BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 08/01/2010 CORAM THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI S.A(MD)No.942 of 2004 Suyambulingam .. Appellant/Appellant/ Defendant Vs 1.S.Sivasundari 2.Minor S.Thineshraja (Minor 2nd respondent represented by Guardian/ 1st responent) .. Respondent/Respondent/ Plaintiff PRAYER The appeal filed under Section 100 of C.P.C., against the judgment and decree, dated 10.06.2003, made in A.S.No.20 of 2003, on the file of the District Court, Kanyakumari, partly allowing the judgment and decree, dated 12.07.2002 in O.S.No.8 of 2001, on the file of the Court of I Additional Sub Judge at Nagercoil. !For Appellant ... Mr.K.Govindarajan for Mr.Srinath Sridevan ^For Respondents ... Mr.C.Sankar Prakash :JUDGMENT
The defendant is the appellant. The appeal is preferred against the
judgment and decree, dated 10.06.2003, made in A.S.No.20 of 2003, on the file of
the learned District Judge, Kanyakumari, partly allowing the judgment and
decree, dated 12.07.2002, in O.S.No.8 of 2001, on the file of the learned I
Additional Sub Judge, Nagercoil.
2.The brief facts of the case are as follows:-
The first plaintiff is the legally wedded wife of the defendant and the
marriage was solemnized on 20.01.2000 and thereafter, they lived as husband and
wife and they begotten the second plaintiff, a male child. The first plaintiff
was given jewels of 55 sovereign and the defendant was given Rs.1,00,000/- as
dowry and however, the defendant and his family members were demanding more
money and subjecting the first plaintiff for cruelty and due to unbearable
hardships the plaintiffs went to her parents place. The defendant is not
maintaining the plaintiffs and therefore, the suit was filed for maintenance.
3.The suit was resisted by the defendant stating that he has filed an
application for restitution of conjugal rights and the first plaintiff has
deserted the defendant without any reason and he is ready to maintain the
plaintiffs and the amount asked by the plaintiffs is also exorbitant.
4.On the basis of the rival contention, the learned Sub-Judge,
Kanyakumari, enquired into the matter and found that the plaintiffs are
entitled for maintenance and accordingly granted a sum of Rs.2,000/- per month
to the first plaintiff and Rs.1,000/- to the second plaintiff. Aggrieved by the
same, the defendant has preferred an appeal before the District Court,
Kanyakumari in A.S.No.20/2003. The learned District Judge, after considering
the rival contention, had reduced the maintenance amount to a sum of Rs.1500/-
for the first plaintiff and Rs.750/- for the second plaintiff. The first
appellate Court has also created the charge over the suit property. Aggrieved
by the same, the defendant has preferred the present second appeal only on the
ground that the first appellate Court has erred in creating a charge over the
suit property, when the trial Court has negatived the same relief and the
plaintiff has not filed any appeal.
5.On admission, this Court has framed the following substantial question
of law, for consideration:-
“When the trial Court refused to grant a charge in a suit for maintenance,
in the absence of an appeal by the aggrieved party on that issue, whether the
power under order 41 Rule 33 C.P.C., can be exercised in this case on facts
available?”
6.Mr.K.Govindarajan learned counsel appearing for the appellant pointed
out that the trial Court has negatived the relief of creating a charge over the
suit property and the plaintiffs have not preferred any appeal or cross-appeal
for creation of such charge. The learned counsel also pointed out that the
first appellate Court has erred in creating the charge over the property.
7.Mr.C.Sankar Prakash the learned counsel for the respondent would submit
that under O.41, Rule 33 of C.P.C., the appellate Court has power to pass any
decree.
8.I have heard the submissions of the learned counsel for the appellant as
well as the respondents and also perused the material available on records.
9.Admittedly, the suit was filed by the plaintiffs for maintenance and
also for a charge over the suit properties. The trial Court has granted a sum
of Rs.2,000/- per month as maintenance to the first plaintiff and Rs.1,000/- to
the second plaintiff. However, the question of creating a charge was not
discussed by the trial Court. The plaintiff has not preferred any appeal
against that point. However, the defendant has preferred an appeal and the first
appellate Court has reduced the maintenance from Rs.2000 to Rs.1,500/- for the
first plaintiff and from Rs.1500 to Rs.750/- to the second plaintiff. However
created a charge over the suit property.
10.Order 41, Rule 33 of C.P.C., reads as follows:-
“Power of Court of Appeal:- The Appellate Court shall have power to pass
any decree and make any order which ought to have been passed or made and to
pass or make such further or other decree or order as the case may require, and
this power may be exercised by the Court notwithstanding that the appeal is as
to part only of the decree and may be exercised in favour of all or any of the
respondents or parties, although such respondents or parties may not have filed
any appeal or objection [and may, where there have been decrees in cross-suits
or where two or more decrees are, passed in one suit, be exercised in respect of
all or any of the decrees, although an appeal may not have been filed against
such decrees]:
Provided that the Appellate Court shall not make any order under Section
35A, in pursuance of any objection on which the Court from whose decree the
appeal is preferred has omitted or refused to make such order.”
11.A plain reading of Rule 33 of Order 41 of C.P.C., will show that the
appellate Court shall have power to pass any decree which ought to have been
passed and the same can be exercised in favour of or any of the respondents or
parties. Though the plaintiff has not preferred any appeal, the first appellate
Court has power to grant a decree, which ought to have been granted. Therefore,
creation of the charge over the suit property is not vitiated and I have no
reasons to interfere with the findings of the first appellate Court. The
question of law is answered accordingly.
12.In the result, the appeal is dismissed confirming the judgment and
decree dated 10.06.2003 made in A.S.No.20 of 2003 on the file of the District
Court, Kanyakumari, partly allowing the judgment and decree dated 12.07.2002 in
O.S.No.8/2001, on the file of the first Additional Sub-Judge of Nagercoil.
MPK
1.The District Judge,
Kanyakumari.
2.The first Additional Sub-Judge
Nagercoil.