Civil Writ Petition No. 6419 of 2013

24th December, 2013

Petitioner Counsel: Mr. S.S. GOKHALE
Respondent Counsel: Mr. Y.R. SINGH

Cases Cited:
Modula India Vs. Kamaksha Singh Dev, A.I.R. 1989 SC 162 [Para 19]

JUDGMENT

JUDGMENT :- Heard. Perused documents.

2. Rule.

3. Rule returnable forthwith with the consent of the parties.

4. The petitioner herein challenges the correctness and validity of the order dated 07/06/2013 passed by family court no. 3, Mumbai below exhibit 12 & 16 in Petition No. 164/2009.

5. The facts of the case are as follows.

6. The petitioner herein had filed Petition No. C/164/09 in the Family Court at Bandra seeking maintenance for herself and her daughter against the respondent. She had also filed petition no. B/166/09 seeking permanent injunction restraining her husband from evicting her from the matrimonial house which stands in the name of the respondent. She had also sought a prayer seeking declaration that she has 75% ownership in the said house as the house has been purchased from her contribution. Both the petitions were directed to be decided together as the parties to both the petitions are the same.

7. It is a matter of record that in the petition seeking maintenance, the family Court had directed the respondent to pay Rs. 3000/- towards the maintenance of their daughter Neha. The said order was challenged in Writ Petition No. 10367/2011 before this Court. The said writ petition was allowed vide order dated 15/3/2012 and 8/5/2012, as this Hon'ble Court had been pleased to direct the respondent to pay maintenance to Neha at the rate of 15,000/- per month from the date of application. The respondent was also directed to bear 50% of the expenses incurred by the petitioner towards the school and tuition fees of Neha from June 2012. The said order passed by this Court was challenged before the Hon'ble Apex Court by filing Special Leave to Appeal (Civil) CC 10391/2013. The petition was withdrawn on 26/07/2013. The matter was referred to mediation. The mediation had failed.

8. That the order passed by this Hon'ble Court directing the respondent to pay Rs. 15,000/- p. m. was flouted by the respondent. The petitioner had demonstrated before the family Court that the respondent herein has flouted the orders. By an order dated 10/7/12, the family Court had directed the respondent to clear the arrears by paying the consolidated amount of maintenance in six installments and on failure to pay the first installments his defence will be deemed to be struck off. In the order dated 10/7/12, passed below exhibit 1, the family Court had specifically observed that the respondent was bent upon to flout the order of the High Court and therefore by exercising the powers under Order 39, Rule 11 of the Civil Procedure Code, the Family Court had directed that upon non compliance of the order, the defence would be struck off.

9. The issues were framed. The petitioner filed her affidavit of evidence along with the list of documents and list of witnesses. On 26/3/2013, the matter was listed for the purpose of cross-examination of the petitioner. The respondent herein had declined to cross-examine on the ground that he had filed a Writ Petition in this Court and S.L.P. in Supreme Court challenging the order dated 10/7/13 wherein the Family Court had exercised the powers under Order 39, Rule 11 of the Civil Procedure Code.

10. The Family Court had then listed the matter on 19/1/2013. Both the parties were present and hence both the petitions were clubbed together for disposal by a common judgment in accordance with law. Till that date, the respondent had not complied with the orders of the Hon'ble High Court and hence the order dated 10/7/12 passed by the Family Court had attained finality. By an order dated 19/1/2013, the Family Court had struck off the defence of the husband for non compliance with the order dated 10/7/12. His right to file written statement in 'B' petition was forfeited and matter was adjourned for evidence.

11. By an order dated 26/3/2013, the Family Court had taken judicial note of the observations of the High Court thereby expressing displeasure to the practice adopted by the parties in seeking adjournments on the pretext of moving superior Courts. The Family Court had refused to grant the prayer of the respondent seeking adjournments. Once again by an order dated 26/3/2013, the right of the respondent to cross-examine have been deemed to be forfeited. The order by which the defence was struck off was challenged by the respondent. This Hon'ble Court by an order dated 5/4/13, in Writ Petition No. 3304/13 had rejected the petition and directed the said petitioner i.e. present respondent to pay Rs. 15,000/- to the petitioner.

12. It is a matter of record that on 10/6/10, the respondent herein had filed an application before the Family Court in Petition No. 164/09 seeking the relief in the nature of direction to M/s. Tehelka to produce on record:

(ii) Copy of Form 16 submitted for year ending 31st March, 2010.

(iii) Copy of application form submitted by the petitioner to them.

(iv) Exact salary statement in respect of the Petitioner for the month of May, 2010.

(v) Income Tax Returns filed by the Petitioner for year ending 1st April, 2008 to 31st March, 2009 and for the year ending 1st April, 2009 to 31st March, 2010.

On 23/12/2010 the present respondent had filed another application seeking the relief of directing the present petitioner for producing the documents for submission and inspection namely bank pass book/statement of all bank accounts(savings/Demat/current) for the last 5 years and a copy of passport, proof of investment in property. The said applications were marked as exhibit 12 & 16 respectively. The said applications were not taken on board by the present respondent, however, on 7/6/13 the applications below exhibit 12 & 16 were allowed and the present petitioner was directed to comply the orders dated 7/6/13 before the next date. Hence the present petition by which the order dated 7/6/13 is being impugned.

13. Learned counsel for the petitioner submits that in fact, the applications below exhibit 12 & 16 are the applications filed in defence of the respondent herein. It is further argued that the said applications were never pressed into service and only after the respondent had failed to obtain favourable from the High Court and the Hon'ble Apex Court, the said applications were pressed into service. It is further argued that the Family Court by an order dated 19/1/2013, had denied the right to the respondent to file written statement. By an order dated 26/3/13, the Family Court had denied the right to the respondent to cross-examine the petitioner. That the order dated 10/7/12, passed below exhibit 1 had attained finality and therefore, the respondent had forfeited his right to call for any documents in his defence, he has also forfeited his rights to call for any defence witness.

