Mumthas M.K v. Palathinvida Faizal

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 25[TH] DAY OF JANUARY 2023 / 5TH MAGHA, 1944 OP (FC) NO.14 OF 2023 CHALLENGING THE ORDER DATED 14.12.2022 IN I.A.NO.02 OF 2022 IN O.P.NO.691 OF 2020 ON THE FILE OF THE FAMILY COURT, KANNUR** ## **PETITIONER/PETITIONER/PETITIONER:** **MUMTHAS.M.K AGED 32 YEARS D/O.MUHAMMED SALI, RESIDING AT MUMTHAS BAITH, SADULI PALLI, PUZHATHI AMSOM DESOM, P.O. KOTTALI, KANNUR PIN - 670005** **BY ADV K.RAJESH SUKUMARAN** ## **RESPONDENT/RESPONDENT/RESPONDENT:** **PALATHINVIDA FAIZAL AGED 42 YEARS S/O.ABDUL SALAM, RESIDING AT PALATHINVIDA HOUSE, PALLIKUNNBRAM, P.O. AZHIKODE, KANNUR-670009, REP. BY POWER OF ATTORNEY HOLDER, KHAIRUNNISA.P, W/O.MANSOOR, AGED 65 YEARS, RESIDING AT V.P. HOUSE, OLADATHAZHA, AZHIKODE, KANNUR- PIN - 670009** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 23.01.2023, THE COURT ON 25.01.2023 DELIVERED THE FOLLOWING:** 2 O.P.(FC) No.14 of 2023 ## **JUDGMENT** ## P.G.Ajithkumar, J. The petitioner, who filed O.P.No.691 of 2020 before the Family Court, Kannur seeking a decree for dissolution of marriage, has filed this Original Petition under Article 227 of the Constitution of India in order to challenge Ext.P14 order. The petitioner filed I.A.No.2 of 2022 in O.P.No.691 of 2020 seeking to strike off the pleadings of the respondent on the ground that he did not make payment of the maintenance amount ordered in M.C.No.442 of 2018. I.A.No.2 of 2022 was dismissed as per Ext.P14 order. 2. On 12.01.2023, notice was directed to be served on the respondent. The petitioner was also allowed to serve notice on the counsel appearing for the respondents appearing before the Family Court, Kannur where O.P.No.691 of 2020 is pending. A memo stating that in terms of the said order, notice was served on the counsel for the respondents is produced. The respondent did not choose to appear before this Court. 3 O.P.(FC) No.14 of 2023 3. Heard the learned counsel appearing for the petitioner in detail. 4. The learned counsel appearing for the petitioner would submit that admittedly the respondent did not make payment of the maintenance ordered by the Family Court as per its order in M.C.No.442 of 2018 and hence pleadings of the respondent in O.P.No.691 of 2020 should have been struck off by the Family Court. The learned counsel would place reliance in this regard on the decision in **Mahesh v. Roopa [2017 (3) KLT 226]** . It is alleged that the respondent is purposefully avoiding payment of the maintenance amount, which now accumulated to more than Rs.6 lakhs, and in view of such acts, the respondent lost his right to contest O.P.No.691 of 2020. 5. In **Mahesh** (supra), a Division Bench of this Court held that even in a case where Order VI, Rule 16 of the Code of Civil Procedure, 1908 is not applicable, the court has inherent power to invoke Section 151 of the Code to strike off pleadings, if the respondent adopts unscrupulous methods for 4 ## O.P.(FC) No.14 of 2023 avoiding payment of the maintenance as per the orders of the court. The Family Court considered applicability of the ratio of the said decision and also the parameters laid down by the Apex Court in **Abdul Razak v. Mangesh Rajaram Wagle [2010 (2) SCC 432]** to be followed while striking off pleadings. The Family Court held that this is not a fit case where the pleadings of the respondent can be struck off. 6. As per the order in M.C.No.442 of 2018, the respondent was directed to pay maintenance to the petitioner. An execution petition filed by the petitioner for enforcement of that order is pending consideration of the Family Court. The respondent has filed a revision before this Court challenging the order in M.C.No.442 of 2018, which is pending consideration as R.P.(FC) No.61 of 2022. Enforcement of the order in M.C.No.442 of 2018 is not stayed. Therefore there is no hurdle for the petitioner to enforce the said order and realise the maintenance amount. 7. The Family Court took the view that since the order in M.C.No.442 of 2018 is yet to become final and in the facts 5 O.P.