JUDGMENT B.M. Lal, J.
1. This appeal is under Section 19 of Family Courts Act, 1984 in which appellant is husband while respondent is his wife. The appeal is directed against an order by which the Court below has allowed an application of respondent filed under Section 125 of Code of Criminal Procedure (in short Cr.P.C.) and directed appellant husband to pay a sum of Rs. 250/- per month as maintenance to respondent wife with effect from date of order.
2. When the appeal was taken up for admission hearing under Order XLI Rule 11 of the Code of Civil Procedure (for short block 'Code'), the learned Counsel for appellant argued that appeal may be admitted and notice be issued to respondent. He argued that this Court do not have the power to dismiss the appeal at the stage of admission. He submitted that the appeal under Section 19 of Family Court Act is a First Appeal and therefore under Chapter XI Rules 9(a) of the Rules of Court the appeal is liable to be admitted.
3. Order XLI Rule 11 of Code empowers an appellate Court to dismiss an appeal without serving notice on the respondent. It appears that this power has been entrusted to appellate Court to save respondents from unnecessary and unwarranted harassment of defending an appeal in which the appellant do not have even prima facie case on merits. This power of appellant Court reduces filing of frivolous appeals where appellant do not have even state able case.
4. The learned Counsel for appellant has not disputed the applicability of procedure provided under Chapter XLI of Code to the appeals filed under Section 19 of the Family Courts Act, but he has argued that as Rule 9(a) of Chapter XI of Rules of the Court provides for specific procedure before this Court in respect of admission of appeal, the appeal is liable to be admitted without examining its merits and without going into the question as to any prima facie case is made out by appellant for hearing the appeal on merits after serving notice on respondent.
6 Rule 9 of Chapter XI of the Rules of the Court reads as follows :-
9. Hearing under Order XLI, Rule 11 of the Code :
"If the Bench before which a motion is made for the admission of an application or memorandum of appeal or objections finds that it is accompanied by the necessary papers, if any, and is otherwise in order and has been presented with him time, it shall-
(a) in the case of a First Appeal (other than an Execution First Appeal) or a memorandum of objections make an order admitting and directing notice to be issued;
(b) in the case of any other appeal admit it and after admitting it.--
(i) if it deems fit, hear it the same day under Rule 11 of Order XLI of the Code and if it is not dismissed under that rule, direct that notice be' issued; or
(ii) direct that the appeal be put up for hearing under Rule 11 of Order XII of the Code on a future date.
(c) in the case of an application, pass such order as may be considered proper:
provided that nothing contained in this rule shall-
(i) preclude such Bench from hearing any First Appeal, if consented to by the appellant, under Rule 11 of Order XLI of the Code the same day or directing that it be put up for hearing under that rule on some future date; or
(ii) require such Bench to direct notice of an application or memorandum of objections to be issued where notice of such application or memorandum of objection has already been served on the other party or his Advocate.
From perusal of the said Rule it is apparent that the Rule does not put any fetter on the power of appellate Court to dismiss appeal under Order XLI Rule 11 of the Code. Such a power is kept intact even by the Rule. Though aforesaid Clause (a) of Rule 9 provides for admission of an appeal in case the appeal is in order, the proviso (i) to said Rule makes it clear that the Rule do not preclude the Bench from hearing any First Appeal under Rule 11 of order XLI of the Code, The proviso saves power of appellate Court to dismiss the appeal without sending notice to respondent in case the appellate Court is satisfied that no prima facie case on merit is made out.
6. The learned Counsel for the appellant has also argued that proviso (i) of Rule 9 is applicable only when the appellant consents for hearing of the appeal under Order XLI Rule 11 of the Code and it will not apply when appellant do not consent for such hearing. The argument of learned Counsel for appellant is misconceived. The proviso do not lay down any such condition. The consent required under said proviso is only for the purpose of hearing of appeal under Order XLI Rule 11 on the day when it is filed. It is nowwhere provided that the appeal cannot be dismissed under Order XLI Rule 11 of the Code. Beside the fact that the language of Rule is clear to said effect, we are of the view that this is the only interpretation which is possible in respect of the proviso. If the interpretation which has been argued by learned Counsel for appellant is accepted then the Rule will become ultra vires. The Rules of the Court have been framed in exercise of power under Article 225 of the Constitution of India which permits this Court to frame Rules for procedure to be adopted in hearing cases but such Rules of procedure can be framed by this Court for which there is no legislative enactment. The power of this Court is subject to law enacted by appropriate legislature in exercise of its power. As the Parliament has specifically laid down the procedure for dismissal of appeal under Order XLI Rule 11 of the Code, any Rule framed by this Court to regulate its procedure cannot curtail the power of appellate Court conferred by order XLI Rule 11 of the Code to dismiss the appeal without sending notice to respondent. This aspect also justifies the view that the appeals can be dismissed without sending notice to respondent under Order XLI Rule 11 of the Code. The interpretation given by us is the only harmonious construction of Rule 9(a) read with proviso (i) therein. Thus, the power of appellate Court to dismiss the appeal without sending notice to respondent is kept intact under Order XLI Rule 11 of the Code despite Rule 9(a) of the Rules of the Court. The argument advanced by learned Counsel for appellant that the appeal is liable to be admitted in view of Rule 9(a) of Rules of the Court has no force and is rejected.
7. On merits, the learned Counsel for appellant argued that as respondent Smt. Premwati has remarried Chhotelal and is living with him since 1965, therefore, she is not entitled for any maintenance under Section 125 Cr.P.C.
8. The argument has no force. The Court below has disbelieved the case of appellant that Smt. Premwati has re-married. This aspect has been specifically dealt with by Court below. The Court below has recorded a finding in respact of plea of re-marriage of Smt. Premwati that in the pleadings that appellant has taken up the case that Smt. Premwati has re-married Chhotelal, but in the evidence the appellant has stated that she re-married Sheoram. The Counsel for appellant could not place any material on the basis of which it could be said that such position was not there. There is much variance in the pleading and evidence of appellant in respect of person with whom re-marriage of Smt, Premwati has been set up. This variance in pleading and evidence for proof of re-marriage is fatal to the case of re-marriage set-up by appellant. The Trial Court has also considered evidence led by the parties and has disbelieved the case set up by appellant that Smt. Premwati has re-married. The learned Counsel for appellant has not been able to show even prima facie any error in appreciation of evidence. He has been unable to show as to how the finding recorded by the Court below is vitiated. As the learned Counsel for appellant could not assail the finding of Court below that Smt. Premwati has not re-married, there is no substance in the argument, which is liable to be rejected. In this case, it is admitted to the appellant that he has re-married Smt. Laxmi in the year 1965 and he is having four children from her. It is statutory obligation of the appellant to maintain respondent Smt. Premwati, who is his first wife, and the Court below has rightly awarded maintenance to her.
9. The amount of Rs. 250/- per month awarded as maintenance cannot be said to be excessive. The appellant, according to the finding of the Court below, is getting a salary of Rs. 800-900 per month beside having income from agriculture. The amount awarded by the Court below itself is no amount of maintenance.
10. We do not find any merit in this appeal. It is dismissed in limne.