Shrimati Hardev Kaur vs Shri Panjrattan Singh

Dua and D.K. Mahajan, JJ.—This order will dispose of F.A.Os Nos. 60-M of 1961 and 65-M of 1962. Both these appeals have arisen in the following circumstances.

The respondent, Shrimati Hardev Kaur, before the trial Court is the appellant and the petitioner, Panj Rattan Singh, is the respondent in these appeals. An application was made u/s 12 of the Hindu Marriage Act, 1955 by the petitioner, Panj Rattan Singh praying that the marriage with the respondent be declared a nullity. An application u/s 24 of the Act was made by the wife for interim maintenance and for litigation expenses. A similar application was also made by the husband. The trial Court allowed the wife''s application and dismissed that of the husband. Rs. 100/- were fixed as interim maintenance and Rs. 750/- as litigation expenses. Maintenance was to be paid with effect from the 27th November, 1959. The amount, however, was not paid and before any execution could be taken, an application was made by the husband under Order 23, rule 1 of the CPC that he may be permitted to withdraw his application u/s 12 of the Act. This application was allowed on the 13th March, 1982, and the following order was passed :

The net result is that I allow the petitioner to withdraw this application under Order 23, rule 1 which is hereby dismissed as withdrawn. As the petitioner has not complied with the order for the interim maintenance and expenses of the litigation, the withdrawal of this application shall have no effect upon that order standing against him and the respondent shall be entitled to the benefit of that order notwithstanding that the petitioner has been allowed to withdraw his application. The petitioner will of course be at liberty to bring a fresh application u/s 13 of the said Act but before he makes such an application he shall comply with the previous orders passed against him u/s 24 of the said Act and then alone his application shall be maintainable. This application is disposed of in these terms.

Against this order F. A. O. No. 65-M of 1962 has been filed.

It may be mentioned that the proceedings in the trial Court were conducted by the petitioner''s attorney, who is his father. In pursuance of the notice issued in these appeals, Mr. Wasu has appeared and filed an application on behalf of the attorney stating that the attorney''s authority had been cancelled by his principal who is no other person than his own son. This application was filed after the petitioner''s attorney bad failed in an attempt to get the hearing of these two appeals stayed under the Soldiers'' Litigation Act. A Division Bench of this Court consisting of Mehar Singh and Khanna, JJ. while dealing with this application for stay of the appeals passed the following order:

There is special power of attorney in favour of his father, S. Jodh Singh, by F/o Panj Rattan Singh respondent, and so section 6 of Act 4 of 1925 applies. Thus there cannot be stay. But notice be again given to S. Jodh Singh as Mukhtiar of this respondent informing him that because he is representing his son in these cases so there cannot be stay of proceedings and that it is for him to defend the appeals for and on behalf of his own.

When these appeals were actually fixed for hearing after notice to the attorney in terms of the order of the Bench, the attorney took the stand that he would not accept service as he had no authority to defend cases on behalf of his son. In view of this stand, the matter was placed before P.D. Sharma J, who directed the case to be put before a Division Bench and the case then came up for hearing before Dua and Khanna JJ. On the 19th March, 1964, and the Bench passed the following order:

The order of the Division Bench dated 1st December, 1963 cannot be varied for the reasons given by Shri Jodh Singh. The appeal should be set down for hearing after giving an actual date. Notice to the Mukhtar-i-am Shri Jodh Singh.

In our opinion the prayer of Mr. Wasu is not bona fide, and is merely an abuse of the process of the Court. We are not, therefore, inclined to allow Mr. Wasu''s prayer that the authority of the attorney to defend the appeals to be terminated and his power of attorney filed in this Court may be treated as cancelled. In this view of the matter we have proceeded to deal with these appeals.

F. A. O. No. 60-M of 1961 is filed against the order dated the 4th March, 1961, fixing the interim maintenance. The claim in appeal is that the amount of maintenance fixed as well as the amount of litigation expenses be enhanced.

Mr. Atma Ram, learned counsel for the appellant Hardev Kaur has not pressed F. A. O. No. 60-M of 1961 with the result that we dismiss it with no order as to costs.

This brings us to the consideration of F. A. 0. No. 65-M/1932. No fault can be found with the order of the trial Court permitting the petitioner to withdraw the application u/s 12 of the Act and thereby dismissing the same. The learned counsel for the appellant has not seriously challenged this order. His only grievance is that the order passed u/s 24 of the Act will be operative with effect from 27th November, 1959 to the 13th March, 1962 when the order of dismissal was passed. We are inclined to agree with this contention. The order u/s 24 of the Act is an interim order and it will operate so long as the proceedings in respect of which it is passed are terminated. The proceedings terminated, as already stated, on the 13th March, 1962, and, therefore, this order will only terminate on the 13th March, 1962, and not earlier. The dismissal of the petition u/s 12 of the Act will not ipso facto wipe out the order u/s 24 of the Act in respect of those proceedings from the very start. It may be mentioned that the ground for withdrawal of the petition u/s 12 of the Act urged before the trial Court was that the petitioner wanted to file an application u/s 13 of the Act and that is why the application u/s 12 was being withdrawn. The trial Court has gone wrong in making the compliance of the order u/s 24 of the Act made in the petition u/s 12 of the Act conditional on the petition u/s 13 of the Act being filed. This could not be done. We accordingly modify the order of the trial Court in this respect and hold that the order u/s 24 passed by the trial Court is operative and can be executed. Of course, the operation of the order will be with effect from the 27th November, 1959, to the 13th March, 1962. However, in view of the fact that the litigation expenses were for the period of the entire litigation, we deem it proper that these expenses be reduced from Rs. 750/- to Rs. 250/-. In this view of the matter, F. A. O. No. 65 of 1962 is partly allowed as indicated above, with no order as to costs.