1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Writ Petition No. 791 of 2008 [Mrs. Linata Milind Kulkarni Vs. Milind Shridhar Kulkarni] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mrs. Linata M. Kulkarni, the petitioner-in-person. ----- CORAM : A.H. JOSHI, J. DATE : 20th February,2008. 1. The petitioner had filed an application in Regular Civil Suit No. 376 of 2004. In this application, she has pleaded that non-payment of arrears of maintenance amounted to disobedience of order of Court, which was intentional. The petitioner, therefore, prayed for striking off the defence. 2. This application was opposed by the respondent-husband by filing a reply. 3. The Civil Judge [Senior Division] being not satisfied with the submissions, dismissed the application by order dated 4th July, 2006. 4. The petitioner filed Writ Petition No. 4769 of 2006 against the said order, which was set aside and the matter was remanded for fresh hearing and disposal according to law. 2 5. The petitioner then filed Civil Application No. 2294 of 2007 in said decided Writ Petition No.4769 of 2006. In this application, the petitioner had objected to the minutes of order where the Court had recorded Rule  by consent heard forthwith. , alleging that she has not consented for what was recorded. She seems to have sought a clarification as to whether the Trial Court should give an opportunity to the respondent for filing additional documents. This Court directed, while deciding said Civil Application, that the application be heard on the basis of material on record. 6. Application [Exh.43] was again heard and has been rejected by order dated 18th July, 2007. 7. Petitioner then filed Exh.75 before Trial Court seeking review of order passed below Exh.43 on 18th July, 2007, on the ground that the Trial Court has misread this Court's order passed in Civil Application No. 2294 of 2007 where it is recorded in para 6, that the application [Exh.43] be decided considering say/additional documents of the respondent. The application for review is also rejected by order dated 30th January, 2008. 8. The petitioner is before this Court 3 for challenging the order passed below Exh.43 as well as the order passed below Exh.75. 9. Petitioner urges before this Court that the order passed below Exh.43 on 18th July, 2007 is totally erroneous, as :- [a] The Trial Court has completely misunderstood and misread the directions given by this Court in Civil Application No. 2294 of 2007. [b] In the operative order passed below Exh.43, impugned, the Trial Court writes as application is seen and filed , meaning thereby that the Trial Court has not applied its mind to the case at all. 10. Heard the party-in-person at length. Perused the order, the petition. 11. Petitioner was called to tender for perusal the copy of application [Exh.43] and Court has perused it. 12. Petitioner has emphasized from and on reading of impugned order that payments made subsequently are considered by the Trial Court. 13. On perusal of impugned order, it is clear that subsequent circumstances, particularly events which transpired during pendency of application and pendency of 4 proceedings before High Court as to making of payment and withdrawal of amount by the petitioner have been considered by the Trial Court. 14. Based on this fact of payment of arrears, the Trial Court then found that as the payment was made, and petitioner has withdrawn the amount, there is no ground left in the application, and has rejected it. 15. There cannot be plurality of opinions on the point that once this Court directs that any particular case be heard in a particular manner, it ought be complied. This, however, does not exonerate the Court from its duty to decide the issue and question involved in the case and consider what justice demands. 16. Therefore, irrespective of what this Court had directed, the questions, which essentially arise, while deciding Exh.43, have to be :- [a] what was alleged in the application?; [b] whether there were arrears yet unpaid, and to what tune when the application was filed and when it was being heard?; [c] whether the default had continued?, and 5 [d] whether totality of facts warrants striking out of the defence? . 17. The petitioner has orally submitted that even now maintenance of about one year is in arrears. 18. Going strictly on what petitioner wants, namely that no additional material could have been seen by the Trial Court, is whether on the day of application, namely 21st April, 2006, there were arrears of about Rs.60,000-00 as pleaded by the petitioner, and if the finding be in the affirmative, to allow the application and strike off the defence. 19. What the petitioner wants, does not appear to be the scheme of law. Order 39, Rule 11 of Civil Procedure Code, which provides for this course, does not make this Order to be the only course left to the Trial Court. It is one amongst the orders which the Trial Court can pass. Thus, this direction can be given based and guided by discretion. Trial Court was, therefore, in law, under an obligation to examine surrounding circumstances. The fact that subsequently, arrears in a sum of Rs.96,000-00 were paid, is not disputed even now. 20. In fact, the petitioner wants that subsequent events should not be taken into consideration. Had the petitioner not laboured 6 under this conviction, she could have been in a position to demonstrate by filing an affidavit, or otherwise, that even on the date of hearing Exh.43, some amount of maintenance was still in arrears. This fact would have aggravated the situation in favour of the petitioner and against the husband. 21. Petitioner could have addressed the Trial Court on the point as to how the failure to pay was willful. 22. In this background, striking off of defence, which is one of the measures, is not the sole, solitary or mandatory consequence. The Trial Court's order rejecting application [Exh.43], therefore, cannot be said to suffer from any illegality. 23. Effort of the petitioner to urge that subsequent payments nearing arrears till the date of payment should not be considered due to orders passed by this Court amounts to attempting to read the letters of the orders and not the spirit thereof. Payment of arrears of maintenance was the crux, and subsequent payment was bound to be considered. By doing so, Trial Court has done observance of, and not dereliction of its duty. 24. In the circumstances, Writ Petition does not merit interference. It is, therefore, 7 dismissed. 25. This Court wants to record before parting from this order few words for the petitioner. Petitioner is a highly educated lady with prospects of career. It is seen that she is pursuing litigation before Trial Court. She is seen litigating before this Court too, as can be noted from present litigation. She is in her fourth or fifth trip to this Court. She seems to be rightly aware about her rights and is rightly keen on demanding justice. Her efforts would bear sweeter fruits if she pursues the cases by trying for expeditious justice than pursuing cases based on technicalities and repeatedly agitating one and same issue. This Court can express a wish that petitioner saves her time and money and prevents discomfort to her, as attending Courts and waiting is ordinarily not a thing generating joy and pleasure. If the petitioner could focus on concrete steps in hearing of suit and saves time of Court, it would weigh as a compliment in her favour. Judge |Hedau|