Rasmita Rout @ Baral and Others Vs. Maheswar Baral - 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]. - ' 3. a bare perusal of the aforesaid laconic order clearly shows that the judge, family court, while considering the question of interim maintenance has not tried to ascertain about the salary and the financial status though it has been very vaguely stated that the financial status has been considered. ordinarily, it is well accepted that about one-fifth of the income of the husband can be considered as reasonable so far as maintenance of wife is concerned.order1. heard shri b. p. routray for the petitioners and shri ajit hota for the opposite patty. this writ application is directed against the order of the judge, family court, cuttack, 6xing rs. 300/- as monthly interim maintenance payable to the petitioners. even though it is not indicated in the impugned order that interim maintenance claimed is for the wife and two minor children, it is obvious that maintenance had been claimed for the three petitioners.2. the judge, family court, had passed the following order :--'both parties present. the petition claiming maintenance from the o. p. is put up. heard the parties. considering the financial status of the o. p. i direct him to pay rs.300/- pet month as interim main tenance to the petitioner from the date of the petition till disposal of the main case, payable on 19-8-99. put up on 19-8-99 for payment of maintenance dues.' 3. a bare perusal of the aforesaid laconic order clearly shows that the judge, family court, while considering the question of interim maintenance has not tried to ascertain about the salary and the financial status though it has been very vaguely stated that the financial status has been considered. in normal course, i would have remanded the matter for re-consideration of the question of interim maintenance. however, adopting such a course at this distant point of time may cause further harassment to both parties.4. in course of hearing, shri hota appearing for the opposite party has produced the salary certificate for the month of september, 2000, which indicates that the basic pay of the opposite party was rs. 5,250/- and dearness allowance payable was rs. 1,943/- and house rent allowance payable was rs. 525/-. in other words, the gross earning was rs. 7,718-00 per month. however, after deduction of various amounts towards loan, et cetera, the net amount payable appears to be rs. 2,737/-, the counsel for the opposite party has also stated that the opposite patty has to maintain other persons.5. while considering the question of payability of interim maintenance, the court has to take a prima facie view regarding the requirement of the destitute wife and minor children. ordinarily, it is well accepted that about one-fifth of the income of the husband can be considered as reasonable so far as maintenance of wife is concerned. it is not disputed that petitioner no. 2 is attending school. having regard to all these aspects, i think the direction regarding payment of interim maintenance of rs. 300/- appears to be grossly low and in the interest of justice it is directed that opposite party should pay asum of rs. 800/- (rs. 500/- for the wife and rs. 200/- for petitioner n6. 2 and rs. 100/- for petitioner no. 3). it is made clear that the observation made above is only for the purpose of fixing interim maintenance and while disposing of finally, the judge, family court, should not be weighed down by these observations. this enhanced amount is payable with effect from the month of march, 2001 and the earlier amount calculated at the rate of rs. 300/- is payable till end of february, 2001. if there is any unpaid amount, the same should be cleared within a period of six weeks from the date of this order. the main case may be decided by the judge, family court, as expeditiously as possible. the writ application it accordingly disposed of 6. writ application disposed of.

Judgment:
ORDER

1. Heard Shri B. P. Routray for the petitioners and Shri Ajit Hota for the opposite patty. This writ application is directed against the order of the Judge, Family Court, Cuttack, 6xing Rs. 300/- as monthly interim maintenance payable to the petitioners. Even though it is not indicated in the impugned order that interim maintenance claimed is for the wife and two minor children, it is obvious that maintenance had been claimed for the three petitioners.

2. The Judge, Family Court, had passed the following order :--

'Both parties present. The petition claiming maintenance from the o. p. is put up. Heard the parties. Considering the financial status of the o. p. I direct him to pay Rs.300/- pet month as interim main tenance to the petitioner from the date of the petition till disposal of the main case, payable on 19-8-99.

Put up on 19-8-99 for payment of maintenance dues.'

3. A bare perusal of the aforesaid laconic order clearly shows that the Judge, Family Court, while considering the question of interim maintenance has not tried to ascertain about the salary and the financial status though it has been very vaguely stated that the financial status has been considered. In normal course, I would have remanded the matter for re-consideration of the question of interim maintenance. However, adopting such a course at this distant point of time may cause further harassment to both parties.

4. In course of hearing, Shri Hota appearing for the opposite party has produced the salary certificate for the month of September, 2000, which indicates that the basic pay of the opposite party was Rs. 5,250/- and Dearness Allowance payable was Rs. 1,943/- and house rent allowance payable was Rs. 525/-. In other words, the gross earning was Rs. 7,718-00 per month. However, after deduction of various amounts towards loan, et cetera, the net amount payable appears to be Rs. 2,737/-, The counsel for the opposite party has also stated that the opposite patty has to maintain other persons.

5. While considering the question of payability of interim maintenance, the Court has to take a prima facie view regarding the requirement of the destitute wife and minor children. Ordinarily, it is well accepted that about one-fifth of the income of the husband can be considered as reasonable so far as maintenance of wife is concerned. It is not disputed that petitioner No. 2 is attending school. Having regard to all these aspects, I think the direction regarding payment of interim maintenance of Rs. 300/- appears to be grossly low and in the interest of justice it is directed that opposite party should pay asum of Rs. 800/- (Rs. 500/- for the wife and Rs. 200/- for petitioner N6. 2 and Rs. 100/- for petitioner No. 3). It is made clear that the observation made above is only for the purpose of fixing interim maintenance and while disposing of finally, the Judge, Family Court, should not be weighed down by these observations. This enhanced amount is payable with effect from the month of March, 2001 and the earlier amount calculated at the rate of Rs. 300/- is payable till end of February, 2001. If there is any unpaid amount, the same should be cleared within a period of six weeks from the date of this order. The main case may be decided by the Judge, Family Court, as expeditiously as possible. The writ application it accordingly disposed of

6. Writ application disposed of.