1 NMS.07.2011-PS.5.2009.sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 07 OF 2011 IN PARSI MATRIMONIAL SUIT NO. 5 OF 2009 Naheed Nowzar Attaie ...Plaintiff Vs. Nowzar Nariman Attaie ...Defendant None for the Plaintiff Ms. T.F. Irani i/b. Mr. Sameer Tendulkar for Defendant CORAM : SMT. ROSHAN DALVI, J. DATED : 4TH AUGUST, 2011 P.C. : 1. The parties have had continuous disputes between them with regard to their marital relationship and also with regard to the maintenance payable to the wife. In the suit filed for restitution of conjugal rights by the wife who claims to have been deserted, an ad-interim order of maintenance came to be passed on 12th March 2010. That order came to be confirmed on 14th August 2010. Both the orders had not been complied. Hence the Plaintiff wife took out an application to seek compliance. The Defendant husband had run up arrears of maintenance to the extent of Rs.1.5 lakhs by then. In the later Notice of Motion taken out by the wife he was directed to clear those arrears under the order dated 10th February 2011. That order has also not been complied. Consequently, the Plaintiff wife has sought to strike off his defence in her suit. 2 NMS.07.2011-PS.5.2009.sxw 2. The Defendant’s defence is by way of a written statement with a counter claim. It is filed under the provisions of Order 8 Rule 6A of the C.P.C. The Defendant contends that his counter claim is a separate suit. 3. The Plaintiff has applied for striking of the Defendant’s defence in her suit under Order 39 Rule 11 of the C.P.C which runs thus: “11. Procedure on parties defying orders of Court, and committing breach of undertaking to the Court. – (1) Where the Court orders any party to a suit or proceeding to do or not to do a thing during the pendency of the suit or proceeding, or where any party to a suit or proceeding gives any undertaking to the Court to do or to refrain from doing a thing during the pendency of the suit or proceeding, and such party commits any default in respect of or contravenes such order or commits a breach of such undertaking, the Court may dismiss the suit or proceeding, if the default or contravention or breach is committed by the plaintiff or the applicant, or strike out the defences, if the default or contravention or breach is committed by the defendant or the opponent. (2) The Court may, on sufficient cause being shown and on such terms and conditions as it may deem fit to impose, restore the suit or proceeding or may hear the party in defence, as the case may be, if the party that has been responsible for the default or contravention or breach as aforesaid makes amends for the default or contravention or breach to the satisfaction of the Court: Provided that before passing any order under this sub-rule notice shall be given to the parties likely to be affected by the order to be passed.” 4. The Defendant contends that he is unemployed and has no 3 NMS.07.2011-PS.5.2009.sxw properties and, therefore, cannot pay maintenance. He claims that that is not a willful defaulter. Order 39 Rule 11 as it stands indeed does not contemplate striking of a defence of a party only upon a willful default. It is the Bombay High Court amendment specifically incorporated to meet the contingencies as in this case. It is, therefore, specifically requires committing any default by the expression “contravenes such order” or commits “a breach” of any undertaking. 5. However in the case of Ramavatar Surajmal Modi Vs. Mulchand Surajmal Modi 2004(Supp.2) Bom.C.R. 298 the Division Bench of this Court did consider the aforesaid provision. It held that the rule is directory and not mandatory. It considered the Supreme Court judgment in the case of M/s. Babbar Sewing Machine Co. Vs. Tirlok Nath Mahajan 6.A.I.R. 1978 S.C.1436 under Order 11 Rule 21 of the C.P.C requiring documents to be offered for inspection. Upon failure to allow discovery of the documents relied upon, the same fate which is envisaged under Order 11 Rule 21 as in Order 39 Rule 11 was considered. Further considering Sub Rule 2 of Order 39 Rule 11, the Division Bench did hold that the default was required to be willful for the Court to exercise its discretion in dismissing the suit or striking off the defence. 6. A party directed to pay maintenance to his wife cannot simplicitor throw up his hands and refuse to pay and claim intent to pay but inability to do so. He has to specifically show how he survives in his unemployment and how he, being an able bodied man, cannot be gainfully employed anywhere, even in self-employment only after his 4 NMS.07.2011-PS.5.2009.sxw marriage or separation. He has to show any special circumstances that may have brought him to such a situation. If he fails to show any of these aspects and yet defaults completely and blatantly, his intern to refuse to make payment willfully has to be imputed. Hence Order 39 Rule 11 would be properly applicable to this case. 7. The Plaintiff’s application is also under Order 8 Rule 6-C of the C.P.C. Under that provision the Plaintiff can claim that the counter claim of the Defendant be excluded, as his claim cannot be disposed off by way of counter claim in her suit, but only by an independent suit. The Plaintiff has not been able to show why that be so. However since a counter-claim is a cross-suit, the Defendant’s counter claim would remain for prosecution. 8. Hence the following order: 1. The Defendant’s defence in the Plaintiff’s suit is struck off. 2. The Plaintiff’s suit is, therefore, decreed. 3. The Defendant may proceed with his counter claim. 4. Notice of Motion is disposed off accordingly. (SMT. ROSHAN DALVI, J.)