IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 77 OF 2009 Jayashree Manohar Pawar ..... ..... ...Appellant. V/s Manohar Dharma Pawar ..... ..... ...Respondent. Mr.V.S.Talkute, Adv. for the appellant. Mr.Sameer Tendulkar, Adv. for the respondent. CORAM: A.P.DESHPANDE, J. 18th FEBRUARY, 2009. PC: By consent of parties second appeal is taken up for hearing and final disposal. The appellant is the wife whereas the respondent is the husband. The husband had instituted Hindu Marriage petition for divorce against the present appellant. During the pendency of divorce petition the present appellant-wife had applied for grant of interim maintenance under section 24 of Hindu Marriage Act. The Court seized of the Hindu Marriage Petition for divorce being satisfied about entitlement of the wife to receive maintenance did pass an order under section 24 directing payment of maintenance to the wife pending divorce petition. However when the Court disposed of divorce petition by delivering its judgment and decree, as no prayer for grant of permanent alimony was made under section 25 of the act, it could not and did not grant any maintenance in the form of 1 permanent alimony. Hence present appellant filed these proceedings before the trial Court and claimed maintenance. The application does not mention as to under what provisions of law same has been filed. However considering the application in the proper perspective the same has been treated as having been filed under section 18 of the Hindu Adoption & Maintenance Act, 1956 and the trial court did grant maintenance to the appellant-wife in the sum of Rs.2,500/- per month. Aggrieved by the judgment and decree awarding maintenance to the present appellant, respondent carried first appeal before the district judge. The district judge allowed the appeal and set aside the judgment and decree passed in favour of the present appellant. The said judgment and decree passed by district Judge is challenged by filing the instant second appeal. Perusal of the judgment of the district judge reveals that the court has proceeded on the assumption that the application filed by the present appellant was an application under section 25 of the Hindu Marriage Act. It also appears that even the counsel for the present appellant viz. Respondent-wife before the first appellate court did not point out that the application for maintenance was not filed under section 25 of the the act but was filed under section 18 of the Hindu Adoption & Maintenance Act. Both the advocates appearing for the respective parties in the first appellate court proceeded to address the court on the issue as to whether substantive application under section 25 of Hindu Marriage Act would be maintainable or not. First appellate 2 court concluded that the trial court has erred in law in granting maintenance in favour of the appellant. If the application does not make a mention of the provision under which the same is filed, the application would be referable to the proper provision and it is for the court to treat it as having been filed under the said provision of law. A litigant cannot be non-suited on the ground that his application does not make a mention of provision under which it is made. The entire judgment of the first appellate court proceeds to adjudicate a non-existent question that is as to whether a substantive application purported to have been filed under section 25 is maintainable or otherwise. In the above set of facts following substantial question of law emerges for consideration: “Whether the appeal court misread and misconstrued para 20 of the trial court' s judgment and therefore came to erroneous conclusion that the trial court exercised jurisdiction u/s.25 of the Hindu Marriage Act, 1955 and more so when the application does not even remotely suggest that the application was filed under section 25 of the Hindu Marriage Act.?” The first appellate court makes reference to para 20 of the trial court' s judgment which has been read so as to mean that the applicant had filed the application under section 25 of the Hindu Adoption & Maintenance Act. Truly speaking the trial court has referred to the reason as to why permanent alimony could not be paid by the court dismissing the divorce petition by the husband and the reason 3 referred to in para 20 is the absence of prayer for permanent alimony under section 25 of the act. The appellate court has wholly misread the judgment of the trial court. The trial court did not hold that the application is filed under section 25 and the same has been wrongly read to be so by first appellate court requiring interference with the impugned judgment and decree passed by the first appellate court. The aforesaid question of law raised is accordingly answered in the affirmative. 2. At this stage both the learned counsel for the parties make a request for remand of the matter to the first appellate court as the first appellate court has not dealt with the merit of the case at all and has dismissed the appeal after holding that the very application itself was not maintainable before the trial court. The prayer is just and proper and deserves to be granted. In the result second appeal is allowed. The impugned judgment and decree passed by the first appellate court in Civil Appeal No.98/06 dated 26.11.2007 is quashed and set aside. Matter is remanded back to the First Appellate Court for re-hearing of appeal on merit. I hope and trust that the First Appellate Court would decide the appeal as expeditiously as possible and preferably within a period of three months from today. Parties to appear before the First Appellate Court on 5.3.2009. Parties to act on authenticated copy of the order. 18.2.2009. 4