AMITABH DHAR DUBEY Vs. NISHI MISHRA

JUDGEMENT

(1.) By this revision petition filed under Section 115 r/w Section 151 of the Code of Civil Procedure, 1908, the Petitioner seeks to set aside the order dated 12.5.2010 passed by court of the learned ADJ, Delhi.

(2.) A brief conspectus of facts relevant for deciding the present petition is that vide order dated 24.7.08 the Respondent wife was granted maintenance along with maintenance of the child and litigation expenses, but no date from which date the said maintenance was to be paid was mentioned in the order. Seeking clarification of the said order, the Respondent filed an application under Section 151 and 152 of the Code of Code of Civil Procedure and vide order dated 12.5.2010 the learned trial court directed the maintenance to be paid from the date on which the application for maintenance was filed and not from the date of the order i.e 24.7.08. Feeling aggrieved with the same, the Petitioner has preferred the present revision petition.

(3.) Mr. Ruchir Mishra, counsel for the Petitioner submits that in the absence of any specific date stated in the order dated 24.7.2008, maintenance is payable only from the date of passing of the said order and not from the date of filing of the application. The contention of the counsel for the Petitioner is [RKR1]that in the order dated 24.7.2008, no direction was given by the learned matrimonial court to pay the amount of maintenance from the date of the application and since the order is silent about such date, therefore, it has to be construed that the maintenance is payable by the Petitioner to the Respondent from the date of passing of the order. In support of his contention, counsel for the Petitioner has placed reliance on the judgment of the Apex Court in the case of Jasbir Kaur Sehgal v. District Judge, Dehradun and Ors., 1997 7 SCC 7. Counsel submits that the order dated 12.5.2010 passed by the learned trial court on the application of the Respondent under Section 151 & 152 of Code of Code of Civil Procedure is clearly illegal and perverse as the court has acted without jurisdiction. The contention of the counsel is that under Section 152 CPC, the court can carry out the correction only when there are some clerical or arithmetical mistakes in the order but the court cannot pass any substantive order afresh to decide the rights of the parties. Counsel further submits that the denial of maintenance amount from the date of the application was on account of the fact that the Respondent was drawing sufficient income from her employment, being a Class-I Government Officer and therefore, by allowing the application moved by the Respondent under Section 151 and 152 of CPC, the learned trial court has taken a fresh decision on the main application of the Respondent moved under Section 24 of the Hindu Marriage Act. Counsel further submits that in the order dated 10.11.2009 passed by this Court at the time of deciding the petition bearing C.M.(M) 1196/2008 filed by the Petitioner, the Court clearly observed that the Respondent was not entitled to any maintenance for herself and the said order was duly taken into consideration by the learned trial court at the time of passing of the impugned order dated 12.5.2010.