VINOD DULERAI MEHTA Vs. KANAK VINOD MEHTA

JUDGEMENT

(1.) This is an application for review of the order passed on April 24, 1989. Mr. Dwarkadas for the Respondents raised a preliminary objection to the maintainability of the review application, on the ground that since the Applicant, i.e. the Review Appellant had withdrawn the appeal to review lies. We are not inclined to accept this contention since as is evident from the order itself, the appeal was withdrawn because at that stage the Appellant was advised that no appeal was maintainable against the impugned decision.

(2.) It is now contended, relying on the following judgments that a Letters Patent appeal is maintainable even against an order of interim maintenance in a suit for maintenance. We do not see anything in the said judgments to support this contention. The first judgment relied on is of a Division Bench of this Court reported in A.I.R. 1979 Bom. 173 (Dinesh Gijubhai Mehta v. Usha Dinesh Mehta) This was a petition under the Hindu Marriage Act filed for restitution of conjugal rights. It is in this petition that an application for interim maintenance pendente lite was made under section 24 of that Act. The learned trial Judge allowed the application and fixed the maintenance at Rs. 145/- per month. Against the said order, the wife filed an appeal to this Court and the learned Single Judge enhanced the said maintenance to Rs. 350/- per month. Against the said order, a letters Patent appeal was preferred. On the question of the maintainability of the Letters Patent appeal while observing that it was unnecessary to decide the question the Court indicated that the question as to the pendente lite maintenance had raised a controversy independently of the suit and the decision on that question concluded the controversy finally as far as the parties were concerned, and looked from that point of view, it would be difficult to hold that the Letters Patent appeal was not maintainable. The second decision is of the Madras High Court reported in 48 Madras Law Journal Report, 395 (Syed Yusuf Saheb v. Subhan Bibi) In that case again the suit was filed by a Muslim widow to recover her share in the property of her deceased husband in the hands of the other sharers and residuaries of his estate. It is in this suit that an interim order for maintenance was passed in her favour. Relying on an observation made by Sri Arnold White, C.J. in (Tuljaram Rao v. Alagappa Chattiar, that "an order on an independent proceeding which is ancillary to the suit, not instituted as a step towards judgment but with a view to rendering the judgment effective if obtained, is a judgment within the meaning of clause 15 of the Letters Patent", the Court there held that the said order was appealable under clause 15 of the Letters Patent. It is thus obvious that an interim order which is not a step towards the final order or judgment but is made in an independent proceeding is a judgment within the meaning of the said clause. However, whereas in the present case the interim order is a step towards the final order of maintenance, the ratio of the said decision will not be applicable. In A.I.R. 1981 S.C. page 1786 (Shah Babulal Khimji v. Jayaben D. Kania &another) the principles for determining what is a judgment within the meaning of clause 15 of the Letters Patent have been, with respect succinctly summarised. These principles made it clear that every interlocutory order cannot be regarded as a judgment but only those orders will be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. In order to determine whether an order passed by the trial Judge can be said to be a judgment the following considerations must prevail with the Court:---

(3.) We are therefore satisfied that the present interlocutory order which fixes the interim maintenance pending the suit which is itself filed for permanent maintenance is a step towards the final order. Hence it does not conclude the rights and liabilities of the parties and is therefore not a judgment within the meaning of Clause 15 of the Letters of Patent. The review application is therefore liable to be dismissed on this ground alone.