1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 572 OF 2007 WITH CIVIL APPLICATION Nos. 1044/07 & 308/09 Narsimallu Venkatti Kompelli ........Appellant/Applicant versus Lata Narsimallu Kompelli ........ Respondent. Mr. Sunil More adv. for the Appellant/Applicant Mr. Geeta Mulekar adv. for the respondent CORAM: A. P. DESHPANDE, J. DATED : 11th FEBRUARY, 2009. P.C.: 1. Heard. By consent of parties, taken up for final hearing. 2. This second appeal is directed against the judgment and decree dated 1-11-2002 passed in Hindu Marriage Petition which is confirmed by the dismissal of the appeal preferred by the present appellant. The respondent wife initiated proceedings under sections 10, 25 and 26 of the Hindu Marriage Act against the husband and claimed maintenance, besides claiming the relief of judicial separation. The trial court decreed the suit and granted relief of judicial separation so also awarded permanent alimony at the rate of Rs.5,000/- per month to the respondent 2 herein so also her three children by name Monica, Rita and Suraj. It is not in dispute and rather it is an admitted position that on account of non payment of the amount of maintenance as directed by the court, the defence of the present appellant was struck off. Consequent upon striking of the defence, the appellant was not permitted to cross examine the respondent wife and her witnesses. There being no evidence led by the present appellant and in the absence of any cross examination, which was not permitted to the appellant, a decree came to be passed. The first appellate court has dismissed the appeal filed by the present appellant and consequent upon which the second appeal has been filed. The following substantial question of law emerges for consideration: “Whether an order striking off defence goes to dis- entitle the party against whom such an order is passed from cross examining the plaintiff ?” 3. As stated hereinabove, it is an admitted position that the appellant was denied the opportunity to cross examine the respondent wife, when she deposed before the trial court touching the issue of judicial separation and maintenance, resulting in passing of a decree in favour of the respondent. The question is no longer res integra and is squarely covered by the judgment and decree of this court in Sheshrao Raibhan Ingale Vs. Shilpa Sheshrao Ingale reported in 2005(2) All M.R. 184. 3 This court has held that striking of the written statement of the defendant would have an effect of not enabling him to press his pleas and might not even be entitled to adduce evidence. In paragraph 18, the Division Bench observed thus: “But that could not prevent him from cross examining the plaintiff and his witnesses and from showing that on the basis of the material on record, the plaintiff was not eneitled to any decree. The striking out defence does not necessarily mean that the plaintiff's suit should automatically stand decrees.” If this be the position in law, it is crystal clear that the courts below have erred in denying an opportunity of cross examination to the present appellant. The judgments thus, which are impugned in the appeal, are rendered in breach of principles of natural justice. The above referred question of law if answered in favour of the appellant, in view of the judgment of the Division Bench, assumes the character of substantial question of law as the answer to the said question in favour of the appellant would have an effect of reversal of the judgment and decree. Hence the appeal deserves to be allowed. 4. At this stage, the learned counsel for the respondent has pointed out that the appellant has not deposited the amount of maintenance as directed by the court. On account of non compliance of the order the respsondent's defence has already 4 been struck of, and he cannot be further made to suffer any other disability in the conduct of the trial. No doubt the respondent is justified in claiming the arrears of maintenane but even in that regard there are certain dispute. In this second appeal, I do not propose to enter into the controversy of the actual amount due and payable by the appellant to the respondent and/or entitlement of the respondent to claim a given sum of amount. I make it clear that all the questions in regard to the arrears of maintenance would be gone into by the court below and an appropriate order in accordance with the law will have to be passed. 5. In the result, the appeal is allowed and the judgment and decree passed by the court below is set aside. The matter is remanded back to the trial court for its re-trial wherein the appellant will be offered an opportunity to cross examine the respondent and her witnesses. Having regard to the fact that the proceedings are pending before the trial court since long, I deem it appropriate to direct the trial court to decide the Hindu Marriage Petition as expeditiously as possible and preferably within a period of six months from today. The learned counsel for the appellant assures this court that he shall co-operate the trial court in expeditious disposal of the petition. The parties may request the trial court to commence the trial on 27-2-09 by permitting the appellant to cross examine the respondent. It is 5 also made clear that the applicant may move an application under section 20(3) of the Act with a view to claim maintenane for the unmarried daughter. Parties are directed to appear before the trial court on 27-2-2009. The parties to bear their own costs. (A. P. DESHPANDE, J.)