DEEPAK KUMAR GAJWANI Vs. SEEMA GAJWANI

JUDGEMENT

(1.) THE appellant Dr. Deepak Kumar Gajwani in this appeal has assailed the legality and validity of the orders dated 20.8.2009 and 23.11.2009 passed by the Additional District Judge, Court No.1, Sultanpur in Regular Suit No.339/2008 : Smt. Seema Gajwani Vs. Dr. Deepak Gajwani, whereby application under Section 24 of the Hindu Marriage Act, moved by respondent Smt. Seema Gajwani was allowed and the application to recall the said order was rejected.

(2.) THE brief facts leading to this appeal are that the appellant and the respondent(herein) are inter se husband and wife and the respondent on 3.7.2008 had filed a petition under Section 13 of the Hindu Marriage Act against Dr. Deepak Gajwani for divorce, in the court below which was registered as Regular Suit No.339/2008 (supra). The respondent also preferred an application (8-C2) under Section 24 of the Hindu Marriage Act seeking maintenance, pendente lite and expenses of the proceedings in accordance with the provisions of Section 24 of the Hindu Marriage Act. Objection (12-C2) against the said application was filed by the appellant. The appellant also moved an application (14-C2) under Section 24 of the Hindu Marriage Act against which respondent Smt. Seema Gajwani filed her objection (15-C2). The appellant had also filed his written statement before the court below. The learned court below after hearing the parties, allowed the application (8-C2) moved by Smt. Seema Gajwani awarding Rs.2,500/- per month as maintenance pendente lite and Rs.2,500/- as expenses of the proceedings pending between the parties in the court. Thereafter, the appellant moved an application (34-C2) for recalling the order dated 20.8.2009 passed on application under Section 24 of the Hindu Marriage Act moved by Smt. Seema Gajwani. Learned court below rejected application (34-C2) holding that the maintainability of the petition under Section 13 of the Hindu Marriage Act, shall be decided as preliminary issue after framing of the issues. Feeling aggrieved with the above two orders, the appellant has preferred this appeal.

(3.) LEARNED counsel for the appellant has contended that an order passed by the court below under Section 24 of the Hindu Marriage Act is an independent proceeding, and order disposing this application is an appellable order under the provisions of Section 28 of the Hindu Marriage Act. He further contended that the learned court below has also committed illegality in not recalling the said order and in not deciding the maintainability of the petition as a preliminary issue. He in support of his contentions relied on Ceylon Biscuits Ltd. Vs. Bakeman Industries (P) Ltd. and Others reported in (2004) 13 SCC 575 : Arul Agarwal Vs. Nagreeka Exports (P) Ltd. and another reported in (2002) 10 SCC 101 : K. Kamraj Nadir Vs. Kunju Thevar and another reported in AIR 1958 SC 687.