Case Note & Summary
The petitioners, defendants 1 to 4 in a partition suit, challenged an order dated 17.11.2018 passed by the LXXIII Additional City Civil and Sessions Judge, Bengaluru, in O.S.No.25238/2015. The respondent/plaintiff had filed the suit for partition and separate possession of joint family properties described in Schedules 'A' to 'H', claiming a 1/4th share. During the pendency of the suit, the plaintiff filed an application under Section 151 of the Code of Civil Procedure, 1908 (CPC) seeking interim maintenance for himself and his family. The trial court partly allowed the application, directing the defendants to pay monthly maintenance. The defendants, being the father, mother, and two brothers of the plaintiff, filed the present writ petition under Article 227 of the Constitution of India to quash that order. The High Court examined whether the trial court had jurisdiction to grant interim maintenance under Section 151 CPC in a partition suit. The court noted that there is no specific provision in the CPC or the Hindu Succession Act, 1956, for granting maintenance in a partition suit. The inherent powers under Section 151 CPC are meant to secure the ends of justice or prevent abuse of process, but cannot be used to create a substantive right where none exists. The court held that the trial court acted without jurisdiction in granting maintenance, as the plaintiff had alternative remedies under other laws (e.g., the Hindu Adoption and Maintenance Act, 1956, or the Protection of Women from Domestic Violence Act, 2005). The writ petition was allowed, and the impugned order was set aside. The court clarified that the plaintiff may pursue appropriate remedies before the competent forum.
Headnote
A) Civil Procedure - Interim Maintenance - Section 151 CPC - Inherent Powers - The trial court partly allowed an application under Section 151 CPC seeking interim maintenance in a partition suit. The High Court held that the inherent powers under Section 151 CPC cannot be invoked to grant maintenance when no specific provision exists for such relief in a partition suit. The order granting maintenance was set aside as without jurisdiction. (Paras 1-10) B) Partition Suit - Maintenance - No Provision - The plaintiff in a partition suit sought interim maintenance for himself and his family. The High Court observed that there is no provision in the Code of Civil Procedure or the Hindu Succession Act for granting maintenance in a partition suit. The trial court's order was quashed. (Paras 2-10)
Issue of Consideration
Whether the trial court could grant interim maintenance to the plaintiff in a partition suit under Section 151 of the Code of Civil Procedure, 1908, in the absence of any specific provision for such relief.
Final Decision
The writ petition is allowed. The order dated 17.11.2018 passed by the LXXIII Additional City Civil and Sessions Judge, Bengaluru, in O.S.No.25238/2015 partly allowing the application under Section 151 CPC is quashed and set aside. The respondent/plaintiff is at liberty to pursue appropriate remedies before the competent forum.
Law Points
- Interim maintenance cannot be granted under Section 151 CPC in a partition suit
- Inherent powers under Section 151 CPC cannot be used to circumvent absence of specific provision
- Order for maintenance in partition suit without legal basis is without jurisdiction
