Noushad Valappad vs Sunayna Tarakad
2010 Latest Caselaw 69 Bom

                                       1        WP. 6077/2010-FCP. A-498/2009

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                  
                  APPELLATE CIVIL JURISDICTION




                                                          
                 WRIT PETITION NO. 6077 OF 2010
                               IN
             FAMILY COURT PETITION NO.A 498 OF 2009




                                                         
    Noushad Valappad                                      ...Petitioner
         Vs.
    Sunayna Tarakad 
    @ Sunayna Noushad Valappad                            ...Respondent




                                             
    Mr. Mohan Pillai i/b. Smt. Madhavi M. Pillai for Petitioner
                             
    Mr. Vivek Kantawala with Ms. Sneha Nanandkar
    i/b. M/s. Vivek Kantawalla & Co., for Respondent
                            
                                  CORAM : SMT. ROSHAN DALVI, J.
                                     DATED  : 20TH OCTOBER, 2010
        


    ORDER :

1. Rule, made returnable forthwith.

2. The Petitioner husband has applied for quashing the orders of the Family Court, Mumbai dated 5th January 2010 and 5th April 2010 in the Divorce Petition. The husband as well

as his Advocate were absent before the Court on 5th January 2010. The order dated 5th January 2010 rejects an application filed by the Clerk of the Advocate of the husband for adjournment.

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3. It also grants the application of the Respondent wife who

had applied for an order of "no written statement" in her Petition for Divorce.

4. The order dated 5th April 2010 is for the grant of interim

maintenance upon the application for maintenance taken out by the wife.

5. Though both the orders are completely different, they both

are sought to be challenged in this Petition together.

6. The Petition for divorce was filed by the wife on 17th February 2009 and registered on 3rd March 2009. Service of the Petition was directed and the Petition was adjourned

to 18th April 2009. Service has been effected on 26th March

2009.

7. On the next date of hearing, which was on 18th April 2009 the husband remained absent. However since the summons was not returned the Petition was adjourned to

11th June 2009.

8. On 11th June 2009 the summons, which was duly served was considered. The husband remained present. Certain applications were taken out and the Petition was adjourned

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to 30th July 2009.

9. On 30th July 2009 the husband remained absent. The written statement was not filed as enjoined in the C.P.C. On

15th September 2009 the conciliation report was filed upon the parties remaining present. On 5th November 2009

again the husband remained absent and the Petition was adjourned to 16th December 2009.

10.On 7th November 2009 the husband took out two

applications, one for access to his child and the other to take the matter on board. Since the say of the wife was

required, the applications were also adjourned to 16th December 2009 to which date the Petition was already adjourned.

11.On 16th December 2009 also the husband did not file his written statement. The wife made an application for

proceeding without the written statement. The application was adjourned for the say of the husband to 5th January 2010.

12.Even on 5th January 2010 the husband did not file his written statement. He did not remain present. His Advocate did not remain present. His Advocate's Clerk made an application for adjournment. That application

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was rejected. The wife's application for proceeding without written statement was granted. The Petition came to be

adjourned to 22nd February 2010.

13.On 27th January 2010 the husband made application to set aside the order of proceeding without written statement.

That application was adjourned to 22nd February 2010 along with the Petition.

14.On 22nd February 2010 that application came to be rejected

and hence the order of proceeding without written statement came to be confirmed.

15.The husband contends that he had affirmed his written statement, it was sought to tendered, but not accepted.

16.This procedure is seen to be endemic in the Family Court, which was specifically constituted not to have such time

consuming, elaborate, redundant procedures of making applications after applications instead of replying to the main application itself.

17.The Family Court is required to act in family matters for bringing to an end the dispute between the parties without recourse to tardy procedures. Consequently, the main Petition has to be replied first. All the contentions in the

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main Petition being replied, can be considered by the Court at one time. The issue of maintenance, access etc., would

be considered alongwith or in the main Petition.

18.It is seen that the husband has scant regard for the breach of the law or the orders of the Court. He did not comply

with the basic requirement of filing his written statement promptly. It should have been filed within 30 days of the service of the summons. It is taken to be a lawful right not

to file written statement for 90 days. In this case even after

90 days the written statement was not filed. The husband absented himself and applied for adjournment or appeared

in Court and failed to file his written statement, but took out applications to "take matter on board" and to set aside the order of "No Written Statement" rather than tender the

written statement itself. The Roznama of the Family Court

shows two applications disposed of by two orders on 5th January 2010. One was the rejection of the application for

adjournment tendered by the Clerk of the Advocate of the husband. The other was the order granting the application of the wife for "No Written Statement" taken out on the

previous date of hearing being 16th December 2009.

19.Even thereafter on the next date of hearing the husband failed to produce or tender written statement and request the Court to take in on file. No Court would have refused

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such a request. But instead, the husband took out an application "to take the matter on board". It is esoteric

how a party who has been refused the right to file written statement in accordance with law can direct the Court to

take his matter on board. Such application was rightly rejected.

