ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.4020 OF 2008 PETITION NO.4020 OF 2008 PETITION NO.4020 OF 2008 Pushpa Shashikant Pardeshi ...Petitioner Vs. Shashikant Damodar Pardeshi ...Respondent. Mr.M.M.Sathaye for the Petitioner. Mr.R.G.Ketkar with Mr.R.S.Khadapkar for Respondent. CORAM CORAM CORAM : R.V.MORE, J. : R.V.MORE, J. : R.V.MORE, J. DATED DATED DATED : 30th July, 2008 : 30th July, 2008 : 30th July, 2008. P.C. P.C. P.C. . Heard Mr.Sathaye the learned counsel appearing for the Petitioner and Mr.Ketkar with Mr.Khadapkar for the Respondent. 2. Rule. Rule made returnable forthwith by consent Mr.Ketkar waives service for Respondent. Petition taken up for final hearing. 3. Few facts for the purpose of the disposal of the petition are as under;- 4. The Petition takes exception to the order passed by the Civil Judge, Senior Division, Barshi on 21/02/2008 rejecting her application at Exhibit 7 ( 2 ) filed for interim maintenance in the proceedings under Section 18 of the Hindu Adoption and Maintenance Act. 5. The Petitioner who is wife of the Respondent filed Civil Suit No.69 of 2007 for perpetual injunction and recovery of maintenance. The perpetual injunction was claimed restraining the Respondent husband from creating any third party interest in the suit property. The Petitioner also claimed maintenance @ Rs.10,000/- p.m. alongwith arrears of maintenance for the three years prior to filing of the suit. The Petitioner, in this suit filed Applications at Exhibit Nos.5 and 7. The Application at Exhibit 5 was filed, claiming temporary injunction restraining the Respondent from alienating, selling or creating third party interests in the suit property. The Application Exhibit 7 was filed for interim maintenance. The trial court by the common order dismissed both the applications filed by the Petitioner. 6. The Petitioner, being aggrieved of rejection of her application at Exhibit 7 prefers this Writ Petition. Mr.Sathaye the learned counsel appearing for the Petitioner contended that the prayer of the petitioner for maintenance is rejected by the trial ( 3 ) court on the ground that the Respondent Purchased three properties in her name and out of these three properties some properties are sold by the Petitioner for hefty amount of Rs.80,00,000/- (Rupees eighty lacs only). He further submitted that there is no material on record to come to the conclusion that the Petitioner has sold some properties for hefty amount of Rs.80,00,000/-. He further submitted that, the trial court accepted the allegations of the Respondent without there being any proof. He further submits that so far as the three properties which Respondent alleged to have purchased in the name of Petitioner are concerned, one property is situated at Barshi, other one is in the form of two plots in Shiv Ambe Grihanirman Co-Op. Housing Society and the third property is the Agricultural land. Though the Agricultural land stands in the name of Petitioner, the same is heavily encumbered. 7. Mr. Ketkar, the learned counsel appearing for the Respondent per contra reiterated his contention made in the reply to the Petitioner’s application. 8. Having heard the learned counsel appearing for the respective parties and having gone though the impugned ( 4 ) order alongwith the relevant annexures to the Petition, I find merit in the submission of Mr.Sathaye, the learned counsel appearing for the Petitioner. In my considered opinion, the impugned order deserves to be quashed and set aside and the matter deserves to be remanded back to the Trial Court for hearing afresh. The trial court refused Petitioner’s application for interim maintenance on the ground that the three properties are purchased by the Respondent in the name of Petitioner and apart from these three properties some properties are sold by the Petitioner for hefty sum of Rs.80,00,000/- and therefore, the maintenance need not be granted. So far as the first property situated at Barshi is concerned the same consists of two Plots viz. Plot No.9 and 10 out of Gat No.517 Hissa No.2 at Barshi. The contention of the Respondent in respect of this property is very important. In paragraph 7 of the reply given by him to the Petitioner’s application, he contends that he has purchased above plots Benami in the name of Petitioner wife. In my opinion, therefore, these plots cannot be taken into consideration for the refusal of grant of maintenance. Second Property consists of two plots at Shiv Ambe Co-operative Housing Society, Nashik, Exhibit "E" at ( 5 ) page No.41 annexed to the Petition, prima facie shows that this property though stands in the name of the petitioner, same is purchased by the Petitioner’s father. The last property viz. agricultural land Gat No.36/2/A is concerned, though same stands in the name of the Petitioner, however page 44 of the Petition shows this property is heavily encumbered. 9. The trial court also observed that the Petitioner sold property standing in her name for the hefty sum of Rs.80,00,000/-. The perusal of the impugned order reveals that the trial court in this regards accepted the allegations of the respondent in toto, without there being any proof to that effect. In the facts and circumstances mentioned above, in my view, the learned trial Judge failed to approach the case from correct point of view. The Trial Court Judge ought to have considered the evidence of the parties in proper prospective. In that view of the matter, the interest of justice will be served if the impugned order is quashed and set aside and the matter is remanded back to the trial court for fresh disposal. I, therefore, pass the following order. O R D E R R D E R R D E R ( 6 ) 1. The impugned order is quashed and set aside. 2. The matter is remanded back to the trial court for disposal afresh in accordance with law. 3. The observations made in this order are prima facie observations and the same are made for the purpose of disposal of this Petition. The Trial Court, however, shall dispose of the Respondent’s Application at Exhibit 7 for interim maintenance independently on its own merits. Needless to mention that all points and contentions are expressly kept open. The parties are at liberty to lead the evidence if necessary. ( R. V. MORE, J.) R. V. MORE, J.) R. V. MORE, J.)