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2024 DIGILAW 1533 (KER)

Preetha, D/o. Rajam v. Hareesh Kumar, S/o Rajan Achari

2024-11-21

DEVAN RAMACHANDRAN, M.B.SNEHALATHA

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JUDGMENT : DEVAN RAMACHANDRAN, J. We commence being fully apprised that the legal issues qua Order VI, Rule 16, read with Section 151, of the Code of Civil Procedure (C.P.C), apropos of the striking off pleadings of litigants, have been declared affirmatively by a learned bench of this Court in Shafi and Another v. Raihanath [ 2018 (3) KLT 437 ]. 2. The learned Bench interpretatively has held-to which we fully affirm-that: “1. Striking off the defence is a drastic action especially in proceedings relating to matrimonial disputes. An order striking off the defence has tremendous impact on the fate of the litigation and the rights of the parties. It renders the party defenceless. 12. The power of the Court under O.6 R.16 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') to strike out the defence can be exercised only in the specific circumstances mentioned therein. Unless any of the circumstances which are referred to in O.6 R.16 of the Code are present, the Court cannot strike off the defence in exercise of the power under that provision. But, outside the provisions contained O.6 R.16 of the Code, the Court has inherent power to strike off defence. A Court is meant to do justice and it is intended to be an effective adjudicator of disputes. Then, it must inevitably be clothed with necessary power to deal with situations which may arise where the Court must have power to strike off defence so that the people will continue to repose faith in the system and resort to lawful means which are provided by the Courts. It is for the purpose of preserving its power and effectiveness that the Courts have recognized inherent power to strike off the defence (See Jayasree v. Vivekanandan, 2012 (2) KHC 199 : 2012 (2) KLT 249 2012 (2) KLJ 295 : ILR 2012 (2) Ker. 243). 13. There is inherent power in the Court to pass such orders as are necessary for the ends of justice or to prevent the abuse of the process of the Court. S.151 of the Code saves the inherent powers of the Court and, in exercise of that power, the Court can strike off the defence in deserving cases for meeting the ends of justice. S.151 of the Code saves the inherent powers of the Court and, in exercise of that power, the Court can strike off the defence in deserving cases for meeting the ends of justice. If a party to a proceedings before the Court has wilfully disobeyed the orders of the Court, the Court can strike off the defence. Striking off the defence of the spouse, who does not honour the order of the Court, is the instant relief that can be granted to the opposite party. The Court cannot be a mute spectator watching flagrant disobedience of the interim orders passed by it showing its helplessness in instant implementation of such orders. Law is not that powerless. If the husband has wilfully failed to make payment of maintenance and litigation expenses to the wife, his defence can be struck out in exercise of the powers under S.151 of the Code. 14. The considerations which weigh with the Court in an application under 0.6 R.16 of the Code and in a case of exercise of inherent power are completely different. True, in the instant case, the application for striking out the defence was made by the wife under O.6 R.16 of the Code. But it is well settled that the omission to refer to the correct provision of law which is the source of power of the Court, or the mentioning of a wrong provision, will not by itself render an order invalid or illegal. Law is well settled that it is the substance and not the form which is to be looked into by a Court of law while deciding any lis and appropriate relief to a party shall not be withheld on the technical ground that the nomenclature of an application has been made wrongly. Non mentioning or wrong mentioning of provision of law would not be of any relevance, if the Court has the requisite jurisdiction to pass an order (See Nagappa v. Muralidhar, 2008 (2) KHC 810: AIR 2008 SC 2010 : 2008 (6) SCALE 642 : 2008 (2) Crimes 219 (SC): 2008 (5) SCC 633 : 2008 (3) KLT 158 : 2008 (2) SCC (Cri) 677: 2008 (2) Guj LH 553: 2008 (6) Mah LJ 515.). Mentioning of a wrong provision or non-mentioning of any provision of law would, by itself, be not sufficient to take away the jurisdiction of a Court if it is otherwise vested in it in law. While exercising its power, the Court will merely consider whether it has the source to exercise such power or not (See Kumaradasan Nair v. IRIC Sohan, 2009 KHC 241 : AIR 2009 SC 1333 : 2009 (1) KLT 874 : ILR 2009 (2) Ker. 75: 2009 (2) SCALE 544 : 2009 (12) SCC 175 ). If an authority has a power under the law, merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law (See N. Mani v. Sangeetha Theatre, 2004 KHC 1684: 2004 (12) SCC 278 and Ram Sunder Ram v. Union of India, 2007 KHC 3798: 2007 (13) SCC 255 : 2007 (3) KLT SN 63).” 3. Normally, therefore, nothing remains to be said; but in this case an additional layer of argument has been brought in by the petitioner namely that when pleadings are filed by multiple parties together and one of them is found to be in flagrant default of an earlier order to pay maintenance, all of them should be subjected the rigor of their pleadings being struck down, under the ambit of the afore statutory provisions. 