14. The learned counsel appearing for the respondent submits that in fact, the petitioner had misled the Court by seeking maintenance as she was self sufficient. It is further submitted that the respondent had sought for the said documents to substantiate his contentions. It was in defence of the respondent as he contended that she was not entitled for maintenance. The amendment dated 01/4/1987 to order 39, Rule 11 of Code of Civil Procedure, 1908. Order 39, Rule 11 (2) of Bombay amendment states as follows.

"(2) The court may, on sufficient cause being shown and on such terms and conditions as it may deem fit to impose restore the suit or proceeding or may hear the party in defence, as the case may be, if the party that has been responsible for the default or contravention or breach as aforesaid makes amendment for the default or contravention or breach to the satisfaction of the Court."

The amendment to Order 39, Rule 11, (2) specifically contemplates that no action be taken under Order 39, Rule 11 (1) in the event that the applicant is able to satisfy the Court by setting out reasonable grounds for default or contravention or breach of the order of the Court. The averments in the said application did not spell any reasonable ground for disobeying the orders of the Court. Hence, the family Court was not bound to treat the said application as an application filed under Order 39, Rule 11 (2) of Code of Civil Procedure.

15. The respondent has placed on record certain receipts to show that the respondent had paid the arrears. They were not paid in full, however an attempt was made. The respondent had filed an application on 09/4/2013 before the Family Court contending therein that the High Court had rejected WP 9581/13 vide order dated 5/4/13 and the respondent is in the process of filing a second Special Leave Petition challenging the said orders and therefore the respondent had prayed for sufficient time to seek appropriate orders from the Higher Courts.

16. Upon perusal of the application dated 9/4/13, it is clear that the said application was filed for seeking an adjournment on the ground that he had approached the Hon'ble Apex Court.

17. It is pertinent to note that the respondent had in fact cross-examined P. W. 3 i.e. Vasudev Madhukar Patil for the petitioner on 4/7/13. Learned counsel for the respondent submits that in view of the fact that the respondent had exercised his right to cross-examine the witness for the petitioner on 4/7/13, the objection in respect of the right to cross-examine has been waived by the petitioner. It is a matter of record that the order below exhibit 12 & 16 was passed on 7/6/2013 and that the present petition is filed on 18/7/13 i.e. the respondent had exercised his right to cross-examine the witness in the intervening period and therefore the submission is devoid of merit.

18. Order 11, Rule 21 reads as follows :

"Non-compliance with order for discovery - [(1)] Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect, and [an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard.]

[(2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action.]"

In the present case, the Family Court had passed an order to the effect that the defence of the respondent is struck off. That would mean that he is not precluded from cross-examining the plaintiff or the witnesses for the plaintiff. He only cannot plead the positive cases which he had or could have put forward in his written statement or substantiate it by leading evidence on his behalf. In the present case, the respondent had pressed the application, seeking to substantiate his defence that the petitioner is not entitled to any maintenance as she is self sufficient and has her own source of income which is being invested through proper channels, into service only after an order striking of his defence had attained finality. Therefore, he would be restrained from leading positive evidence to that effect, however, it could not prevent him from cross-examining the plaintiff or her witnesses. In fact, it simply means that he was not entitled to press his pleas and might not even be entitled to adduce evidence. In light of this, the respondent was permitted to cross-examine the witness for the petitioner on 4/7/13. The same Court should not have allowed the application below exhibit 12 & 16 which were in fact to filed to adduce evidence on his behalf before the Family Court and therefore the learned counsel for the petitioner is right in submitting that the order by which applications below exhibit 12 & 16 have been allowed after striking of the defence of the respondent would cause grave prejudice to the petitioner and would be against the established principles of Law.

19. Learned counsel for the petitioner has placed reliance upon the judgment of Hon'ble Apex Court in the case of Modula India V/s Kamaksha Singh Dev reported in A.I.R. 1989 Supreme Court, 162. The Hon'ble Apex Court has observed thus :

"The words "striking out the defence" are very commonly used by lawyers. Indeed the application made on February 24, 1969 by the plaintiffs was for a direction to order the defences of the defendant to be struck off in default of payment of the amount ordered by the Court. The phrase "defence struck off or "defence struck out" is not unknown in the sphere of law. Indeed it finds a place in Order XI, Rule 21 of the Code of Civil Procedure. In effect, both mean the same thing. Nobody could have misunderstood what was meant. Indeed, one may even say that the phrase "the defence to be struck off" or "struck out" is more advantageous from the point of view of the defendants. Even when a defence is struck off the defendant is entitled to appear, @page-SC 168

Cross-examine the plaintiffs witnesses and submit that even on the basis of the evidence on behalf of the plaintiff a decree cannot be passed against him, whereas if it is ordered in accordance with Section 11 (4) that he shall not be entitled to appear in or defend the suit except with the leave of the Court he is placed at a greater disadvantage."

20. In light of the above discussion, it is held that the respondent has a right to cross-examine the petitioner and her witnesses, however, the interrogatories sought by him below exhibit 12 & 16 cannot be granted in view of the fact that the said interrogatories could have been filed in his defence and that the order striking off the defence of the respondent has attained finality. Hence, in the peculiar facts of this case, the petition deserves to be allowed in terms of prayer clause 'a' & 'b'.

21. As a consequence, the order dated 7/6/13 passed by Family Court No.3, Bandra Mumbai below exhibit 12 & 16 in M.J. Petition No. C/164/2009 is hereby quashed and set aside.

22. Rule is made absolute in above terms.

Ordered accordingly.