate appearing for the respondents-original plaintiffs has submitted that there is no merit in the application Exh. 64. The learned trial Judge has passed the detailed speaking order while dealing with application Exh. 64 and has dealt with each contention which was raised in the application. It is submitted that in the suit for partition, maintenance can be awarded to the plaintiff, if they are found entitled to maintenance under the scheme of Section 19 of the Act and there is no bar in placing such application in a suit for partition. True, it is that substantive application under Section 19 of Act could also have been preferred by the plaintiffs, but it was not necessary for the plaintiffs to file two different suits one for partition and other for maintenance under Section 19 of the Act. It is further submitted that the learned Judge has jurisdiction to deal with the application Exh. 19, and therefore, it cannot be said that the order passed below Exh. 19 is without jurisdiction. It is further submitted that the order passed below application Exh. 5 granting maintenance cannot be said to be either harsh or an order granting excess amount of maintenance pending the suit. It is further submitted that it cannot be said that the order was passed in absentia. The say of the appellants-original defendants that they were not aware about the Exh. 5 application is baseless, as they have remained negligent in dealing with the application Exh. 5. Without filing a formal reply to the application Exh. 5 and by placing reliance on the written statement also they could have resisted the application Exh. 5. Pursis stating that written statement may be considered as reply to the application Exh. 5 would have served the purpose.
13. Mr. Dave, learned Advocate appearing for the respondents-original plaintiffs by placing reliance on a decision of this Court in case of Darshanaben Wd/o. Prakashbhai Ratilal Panchal (Dharva Parmar) and Ors. v. Shantibhai Ratilal Parmar (Dharva Parmar) and Ors. reported in 2008 (3) GLH 439 has submitted that the order of maintenance under Section 19 of the Hindu Adoptions and Maintenance Act, can be passed in a suit for partition. It is also pointed out that for long time the defendants had not taken care to file written statement and in response of this submission, Mr. Dave, learned Advocate has placed reliance upon a xerox copy of application Exh. 45 and Exh. 46 filed in the proceedings of Special Civil Suit No. 122 of 1999 which is on record, more particularly, in the background of allegation made in the memo of appeal. Application Exh. 45 is an application in the printed form praying for adjournment to file written statement, which was signed by Advocate, Mr. R.D. Shah for defendant. The lower Court on 18-10-2001 while granting conditional adjournment observed that if the defendants fail to file a reply then order may be passed observing that defendants has not considered seriousness of the plaint and application Exh. 5 and hearing of application Exh. 5 was adjourned on 23-10-2001. Even, on the next date of hearing fixed by the Court, no written statement was filed and once again application for adjournment came to be submitted contending that the defendants have not been supplied with the documents relied upon by the plaintiffs. This application for adjournment was strongly resisted by the Advocate appearing for the plaintiffs and keeping in mind the endorsement made by the Advocate appearing for the plaintiffs, the Court passed the order of adjourning the matter on 30-10-2001 saying that, if the reply is not filed on the strength of the evidence produced along with list Exh. 4, the Court shall pass orders and widow and female children shall be granted maintenance by passing interim order giving effect from the date of filing of the application i.e. 16-12-1998. The Court has also observed that defendants have not considered the seriousness of gender issue, and therefore, as per conditional order passed below application Exh. 45, application Exh. 46 was to allowed. The say of the defendants is that plaintiffs have filed the suit in form of pursis on 16-12-1998, and thereafter, on completion of due inquiry the Court registered the suit as Special Civil Suit No. 122 of 1999 and the plaintiffs-respondents herein are entitled for maintenance from the date of filing of the suit i.e. 16-12-1998. It was the say of learned Advocate appearing for the original plaintiff that by making endorsement in the application Exh. 64 only the Court has passed the above order. Mr. Dave, learned Advocate for the respondents-plaintiffs in short has submitted that the appeal may kindly be dismissed.
