Ms. Alisha Chaudhary vs Sh. Tarun Chaudhary
2009 Latest Caselaw 1198 Del

*          HIGH COURT OF DELHI : NEW DELHI

+                IA No.2781/2009 in IPA No.7/2008


                      Judgment reserved on:     30th March, 2009

%                     Judgment decided on :        6th April, 2009

Ms. Alisha Chaudhary                             ......Plaintiff
                    Through : Mr. M.M. Kalra, Adv.

                      Versus

Sh. Tarun Chaudhary                                     .....Defendant
                      Through: Mr. S.S. Jauhar, Adv.

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                   No.

2. To be referred to Reporter or not?                                No.

3. Whether the judgment should be reported                           No.
   in the Digest?

MANMOHAN SINGH, J.

1. By this order, I shall dispose of the application under Section

151 CPC filed by the plaintiff praying inter alia that the defendant be

directed to make the payment of Rs.68,000/- per semester from January,

2009 onwards and other fees of the university and pocket expenses of

Rs.5,000/- per month and to further pay it till the final disposal of the

case.

2. The plaintiff is the eldest daughter of the defendant and has

filed the suit for recovery of maintenance and marriage expenses against

the defendant. The plaintiff is studying in University of Petroleum and

Energy Studies at Deharadun and is the student of integrated B. Tech

five years course and MBA (Oil & Gas) and is in the second year. The

plaintiff is dependent on her father for food, residence, education and

for her marriage. It is alleged that her college fee is Rs.68,000/- per

semester and hostel charges are Rs.36,000/-. In addition, the University

bus charges are Rs.12,500/- per year. The plaintiff also requires

Rs.5000/- per month as day to day expenses for her maintenance etc.

The mother of the plaintiff does not have sufficient means to pay the

school fees.

3. During the pendency of the suit, the plaintiff filed IA

No.3184/2006 under Section 20 of the Hindu Adoption and

Maintenance Act, 1956 for ad interim maintenance. Vide order dated 5th

August, 2008 this Court directed that the defendant to bear the college

fees of the plaintiff from 1.8.2008 to 31.3.2009 along with the hostel

charges for the above said period. The plaintiff has also filed an

application being IA No.3183/2008 under Order 33 Rule 1 and 2 CPC

read with Section 151 CPC to allow the applicant to file the present

suit as an indigent person. It is listed for hearing before Joint Registrar

for 24th April, 2009 for conducting an enquiry in respect of indigency of

the petitioner.

4. The defendant has paid a sum of Rs.95,567/- to the counsel

for the plaintiff in the name of Alisha Chaudhary vide bank draft

No.467642 dated 23rd August, 2008.

5. It is contended by the plaintiff that the plaintiff received a

bill/fees reminder on 1st November, 2008 for payment of fees for the

semester of January to June, 2009 and the defendant has only made the

payment from August, 2008 to December, 2008. The plaintiff sent a

letter to the counsel of the defendant on 5 th January, 2009 for the

payment of the abovesaid fees but the defendant failed to pay the

amount. It is submitted that the plaintiff is not moving contempt

application against the defendant as she has regards for her father.

6. The plaintiff submits that the he has paid fees for the said

period as the last date was expiring and now requested the defendant to

remit back the said against the payment receipt filed in the present

proceedings.

7. The defendant in the reply has submitted that this Court does

not have the jurisdiction to decide the present case as the cause of

action has not arisen within the territorial jurisdiction of this Court. It

is submitted that the plaintiff has failed to lead any evidence to show

that she does not possess enough resources or means to raise funds to

pay the court fees and other expenses. It is stated that the requisite

notice under the provision of Order XXXIII of CPC has not been sent to

the government pleader and therefore, the application for filing suit as

indigent person is not maintainable and no interim orders can be passed.

It is submitted that the defendant has already paid and deposited with

the plaintiff the amount of fees till 31.3.2009 as per the break up given

to him in pursuance to the orders passed by this Court on 5 th August,

2008.

8. In rejoinder to the application, the plaintiff stated that she has

filed the process fee and the notice has already been sent to the

government pleader as required in the application under Order XXXIII.

9. The plaintiff averred that the defendant is employed with

M/s. Clark Son, a shipping broker company having its local office at

124/125 Rectangle, D-4, Saket District Centre, Behind Saket Circle,

New Delhi and is getting a package of around Rs.40 lac p.a. besides

other benefits.

10. Under Section 20 of CPC, the suit can be instituted in a court

within the local limits of whose jurisdiction the defendant at the time of

commencement of the suit, actually and voluntarily resides, or carries

on business or personally works for gain. The defendant is gainfully

employed at Delhi on the date of filing of the suit. Thus, the contention

of the defendant that this Court has no jurisdiction cannot be accepted.

11. Regarding the other contention of the defendant that the

plaintiff has not produced any evidence to support her plea of indigency

and therefore, no interim order can be passed. It has been specifically

held in the cases of Vijai Pratap Singh vs. Dukh Haran Nath and

Anr.; AIR 1962 SC 4941, Jyoti Prakash Banerjee vs. Chameli

Banerjee & Anr., AIR 1975 Cal. 260 and Smt. Gian Devi vs. Shri

Amar Nath Aggarwal; ILR (1975) 1 Delhi 811 that even when the suit

is filed as an indigent person and application under Order XXXIII to

sue as forma pauperis is pending, a suit stands instituted on filing such

an application under Order XXXIII Rule 3 CPC and therefore,

application for interim maintenance was maintainable and could be

maintained even when the application to sue as forma pauperis was

still not decided.

12. An application for grant of interim maintenance during the

pendency of a pauper application is an application for an interlocutory

order and therefore, Section 94(e) of CPC applies. There are no

restrictions in the Code regarding passing of such interlocutory orders.

The same provisions of law apply to the pauper applications as apply

to suits and hence order of interim maintenance can be passed pending

pauper application. Therefore, the contention of the defendant to the

extent that no interim maintenance can be granted at this stage, stands

rejected.

13. Notice to the Govt. pleader has already been sent by the

plaintiff and enquiry regarding the indigency of the plaintiff is pending

before Joint Registrar on 24th April, 2009. In view of the case law cited

above, this Court can pass interim orders during the pendency of

indigent application.

14. The defendant is directed to make the payment of

Rs.68,000/- per semester in terms of the orders passed by this Court on

5th August, 2008 and to further pay the fees of the plaintiff alongwith

hostel charges, bus fees and out of pocket expenses @ Rs.5,000/- p.m.

till the disposal of IA No.3184/2008 (U/s 20 of Hindu Adoption &

Maintenance Act) without prejudice to the rights and contentions of the

respective parties as an interim measure.

The application stands disposed of.

MANMOHAN SINGH, J APRIL 06, 2009 SD