Bombay High Court
Arun Baban Sawant vs Surekaha Keru Pimparkar Alias Surekha ... on 24 February, 2016
Author: M. S. Sonak
Bench: M. S. Sonak
This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016
skc JUDGMENT-WP20-9295-5153-14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 20 OF 2014
WITH
CIVIL APPLICATION NO. 2102 OF 2014
IN
WRIT PETITION NO. 20 OF 2014
WITH
CIVIL APPLICATION NO. 2925 OF 2015
IN
WRIT PETITION NO. 20 OF 2014
AND
WRIT PETITION NO. 9295 OF 2014
ig AND
WRIT PETITION NO. 5153 OF 2015
Arun Baban Sawant .. Petitioner
vs.
Surekha Keru Pimparkar @
Surekha A. Sawant .. Respondent
Ms Vidya Gaikwad for Petitioner.
Ms S. Salvi with Muzaffar Baig for Respondent.
CORAM : M. S. SONAK, J.
Date of Reserving the Judgment : 17 February 2016
Date of Pronouncing the Judgment : 24 February 2016
JUDGMENT :-
1] In view of the inter related controversies involved, it would be appropriate if all the petitions and the civil applications therein, are disposed of by this common judgment and order. Accordingly, Rule.
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2] In all these petitions, challenge is to various orders made by the Family Court at Thane in Marriage Petition No. 188 of 2005 instituted by the respondent wife against the petitioner husband.
This is yet another reason as to why, it is appropriate all these petitions and the civil applicators made therein are disposed of by this common judgment and order.
3] In the writ petition no. 20 of 2014, the challenge is to the order dated 21 November 2013 made by the Family Court, declining to condone delay in instituting a review petition against the order dated 9 June 2008, by which, the petitioner, was directed to pay interim maintenance of Rs.3,000/- per month to the respondent wife and Rs.1,500/- per month to their minor daughter from the date of the application i.e. 29 April 2005. In the said order, it was made clear that the petitioner is entitled to set off the amount paid by him towards interim maintenance to the minor daughter, either in the present proceedings, or in the proceedings in the Family Court at Bandra.
2/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:03 :::This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 4] Ms Gaikwad, the learned counsel for the petitioner has submitted that the delay in instituting the review petition was hardly 115 days from the date of knowledge of the fraud played by the respondent wife upon the Family Court. It was contended that the respondent wife has suppressed material particulars, with regard to her own earnings, as well as material particulars with regard to Marriage Petition No. A-892 of 2005 pending before the Family Court at Bandra, in which, there were directions to pay interim maintenance to the respondent wife. Ms Gaikwad submitted that in matters of fraud, delay is really of no avail. In any case, the delay in the present case was hardly 115 days. Ms Gaikwad submitted that the petitioner was facing severe financial crisis and further he had to attend to and expend considerable amounts of money on account of medical expenses concerning his aged parents. Ms Gaikwad submitted that all these facts and circumstances, constitute sufficient cause for condonation of delay in institution of review petition, seeking review of the interim maintenance order dated 9 June 2008.
5] Ms Salvi, the learned counsel appointed under the Legal Aid Scheme who appeared on behalf of the respondent wife has submitted that the order for interim maintenance was made on 9 June 2008 and a review petition, along with application seeking 3/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 condonation of delay was filed only on 11 December 2009 or thereabouts. Accordingly, Ms Salvi submitted that the delay in the present case is not of merely 115 days, but the delay is almost of 17 months, for which, there is no cause, much less, sufficient cause demonstrated in the application seeking condonation of delay. In any case, Ms Salvi submitted that the petitioner has taken out multiple proceedings, merely in order to avoid payment of interim maintenance to the respondent wife and their minor daughter. If the extent to which the petitioner has proceeded, for the purposes of denying even bare interim maintenance to the respondent wife and the minor daughter is examined, then, it is quite clear that the cause shown, smacks malafides. Ms Salvi submitted that there is absolutely no question of any fraud involved and even the order dated 9 June 2008 of which, review is applied for, takes cognizance of the orders made by the Family Court at Bandra directing payment of interim maintenance, and further, even proceeds to grant a set off. On these basis, Ms Salvi submitted that there was absolutely no question of any suppression involved. Ms Salvi submitted that the petitioner by resort to multiple proceedings, is bent upon even stalling the final disposal of the Marriage Petition No. 188 of 2005 and the determination of alimony / maintenance at the final stage. Further, on the pretext of pending proceedings, the petitioner, has not complied with orders for payment of interim 4/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 maintenance. Ms Salvi pointed out that even though, the respondent wife, can hardly afford to, the respondent wife was constrained to institute Contempt Petition No. 189 of 2012 in this Court, wherein, on 6 September 2013, this Court, has observed that the petitioner husband is prima facie in contempt. The Contempt Petition is however pending disposal. For all these reasons, Ms Salvi submitted that writ petition no. 20 of 2014 deserves to be dismissed with exemplary costs.
