RSA 198/2010 BEFORE THE HON’BLE MR JUSTICE B.P. KATAKEY Heard Dr. Y.K. Phukan, the learned Sr. Counsel for the a ppellant. The defendant in Title Suit No.109/2007 has filed this a ppeal challenging the judgment and decree dated 6th November, 2009 passed by the learned Civil Judge, Barpeta in Title Appeal No.32/2008 dismissing the appeal p referred by him by affirming the judgment and decree dated 29th July, 2008 passe d by the learned Munsiff No.1, Barpeta in the said suit. The respondent herein instituted the said suit claiming maintenance @ Rs.4000/- (rupees four thousand) per month for herself and for her daughter, who is a minor, under the provisions of Sections 18 and 20 of the Hin du Adoption and Maintenance Act, 1956 (in short, 1956 Act ) contending inter al ia that though the divorce proceeding was initiated by the present appellant see king dissolution of the marriage between the appellant and the respondent, the s aid suit was dismissed and despite that no maintenance has been paid to them. The said suit was contested by the present appellant by filing the written statement contending inter alia that the defendant is enjoyin g the maintenance of Rs.700/- (rupees seven hundred) per month apart from anothe r sum of Rs.700/- (rupees seven hundred) per month for her daughter in terms of the order dated 23rd December, 1999 passed in Proceeding No.3/2009; that the res pondent/plaintiff willfully left the house of the defendant and as such, they ar e not entitled to any maintenance. The learned Trial Court, on the basis of the pleadings o f the parties, framed the following issues for consideration and decision:- 1. Whether the suit is maintainable in the present form ? 2. Whether the plaintiff is legally married wife of the defendant? 3. Whether the plaintiff is entitled for maintenance and residence U/s 18 and 20 of the Hindu Adoption and Maintenance Act,1956? 4. To what other relief or relief’s the parties are enti tled? The respondent/plaintiff, in support of the claim, exami ned 4 (four) witnesses. The appellant/ defendant also examined himself as witnes s. Both the parties have exhibited the relevant documents in support of their r espective claim. The learned Trial Court, on appreciation of the evidences on r ecord, has decided the issue No.3 in favour of the respondent/ plaintiff by hold ing that she is entitled to maintenance under Sections 18 and 20 of the 1956 Act and consequently directed payment of maintenance @ Rs.3000/- (rupees three thou sand) for the wife and Rs.3000/- (rupees three thousand) for her minor daughter, apart from a decree for separate residence in the ancestral property. Being ag grieved, an appeal has been preferred being Title Appeal No.32/2008 in the Court of the learned Civil Judge, Barpeta, which has been dismissed vide judgment and decree dated 6th November, 2009 by upholding the judgment and decree passed by the learned Trial Court. Hence, the present appeal. It has been contended by Dr. Phukan, the learned Sr. Cou nsel for the appellant that the suit of the plaintiff itself is not maintainable , as the minor daughter was not arrayed as party in the suit and as such, the de cree passed required to be interfered with. According to Dr. Phukan, the substa ntial question of law, therefore, is - whether the suit of the plaintiff in the absence of the daughter as a party is maintainable? The appellant/defendant has not set up any defence or ta ken up the plea of maintainability of the suit in the absence of the daughter, w ho, according to the appellant/defendant, is necessary party. Having not raised such plea in the suit and even before the First Appellate Court, the defendant/ appellant cannot be allowed to raise such plea in the second appellate stage. Th at apart what awarded was the maintenance under the provisions of 1956 Act and t he separate residence. The daughter of the appellant was admittedly a minor at the time of filing of the suit. In view of the above, I do not find involvement of any s ubstantial question of law in the present appeal and hence, the appeal is not ad mitted and, therefore, dismissed. No cost.