Mohammad Aleem vs Smt. Khatija & Anr.

“122.

The Delhi High Court in Santosh Sehgal v. Murari Lal Sehgal [Santosh Sehgal v. Murari Lal Sehgal, 2006 SCC OnLine Del 585 : AIR 2007 Del 210] , framed the following issue for consideration : (SCC OnLine Del para 3)

“3.

… whether the appeal against the decree of divorce filed by the appellant wife can be allowed straightaway without hearing the respondent husband in the event of his failing to pay interim maintenance and litigation expenses granted to the wife during the pendency of the appeal.”

The reference was answered as follows : (Santosh Sehgal case [Santosh Sehgal v. Murari Lal Sehgal, 2006 SCC OnLine Del 585 : AIR 2007 Del 210] , SCC OnLine Del para 5)

“5.

The reference to the portion of the judgment in Rani case [Rani v. Parkash Singh, 1996 SCC OnLine P&H 52: AIR 1996 P&H 175] extracted hereinabove would show that the Punjab and Haryana High Court and the Orissa High Court have taken a unanimous view that in case the husband commits default in payment of interim maintenance to his wife and children then he is not entitled to any matrimonial relief in proceedings by or against him. The view taken by the Punjab and Haryana High Court in Rani case [Rani v. Parkash Singh, 1996 SCC OnLine P&H 52 : AIR 1996 P&H 175] has been followed by a Single Judge of this Court in Satish Kumar v. Meena [Satish Kumar v. Meena, 2001 SCC OnLine Del 817 : (2001) 60 DRJ 246] . We tend to agree with this view as it is in consonance with the first principle of law. We are of the view that when a husband is negligent and does not pay maintenance to his wife as awarded by the Court, then how such a person is entitled to the relief claimed by him in the matrimonial proceedings. We have no hesitation in holding that in case the husband fails to pay maintenance and litigation expenses to his wife granted by the Court during the pendency of the appeal, then the appeal filed by the wife against the decree of divorce granted by the trial court in favour of the husband has to be allowed. Hence the question referred to us for decision is answered in the affirmative.”

The Court concluded that if there was non-payment of interim maintenance, the defence of the respondent is liable to be struck off, and the appeal filed by the appellant wife can be allowed, without hearing the respondent. …. …. …. …. ….

126.

Striking off the defence of the respondent is an order which ought to be passed in the last resort, if the courts find default to be wilful and contumacious, particularly to a dependent unemployed wife, and minor children. Contempt proceedings for wilful disobedience may be initiated before the appropriate court.”

“8.

Paradise Industrial Corpn. v. Kiln Plastic Products [(1976) 1 SCC 91] was a case which arose under the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947. The trial Judge passed an order directing the tenant to deposit certain amounts in court, in default, making the notice absolute and directing that the defence would be struck off and the suit fixed for ex parte hearing. An ex parte decree followed. A Single Judge of the Bombay High Court set aside the ex parte decree on the ground that the above order was illegal and without jurisdiction as it did not conform to the provisions contained in Section 11(4) of the Act in question which only provided that, in case the directions of the court are not complied with, the defendant “shall not be entitled to appear in or defend the suit except with leave of the court, which leave may be granted subject to such terms and conditions as the court may specify”. It did not, in the view of the learned Judge, authorise the court to strike off the defence straightway. Reversing this order of the learned Judge, this Court observed: (SCC pp. 93-94, para 4)

“We are afraid the learned Judge of the High Court has missed the substance and chased the shadow. The words ‘striking out the defence’ are very commonly used by lawyers. Indeed the application made on 24-2-1969 by the plaintiffs was for a direction to order the defences of the defendants 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, cross-examine the plaintiff's 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. The use of the words ‘defence struck off’ does not in any way affect the substance of the order and the learned Judge of the High Court was wholly in error in holding that because of the form of the order passed on 2-6-1969 the order was illegal and without jurisdiction. The order squarely falls within Section 11(4). What the law contemplates is not adoption or use of a formula; it looks at the substance. The order is not therefore one without jurisdiction. It is one which the judge was competent to make.”

“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 4-7-2013. The same Court should not have allowed the application below exhibits 12 and 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 exhibits 12 and 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. …. …. …. ….. ….

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 exhibits 12 and 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’ and ‘b’.”