Narendra Pal Singh vs Harpreet Kaur
2010 Latest Caselaw 1835 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI


+            CRP No.110/2009 & CM No.11182/2009

                              Date of Decision: 8th April, 2010

      NARENDRA PAL SINGH                            .....Revisionist
                    Through:             Ms. Pushpa Kumari
                                         Mishra, Advocate.
                   versus


      HARPREET KAUR                                  ..... Respondent
                            Through:     None.


      %
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1)     Whether reporters of local paper may be
             allowed to see the judgment?
     (2)     To be referred to the reporter or not?           Yes
     (3)     Whether the judgment should be reported
             in the Digest ?                                  Yes

                        JUDGMENT

ARUNA SURESH, J. (Oral)

CRP No. 110/2009

1. Vide this revision petition, petitioner-husband has

challenged the order of the Trial Court dated 28 th May, 2009,

whereby his application for review of the order dated 11th

September, 2008 passed on an application filed by respondent under

Section 24 of the Hindu Marriage Act (hereinafter referred to as the

„Act‟) was dismissed.

2. Learned counsel for the respondent has submitted that

no revision petition lies against the impugned order in view of

findings of the Supreme Court in „Shiv Shakti Coop. Housing

Society, Nagpur Vs. Swaraj Developers & Ors.‟, AIR 2003 SC 2434

and only remedy available to the petitioner is to invoke Article 227

of the Constitution of India.

3. Learned counsel for the petitioner has submitted that

an order passed on an application under Section 24 of the Act is final

in nature and therefore, revision petition lies under Section 115 of

the Code of Civil Procedure. Her submissions are devoid of merits.

4. Under Section 24 of the Act, any of the parties to the

petition can move the Court for grant of interim maintenance till

final disposal of the petition on merits. Such applications are

decided on the basis of documentary evidence as well as oral

submissions made by their respective counsel or the parties in

person, as the case may be. Court can award permanent

maintenance only on an application filed under Section 25 of the Act

at the time of final disposal of the divorce petition on merits.

5. Vide order dated 11 th September, 2008, Trial Court

granted maintenance pendente lite @ Rs.2,000/- per month to

respondent from the date of filing of the application i.e. 10 th April,

2008 besides litigation expenses of Rs.5,000/-. It is pertinent that

order dated 11th September, 2008 is not under challenge in this

appeal.

6. In Shiv Shakti Coop. Housing Society's case (supra),

Supreme Court has observed as follows:-

"32. A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is 'yes' then the revision is maintainable. Suit on the contrary, if the answer is 'no' then the revision is not maintainable. Therefore, if the impugned order is of interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject matter of revision under Section 115. There is marked distinction in language of Section 97(3) of the Old Amendment Act and Section 32(2) (i) of the Amendment Act. While in the former, there was

clear legislative intent to save applications admitted or pending before the amendment came into force. Such an intent is significantly absent in Section 32(2)(i). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered the parties are to proceed according to the altered made, without exception, unless there is a different stipulation."

7. Thus, it is clear that cardinal principle of law is that

Court cannot read anything into a statutory provision. It is plain and

unambiguous. A Statute is a creation of the Legislature and

unambiguity in a Statute is the determinative factor of Legislative

intent.

8. Determination of maintenance pendente lite is

essentially an interim measure which generally does not call for any

interference from this Court under Section 115 of the Code of Civil

Procedure, specially after amendments having been carried out in

the said Section. While referring Shiv Shakti Coop. Housing

Society's case (supra), this Court in "Annurita Vohra Vs. Sandeep

Vohra', 2004 (110) DLT Delhi 546, has observed:-

"5. The determination of maintenance pendente lite is essentially an interim measure which

normally does not call for interference under Section 115 of the Code of Civil Procedure, especially after the amendments carried out in the Code of Civil Procedure. On an understanding of the law as enunciated in Shiv Shakti Coop. Housing Society, Nagpur vs. Swaraj Developers and Others., (2003) 6 SCC 659, no scope for discussion on this question remains.

9. Learned counsel for the petitioner has referred to 'Smt.

Pushpa @ Pooja @ Bhawna Vs. State of U.P.', AIR 2005

Allahabad 187, to emphasize that a revision petition under Section

115 CPC, challenging the order passed under Section 24 of the Act is

maintainable. However, since this Court has repeatedly held that an

order under Section 24 of the Act is an interlocutory order and so has

been held by the Supreme Court. This judgment therefore is of no

help to the petitioner. Reference is also made to 'Rajat Taneja Vs.

Harmeeta Singh' 142 2007 DLT 377.

10. Hence, this revision petition against impugned order of

the Trial Court dated 28th May, 2009 is not maintainable and is

liable to be dismissed.

11. Coming to the merits of the case, as discussed above,

order passed by the Trial Court on an application under Section 24 of

the Act has not been challenged before this Court. While deciding

the review petition, Trial Court also observed that the documents,

which were filed along with review petition and were made basis for

the review of the order dated 11 th September, 2008, were never

produced before the Court at the relevant stage though, all those

documents were available with the petitioner before filing of the

application for maintenance. It is of importance to note that before

deciding the application under Section 24 of the Act, Trial Court did

examine the petitioner on oath under Order 10 Rule 2 CPC.

12. After taking into consideration the additional

documents placed on record along with review petition, Trial Court

rightly observed that none of the documents placed along with the

review petition including the bank pass book could convince the

Court that respondent is employed or has any source of income.

13. Hence, even on merits, no interference is required in

the impugned order of the Trial Court, whereby it dismissed the

review petition filed by the petitioner.

CM No.11182/2009 (for stay)

14. With dismissal of the revision petition, this application

has become infructuous. It is accordingly disposed of.

ARUNA SURESH, J.

APRIL 08, 2010 sb