Dilip Girdhar Chaudhari vs Nirabai Dilip Choudhari And Anr.
2002 Latest Caselaw 53 Bom

JUDGMENT

1. Present petitioner is the husband. The respondent wife has filed Special Civil Suit No.169 of 1997 for maintenance in the court of learned Civil Judge S.D.Jalgaon on 9.3.2000. The learned Civil Judge S.D. was pleased to allow the interim maintenance in favour of the wife and daughter, at the rate of Rs.500/- each. The interim maintenance is ordered to be paid from the date of application i.e. 24.4.1997. Consequently an amount of Rs.57,000/- has become due by the end of January 2002.

2. On 22.1.2001, an application was filed on behalf of the petitioner pointing out that the defendant has not complied with the order of interim maintenance. Present petitioner filed say stating that he has filed the revision petition before the High Court challenging the order of interim maintenance and the revision was fixed for admission hearing on 23.4.2001. On 8.3.2001, the learned Judge passed an order directing the defendant to clear the arrears of interim maintenance as ordered, latest by 10th of April,2001. Said order also cautioned him that in case of failure to comply, the Court may take an action against him as may be deemed fit and proper. As on the date of this order i.e. 8.3.2001, the amount of Rs.47,000 was due. On 25.4.2001, the learned trial Judge passed another order directing the husband to deposit atleast 50% of the amount as then due as per the order of interim maintenance, failing which the defence of the husband may be struck off. On 31.7.2001, the husband prayed for an adjournment by pleading that he would like to prefer revision petition against the order passed below Exhibit 44 on 25.4.2001. (This is the second order, by which the trial Court directed him to deposit atleast 50% of the amount then due). It appears that on 31.7.2001, the learned trial Judge heard both the parties and passed order striking off the defence of the husband.

3. The order is challenged by the learned counsel for the petitioner, contending that the wife has already filed execution petition No.286 of 2001 for recovering the maintenance amount from the husband and she cannot subject the husband to double geopardy i.e. recover of the amount through execution and simultaneously striking off the defence under Order XXXIX Rule 11 of the Civil Procedure Code (Bombay Amendment).

4. At the opening of his arguments Shri Gholap, learned counsel, has informed this Court that the revision petition filed by the husband challenging the grant of interim maintenance is dismissed by this court.

5. The Bombay Amendment introducing Rule 11 to Order XXXIX of Civil Procedure Code reads as under:

"11. Procedure on parties, defying orders of court and committing breach of under taking to the Court :- Where the court orders any party to a suit or proceedings to do or not to do a thing during the pendency of the suit or proceedings. Or where any party to a suit or proceeding gives any undertaking to the Court to do or to refrain from doing a thing during the pendency of the suit or proceeding, and such party commits any default in respect of or contravenes such order or commits a breach of such undertaking, the Court may dismiss the suit or proceeding, if the default or contravention or breach is committed by the plaintiff or the applicant, or strike out the defences, if the default or contravention or breach in committed by the defendant or their opponent.

(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 amends for the default or contravention or breach to the satisfaction of the Court.

Provided that before passing any order under this sub-rule notice shall be given to the parties likely to the affected by the order to be passed."

6. It is evident that proviso to Rule 11 obliges the Court to give a notice to party likely to be affected by the order in exercise of the powers conferred by Rule 11 of Order XXXIX of C.P.C. As can be seen from the order dated 29.4.2001, the Judge had not only reduced the amount, so as to make it possible for the husband to deposit the same but he had also clearly sounded a notice that failing to deposit this reduced amount, the defence of the husband may be struck off. By contents of application Exhibit 48, it stands confirmed that the husband had received notice of this warning.

7. Shri Gholap, Advocate has raised only one contention that the husband is being put to double jeopardy; one striking of his defence and two recovery of the amount in the execution proceeding. According to him, Rule 11 as introduced by the Bombay Amendment, therefore, will have to be read as available only when the compliance of the order could not otherwise be sought. In other words, according to the Advocate Shri Gholap, whereever orders of the Court can be complied with, in such a case, the Court need not resort to striking of the defence of a party. He has not been able to support the proposition by any precedent or earlier judicial decision.

8. From the portion of rule underlined for the purposes of emphasis and the title part of Rule 11, it is evident that the provision of striking of defence is based on the philosophy that the party which is not prepared to obey the Court, is not entitled to any relief from that Court. It is denial of protection by the Court to a person who does not submit to the rule of the Court. So far as execution of the order is concerned, the same does not remain to be the matter between the Court and disobedient party. The same is zone of civil liability (in this case matrimonial liability) of the defaulter, arising out of legal right/s of his adversary. Generally, opposite party is the beneficiary of the orders complied or got complied per force.

9. If we are to accept the arguments advanced by Advocate Shri Gholap, it would create a conflict between the powers of Court to enforce a litigant to submit to its rule and relief to which a party is entitled to. Non resorting to provision of Rule 11 of Order XXXIX in the matters of orders which can be executed would make the power nugatory because almost all the orders of Courts of law are executable, either by obedience or per force (except for exceptions such as decree for restitution of conjugal rights). Proposition of learned Advocate if accepted, would make the Courts silent spectators of breach / disobedience of their orders, leaving the opposite party to toil in execution proceedings to reap the benefits of uncomplied / disobeyed order. Neither in the letters nor in the spirit of Rule, there is anything suggesting the Courts to abstain from exercising powers under Rule 11, in case of orders which can be otherwise executed. The power to deprive a party to sue or defend, for non compliance / disobedience of Court orders, is thus not dependent on executability or otherwise of the order uncomplied / disobeyed.

The argument of Shri Gholap that the defence could not have been struck off because wife has already filed execution proceeding or she is likely to recover the amount, is therefore, not sustainable.

10. Here itself, it may be pointed out that sub-rule (2) of Rule 11 does provide an erring party an opportunity to amend the mistake. The party is provided with an opportunity, to demonstrate to the satisfaction of the Court "sufficient cause", as to why it has not been able to obey/comply the order passed by the Court, and seek restoration of the suit (in case of plaintiff) or proceed to hear the matter, after considering the defence (in case of defendant) by obeying / complying the order.

11.In the light of above discussion, it is felt that, the trial Court committed no error in striking off the defence of the respondent by the impugned order. The revision petition is therefore, dismissed. Rule discharged. No order as to costs.