ORDER

Dipak Misra, J.

1. Both the civil revisions being interconnected were heard analogously and are disposed by this common order.

2. In Civil Revision No. 624/2000 the petitioner is the husband. The marriage between the petitioner and the non-applicant was solemnised on 12-12-97 at Nagpur. Thereafter the petitioner and the non-applicant came to the house of the petitioner at Jabalpur. As the petitioner is working at Bhopal he took the non-applicant - wife with him to Bhopal. Thereafter, they came back to Jabalpur and stayed with the other members of the family. As averred the petitioner left the non-applicant at Jabalpur and proceeded to Bhopal for joining his duties. As the petitioner felt that the non-applicant was of unsound mind he filed a suit for divorce as well as declaration that the marriage is null and void as the fraud had been practised on him. As the application was filed within one year the petitioner sought leave under Section 14 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act').

3. The non-applicant - wife entered appearance and resisted the action. During the pendency of the proceeding she filed an application under Section 24 of the Act for grant of maintenance and litigation expenses. The learned Additional District Judge fixed an amount towards interim maintenance. A written statement was filed on 22-1-2000 with a counter claim for restitution of conjugal rights. The non-applicant took objection to the trial Court's jurisdiction to try the suit on the ground that the marriage was performed at Nagpur and the couple had last resided together at Bhopal. The learned trial Judge by order dated 15-2-2000 came to hold that the Courts at Jabalpur had no jurisdiction to try the petition. Accordingly the trial Court directed return of the plaint under Order 7 Rule 10 of the Code of Civil Procedure (hereinafter referred to as 'the Code') for presenting it before the proper Court i.e., the Court at Bhopal or Nagpur. While so directing the learned trial Judge also ordered for payment of balance amount as directed under Section 24 of the Act. It has been stipulated therein that after payment of maintenance up to date the petitioner/husband would be entitled to take the petition back. Time was extended till 28-2- 2000 for payment for remaining amount of maintenance. The said direction is the cause of grievance of the petitioner.

4. Mr. Nanhoriya, learned counsel for the petitioner submitted that as far as return of plaint is concerned the petitioner has no grievance and he accepts the same. The propriety of the imposing of condition is sought to be challenged in this civil revision.

5. Now to the facts of Civil Revision No. 859/2000. When the Civil Revision No. 624/2000 was pending for adjudication time granted by the trial Court expired. The learned trial Judge took up the matter on 9-3-2000 and opined that the petitioner had not paid the maintenance allowance granted in exercise of powers under Section 24 of the Act and has also stopped appearing in the Court. After so observing the learned trial Judge held that the plaint could not be returned to him as condition precedent was not satisfied and accordingly dismissed the suit and directed that the maintenance allowance can be recovered upto 7-3-2000 as per law. The said order is the subject matter of challenge in Civil Revision No. 859/2000.

6. It is submitted by the learned counsel for the applicant that while returning the plaint the Court below had no authority to impose a condition of the present nature inasmuch as such a condition frustrates the order by which the plaint is directed to be returned. It is further canvassed by him that the amount awarded is recoverable by due process of law but cannot be a condition precedent for return of the plaint to present it in the proper Court of law. It is also his submission that the Court below could not have dismissed the suit on 9-3-2000 inasmuch as the Court had no jurisdiction to entertain the suit and already directed for return of the plaint. It is also contended by him that by passing of the second order the first civil revision is not rendered infructuous as the grievance of the petitioner does not cease to exist and, in fact, is in continuance.

7. Resisting the aforesaid submissions Mr. Sanghi learned counsel for the non-applicant has contended that the order passed by the learned trial Judge is appealable inasmuch as he has passed a composite order by directing the return of the plaint and payment of balance of maintenance allowance. It is also urged by him that after the civil suit has been dismissed the first revision has been rendered infructuous and the petitioner is required to file a regular appeal against the second order. In support of his submissions he has placed reliance on the decisions rendered in the cases of Babulal v. Sunder Lal, 1961 MPLJ 175, Badhulal Kasturchand v. Chhotelal and Ors., AIR 1977 MP 1, Dharmendra Kumar v. Smt. Pushpa Devi, AIR 1995 MP 210, Banarsi Das and Anr. v. Ramkrishna and Ors., AIR 1995 MP 147, Lataben Yogendrakumar Goswami v. Yogendra Shankargir Goswami, AIR 1996 Gujarat

103.

8. To appreciate the rival submissions raised at the Bar, I have perused the impugned order which is the subject matter of challenge in C.R. No. 624/2000. The operative part of the said order reads as under :

"I, therefore, hold that the place of last resided together is at Bhopal. Hence according to Section 19(iii) of the Act this Court at Jabalpur has no jurisdiction to try this petition. Therefore, the petition is liable to be returned under Order 7 Rule 10 of CPC for presentation to proper Court i.e., the Court at Bhopal or at Nagpur. The petitioner-husband is ordered to pay remaining amount of maintenance as ordered under Section 24 of the Act. After payment of maintenance up to date, the petitioner-husband will be entitled to take this petition back for presentation to proper Court. The petitioner-husband is given time upto 28-2-2000 for payment of remaining amount of maintenance."

9. Submission of Mr. Nanhoriya is that he has no grievance as far as the return of the plaint is concerned. His main grievance is regarding the condition imposed while returning the plaint. The learned counsel has placed reliance on a decision rendered by this Court in F.A. No. 91/93 wherein a learned Single Judge has held that when a suit is dismissed for non-payment of cost, the said order is assailable in civil revision. True it is in the present case it is not the cost imposed under Section 35 of the Code of Civil Procedure but is a condition relating to payment of maintenance allowance which was awarded during the pendency of the suit. It is not disputed by Mr. Nanhoriya that such an amount is recoverable in due process of law. Though Mr. Sanghi has cited number of authorities but they do not relate to this issue but cover the arena of grant of maintenance allowance under Section 24 of the Act. As the said decisions are not directly in issue, I refrain myself from discussing the same. In the obtaining factual matrix I am inclined to accept that the revision is maintainable.

10. Now to the merits of the case. The heart of the matter is whether the Court below is justified in imposing such a condition. It is not disputed that the rights of a wife are preserved and she can take steps for recovery of the amount in question but the Court cannot impose a condition to curtail the right of the plaintiff to take back the plaint. At this juncture, I think it apposite to refer to the defensibility of the order passed on 9-3-2000. Admittedly the Court has no jurisdiction to try the suit. The Court had already directed for return of the plaint. If a condition is imposed and the party does not take back the plaint that is another aspect and it is in a separate realm altogether but that does not clothe the Court with jurisdiction to dismiss the suit. That apart in a case of this nature the second order would not make the first civil revision infructuous. In this context, I may profitably refer to a decision rendered in the case of Radhamoni Padhiari v. Tangudu Jagannatham and Anr., AIR 1978 Orissa 209, wherein it has been held that when an exparte decree is passed in the suit pending revision against dismissal of application under Order 9 Rule 7 of the Code, the revision does not become infructuous.

11. In view of the aforesaid, I am of the considered opinion the second order does not make the first civil revision infructuous. As I have already held the condition could not have been imposed, I set aside the order and direct that the plaint be returned to the petitioner for presentation before the appropriate Court. Needless to emphasise, it would be open to the non-applicant to take appropriate steps under law to recover the amount awarded under Section 24 of the Act.

12. Both the civil revisions are accordingly disposed of.