R.S.A. No. 1445 of 2009 1
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
R.S.A. No. 1445 of 2009 (O&M)
Date of Decision : 2.4.2009
Gurbaksh Kaur & another
.......... Appellants
Versus
Bhajan Singh alias Gurcharan Singh
...... Respondent
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. M.L. Saini, Advocate
for the appellants.
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VINOD K. SHARMA, J. (ORAL)
C.M. No. 4313-C of 2009
This is an application under Section 5 of the Limitation Act for
condoning the delay of 160 days in filing the appeal.
For the reasons stated in the application, the C.M. is allowed.
The delay of 160 days in filing the appeal is condoned.
R.S.A. No. 1445 of 2009
This regular second appeal is directed against the judgments
and decree dated 1.6.2006 and 12.8.2008 passed by the learned Courts
below vide which suit filed by the plaintiffs/ appellant seeking maintenance
stands dismissed being not maintainable.
The plaintiffs / appellant brought a suit claiming maintenance
from defendant/ respondent i.e. the husband and father of the plaintiffs/
R.S.A. No. 1445 of 2009 2
appellant.
Prior to filing of the suit, in the earlier suit filed for
maintenance the decree was passed in favour of the plaintiffs/ appellant
which attained finality, as the regular second appeal filed against the
judgments and decree passed by the learned Courts below, was also
dismissed by this Court.
The plaintiffs/ appellant brought a fresh suit for maintenance /
enhancement of maintenance in view of the changed circumstances.
Though the learned trial Court has decreed the suit, however,
the judgment and decree passed by the learned trial Court has been set aside
by the learned lower appellate Court by holding that the suit as framed was
not maintainable.
However, while holding the suit as not maintainable the learned
lower appellate Court also observed that the present suit was filed within a
short span of the previous suit. However, finally the decision taken was that
suit filed by the plaintiffs/ appellant was not maintainable.
The learned counsel for the appellants contends that this appeal
raises the following substantial question of law for consideration by this
Court :-
“Whether the suit filed by the plaintiffs/ appellant was
maintainable or not ?
The learned counsel for the appellants in support of the
substantial question of law contends that the substantial question of law
deserves to be answered in favour of the plaintiffs/ appellant inasmuch as
R.S.A. No. 1445 of 2009 3
the order granting of maintenance can be treated to be a final order which
can always be moditifed under the changed circumstances.
The contention of the learned counsel for the appellants is that
by way of pleadings and evidence on record the plaintiffs / appellants were
able to prove that the maintenance awarded earlier was inadequate to meet
daily needs of the plaintiffs / appellant and therefore they were entitled to
maintain the suit for enhancement of the maintenance already granted.
However, on consideration of the matter I find no force in the
contention raised by the learned counsel for the appellants. Section 25 of the
Hindu Adoptions and Maintenance Act, 1956 reads as under :-
“25. Amount of maintenance may be altered on change
of circumstances.- The amount of maintenance, whether
fixed by a decree of Court or by agreement, either before
or after the commencement of this Act, may be altered
subsequently if there is a material change in the
circumstances justifying such alteration.”
The reading of Section 25 of the Act would show that
enhancement has to be claimed by moving an application before the same
Court which granted maintenance and not by way of fresh suit.
The learned lower appellate Court, therefore, was right in
holding that the suit as framed was not competent and set aside the decree of
the learned trial Court.
The substantial question of law is answered against the
appellants and, this appeal is ordered to be dismissed, with no order as to
costs.
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However, it is made clear that if the appellant resorts to any
statutory remedy for enhancement of maintenance the observations made by
learned Courts will not come in way of the plaintiffs / appellant.
2.4.2009 ( VINOD K. SHARMA ) 'sp' JUDGE