Delhi High Court
Ms. Tanya Chaudhary vs Sh. Tarun Chaudhary on 6 April, 2009
Author: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
+ IA No.2732/2009 in IPA No.12/2008
Judgment reserved on: 30th March, 2009
% Judgment decided on : 6th April, 2009
Ms. Tanya 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 arrears @ Rs.10,000/- p.m. in terms of
the order passed by this Court on 5 th August, 2008 and to continue to
pay the amount @ Rs.10,000/- p.m. till the final disposal of the
application under Section 20 of Hindu Adoption & Maintenance Act.
2. The plaintiff is the younger daughter of the defendant and
has filed the suit for recovery of maintenance and marriage expenses
against the defendant. The plaintiff is studying in SelaQui World
School, at Chakrata Road, Selaqui, Dehradun. The plaintiff is
dependent on her father for food, residence, education and for her
marriage. It is alleged that her school fees is Rs.1,60,000/- annually
which was paid by the grand father of the plaintiff. The school fees has
been increased to Rs.2,80,000/- w.e.f. April, 2009. The mother of the
plaintiff does not have sufficient means to pay her school fees.
3. During the pendency of the suit, the plaintiff filed IA
No.5394/2006 under Section 20 of the Hindu Adoption and
Maintenance Act, 1956 for ad interim maintenance. Vide order dated 5th
August, 2008 this Court directed the defendant to pay Rs.10,000/- p.m.
to the plaintiff w.e.f. from 1.8.2008 to 31.3.2009. The plaintiff has also
filed an application being IA No.5393/2008 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 the amount of Rs.10,000/- p.m. till
December, 2008 only and contended that the school fees of the plaintiff
upto March, 2009 has already been paid.
5. 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.
6. The defendant submits 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.
7. In rejoinder to the application, the plaintiff stated that she has
filed the process fee and steps are being taken for issuing notice to the
government pleader as required in the application under Order XXXIII.
8. 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.
9. 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.
10. 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.
11. 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.
12. As submitted by the plaintiff, steps are being taken to issue
notice to the Govt. pleader and enquiry regarding the indigency of the
plaintiff is pending before Joint Registrar for 24th April, 2009. In view
of the case law cited above, this Court can pass interim orders during the
pendency of indigent application.
13. The defendant is directed to pay the arrears @ Rs.10,000/-
p.m. in terms of the orders passed by this Court on 5th August, 2008
within two weeks and to further pay the amount of Rs.10,000/- p. m. to
the plaintiff till the disposal of IA No.5394/2008 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
