1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION CIVIL APPLICATION NO.906 OF 2010 IN WRIT PETITION NO. 1729 OF 2009 Mr. Simon George David ...Applicant (Orig. Respondent) Vs. Mrs. Assumption Simon David ...Respondent (Orig. Petitioner) Osman Chishty i/b. Jude Fernandes for Applicant Respondent in person present CORAM : SMT. ROSHAN DALVI, J. DATED : 28TH APRIL, 2010 P.C. : 1. The application is for modification of my order dated 8 th March 2010. My order dated 8 th March 2010 is passed in the Applicant’s Writ Petition. The Writ Petition challenges the order of interim maintenance of the District Judge dated 15 th October 2008. My order shows under what circumstances that order came to be passed. 2 2. To repeat I may mention that the order of the District Judge granting interim maintenance to the wife of the Applicant came to be passed after the application for interim maintenance was taken out and adjourned on number of occasions for the reply, if any, of the husband who is the Applicant herein. This was even after the Applicant herein was served and applied for time to file his reply to two applications taken out by his wife – one for injunction and one for interim maintenance. Whereas the Applicant replied the application for injunction, he failed to reply the application for interim maintenance. After being given three chances on 14 th August 2008 when he filed one reply. And after adjourning the application for interim maintenance on 25 th September 2008, 4 th October 2008 and 15 th October 2008, for his reply, the learned District Judge was constrained to pass the Ex-parte order. This order has been passed on the averments made by the wife. The averments made by the were uncontroverted they had to be accepted by the Court. The Court therefore, did the right thing in accepting those averments and passing the order upon those averments. On the averments that the Applicant herein earned the salary equivalent to Rs.40,000/- p.m working in Doha Quatar, the learned Judge passed the order of interim maintenance of Rs.14,000/- p.m for the wife and 3 children of the Applicant herein. The learned Judge has been rather kind to the Applicant. Upon this order, which cannot be faulted, his Writ Petition came to be disposed off by the conditional order directing him to deposit the entire arrears after giving him credit, if any, for the amount deposited. The amount is not deposited and hence the Writ Petition has come to be dismissed. 3 3. The Applicant now contends in affidavit filed by him that his Advocate was unwell and has produced certain documents. This aspect was not stated in the application and the documents were not produced before the Court when this application for modification of the order dated 8 th March 2010 came to be made. The Applicant has now produced the documents as directed. The documents show that the learned Advocate for the Applicant was ill in September 2008. However the Applicant had taken time on 9 th June 2008 itself and was to file his reply which he did to the Application for injunction on 14 th August 2008. On 14 th August 2008 his Advocate was not unwell or ill or hospitalized. Hence the Applicant has shown nothing other than the fact that he had really no defence to the application for interim maintenance upon the averments of his wife that he earned Rs. 40,000/- p.m. Had he any defence on merits he would have shown that defence on merits when his Advocate represented him and filed a reply on his behalf on 14 th August 2008. 4. The Applicant would have been heard on merits if he deposited the entire arrears of maintenance for his wife and his 3 children. That having not been done within the time stipulated, the Writ Petition has stood dismissed. 5. The application for modification of my order dated 8 th March 2010 is entirely misconceived. 6. Application is dismissed. (SMT. ROSHAN DALVI, J.)