Nikka Singh vs Amarjit Kaur and Another

Gokal Chand Mital, J.—Two grandchildren (one major of and one minor) of Nikka Singh filed an application under Order 33 Rule 1 of the CPC (for short ''the Code''), to sue as an indigent person through their maternal uncle as next friend for award of maintenance, Sometime thereafter, they filed an application for grant of maintenance pendente lite. While the application for grant of permission to sue as indigent person was pending, the trial Court after hearing both sides, by order dated 11th August, 1989, ordered the paternal grandfather, against whom the suit was filed, to pay interim maintenance at the rate of Rs. 150/-per month, for each grandchild. Against this order, the paternal grand father has come to this Court in revision.

The main argument raised in the revision is that since permission to sue as an indigent person has not been granted, the case has not been registered as a suit, and until the suit is registered, the trial Court has no jurisdiction to entertain the application for grant of interim maintenance while the application to sue as an indigent person was pending.

First adverting to facts, the trial Court has decided the application and has found that both the applicants are indigent persons with the result that the matter stands converted into a suit. It cannot be disputed that the date of filing of the suit related back to the date of filing of an application for permission to sue as indigent person. Therefore, the trial Court could pass an order granting ad-interim maintenance, while the matter whether the applicants are indigent or not was pending. Even if the application for grant of permission to sue as an indigent person was pending today, I find no impediment in the way of the trial Court in granting ad-interim maintenance. The Courts u/s 151 of the Code have inherrent jurisdiction to give suitable interim relief to a person if so found entitled to and this has no reference to the pendency of the suit. It can also be given during the pendency of an application or any other proceedings short of a suit.

In a similar case, where application for permission to sue as indigent person was granted during the pendency of the revision petition, J.V. Gupta, J. in Vasdev Singh v. Miss Parmin Kaur 1987 (2) PLR 133 upheld the order of grant of maintenance and declined to interfere in the revision petition. My view finds support from this decision. It will be proper to notice that there are two contrary decisions of this Court, one by S.S. Sandhawalia, J. in Mohan Singh v. Mohinder Kaur 1977 MLR 268, and the other by J.V. Gupta, J. in Dr. Devinder Singh v. Smt. Harminder Kaur 1983 RLR 402 regarding the jurisdiction of the trial Court in granting maintenance before leave to sue as an indigent person is granted. I have my reservations about the correctness of these decisions. When a case oft identical facts would arise, the matter will be referred to a larger bench for decision. This case can be disposed of in view of Vasdev Singh''s case (supra).

Civil Misc. No. 5076-C. II of 1990 has been filed by the petitioner to the effect that one of the grandchildren has been married on 22nd May, 1990, and the other one has become major although not married, and, thus these facts be kept in view while considering the matter.

In reply to this Shri Arihant Jain states that he is not aware of these facts. His argument is that assuming that one has been married and the other grandchild has become major, the order of maintenance for the grandchild, who has been married, will continue till the date of marriage and the other grandchild will also be entitled to till the date of marriage. In addition he says that the grandchild who has been married, would be entitled to claim marriage expenses from the paternal grandfather and the matter of discontinuing the maintenance and that of grant of marriage expenses should be left open to be gone into by the trial Court where both the parties can move application for their respective reliefs. I find merit in this suggestion and leave this matter open to be gone into by the trial Court.

For the reasons recorded above, the revision is without merit and is dismissed but with no order as to costs.