JUDGMENT
Hemant Gupta, J.
1. The husband has filed the present appeal challenging the order passed by the learned trial court granting a sum of Rs. 2500/-per month as maintenance to the wife under Section 25 of the Hindu Marriage Act.
2. The marriage between the parties was dissolved by a decree of divorce on 17.9.1997. Thereafter, the wife moved an application under Section 25 of the Hindu Marriage Act (hereinafter referred to as the Act) for the grant of permanent alimony in the sum of Rs. 5000/- and for an order that payment may be secured by a charge on the immovable property of the husband. Along with the application under Section 25 of the Act, the respondent-wife also moved an application for the grant of ad-interim maintenance. It was pleaded by the wife that she has no movable or immovable property and has no source of income, whereas the daughter Damandeep is getting education in LKG. It was alleged that the respondent is a commission agent in selling turi. Barsim and other fodder articles and also a permanent property dealer. He is also cultivating agricultural land owned by him in village Jamalpur Leli and his income is more than Rs. 15,000/- per month.
3. In reply, the husband has stated that he is neither a commission agent nor selling articles as mentioned by the wife nor is a property dealer. It was mentioned that he is an agriculturist and has marginal share in the joint agricultural land with his brothers and me income of the respondent is hardly Rs. 1000/- per month. The respondent has filed reply on the similar lines to an application for the grant of ad-interim maintenance.
4. The trial court ordered that the application under Section 25 of the Act shall be decided on the basis of affidavits produced in evidence and complete documents. In pursuance of such order, husband and wife produced affidavits as well as few documents. On the basis of such evidence, the learned trial Court has passed an order of permanent alimony at the rate of Rs. 2500/- per month.
5. I have heard the learned counsel for the parties and with their assistance have gone through the records of the case.
6. The first contention of the learned counsel for the appellant is that the order passed by the learned trial court on 9.1.1999 directing that the application under Section 25 of the Act is to be decided on the basis of affidavits is without jurisdiction and illegal. It is also contended that the learned trial court has not framed any issue and therefore, the conduct of the proceedings by the learned trial court is wholly vitiated.
7. A perusal of the record of the trial court would show that the counsel for the respondent has sought an adjournment on 25.7.1998 to make an offer of lump sum alimony. Subsequently, the learned trial court passed an order on 9.1.1999 which reads as under:
“9.1.1999:
Present: Sh. K.C. Dev, counsel for applicant.
Sh. G.S. Bal, counsel for respondent.
Counsel for the respondent has placed on record certain documents whereas counsel for the petitioner has filed an application under Order 39 Rules 1 & 2 C.P.C Counsel for the petitioner may file further documents, if any. Come up for consideration on 20.2.1999. It is made clear that the application Under Section 25HM. Act shall be decided on the basis of affidavits produced in evidence and complete documents.
Sd/- D.J Patiala”
8. In pursuance of such order, learned counsel for the wife filed affidavits and documents on 20.2.1999 and the counsel for the respondent requested for an adjournment to file affidavits. The case was adjourned to 10.4.1999. Thereafter, learned counsel for the respondent has sought adjournment on different dates for filing of affidavits but ultimately four affidavits of Devinder Singh, Kulwant Kaur, Mohinder Singh, and Raj Kaur were filed on 11.9.1999. On the basis of such affidavits filed by the parties in pursuance of the order dated 9.1.1999, the learned trial court has decided application under Section 25 of the Act.
9. Learned counsel for the appellant contended that there was no concession of the appellant to record evidence on the basis of affidavits nor any opportunity has been granted to the appellant to cross-examine the executant of the affidavits to test their veracity. However, such argument of the appellant is not tenable. Order XIX of the Code of Civil Procedure even prior to amendment in 2002 empowers the court to prove any particular fact or facts by way of affidavits and at the instance of either part) the court may order the attendance for cross-examination of the deponents. It would be relevant to reproduce the provisions of Order XIX Rules 1 and 2 CPC:
“1. Power to order any point to be proved by affidavit:- Any court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit. or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable:
Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced. an order shall not be made authorizing the evidence of such witness to be given by affidavit.
2. Power to order attendance of deponent for cross-examination:- (1) Upon any application evidence may be given by affidavit but the Court may at the instance of either party, order the attendance for cross-examination of the deponent
(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court, or the Court otherwise directs.”
10. As mentioned above, the Court vide order dated 9.1.1999 has directed that the application under Section 25 of the Act shall be decided on the basis of affidavits. Such order by the Court was not required to be passed on the basis of concession but on the basis of satisfaction of the Court. Since the only question in proceedings under Section 25 of the Act was regarding the income and the property of the parties, therefore, such question could very well be decided by way of affidavits. Thus, there is no illegality by the trial court when it directed that the application under Section 25 of the Act shall be decided on the basis of affidavits alone.