14. Keeping in mind the rival contentions, the Court is of the view that the observations made by this Court in case of Darshanaben Wd/o. Prakashbhai Ratilal Panchal (Dharva Parmar) and Ors. v. Shantibhai Ratilal Parmar (Dharva Parmar) and Ors. reported in 2008 (3) GLH 439 which is absolutely relevant and Court is inclined to quote the following paragraph:
9. It is not in dispute that the appellants-original plaintiffs have filed Civil Suit No. 1038 of 2004 in the City Civil Court at Ahmedabad seeking various reliefs inter alia for partition of the properties of Hindu Undivided Family of the defendants and for accounts. In the said suit, the plaintiffs have taken out notice of motion seeking temporary injunction restraining the defendants from transferring, alienating and/or assigning the movable and immovable suit properties and also seeking Rs. 10,000/- per month towards interim maintenance during the pendnency of the suit. Thus, the main relief sought in the suit is for partition of the properties of the Hindu Undivided Family of the defendants and for accounts. Incidentally and by way of interim relief, by taking out notice of motion, the plaintiffs have prayed for Rs. 10,000/- per month towards their maintenance during the pendency of the suit. Thus, this Court fails to appreciate that how the suit for partition of the properties of the Hindu Undivided Family and for accounts, would fall within the purview of Sections 7 and 8 of the Family Courts Act. Sections 7 and 8 of the Family Courts Act would not be applicable at all with respect to the dispute and the relief sought in the suit for partition of the properties and accounts. It appears that what is weighed with the learned Chamber Judge is the maintenance amount sought by the plaintiffs during the pendency of the suit. The learned Chamber Judge has lost sight of the fact that the main reliefs in the suit is for partition of the properties of the Hindu Undivided Family and for accounts. Thus, the learned Chamber Judge has misread and misinterpreted the provisions of the Family Courts Act and has not properly appreciated and considered the main reliefs sought in the suit. The learned Chamber Judge has dismissed the notice of motion only on the aforesaid ground considering Sections 7 and 8 of the Family Courts Act, by observing that the suit for aforesaid relief is not maintainable in the City Civil Court at Ahmedabad and has not decided the notice of motion on merits. Under the circumstances and for the reasons stated above, the impugned order passed by the learned Chamber Judge, City Civil Court at Ahmedabad below notice of motion requires to be quashed and set aside and the matter is to be remanded to the Chamber Judge for deciding the notice of motion on merits.
15. True, it is that the plaintiffs could have filed two different suits : one for partition and one for maintenance under Section 19 of the Act, but that by itself would not make the plaintiffs disentitle to pray for partition as well for maintenance in one proceeding. Undisputedly, the parties are same and both the claims can be made showing the similar status of the parties of the suit. Merely, because the plaintiffs could have filed a suit under Section 19 of the Act, they could not be thrown out of the Court qua relief prayed in the application Exh. 5 by observing that such prayer cannot be granted in a supplementary proceedings in a suit for partition. Of course, two different causes of action unless is found prejudicial or illegal, the plaintiffs can initiate one proceeding.
16. The plaintiffs moving a suit for partition is bound to pray for maintenance as alternative relief in the main suit, because in the event of passing of decree of partition and execution thereof, the plaintiffs would automatically become disentitle to continue claim for maintenance from other members of the Hindu Joint Family or the administrator of the family.
17. The plaintiffs could have prayed in the suit that they may be awarded maintenance for three years retrospectively, but the same has not been prayed. The Court is not convinced that the order passed in favour of plaintiffs-respondents is passed in absentia of defendants-appellants, more particularly, in the background of the order passed below application Exhs. 45 and 46. On the contrary, learned Advocate appearing for the defendants ought to have approached the Court immediately upon death of defendant No. 1 contending that if the Court is not allowed the application Exh. 64 then the application should be treated as application filed by rest of the defendants, as defendant - Chaudhary Shankarbhai Kanjibhai was administrator of the family. It appears that defendant-Chaudhary Shankarbhai Kanjibhai being administrator of the family had moved application Exh. 64 and if that application would have been allowed then all the defendants could have been exempted from paying the maintenance in compliance of the order passed below application Exh. 5. The order passed below application Exh. 5 is binding to all defendants.
