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Sheo Balak Prasad v. Ram Pyare & Others - SECOND APPEAL No. - 1554 of 1974 [2007] RD-AH 14871 (1 September 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Court No. 30.

Second Appeal No. 1187 of 1986

Ram Nath Versus Smt. Kalawati Devi

Hon. Sunil Ambwani, J.

Heard Sri Umesh Vats for the appellant.

This second appeal arises out of a suit for maintenance of Rs. 400/- per month by Smt. Kalawati Devi wife of the appellant under Section 18 of the U.P. Adoption of Maintenance Act, 1956.

The trial court found that the parties were married ten years before filing of the suit. After five years, the husband expressed his desire to marry again. When the wife resisted, he started beating her and made an attempt to end her life. She was turned out of the house and thereafter the defendant-husband married again. After taking evidence the trial court found that the husband has three flour mills (Ata chakki) 4 bulls, and 4-5 buffallows. He re-married on 14.12.1983 and thus the wife was held entitled to maintenance. In Civil Appeal No. 290 of 1985 the appellate court confirmed the findings of the trial court in Suit No. 351 of 1983 decided on 20.11.1985.

Learned counsel for the appellant submits that the parties had entered into a compromise and filed the compromise in Court stating that the wife had accepted a one time lump sum payment, and that the suit be dismissed. The original document of compromise is not available on record. It is alleged that it was filed in court and was directed to be put up along with record. The application is missing from the record.

On 6.10.2004, the following order was passed:

" It appears that a compromise application was filed in the year 1986. he original compromise


application, bearing the signatures of both the parties is not on record. The office has reported that there is no record of any compromise application filed in the Court. The defendant's wife, in whose favour a decree for maintenance of Rs. 400/- per month was passed, has denied the fact of compromise.

I, therefore, find that no compromise was entered into between the parties and that Rs.9,600/- was paid by the husband to the wife voluntarily in part discharge of the decretal amount.

On 16.12.1994, the following order was passed by this Court on the memo of appeal:-


This order, in my opinion, amounts the admission of appeal as the notices of appeal cannot be issued unless the appeal is admitted. The appeal is, as such, taken to be admitted.

This appeal is of 1986. List for final hearing in the next month."

It appears that thereafter Sri Umesh Vats filed his Vakalatnama and a recall application and has succeeded in getting the matter adjourned for three long years to prove that there was a compromise between the parties, which should be traced out by the office. The Xerox copies of the affidavit alleged to be filed have been placed on record. These papers do not bear the signatures of the parties. Late Sri S.D. Pathak was earlier appearing in the matter for the appellant. The compromise appears to have been signed by him and Sri Sabhajeet Yadav, counsel for the respondents. The Court had enquired into the matter and had found that there was no compromise between the parties, and that the amount was paid as part performance of the decree. There is no point in recording any further findings in the matter.

It is admitted that the respondent Smt. Kalawati is a wife of the appellant and that the plaintiff-appellant had entered into second marriage without her consent. It is also not denied that she is living with her father and has no source of livelihood. In


the facts and circumstances, the findings recorded by the trial court and also appellate court that the respondents is entitled for Rs.400/- per month as maintenance does not requqire interference, nor raise any question of law to be considered by the Court. These findings recorded by the court below are findings of facts and are confirmed.

The recall application and the second appeal is dismissed with special cost of Rs.10,000/- for getting the matter delayed on the basis of false statement of compromise which was not established by the plaintiff-respondent.

Dt. 30.8.2007.



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