6] There is clearly no merit in the submission of Ms Gaikwad that the delay in instituting the review petition is only 115 days. The period of limitation for instituting review petition is 30 days from the date of which reviewed is applied for. There is no dispute that the petitioner was clearly aware of the order dated 9 June 2008, on the date, on which the same was made. It is not even the case of the petitioner that the petitioner was made aware of the order dated 9 June 2008 at some later date. The review petition and application seeking condonation of delay, was filed only on 11 December 2009.
In these circumstances, it is quite clear that the delay in the present case is not merely 115 days as alleged by the petitioner, but the delay is of over 17 months.
5/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:03 :::This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 7] In the application for condonation of delay, the petitioner, seeks to compute the period of limitation from the date the petitioner claims he has discovered the so-called fraud played by the respondent wife in obtaining the order dated 9 June 2008. The allegations, are two fold. Firstly, that there was suppression with regard to the Bandra Court proceedings or in any case the respondent wife failed to comply with her undertaking that she will pursue only one of the two proceedings. Secondly, the petitioner had suppressed certain material particulars with regard to her own earnings. On this basis, it is urged that the period of limitation is required to be counted only from the date the petitioner discovered the so-called fraud played by the respondent wife on the Court in the matter of order dated 9 June 2008.
8] If the application for condonation of delay is perused the averments, with regard to the so-called fraud, as well as the date of knowledge of the so-called fraud are quite sketchy and really, deserve no much credence. In any case, if the record including in particular, the order dated 9 June 2008 is perused, it is quite evident that there was no suppression on the part of the respondent wife in so far as the Bandra Court proceedings are concerned. The order dated 9 June 2008, not only takes specific cognizance of Marriage petition No.A-892 of 2005, then pending in the Family Court at 6/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 Bandra, but also the directions made therein, in the matter of payment of interim maintenance. In fact, the order dated 9 June 2008 goes to the extent of granting a set off to certain extent, particularly in the matter of payment of interim maintenance to the minor daughter. Clearly therefore, there was no suppression on the part of the respondent wife in obtaining the order dated 9 June 2008.
9] In case, the petitioner was aggrieved by the order dated 9 June 2008, including in the context of only a limited set off granted, the petitioner ought to have challenged the order dated 9 June 2008 by invoking the appropriate jurisdiction of this Court or even, by instituting a review petition within the prescribed period of limitation.
The petitioner, having failed to do this, cannot, after almost 17 months seek a review, by making some wild and unsubstantiated allegations of fraud, nullity and like wise. The petitioner has also not placed any substantial material on record with regard to the so-
called suppression by the respondent wife with regard to her income. In any case, the order dated 9 June 2008 had only directed payment of interim maintenance. Final maintenance amount, if any, is yet to be determined. In fact, Ms Salvi is right in her submission that the petitioner is bent upon avoiding disposal of the pending petition on its merits. Considered from this perspective it is quite 7/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 apparent that the delay in institution of the review petition was over 17 months and further, no sufficient cause was shown for the same.
In fact, the entire attempt on the part of the petitioner to institute the review petition after such inordinate delay, clearly smacks of malafides. This is because the petitioner, has refused to honour the order dated 9 June 2008, on the grounds of pendency of the review petition. The cognizance of the petitioner's conduct was prima facie taken by this Court in contempt petition no. 189 of 2012 instituted by the respondent wife.
10] This Court, in its order dated 6 September 2013 in contempt petition no. 189 of 2012 precisely in the context of implementation of the order dated 9 June 2008, has observed thus:
"P.C. :
Heard learned counsel appearing for the respective parties.
