1 wp 5771.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5771 OF 2011 Samadhan S/o Gopinath Admane, Age : 22 Years, Occu. : Agril., R/o Borgaon (Kale), Tq. & Dist. Latur. .. .. Petitioner Versus 1. Sou. Sandhya W/o Samadhan Admane, Age : 24 Years, Occu. : Household, R/o Dhoki, Tq. & Dist. Osmanabad. 2. Gopinath S/o Chupdappa Admane, Age : 60 Years, Occu. : Agril., R/o Borgaon (Kale), Tq. & Dist. Latur. .. .. Respondents Shri C. R. Deshpande, Advocate for the Petitioner Shri S. V. Gundre, Advocate for the Respondent No. 1. CORAM : S. V. GANGAPURWALA, J. DATE : 13TH OCTOBER, 2011. ORAL JUDGMENT : . Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing. 2 wp 5771.11 2. The present respondent No. 1 has instituted a suit for maintenance against the present petitioner which came to be decreed ex-parte. Aggrieved thereby the present petitioner filed an appeal before the District Court. The District Court allowed the appeal by setting aside the judgment of the Trial Court and remanded the matter back to the Trial Court. At the same time directed the present petitioner to pay maintenance of Rs. 2,500/- per month to the respondent No. 1 and to deposit Rs. 30,000/- in lumpsum towards interim relief. The Appellate Court further directed that in the event the petitioner fails to deposit the said amount as directed, then the Trial Court is at liberty to strike out the defence of the appellant. The said order is assailed in the present petition. 3. Shri C. R. Deshpande, the learned counsel for the petitioner submits that, while remanding the matter, the Appellate Court did not have any jurisdiction to impose such condition of payment of maintenance. The order of remand would be governed by the provisions of Order 41 Rule 23 of the Code of Civil Procedure. The said provision does not empower the District Court to lay down such onerous condition. The learned counsel further contends that the petitioner is a labourer 3 wp 5771.11 and the petitioner does not have any income to pay said amount. Even on the date of marriage he was minor. The learned counsel further contends that there was no jurisdiction with the District Court to direct the Trial Court to strike out the defence if the amount is not deposited. 4. Per contra, Shri Gundre, the learned counsel for the respondent No. 1 submits that the Appellate Court had set aside the decree passed in favour of the respondent No. 1. The decree was in the nature of a money decree. The amount of maintenance was directed to be paid by the Trial Court. The arrears on the said date were to the tune of Rs. 63,000/-. In such circumstances, no error is committed by the District Court in passing the said order. 5. The Appellate Court while entertaining the appeal has all the powers of the Trial Court by virtue of Sec. 107 of the Code of Civil Procedure. Even while disposing the matter the Court has ample powers to pass orders to sub-serve the cause of substantial justice U/Sec. 94 of the C. P. C. The Court was setting aside the decree passed in favour of the present respondent No. 1, wherein the maintenance was directed to be paid by the petitioner to the respondent No. 1 and the arrears as per the said decree was more 4 wp 5771.11 than Rs. 63,000/-. The Court was just trying to adjust the equities. The procedural law will have to be interpreted in a manner to subserve the cause of substantial justice. The Apex Court in a case of Mahadev Govind Gharge Vs. Special Land Acquisition Officer reported in 2011(5) Mh. L. J. 532 has observed thus, "it is undisputed principle of law that the procedural laws are primarily intended to achieve the ends of justice and normally not to shut the doors of justice to the parties." The Appellate Court had the discretion in passing the said order, however, at the same time the Appellate Court could not have permitted, the Trial Court in passing further order that in case the appellant does not comply with the order, the defence of the petitioner would be strike out. 6. Shri Deshpande, the learned counsel for the petitioner on instructions of the petitioner states that, the petitioner undertakes to deposit an amount of Rs. 15,000/- within a period of four (4) weeks from today and would deposit an amount of Rs. 1,500/- per month towards the interim maintenance. The said undertaking is accepted. 7. In view of the above, I modify the order passed by the District Court impugned in the present writ petition. Instead of 5 wp 5771.11 amount of Rs. 30,000/- as directed by the District Court, the petitioner shall deposit an amount of Rs. 15,000/- within a period of four (4) weeks as undertaken by him. Instead of amount payment of Rs. 2,500/- per month as directed by the District Court, the petitioner shall deposit an amount of Rs. 1,500/- per month as per his undertaking given to this Court. 8. The part of the order directing the Trial Court to struck out the defence in case the petitioner does not deposit the amount is struck down. 9. Save and except the modification made above, the rest of the order is maintained. Rule is accordingly made absolute in above terms, however, with no order as to costs. 10. Needless to state, the present respondent No. 1/original plaintiff shall be entitled to withdraw the amount deposited by the petitioner. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/Oct. 11