Jayan S/o Ponnu v. Suja

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN MONDAY, THE 3RD DAY OF APRIL 2017/13TH CHAITHRA, 1939 OP (FC).No. 557 of 2015 (R) ---------------------------- (AGAINST THE ORDERS IN I.A.NO.2060/2015 IN O.P.103/2012 DATED 09/11/2015 OF THE FAMILY COURT, IRINJALAKKUDA) PETITIONER/RESPONDENT: --------------------- JAYAN S/O.PONNU, PURANATTUKARA HOUSE, AVINISSERI VILLAGE AND DESOM, THRISSUR DISTRICT. BY ADV. SRI.K.MUHAMMED SALAHUDHEEN RESPONDENT/PETITIONER: --------------------- SUJA AGED 34 YEARS, D/O.GOPALAN, KANNIMALI KARUVAN VEETTIL, CHUNGAM DESOM, AMBALLOOR VILLAGE, MUKUNDAPURAM TALUK 682315 BY ADV. SRI.P.K.SAJEEV THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 03-042017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (FC).No. 557 of 2015 (R) ---------------------------- ## APPENDIX ## PETITIONER'S EXHIBITS --------------------- P1 - TRUE COPY OF MEMORANDUM OF ORIGINAL PETITION PENDING AS OP NO.103/2012 OF THE FAMILY COURT, IRINJALAKKUDA. P2 - TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER BEFORE THE FAMILY COURT THRISSUR IN OP NO.1456/2006. P3 - TRUE COPY OF THE CERTIFICATE DATED 25.09.2015 P4 - TRUE COPY OF THE EXPARTE JUDGMENT IN O.P. NO.103/2012 OF THE FAMILY COURT IRINJALAKKUDA DATED 18.2.2014 P5 - TRUE COPY OF THE MEMORANDUM OF APPEAL IN MAT APPEAL NO.210/2015 ON THE FILES OF THIS HON'BLE COURT. P5(a) - TRUE COPY OF THE JUDGMENT IN MAT APPEAL NO.210/2015 OF THIS HON'BLE COURT DATED 01.09.2015 P5(b) - TRUE COPY OF THE JUDGMENT IN R.P.952/2015. P6 - TRUE COPY OF THE I.A.NO.2060/2015 IN O.P.NO.103/2012 ON THE FILES OF THE FAMILY COURT, IRINJALAKKUDA DATED 27.10.2015 P7 - TRUE COPY OF THE OBJECTIONS FILED BY THE PETITIONER IN EXHIBIT P6 IA DATED 03.11.2015 P8 - TRUE COPY OF THE ORDERS OF THE FAMILY COURT IN IA NO.2060/2015 DATED 09.11.2015 RESPONDENT'S EXHIBITS --------------------- NIL TRUE COPY PA TO JUDGE ## **A.M.SHAFFIQUE, J & K.RAMAKRISHNAN, J** ## *** * * * * * * * * * * * * *** O.P.(F.C.) No.557 of 2015 ---------------------------------------Dated this the 3[rd] day of April 2017 ## **J U D G M E N T** ## **Shaffique, J** This original petition is filed challenging the direction issued by the Family Court striking off the defence of the petitioner. 2. When the matter was being heard, this Court had directed the petitioner to deposit 50% of the arrears of maintenance amount within a period of four weeks. The said amount has not been deposited so far. The only issue that has arisen in the present lis is whether the Family Court was justified in striking off the defence of the petitioner. 3. Perusal of the impugned order, Ext.P8 would show that the application was filed in I.A.No.2060/2015 in O.P.No.103/2012. The original petition was originally filed before the Family Court, Thrissur in 2006 which was transferred to the Family Court, Irinjalakkuda and re-numbered as above. The original petition was decreed directing the 1[st] respondent/petitioner herein to pay Rs.1,41,800/- with interest @ 6% per annum. The petitioner O.P.(F.C) No.557/2015 2 herein filed an application under Order 9 Rule 13 of the Code of Civil Procedure and also preferred Mat.Appeal No.210/2015 before the High Court. The High Court had set aside the judgment and directed the matter to be decided on merits. Thereafter, fresh notice was issued and again the petitioner herein was set ex parte. Later on, the ex parte order was suo motu revoked at the time of grant of objections. In the meantime, an application was filed under Section 151 of C.P.C inter alia seeking for striking off the defence for non-payment of arrears of maintenance ordered in M.C.No.231/2012. 4. The main contention urged by the petitioner herein is that in so far as the order to pay maintenance had been passed in M.C.No.231/2012, a situation as warranted under Order 6 Rule 16 has not arisen in the case. 5. Perusal of the impugned order would show that the order is passed under Section 151 C.P.C. The position is some what covered by the judgment of this Court in **Mangalam v. Velayudhan Asari** _[1992 (2) KLT 553]_ wherein a learned Single Judge of this Court had occasion to consider similar issue and it was observed that inherent powers of this Court can be invoked O.P.