2 learned Joint Civil Judge Senior Division, Thane on 9 th June 2008 directed respondent to pay an amount of Rs.3,000/- per month by way of maintenance to petitioner and Rs.1500/- to his minor daughter from the date of application i.e. 29th April, 2005. Prior to this order, Family Court, Bandra on 5th January, 2007 passed an order and directed respondent to pay to petitioner an amount of Rs.2,500/- per month and Rs.1,000/- per month to his minor daughter towards maintenance with effect from 7.12.2005. The Joint Civil Judge Senior Division, Thane has also granted set off to the respondent of an amount paid off by him to the petitioner 8/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 towards maintenance in the proceedings before the Family Court, Bandra.
3 It is not disputed by learned counsel for respondent that subsequent to 2009, no amount towards maintenance is paid to petitioner. In my view, respondent is at- least obliged to pay an amount of maintenance at the rate of Rs.3,000/- per month to petitioner. Learned counsel for respondent on the contrary, justifies action of respondent on the ground that review application filed by respondent challenging orders of learned Joint Civil judge Senior Division, Thane and the Family Court, Bandra, is pending. In my view, pendency of revision application is not a ground for non-compliance of the aforesaid maintenance orders.
4 Taking totality of the facts and circumstances into consideration, I am of the view that respondent is prima-facie in contempt. Therefore, Rule. Issue notice under Rule 9(1) of Chapter 34 of the Bombay High Court Appellate Side Rules, 1960.
Office is directed to place this petition for final hearing on 4th October, 2013.
sd/-
(RANJIT MORE, J.)"
[Emphasis supplied] 11] The record will bear out that the petitioner, who is now a practicing advocate, is quite prompt in filing applications for review or recall and thereafter, on the grounds of pendency of the same, the petitioner, avoids compliance with such orders. For this purpose, the petitioner is not at all averse to making wild and reckless 9/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 allegations, not just, against the respondent wife, but also against judicial officers, who may have made certain orders in the proceedings in which the petitioner is involved. Even against the aforesaid order dated 6 September 2013, recording that the petitioner, is prima facie in contempt, the petitioner, chose to institute a review petition, and on the said ground applied for adjournment in the contempt petition. This is recorded in the order dated 4 October 2013 made in contempt petition no. 189 of 2012, which reads thus :
"P.C. :
1. When the matter is called out, the Petitioner as well as her advocate is present in the Court. Though learned counsel for the Respondent is present, the Respondent is not present.
2. Learned counsel appearing for the Respondent seeks time on the ground that the Respondent has filed application for review of the order dated 6 th September 2013 passed in this contempt petition. Pendency of review application cannot be the ground for adjournment and more so for his absence. For the time being taking lenient view, matter is adjourned to 11th October 2013. The Respondent shall attend the Court, until directed otherwise.
Sd/-
[RANJIT MORE, J.)"
12] In support of the petitioner's plea that this was a fit case for condonation of delay, the petitioner, has placed reliance upon the 10/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 following judgments:
(I) State of Bihar & Ors. vs. Kameshwar Prasad Singh & Anr.1;
(II) Improvement Trust, Ludhiana vs. Ujagar Singh & Ors.2;
(III) S. P. Chengalvaraya Naidu (dead) by L.Rs., vs. Jagannath (dead) by L.Rs. and Ors.3;
(IV) Sadhu Muktajivandas Guru Ishwardasji vs. Acharya Shri Devendraprasadji Vasudeoprasadji Maharaj Pande (dead) by his legal representatives4;
(V) State (NCT of Delhi) vs. Ahmed Jaan5;
(VI) Mahesh Yadav & Anr. vs. Rajeshwar Singh & Ors.6;
(VII) Maimun Nisa & Anr. vs. Mohammad Khodabin & Ors.7;
(VIII) Smt. Arati Daw vs. Pradip Roy Chowdhury & Ors.8 13] In the case of Kameshwar Prasad Singh (supra), the Hon'ble Apex Court has held that the Court should have a liberal approach in matters of condonation of delay. In the case of Ujagar Singh (supra), the Apex Court, in the context of failure on the part of a litigant's Advocate to appear on the due date has held that the Court should not have hyper technical approach when it comes to condonation of delay. In the same judgment however, it has also 1 (2000) 9 SCC 94 2 (2010) 6 SCC 786 3 AIR 1994 SC 853 4 AIR 1973 SC 582 5 MANU /SC/7946/2008 - Supreme Court 6 AIR 2009 SC 1064 7 AIR 1985 Patna 55 8 AIR 2003 Calcutta 218 11/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 been held that where malafides are writ large on the conduct of the party, delay should not be condoned. In the case of Chengalvaraya Naidu (supra), upon which, the petitioner has placed reliance at several stages, it is held that fraud vitiates even the most solemn proceedings and the litigant who withholds any vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party. In this case, it is already noted that the respondent wife has not played any fraud upon the Court. In the case of Sadhu Muktajivandas (supra), again, the Hon'ble Apex Court has held that there should be no hyper technical view in matters of condonation of delay. To the same effect, are the decisions in the case of Ahmed Jaan (supra).
