IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 44 of 2008 Sri Ashok Kumar Dabar, Son of Late Sri Jaswant Rai, R/O 62, Ghoshi Gali, Paltan Bazar, Dehradun, District Dehradun. … Appellant Vs Smt. Uma Dabar @ Twinkle, W/O Sri Ashok Kumar Dabar, D/O Sri Bal Kishan Nanda, R/O B-14, Nai Basti, Near Bijnor Times Office, District Bijnor (U.P.). … Respondent Sri Ramji Srivastava, Advocate, learned counsel for the appellant. Sri Dharmendra Barthwal, Advocate, learned counsel for the respondent. Date August 26, 2009 Hon’ble B.C. Kandpal, J. Hon’ble B.S. Verma, J. This appeal is directed against the order dated 16- 01-2008 passed in Suit No. 146 of 2003, Ashok Kumar Dabr Vs. Smt. Uma Dabar, whereby the petition of the petitioiner- appellant Ashok Kumar was dismissed for non-payment of amount of alimony to the respondent. The appellant has also prayed for setting aside the order dated 1-5-2008, passed in Misc. Case No. 18 of 2008, Ashok Kumar Dabar Vs. Smt. Uma Dabar, whereby the restoration application filed by the appellant was rejected. 2. Relevant facts giving rise to the present appeal are that the appellant-petitioner filed a Suit for divorce against the respondent bearing No. 544 of 1996, Ashok Kumar Dabar Vs. Smt. Uma Dabar before the Principal Judge, Family Court, Dehradun. In the suit, the opposite party-respondent put in her appearance and moved an application under Section 24 of 2 the Hindu Marriage Act for pendente lite maintenance. The said application was allowed and the appellant was ordered to pay a sum of Rs. 2,000/- per month as interim maintenance and also a sum of Rs. 5,000/- as litigation expenses to the opposite party-respondent. It is obvious that the appellant had filed a Writ Petition before this Court bearing Writ Petition No. 1177 of 2003 (M/S) Ashok Kumar Dabar Vs. Judge, Family Court and another, which was disposed of on 5-12- 2003 whereby direction was given to the trial court to decide the Suit No. 146 of 2003 (Old No. 544 of 1996) within a period of three months from the date of production of certified copy of the order. Later on, by order dated 28-11-2007 passed on Modification Application filed in the said writ petition, direction was given to the trial court to decide the suit within a period of 20 days from the date of production of certified copy of the order. The respondent-Opposite Party moved an application before the trial court for realization of the amount of maintenance awarded by the trial court. The trial court giving reference of the order passed by this Court directed the appellant to deposit the entire outstanding amount on or before 14-01-2008 by its order dated 9-1-2008. According to the appellant, he moved an application on 14-1-2008 for taking on record the bank draft of Rs. 2000/-. The trial court after hearing both the parties by order dated 16-1-2008 passed on the applications 157-C, 158-C and 161-C, did not find favour with the appellant and observed that the appellant failed to comply the order dated 9-1-2008 and did not pay the entire amount of interim maintenance i.e. Rs. 1,76,000/- within the stipulated time. Consequently, the divorce petition filed by the appellant was dismissed for non-payment of maintenance allowance. 3 3. After dismissal of the divorce petition (Suit No. 146 of 2003) by order dated 9-1-2008, the appellant subsequently filed a restoration application contending that the appellant intended to deposit the amount of Rs. 1,21,000/- by way of draft on 16-1-2008, which could not be taken on record as some more amount was outstanding against the appellant. It was contended that the appellant is ready to deposit the outstanding amount, therefore, the order dated 16-1-2008 be recalled. The application was contested by the respondent. The trial court did not find favour with the appellant observing that the appellant-applicant had no intention to make payment of the entire amount even on 14-1-2008 rather he moved application (paper no. 158-C) alleging that the order dated 9-1-2008 is wrong. It was also observed that even on 16-1-2008, no application was moved by the appellant to deposit the entire outstanding amount. Consequently, the restoration application was rejected on 1-5-2008. 4. We have heard learned counsel for both the parties and perused the record. 5. In the course of arguments, learned counsel for the appellant drew the attention of the Court to the order dated 29-1-2008 passed in the Execution Application No. 01 of 2004, which shows that the appellant had deposited the amount of Rs. 63,000/- through bank draft and also to the order dated 18-3-2008 whereby the execution application was struck off in full satisfaction. Learned counsel for the appellant also submitted that the divorce petition of the appellant was not dismissed on merits, rather for non- payment of amount of alimony. We also find that in the affidavit filed by the appellant, it has been specifically stated that the appellant was ready to deposit the entire amount as 4 ordered by the Principal Judge, Family Court but the Bank Draft could not be accepted as the file was kept for orders on 16-1-2008. It has also been stated that proper opportunity for depositing the alimony/interim maintenance was not given to the appellant-petitioner. 6. Since the divorce petition of the appellant-petitioner has been dismissed by the trial court on technical ground for non payment of amount of interim maintenance to the respondent and since the appellant is ready to deposit the entire outstanding amount of alimony as ordered by the trial court and because the Execution Case No. 01 of 2004 filed by the respondent against the appellant for recovery of amount of interim maintenance has already been struck off in full satisfaction by the trial court vide order dated 18-3-2008, therefore, in such circumstances, to avoid multiplicity of the proceedings between the parties and also to meet the ends of justice, we are of the view that it would be proper that the divorce petition may be decided on merits by the trial court and a last opportunity be given to the appellant to deposit the entire outstanding amount of interim maintenance with the court concerned, if due. The present appeal is liable to be disposed of. 7. Accordingly, the appeal is disposed of in the manner that appellant is directed to deposit the entire outstanding amount of interim maintenance due against him including the amount of default as indicated by the Principal Judge in the impugned order dated 1-5-2008 passed in Misc. Case No. 18 of 2008 within a period of three weeks from today before the trial court. The amount of Rs. 63,000/- paid by the appellant in Execution Case referred to above shall also be adjusted, as the case may be. In case the entire amount due is deposited 5 by the appellant, as directed herein, the impugned order dated 1-5-2008 passed in Misc. Case No. 18 of 2008 shall stand recalled and the Matrimonial Suit No. 146 of 2003, Ashok Kumar Dabar Vs. Uma Dabar of the court of Principal Judge, Family Court, Dehradun shall stand restored to its original number. The trial court shall thereafter proceed to decide the suit on merits, very expeditiously, preferably within a period of three months. Both the parties shall co-operate in the speedy disposal of the suit before the trial court. No other as to costs. 8. It is made clear that in case of default on the part of appellant to deposit the entire outstanding amount of interim maintenance, as mentioned above, the impugned orders dated 16-1-2008 and 1-5-2008 passed by the Principal Judge, Family Court Dehradun shall stand upheld and the present appeal shall stand dismissed. (B.S.Verma, J.) (B.C.Kandpal, J.) RCP