1 3073.11-wp IN THE HIGH COURT OF JUDICATURE AT BOMBAY. APPELLATE JURISDICTION. WRIT PETITION NO. 3073 OF 2011 Sonal Amit Shah. ... Petitioner. V/s. Amit Rasiklal Shah. ... Respondent. Rakesh K. Agarwal for the petitioner. Mrs.T.F.Irani for the respondent. CORAM: R.M.BORDE, J. DATED : 14th September 2011. P.C. : An application was tendered by the petitioner- wife requesting the Court to strike out the defence of the respondent- husband on account of non-observance of the direction issued by the Court while passing the order in respect of payment of interim maintenance while dealing with Application No.A-1143/2007 decided on 15th January 2009 by the Principal Judge, Family Court, Mumbai. By virtue of the said order, respondent-husband is directed to pay Rs. 20,000/- per month to the petitioner and Rs.10,000/- per month to two sons each from the date of the application i.e. 31st May 2007 until disposal of the main petition. It is the contention of the writ petitioner that finality is attached to the order in respect of grant of maintenance 2 3073.11-wp dated 15th January 2011 as the challenge raised by the respondent to the order has been turned down by the higher Courts. It is further contended that the respondent willfully contravened the order and did not pay the amount as directed by the Family Court and, as a result of breach of the order, his defence is liable to be struck down in terms of rule 11 of order 39 of Code of Civil Procedure, 1908 (C.P.C.). Rule11 of order 39 of C.P.C. Reads thus: “11. Procedure on parties defying ores 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 proceedings gives any undertaking to the Court to do or to refrain from doing a thing during th 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 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. 3 3073.11-wp 2. The Court is invested with the powers to strike out defence in the event any party to the proceeding commits breach of the undertaking or fails to observe the directives issued by the Court. The Court dealing with the matter in such circumstances 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 defence, if the default or contravention or breach is committed by the defendant or their opponent. 3. In the instant matter, breach is alleged against the respondent- husband. On perusal of the statement forwarded by the petitioner herself it is clear that the petitioner- wife is in receipt of the amount of Rs.11 lakh which was received by her towards pendent lit maintenance. In this view of the matter, a conclusion is necessary to be drawn that during the pendency of application at Exh.76, order passed by the Family Court in respect of payment of pendent lite maintenance was substantially complied with. The Family Court in these peculiar circumstances did not deem it necessary to direct striking out of the defence. The discretion exercised by the Family Court is in consonance with rule 11 of order 39 of C.P.C. No error apparent on the face of record appears to have been committed by the trial Court while passing impugned order. Petition is devoid of any substance and, hence, rejected. 4. Pending civil application, if any, does not survive and stands disposed of accordingly. (R.M.BORDE, J.)