20.On the further date of hearing being 22nd February 2010 also the husband did not tender his written statement and

request the Court to take it on file. He filed two other

applications instead. Those were to set aside orders passed on 5th January 2010. As aforesaid, one order dated 5th

January 2010 rejected his application for adjournment. The other was the order of "No Written Statement" - i.e to proceed with the Suit exparte or without the written

statement. They were rightly rejected.

21.The exparte decree was not passed on 22nd February 2010

though the Petition was ripe for such decree. That was because the Husband took out the aforesaid two applications, which though were disposed off, the Petition

was again adjourned.

22.Mr. Pillai on behalf of the husband claims that thereafter the husband affirmed his written statement and sought to tender it to Court which was rejected. There is no noting

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of the Court in that behalf. Such oral claim cannot even be countenanced. The husband has shown the Court an

affirmation of a written statement which is produced from his custody. It is not understood that if his written

statement was ready on 22nd February 2010, why was not that not got affirmed and tendered to Court and why were

two needless, redundant, applications made to Court instead and why the Family Court was burdened to decide such applications instead of being shown the husband's

defence in the Petition on merits. This shows not only

disobedience of the law, but impudence to Court. It is seen that the learned Judge has proceeded perfectly, correctly

and appropriately. It is also seen that the wife has made a legitimate application for bringing to an end her dispute by an order of the Court, as all her allegations remained

uncontroverted. The husband callously and impudently

ignored her Petition by failing to reply to it all together.

23.It is time that the inappropriate practice of sabotaging the entire spirit of the Family Court's act by parties and/or the Advocates by taking out needless applications and not

replying to the main application itself be brought to the end it deserves.

24.The husband has not shown the Court any sufficient cause for not filing the written statement within time or even for

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not filing the written statement in the extended time granted by the Court by adjourning the Petition to 5th

January 2010. The husband has not taken out any application for condonation of delay in filing the written

statement upon showing sufficient cause at all. In fact no such cause is shown to this Court too.

25. Mr. Pillai relied upon the judgment of the Supreme Court in M/s. R.N. Jadi & Brothers & Ors. Vs. Subhashchandra

AIR 2007 SC 2571 which observes about the Court's power

to accept written statement filed beyond time. Ofcourse, such power is implicit in any Court. It is discretionary. It

can be exercised only judiciously and reasonably. It cannot be sought to be exercised upon browbeating the Court. It should not be exercised when no case for such exercise is

made out. It can never be sought or claimed as a right of a

defaulting party. It can only be claimed upon first submission to the rule of law and further plea of sufficient

course for the delay necessitating the inherent power of the Court being exercised with an end to do justice when deserved.

26.Mr. Pillai also relied upon another judgment of the single Judge of the Delhi High Court in the case of Info Edge (India) Ltd., & Ors. Vs. Mr. Sanjeev Goyal [In Civil Suit (O.S.)No.783/2006 decided on 16.11.2007] which is on

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materially different parameters. That is the case of exceptional circumstances beyond the control of the

Defendant in filing his written statement. This case shows no circumstances at all why the indulgence of the Court

can be sought. This case is merely of unexplained, unreasoned default.

27.Under these circumstances this Writ Petition is taken out by a defaulter. Granting a writ to such a defaulter and setting

aside the orders legitimately passed would be travesty of

justice. It is seen that on 5th January 2010 the order of no written statement was rightly passed. The application

again to set aside the same order was rightly rejected on 22nd February 2010. The rejection was correct because there was "No Written Statement" even on that date. Hence

the order dated 5th January 2010 now does not deserve to

be set aside at all.

28.As a corollary it is seen that the wife's case must be considered Ex-parte for want of any defence whatsoever.

29.Her application for interim maintenance was considered on 5th April 2010. Even to that application on merits no reply was filed. The husband has produced the reply affirmed by him in the Family Court before this Court today! The Family Court passed an order of interim maintenance on 5th

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April 2010, when both parties were present and heard. The Court's order cannot be faulted on any score. The husband

can blame only himself. It is not only improper, but mischievous to challenge an order passed upon statements

not controverted in the competent Court.

30.The Advocate for the husband now contends that the affidavit in reply to the application for interim maintenance was sought to be tendered after affirmation to the Court,

which was not accepted. His statement cannot be

accepted. Though the husband has filed various redundant applications including "application to take the matter on

board", "application for setting aside the order dated 5th January 2010", he has not taken out any application to tender his reply to the interim application for maintenance.

He has also not served a copy of the said reply upon the

wife.

31.Consequently, the order granting interim maintenance also cannot be faulted.

32.The entire exercise of not filing the reply within time and then seeking to set aside the order passed in a Writ Petition is fraught with impertinent mischief.

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33.The Writ Petition completely lacks bonafides and is,

therefore, dismissed with costs.

34.There is no interim order continuing in this Petition. None can be continued.

(SMT. ROSHAN DALVI, J.)