1 WP 8033..........2011 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8033 OF 2011 WITH WRIT PETITION NO. 8340 OF 2011 WITH WRIT PETITION NO. 8642 OF 2011 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders ................................ CORAM : S.V.GANGAPURWALA, J. DATE : 30/11/2011. Mr. P.N.Kalani, Mr. M.V.Navandar, Mr. A.S. Bajaj,Advocate for the petitioners. ............................. PER COURT : 1. All these Writ Petitions are assailing one and the same order, as such are decided together. 2. Smt. Savitribai Wd/o Sureshchandra Khatod [ For short, ‘ the plaintiff ’ ] had filed Suit for partition and separate possession in respect of various properties. During the pendency of the Suit, the plaintiff has filed an application seeking maintenance pendente lite. The plaintiff claimed maintenance of Rs. 40,000/- [ Rupees Forty Thousand only ] per month. The learned trial Court partly allowed the said 2 WP 8033..........2011 application and directed all the male defendants to jointly and severally pay the maintenance of Rs. 12,000/- per month to the plaintiff. The said order is assailed by the defendants, who have been saddled with the liability of payment of interim maintenance, so also, vide the present Writ Petitions, the plaintiff seeks enhancement of the maintenance amount. 3. I have heard Mr. A.S. Bajaj, Mr. M.V. Navandar and Mr. P.N.Kalani, the learned counsel for the respective petitioners and also the respondents. 4. According to the defendants, the property is already partitioned between the branch of Bansilal and Chunnilal. The branch of Chunnilal is not at all liable to pay any maintenance amount and the plaintiff if wants to claim maintenance, may claim from the branch of Bansilal. The plaintiff belongs to the branch of Bansilal and the defendants belong to the branch of Chunnilal. The defendants belonging to branch of Bansilal have not challenged the said order. The learned counsel contends that the properties which stand in the name of the plaintiff have not been included as suit properties. The plaintiff has an independent source of income. The properties have been given on lease by the plaintiff and is yielding the rent. Even the agricultural lands stands in the name of the plaintiff. Even the plaintiff is the partner of the partnership firm and is entitled for 3 WP 8033..........2011 Rs. 5,000/- per month. The partners of the said firm have never denied to pay the said amount to the plaintiff, but the plaintiff on her own volition had not withdrawn the said amount. 5. Mr. Kalani, the learned counsel for the plaintiff submits that the plaintiff has no independent source of income. She has not given any property on lease and is not getting any rent amount. The learned counsel further contends that the agricultural lands though standing in her name, is not in her physical possession and as such the plaintiff does not get any income. The plaintiff has not been paid any amount and it is difficult for the plaintiff to maintain herself. The Court has ample power to grant maintenance pendente lite in such cases. When the trial Court has exercised its discretion, this Court in its jurisdiction under Article 227 of the Constitution of India would normally not interfere with the said discretion. The learned counsel relies on the Judgment of the learned Single Judge of this Court in the case of Sushilabai Chhotelal Gupta V/s Ramgharan Hanumanprasad Vaishya and another reported in 1976 BCI ( ) ) - 9 to buttress his submission that the maintenance can be awarded U/s 151 of the Code of Civil Procedure [ For short, ‘ the Code ’ ]. The learned counsel contends that even the maintenance of Rs. 12,000/- per month is meagre compared to the properties involved in the Suit and 4 WP 8033..........2011 the income derived by the other members of the family and the said amount of maintenance should be enhanced to Rs. 40,000/- per month and it should be awarded from the date of the application. The trial Court has awarded the maintenance only from the date of the order, which is erroneous. 6. During the course of arguments of the respective counsel, it transpired that some properties stands in the name of the plaintiff and the same has not been included as the suit properties. Mr. Kalani, the learned counsel made a statement that the plaintiff would add those properties as suit properties. In fact, the same should have been done at the time of filing of the Suit before the said application for interim maintenance is decided. The Court will have to consider whether those properties yield any income to the plaintiff and if it yields income, whether it is sufficient for the maintenance of the plaintiff. As the total documents and the total properties were not before the Court while deciding the application for interim maintenance, it would be appropriate to give opportunity to all the parties to submit the documents about various properties some of which are not the suit properties to enable the Court to come to the just conclusion. The Court shall also consider the properties in possession of the branch of the plaintiff and whether it yields any income prior to passing of order of maintenance. 5 WP 8033..........2011 7. Mr. A.S.Bajaj, the learned counsel for the petitioners in W.P. No. 8033 of 2011 submits that even otherwise the plaintiff is entitled to withdraw Rs. 5,000/- [ Rupees Five Thousand only ] per month from the partnership firm. The learned counsel on instructions of petitioner no. 3 Ashok Ramnath Khatod submits that the plaintiff may withdraw the said amount of Rs. 5,000/- per month and the petitioners would allow the same. I asked Mr. Bajaj, the learned counsel whether the said amount which the plaintiff is entitled to withdraw from the partnership firm can be deposited in the Court. The learned counsel on the instructions of petitioner no. 3 in W.P. No. 8033 of 2011 submitted that the said amount would be deposited in the Court i.e. the amount from the date of filing of the Suit @ Rs. 5,000/- per month till date. The said statement is accepted as an undertaking to this Court. The said amount shall be deposited within the period of six ( 6 ) weeks from today i.e. 11/01/2012 in the trial Court and the plaintiff shall be entitled to withdraw the same. The petitioners/partners of said partnership firm shall further continue to deposit Rs. 5,000/- per month regularly. 8. In light of above, the impugned order is quashed and set aside and the trial Court shall decide the application [ Exh. 9 ] filed by the plaintiff for interim maintenance in Spl. Civil Suit No. 92 of 2008 afresh after giving opportunity to the parties 6 WP 8033..........2011 and in light of the observations made herein above. 9. The Writ Petitions are accordingly disposed of. No costs. [ S.V. GANGAPURWALA,J. ] KNP/WP 8033..........2011