11. The contention that the appellant has not been given right to cross-examine the witnesses is again devoid of any merit. Rule 2 reproduced above shows that it was open to the appellant to move an application before the trial court for attendance of the deponent for the purposes of cross-examination. The affidavits on behalf of the wife were filed on 20.2.1999. The husband has filed affidavits in support of his reply on 11.9.1999. The application has been decided by the learned trial court on 1.2.2000. The appellant had adequate time and opportunity to move an application to seek attendance of the deponents for the purposes of cross-examination in terms of the Rule reproduced above. However, he has failed to exercise such right. Thus, having failed to exercise the right conferred under Rule 2 to seek the personal appearance of the deponents for the purposes of cross-examination now. It is too late for the appellant to contend in the first appeal that he has been denied the right of cross-examination.
12. Faced with this, the counsel for the appellant contended that the learned trial court erred in law in holding that the income of the appellant is Rs. 8000/- per month on the basis of agricultural land which is in the name of the mother of the appellant.
13. All the affidavits filed on behalf of the wife shows that the appellant has 1 bigha 16 biswas of land. It is alleged that this land is situated in industrial area of Ludhiana where the value is Rs. 40 lacs per acre and the value of this land is not less than Rs. 15/16 lacs. Apart from this parcel of the land, it is also stated that the appellant has 1/5th share in the agricultural land measuring 69 bighas 2 biswas of land situated in village Jamalpur Leli and its value is in crores. It is also mentioned in the affidavit that minor daughter of the wife named Damandeep Kaur is handicapped from her feet since her birth and several operations are required.
14. Apart from such affidavits, wife has produced on record jamabandi for the year
1992-93 showing the land measuring 69 bighas 2 biswas owned by Anokh Singh.
Jamabandi for the year 1992-93 also proves that the land measuring 1 Bigha 16
Biswas Marias is owned exclusively by the appellant. The stand of the appellant that he
is marginal land owner is wholly devoid of any merit. The appellant has filed an affida
vit only in support of his reply for the grant of ad-interim maintenance. He has not filed
any reply in pursuance of the orders passed by the Court on 9.1.1999 although he has
caused four affidavits to be filed on 11.9.1999, in affidavit filed on 23.5.1998 in support
of his reply to the application for the grant of ad interim maintenance, he has admitted
that he has a marginal share in the joint agriculture land and the land is not partitioned.
However, in the affidavit, subsequently filed at the instance of the appellant, it has been
stated that the appellant is dependent upon his brothers and has no independent source
of income. It is alleged that he owns small piece of land measuring 1 bigha/kanal 16
biswas Marlas and against which a dispute is pending in various civil and revenue
courts.
15. A perusal of the jamabandi for the year 1992-93 Mark X shows that 1 bigha/kanal 16 biswa/marlas of land is exclusively reflected as owned by the present appellant comprising in khasra No. 45/9/3. On the basis of the affidavits filed on behalf of the wife, it is evident that this land is situated in the industrial estate and having value of about Rs. 15/16 lacs. The averments of the appellant that he has a marginal share in the joint agricultural land is only regarding 69 bighas 2 biswas of land. In fact, he has not produced any jamabandi to show the extent of his marginal share in the joint agricultural land with his brothers.
16. On the other hand, on the basis of the jamabandi produced by the wife, it is evident that 69 bighas 2 biswas of land is reflected in the ownership of father of the appellant. It is alleged that the said land is ancestral property and thus, the appellant has 1/5th share in such property. May be the appellant was successful in getting mutation of the land entered in the name of his mother but that will not alter the nature of the property. It is admitted by him that he has a share in joint agricultural land with his brothers. Such statement is only in relation to the land measuring 69. bighas 2 biswas of land.
17. The learned trial court has considered the entire facts including the affidavit
dated 23.5.1998 to hold that the appellant has 1/5th share in the land measuring 69
bishas 1 biswas of land as mentioned in the jamabandi mark X and 1bigha/kanal 16
biswa/marlas of land as per jamabandi mark Y.
18. The learned Trial Court has assessed the monthly income of the: appellant at Rs. 8000/-. The learned trial Court has taken into consideration that the annual rent of about 2 acres of land which is found to be owned or falling to his share is Rs. 8000/- per acre and therefore, the income from agricultural operations could atleast be the double the amount of rent. The appellant is an able bodied agriculturist having valuable property within the industrial estate or Ludhiana as well as valuable agricultural land. There is no illegality in assessing the income of the appellant keeping in view the extent or the property and the likely income from such property.
19. I do not find any reason to vary the amount of permanent alimony fixed by the
learned trial Court. The findings of the learned court are possible findings in law and do
not call for any interference in the present appeal. 20. Consequently, the present appeal
is dismissed with costs of Rs. 3000/-.