Ghasiram Das Vs. Srimati Arundhati Das and anr. - Court Judgment

Excerpt:
- 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]. - by virtue of the said provision all decrees and orders made by the court in any proceeding under this act shall be enforced in the like manner as the decrees and orders of the court made in exercise of its original civil jurisdiction for the time being are enforced. the object and purpose of section 24 will stand defeated if the compliance is delayed or not made.p.c. misra, j. 1. this case exemplifies that justice delayed is justice denied. this appeal-arises out of a suit filed by the present appellant praying for restitution of conjugal rights under section 9 of the hindu marriage act. the suit was instituted on 16-11-68 and the dispute is still pending in this appeal. at the institution of the suit the plaintiff-husband is described in the plaint as 42 years of age and that of the wife-respondent, against whom the prayer for restitution of conjugal rights was prayed for, was 35 years of age. during pendency of the litigation for the last 25 years the husband must have been 67 years old and the age of the wife must have been 60 years and the restitution of conjugal rights, if allowed hereafter will carry no sense. 2. the history of the case as narrated by the learned trial court in the judgment passed in the suit is that the plaintiff had earlier filed a suit for restitution of conjugal rights in the court of district judge, bolangir in the year 1957. in that suit the district judge orders that the plaintiff should pay maintenance of rs. 15/ -per month and rs 25/- as cost of the litigation. the said order was passed on 6-10- 1958. though the litigation expenses was paid by the plaintiff, the maintenance was not paid. the case remained pending for some time and ultimately the same was dismissed for non-prosecution by the plaintiff. thereafter the plaintiff has filed the present suit on 6-11-68 and in the suit the defendant filed an application under section 24 of the hindu marriage act praying for interim maintenance and litigation expenses. by order dt. 18-12-70 the trial court directed for payment of rs. 100/-as litigation expenses rejecting the prayer for payment of monthly maintenance. the defendant filed an appeal before the district judge who allowed the same (misc. appeal no. 5/ 71) on 7-3-74 directing that the plaintiff should pay monthly maintenance of rs. 20/-to his wife and also rs. 150/- more as litigation expenses. the plaintiff paid the litigation expenses on 29-4-74 but did not pay the monthly maintenance as ordered by the district judge in the aforesaid appeal. it would thus be clear that even though order for monthly maintenance was passed from time to time by different courts from the year 1958 the defendant has not been paid any maintenance whatsoever. it was, therefore, contended before the learned trial court that the plaintiff should not be allowed to proceed with the suit without first complying with the order for payment of maintenance. the learned trial court after hearing the parties came to a conclusion that the plaintiff should be precluded from proceeding with hearing of the case and his case must be struck down. the suit was, therefore, dismissed. against the said order of dismissal, the plaintiff preferred title appeal no. 3/21 of 1977/82 which was heard and disposed of by the addl. district judge, bolangir. the appellate court considering the legality of the order of dismissal of the suit concurred with the conclusion of the learned trial court and dismissed the appeal. hence this appeal. 3. the only question for consideration in this appeal is whether the trial court was justified in dismissing the suit for non-compliance of the order passed under section 24 of the hindu marriage act. 4. the learned counsel appearing for the appellant vehemently argued that section 28a of the hindu marriage act provides for enforcement of decrees and orders. by virtue of the said provision all decrees and orders made by the court in any proceeding under this act shall be enforced in the like manner as the decrees and orders of the court made in exercise of its original civil jurisdiction for the time being are enforced. his contention, therefore, was that for non-compliance of the direction for payment of interim monthly maintenance, the defendant could initiate an execution proceeding and realise the money payable to her, but the court cannot enforce the order in the same proceeding as has been done by the learned trial court. section 24 of the hindu marriage act empowers the matrimonial court to make an order for interim maintenance to be paid and also the litigation expenses. the purpose of the section is to enable the indigent spouse himself/ herself to offer financial help to fight out the litigation. in other words, the purpose is to provide financial assistance to a spouse because of his or her poverty without which he/she is unable to pursue the litigation in a court. the object and purpose of section 24 will stand defeated if the compliance is delayed or not made. thus it would; result in denial of justice if the order for interim maintenance and litigation expenses is not promptly and duly complied with. 5. it is no doubt correct that the order directing payment of interim maintenance can be enforced by taking recourse to an execution proceeding, but the aforesaid provision enabling the party to file art execution proceeding does not preclude the court to enforce its own order in order in order to prevent abuse of the process of court. an indigent spouse who is financially handicapped to place materials before the court and to fight out the litigation in which the order was passed cannot be expected to initiate another legal proceeding and realise her dues in such a situation some courts have directed stay of the proceeding until the order is complied with. those cases mostly relate to nonpayment of litigation expenses in the absence of which the indigent spouse would probably not be able to place materials before the court for a fair decision of the case. but grant of interim maintenance stands slightly on a different footing, if the matrimonial proceeding is stayed. interim maintenance allowed to an indigent spouse is generally a mere pittance and non-payment thereof might prejudicially affect his/her survival. stay of the proceeding in such circumstances may not be a proper solution to the problem. the next alternative by which the courts may enforce the order is to strike out the pleadings of the defaulting party. whether it will be permissible in law for taking such a course requires consideration. the delhi high court in a decision reported in air 1976 delhi 246 (smt. anuradha v. santosh nath channa) has observed that it is open to the court to enforce obedience of its order or to prevent abuse of its process by staying the proceedings or striking off the defence or by temporarily suspending its operation without prejudice to any other action that may be taken according to law. the phrase 'striking off the defence' would be applicable where the defendant is the defaulting party and where the plaintiff is the defaulter it naturally follows that his pleading can also be struck down for non-compliance of the order. their lordships of punjab high court in the decision reported in air 1961 punj 42 (smt. malkan rani v. krishan kumar) have expressed that section 28 (now section 28a) gives the right to a party to recover such an amount by taking execution proceedings but it does not affect the court's power to exercise its jurisdiction equitably and in such a way as to prevent abuse of its process. 6. in my considered view, the court can enforce its own order also by taking recourse to the aforesaid process in order to prevent the abuse of the process of court. in other words, the purpose of section 28 of the act should not be allowed to defeat by driving the indigent spouse to enforce the order in an execution proceeding in every case. the court in appropriate circumstance can enforce its order by striking out the pleadings as has been done in this case. 7. i, therefore, find no legal justification to interfere with the impugned order. the appeal is, therefore, dismissed as devoid of merit. 8. there shall be no order as to costs of this court.