18. While rejecting application Exh. 64, the learned Judge has thoroughly discussed the argument, but the Court was not convinced that the order passed below application Exh. 5 is void and ab initio. The Court has considered proceedings drawn in the month of November, 2001. Notice for application Exh. 5 was issued making it returnable and kept on 7-11-2001, but the same has returned as unserved and it was ordered that on payment of process fee, it may be served again. The Court has observed while passing order below application Exh. 64 that on 17-8-2002 parties had appeared before the Court, and thereafter, hearing of application Exh. 5 was kept on 29-8-2002, however the learned Advocate appearing for the defendants was absent. So, keeping in mind the earlier orders passed below application Exhs. 45 and 46 and other proceedings of the suit, the learned trial Judge has decided the application Exh. 5. There is no element on record under which it is possible for this Court even to observe that the order passed below application Exh. 5 is void, ab initio or otherwise illegal or erroneous. At the most, it can be said that the same is passed when the learned Advocate for the defendants was not present. It is not possible for this Court to comment on as to whether the absence of learned Advocate for the defendants was genuine absence or strategic absence so that if any order passed in favour of plaintiffs then execution of the same can be drawn into complexity.
19. The learned Judge has considered the scheme of Section 19(1) of the Hindu Adoptions and Maintenance Act and order passed below application Exh. 5 is in reference to the very provision. It is also not possible to agree with the argument that claim can be said to be time-barred. On the contrary, the claim was made on the date of filing of the application Exh. 5 and the Court was entitled to grant maintenance from the date of filing of the suit. The order passed below application Exh. 64 clarifies that the Court was intimated about the death of defendant No. 1 and the order passed below application Exh. 64 says that one application Exh. 79 was submitted to the Court and the pursis Exh. 82 shows that there is no need to bring heirs of defendant No. 1 on record, as defendant Nos. 2 to 5 are already there on record. The learned Judge observed that learned Advocate appearing for the defendant No. 1 had not made declaration about the death of defendant No. 1. The law is very clear on the point that if the defendant dies then necessary declaration has to be made by the other surviving defendants or the learned Advocate appearing for the defendants stating details about the legal heirs and representatives of deceased defendant. This obligation was not appropriately discharged by the learned Advocate appearing for the defendant, and therefore, according to me the appellants-original defendants are not entitled to take up the plea that the order passed below Exh. 64 is passed behind the back of rest of the defendants-appellants and/or order passed below Exh. 64 may not be given any effect by saying that the same is passed against the dead person. It is more relevant to note that as observed earlier that application for maintenance was moved against defendant No. 1 in capacity of administrator (Karta) of the family and it is legally possible to infer the same.
20. In the operative order passed below application Exh. 5, it is stated that the plaintiffs are entitled to the amount of maintenance from the date of application and this part of the order is discretionary order. The learned Judge could have stated that maintenance may be given from the date of passing of the order or from the date of which the other side had sought adjournment to file reply to the suit. It was also possible for the learned Judge to observe that whether the plaintiffs are entitled for maintenance from the date of application or not that shall be decided at the time of dealing with the suit. In the present case, the plaintiffs are entitled for maintenance from the date of application and when this order is found apparently in order and in accordance with the facts and circumstances emerging from the record, then such discretionary order should not be disturbed or interfered with in exercise of jurisdiction vested with the Court under Order 43, Rules 1 and 2 of C.P.C. While dealing with the Appeal From Order, the jurisdiction vested with the Court is very limited and cannot be equated with the jurisdiction vested with the Court under Section 96 of the C.P.C. There is no element of perversity or patent illegality in the orders passed. The discretion has been properly exercised. The Court was supposed to look into the various aspects including the balance of convenience, strength in the case of the plaintiff so also the claim of Section 19 of the Hindu Adoptions and Maintenance Act, and when joinder of causes of action is found, it does not look to be misjoinder of causes of action. The order passed below application Exhs. 5 and Exh. 64 does not warrant any interference. On the contrary, the orders passed below applications Exh. 5 and Exh. 64 are well sound and in accordance with the law. It is necessary to observe that the order passed below application Exh. 5 does not fall in the category of the order which could have been reviewed, and therefore, it seems that therefore only the appellants have challenged both the orders filing application for condonation of delay.
21. In view of the aforesaid discussion, the appeal stands dismissed with cost quantified at Rs. 5,000/- (Rupees Five Thousand Only). In view of the dismissal of appeal, the Civil Application for stay shall stands dismissed and interim-relief granted vide order dated 21-1-2009 is hereby vacated.