Jashwantben Chimanlal Darji vs Rameshbhai Chimanlal Tailor
2021 Latest Caselaw 16035 Guj

     C/SCA/15138/2021                                ORDER DATED: 11/10/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 15138 of 2021

                                 With
             R/SPECIAL CIVIL APPLICATION NO. 15238 of 2021
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                        JASHWANTBEN CHIMANLAL DARJI
                                  Versus
                        RAMESHBHAI CHIMANLAL TAILOR
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Appearance:
MR BAIJU JOSHI(1207) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 1,2,3
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 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

                               Date : 11/10/2021

                                ORAL ORDER

Heard learned Advocate Mr. Baiju Joshi for the petitioners.

2. It is submitted that an application was filed before the competent authority seeking maintenance and the Maintenance Tribunal and Sub-Divisional Magistrate has passed the order dated 28.04.2021 granting maintenance of Rs. 7500/- each to the petitioners. However, the request of the petitioners for eviction was not acceded to and hence, the petitioners preferred an appeal before the appellate authority. Since the respondent was also aggrieved by the direction of maintenance, had preferred an appeal.

3. It is submitted that the petitioners raised preliminary objection as regards the maintainability of the appeal filed by the respondent No. 1, considering the fact, that Section 16 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, provides for appeal only by senior citizens however, there is no

C/SCA/15138/2021 ORDER DATED: 11/10/2021

such appeal provided in favour of the son. Reliance is placed on the judgment in the case of Rajeshkumar Bansraj Gandhi vs. State of Gujarat reported in 2017 (1) GLR 812 wherein, it has been held that considering the provisions of Section 16, though the appeal is available before the appellate tribunal such appeal can be filed by any senior citizens or parents and by express provisions, the legislature has limited the right to appeal for the limited class of persons namely senior citizens or parents. Though the preliminary objections were raised by the petitioners, discarding those preliminary objections, the appellate authority has proceeded to modify the order dated 28.04.2021 and has directed the daughter of the petitioners to pay 2500/- and the respondent No. 1 to pay Rs. 2500/-. It is submitted that in view of the judgment of this Court in the case of Rajeshkumar Bansraj Gandhi (supra) the order of the appellate tribunal is without jurisdiction.

4. Having regard to the submissions made, issue notice to the respondents returnable on 27.10.2021. By way of ad-interim relief, the order dated 13.09.2021 is hereby stayed. Direct service is permitted.

(SANGEETA K. VISHEN,J) SINDHU NAIR