4. Sri.Aswin P.John – learned counsel for the petitioner, predicated that his client is justified in having approached this Court against Ext.P5 order of the learned Family Court, because, even though pleadings of the 1st respondent therein - namely her husband, has been struck off for the reason that he did not comply with the directions in M.C.No.435/2016 - whereby, he had been asked to pay interim maintenance to her - the learned Court erred in not doing so as regards the pleadings of the other respondents, though they had filed the same together and jointly. He argued that when the pleadings are joint and filed together, the striking of the same qua one of the respondents alone would be purposeless and hence impermissible and untenable; thus praying that Ext.P5 be set aside and his client’s application be allowed as against all respondents. 5. We notice from the endorsements on file that the summons issued by this Court to respondents 2 to 5 have been accepted; while, that to the 1st respondent has been returned with the endorsement “refused by father because the 1st respondent is out of station”(sic). However, in the nature of the opinion that we propose to record, it would not be necessary to await any further. 6. As we prefatorily said, Shafi (supra) has dealt with the ambit and the contours of the applicable statutory prescriptions, to hold that courts are inherently empowered to strike off pleadings of a party who fails and refuses to comply with legal orders, especially to pay maintenance to the spouse/children, within the sweep of Section 151 of the Code of Civil Procedure, even if not under Order VI, Rule 16 thereof; but recognising that such is a drastic step, warranted by reasons that are not merely cogent, but compelling. 7. In the case at hand, it is ineluctable - as is expressly conceded - that the pleadings of the 1st respondent, namely the husband of the petitioner, has already been struck off, since he has refused to honour the earlier order to pay maintenance to the petitioner; but the learned Family Court has been very cautious in not doing it qua the other respondents because, they did not, admittedly, suffer any such order. 8. The singular question before us is whether, pleadings which are filed jointly and in common, should be struck off in its toto - namely even that of those respondents who have not violated an earlier order of the Court - solely because, one of them did so, either voluntarily or otherwise. 9. An answer to the above would require not much labour from us because, Shafi (supra) provides enough and more illumination. 9. An answer to the above would require not much labour from us because, Shafi (supra) provides enough and more illumination. As manifest from the afore extracted portion in the judgment, the learned Bench has postulated that even where the statutorily prescribed criteria may not be available under Order VI Rule 16 of the CPC, a Court can still strike off defence/pleadings of a party - when he/she is established to have violated earlier orders, particularly of maintenance, invoking the inherent power under Section 151 of the CPC. 10. Though we intend to travel with such a view fully, we remind ourselves that Order VI Rule 16 of the CPC permits the striking off the pleadings in the case of noticed abuse of the processes of law. The phrase “processes of law” is something which, most of the time, defies a precise definition; but encompasses all the components of fair play, equity and justice. The deliberate and willful refusal to comply with an order binding a party, militates against the purity and integrity of the processes and surely would scandalise the very purpose for which they are enlivened and engrafted in the statutes. The damage to a party enjoying an order of maintenance, of being denied of its fruits, is, more than often, undefinable because the beneficiary is forced to continue to litigate and suffer the burden of all its nuances. This is not something that can be taken lightly; but as we said above, even though our view might be slightly different from Shafi (supra), particular context we choose to go with it fully in the context of this case because, either way, the intent is Courts must obtain enough powers to be in charge of processes and to ensure that no one is allowed to reap benefit by voluntary and deliberate defiance of lawful orders. 11. The forensic attributes being so noticed, when one returns to the case at hand, none of the respondents, except the 1st respondent, is stated to have violated the order of the learned Court in M.C.NO.435/2016. He has been thus found liable for his pleadings to be struck down; and he does not appear to have filed any appeal against the same as of now – at least, not to our knowledge. He has been thus found liable for his pleadings to be struck down; and he does not appear to have filed any appeal against the same as of now – at least, not to our knowledge. However, the question whether such a rigour should be visited upon the other respondents also, merely because they have filed pleadings jointly with him, surely can only attract an answer to the negative. This is because, none of those respondents are concededly in violation of any order, nor can they be seen to have acted in abuse of the processes of law. 12. In such scenario, we find no fault in the impugned order of the learned Family Court, particularly since, it has correctly concluded that it is only the 1st respondent who is liable to have his pleadings struck off, and not the others. We, therefore, dismiss this Original Petition, confirming the impugned order; however, leaving liberty to the petitioner to invoke every other remedy, at any stage of the proceedings, as may be available to her in law.