(F.C) No.557/2015 3 to strike off the defence if there is noncompliance of the directions issued by this Court. The above judgment came to be considered by the Division Bench of this Court in **Jayasree v. Vivekanandan** [ _2012 (2) KLT 249_ ] and the judgment has been approved. If there is no provision under Order 6 Rule 16 for striking off the pleadings where the Court can pass an order under Section 151 C.P.C. Order 6 Rule 16 of C.P.C reads as under: _“_ _**Striking out pleadings** .- The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading-_ _(a) which may be unnecessary, scandalous, frivolous or vexatious, or_ _(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or_ _(c) which is otherwise an abuse of the process of the Court.”_ The above provision itself would indicate that the Court may, at any stage of the proceedings, an order for striking out any pleading which, among other factors, include abuse of the process of Court or which may be unnecessary scandalous, frivolous or vexatious or it may tend to prejudice, embarrass or delay the fair O.P.(F.C) No.557/2015 4 trial of the suit. 6. The contention urged by the respondent herein is that though there was a direction in M.C.No.231/2012 for payment of maintenance, so far no such amount had been paid and therefore the question is whether the defence can be struck off. It is apparent from Order 6 Rule 16 itself that wide powers had been given to the Court to strike off the pleadings on various circumstances. This is a typical case where, when maintenance had been ordered in a case pending before the Family Court under Section 125 Cr.P.C, without paying maintenance, in an original petition filed seeking return of gold ornaments and recovery of money, an objection is being raised. Of course, there cannot be any dispute that if it was the same case, the Court can pass such an order. 7. The only question to be considered is whether, when the direction to pay maintenance is passed in a case between the same parties, the defence in another case can be struck off. The very purport of the provision under Order 6 Rule 16 is to ensure that there should not be any vexatious litigation. Further, disobedience of order passed by the Court would also amount to O.P.(F.C) No.557/2015 5 abuse of process of Court. When a direction has been issued by the Family Court directing payment of maintenance and when there is non-compliance, the question is whether such a person should be allowed to defend other connected proceedings. After considering the earlier judgment in **Parukutty Amma v. Thankamma Amma** _[1988 (1) KLT 883]_ and also **Narayanan Nadar v. Jayakodi Ammal** _[1990(1) DMC 596]_ of the Madras High Court, it was held that the Court has inherent jurisdiction under Section 151 of the Code of Civil Procedure, to give effect to its order. It had inherent jurisdiction to prevent the abuse of the process of the court. In giving effect to its order, the the Court below is justified to strike off the defence, even if there is no such provision in the Hindu Marriage Act. 8. This is also a peculiar case in which the attempt of the petitioner is to defend the proceedings under the Hindu Marriage Act without paying any maintenance. The very attitude of the petitioner amounts to abuse of process of Court which cannot be permitted by a Court of law. 8. Under such circumstances, we are of the view that the Family Court was justified in issuing the impugned direction. O.P.(F.C) No.557/2015 6 Since no grounds are made out to interfere with the impugned order, this original petition is dismissed. (sd/-) (A.M.SHAFFIQUE, JUDGE) (sd/-) (K.RAMAKRISHNAN, JUDGE) jsr