(FC) No.14 of 2023 and circumstances of the case, plea of the petitioner to strike off the pleadings of the respondents was not allowable. 8. Going by the provisions of Order VI, Rule 16 of the Code, the striking of pleadings is a discretionary power invested in court. That power can be exercised in certain exceptional circumstances alone. Such a power is not expected to be exercised in routine. O.P.No.691 of 2020 was filed by the petitioner seeking dissolution of marriage of the petitioner with the respondent, which was solemnised on 15.11.2009. The respondent filed an objection and the said O.P. is now ripe for trial. Therefore it is appropriate to dispose of the said case on merits instead of deciding it on default by striking off the pleadings of the respondent. When we say so, we are not forgetting the right of the petitioner to get the amount of maintenance. The petitioner can well enforce the said order, for which the execution petition is already pending. Taking all such matters into account, we are of the view that the Family Court exercised the discretion in a just and proper manner. 6 O.P.(FC) No.14 of 2023 9. In **Jai Singh v. Municipal Corporation of Delhi [(2010) 9 SCC 385]** , while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasijudicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within 7 ## O.P.(FC) No.14 of 2023 the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. ## 10. In **Sobhana Nair K.N. v. Shaji S.G. Nair [2016** **(1) KHC 1]** a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law. 8 O.P.(FC) No.14 of 2023 11. No manifest error can be attributed to Ext.P14 order. Hence, in the light of the law laid down in the aforesaid decisions, we are of the view that this is not a fit case where powers of this Court under Article 227 of the Constitution of India need to be invoked. Accordingly, this Original Petition is dismissed. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 9 O.P.(FC) No.14 of 2023 ## **APPENDIX OF OP (FC) 14/2023** ## **PETITIONER'S EXHIBITS** - **Exhibit P 1 TRUE COPY OF THE ORIGINAL PETITION, O.P 691/2020 FILED BY THE PETITIONER HEREIN, WIFE BEFORE THE FAMILY COURT, KANNUR** - **Exhibit P 2 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENT/ HUSBAND IN OP 691/2020 BEFORE THE FAMILY COURT, KANNUR** - **Exhibit P3 TRUE COPY OF THE ORDER IN EP 46/2021 IN OP 1190/2018 DATED 31.03.2022 ON THE FILE OF THE FAMILY COURT, KANNUR** - **Exhibit P 4 TRUE COPY OF THE ORDER IN CMP 476/2021 IN MC 442/2018 DATED 26.03.2022 ON THE FILE OF THE FAMILY COURT, KANNUR** - **Exhibit P 5 TRUE COPY OF THE ORDER IN I.A 01/2022 IN MAT APPEAL 130/022 DATED 21.02.2022 OF THE HONBLE HIGH COURT OF KERALA** - **Exhibit P 6 TRUE COPY OF THE ORDER IN CRL.M.APPL 01/2022 IN RPFC 61/2022 DATED 15.03.2022 OF THE HONBLE HIGH COURT OF KERALA** - **Exhibit P 7 TRUE COPY OF THE INTERIM ORDER DATED 07.11.2022 IN RPFC 61/2022 OF THE HONBLE HIGH COURT OF KERALA** - **Exhibit P 8 TRUE COPY OF THE PETITION, IA 01/2022 IN OP 691/2020 FILED BY THE POWER OF ATTORNEY HOLDER OF THE RESPONDENT/ HUSBAND TO RECEIVER THE POWER OF ATTORNEY** 10 O.P.(FC) No.14 of 2023 ## **Exhibit P 9** - **TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER/ WIFE IN IA 01/2022 IN OP 691/2020 ON THE FILE OF THE FAMILY COURT, KANNUR** **Exhibit P 10** - **TRUE COPY OF THE ORDER IN IA 01/2022 IN OP 691/2020 DATED 01.06.2022 ON THE FILE OF THE FAMILY COURT, KANNUR** **Exhibit P 11** - **TRUE COPY OF THE JUDGMENT IN OP (FC) 586/2022 DATED 02.11.2022 OF THE HONBLE HIGH COURT OF KERALA** **Exhibit12** - **TRUE COPY OF THE AFFIDAVIT FILED IN IA 02/2022 IN OP 691/2020 ON THE FILE OF THE FAMILY COURT, KANNUR** **Exhibit13** - **TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENT HEREIN IN IA02/2022 IN OP 691/2022 ON THE FILE OF THE FAMILY COURT, KANNUR** - **Exhibit P 14 TRUE COPY OF THE ORDER DATED 14.12.2022 IN IA 02/2022 IN OP 691/2020 ON THE FILE OF THE FAMILY COURT, KANNUR** - **Exhibit P 15 TRUE COPY OF THE REPORTED RULING OF THIS HONBLE COURT IN 2017 (3) KLT 226 OF THE HONBLE HIGH COURT OF KERALA**