Gurbaksh Kaur and Another vs Bhajan Singh alias Gurcharan Singh

Vinod K. Sharma, J.

C.M. No. 4313-C of 2009

This is an application u/s 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/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 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:

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.

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.