GITTI Vs. DHIANA

JUDGEMENT

(1.) This is a petition for permission to file this appeal in forma pauperis. Notice of this application was issued to the two respondents to this appeal as well as to the Collector. They have all been served. Neither the respondents nor the Collector have filed any reply in opposition to the petition. The learned counsel appearing for the respondents says that the petitioner had been allowed to file her suit in forma pauperis and her circumstances have not in any way changed thereafter and that is why he has not filed a reply to the petition. He however urges that even though the petitioner may be pauper but the present petition is not maintainable in view of the provisions in sub-clause (2) of Rule 1 of Order 44, Code of Civil Procedure, and that the petition deserves to be rejected because the decree in the instant case is neither contrary to law or to some usage having the force of law, nor is it otherwise erroneous or unjust.

(2.) I do not see how the above provision in sub-rule (1) of rule 1 of Order 44, Code of Civil Procedure is attracted in the facts of this case. The Court below has found and in fact it is not disputed that the petitioner was married to the respondent. The plea of divorce set up by the respondent in defence has been negatived by the Court and has been found to be false. It is a matter to be decided on the merits as to whether the finding that the petitioner was still not entitled to maintenance is sustainable or not. Prima facie a wife would be entitled to the maintenance and it would be unjust to deprive her of this.

(3.) The learned counsel for the respondent has, however, taken a more formidable objection in reward to the presentation of this petition. He relies on Order 33, rule 5 and says that this petition has not been presented as specified by Order 33, rule 3.