2002(2) ALL MR 642
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
D.Y. CHANDRACHUD, J.
Rekha Bhaskar Kadam Vs. Bhaskar Arjun Kadam
Civil Revision Application No. 86 of 2002
3rd April, 2002
Petitioner Counsel: Shri. DILIP BODKE
Respondent Counsel: Shri. VINOD JADHAV, Shri. P.S.DANI
(A) Hindu Marriage Act (1955), S.9 - Civil P.C. (1908), O.39, R.11 - Application for restitution of conjugal rights - Interim order of alimony not complied with - Application for striking out defence - No finding as to whether non-compliance with maintenance order was wilful or contumacious - Application for striking out defence cannot be dismissed - Trial court directed to dispose of application afresh. (Para 4)
(B) Civil P.C. (1908), O.39, R.11 - Application for restitution of conjugal rights - Order for interim maintenance not complied with - Mere fact that applicant has alternative remedy of executing the order for interim alimony is not a reason not to exercise power under O.39, R.11 where a default which is contumacious is brought to the notice of the court. (Para 4)
2. By the impugned order of the Learned Joint Civil Judge. Senior Division, Satara, dated 19th October 2001, the application filed by the Applicant-wife for striking out the defence of the Respondent in the application filed for the restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955, has been dismissed. The Respondent has filed petition for divorce, while as already noted, the Applicant has moved for restitution of conjugal rights. An application for interim alimony was taken out by the Applicant before the Trial Court in which on 5th September 2001 an order was passed directing the Respondent to pay an amount of Rs.700/- per month as and by way of an interim alimony and Rs.1000/- towards costs. The Applicant moved an application before the Learned Trial Judge for striking out the defence of the Respondent in terms of the provisions contained in Rule 11 of Order 39 of the Code of Civil Procedure, 1908 (as amended in relation to the State of Maharashtra) since the order of maintenance has not been complied with. The Learned Trial Judge has dismissed that application holding that the Applicant is at liberty to recover the amount awarded as interim alimony by filing an execution proceeding. The Learned Trial Judge was of the view that since the matter has been partly heard, it would not be appropriate at this stage to strike out the defence of the Respondent.
3. The power conferred by Order 39 Rule 11 is a salutary power which is vested in the court to strike out the defence if a breach of an order of the Court commanding the defendant to do or not to do a thing during the pendency of the suit or proceeding takes place. Similarly, where the breach is committed by the Plaintiff, the Court is empowered to dismiss the proceedings. The power to strike out the defence under Rule 11, is a drastic power and should be exercised where the default on the part of the party to do or not to do something which it was commanded to do or abstain from doing during the pendency of the suit is willful or contumacious. Ultimately, the facts of each case have to be scrutinised by the Court. Under sub-rule 2 of Rule 11, the Court is empowered to restore the suit or proceeding or to hear the defaulting party in defence, as the case may be, if the party that has been responsible for the default, contravention or breach as aforesaid makes amends for the default, contravention or breach to the satisfaction of the Court.
4. In the present case, the Learned Trial Judge has really not considered the question as to whether the Respondent was truly and bonafide unable to comply with the order of maintenance for want of financial capacity. The Learned Trial Judge has recorded that the Respondent has filed a purshis at Exh.38 expressing his inability to pay, but that by itself is not sufficient. Ultimately, the Learned Trial Judge was to consider as to whether the Respondent has failed to comply with the order of maintenance for a genuine reason or whether the failure to do so was willful and contumacious. The Learned Counsel appearing on behalf of the Respondent has stated before the Court that the Respondent does hold agricultural land. It is for the Learned Trial Judge to determine whether despite having the financial capacity to pay the amount of maintenance, the Respondent has deliberately or willfully not complied with the order. The Learned Trial Judge would undoubtedly have regard to all the circumstances of the case, including the extent of the share of the Respondent in the agricultural land. The mere fact that the Applicant has an alternative remedy of executing the order for interim alimony is not a reason not to exercise the power under Order 39 Rule 11 where a default which is willful or contumacious is brought to the notice of the Court. In the present case, since the Learned Trial Judge has not formed a view, one way or the other as to whether the default was willful or contumacious, I am not at the present stage going into that question. That question should be left open to be urged before and decided by the Learned Trial Judge. In these circumstances, the impugned order of the Joint Civil Judge, Senior Division, Satara dated 19th October 2001 is quashed and set aside. The Learned Trial Judge shall dispose of the application filed by the Applicant at Exh.14 afresh. Even before this Court, I had enquired with the Learned Counsel as to whether the Respondent would pay the amount of maintenance wholly or in part or by instalments. The Learned Counsel stated that the Respondent cannot make any such statement before the Court.