In case of Maimun Nisa (supra), the Division Bench of the Patna High Court has held that if fraud is practiced even a compromise decree can be set aside. In Arati Daw (supra), the learned Single Judge of the Calcutta High Court has held that sale though confirmed is liable to be set aside, being vitiated by fraud even after long lapse of 22 years. In the present case, the Family Court, has not adopted any hyper technical approach in the matter of condonation of delay. The reason set out by the petitioner did not constitutes sufficient cause. The delay was inordinate. The conduct of the petitioner was far from bonafide. As such, none of the decisions upon which reliance has been placed by the petitioner, 12/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 really assist the petitioner.
14] From the perusal of the application seeking condonation of delay as well as the material in support thereof, it is quite evident that the cause shown by the petitioner, far from being insufficient, also smacks of malafides. The petitioner, has not at all been candid to the Family Court and the entire object behind the institution of review petition after such inordinate delay was to avoid the payment of even the interim ig maintenance to his own wife and minor daughter. Although, Ms Gaikwad is right in her submission that the petitioner had produced certain documents with regard to the medical case-papers concerning the petitioner's parents, though, the impugned order dated 21 November 2013 states that the same were not perused, it is to be noted that such circumstance hardly makes any difference. The case-papers, do suggest that the parents of the petitioner were undergoing medical treatment.
However, considering the inordinate delay, as well as, lack of bonafides, on the part of the petitioner, there is no case made out for condonation of delay.
15] The impugned order has rightly taken note of the circumstance that the petitioner was himself an Advocate. Ms Gaikwad submitted that at the relevant time, the petitioner was not a 13/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 practicing Advocate. However, the petitioner admittedly possessed LL.B. qualifications and was in service. The observation indicates that the petitioner was not some lay person completely unacquainted with legal procedures. From the multiple proceedings instituted and being instituted by the petitioner, it is quite apparent that the petitioner was very much aware of the legal proceedings and legal consequences. The entire purpose for instituting the review petition after such considerable delay was only to avoid payment of interim maintenance by some means or the other. The impugned order therefore suffers from neither any jurisdictional error nor any perversity. There is no case made out to interfere with the impugned order. The writ petition no. 20 of 2014 is therefore liable to be dismissed and is hereby dismissed with costs accessed at Rs.15,000/-. The Family Court to ensure that such costs are paid by the petitioner within a period of four weeks from today.
16] In writ petition no. 9295 of 2014, the petitioner, challenges the order dated 6 June 2014 made by the Family Court at Thane, striking out the petitioner's defence in Marriage Petition No. 188 of 2005 (now renumbered as F-173 of 2010).
17] Ms Gaikwad, the learned counsel for the petitioner, has submitted that the impugned order dated 6 June 2014, almost 14/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 entirely proceeds on the basis of the order dated 6 September 2003 made by this Court in Contempt Petition No. 189 of 2012, in which it is observed that the petitioner is prima facie in contempt. Ms Gaikwad submits that the Principal Judge of the Family Court was required to apply her mind independently to the facts and circumstances on record and only thereafter, decide whether the petitioner's defence could have been struck off. Ms Gaikwad submits that the impugned order, in so far as it discloses no independent application of mind, is liable to be set aside.
18] The petitioner in support of his contention that his defence ought not to have been struck off, relied upon the following decisions:
(I) S.P. Chengalvaraya Naidu (dead) by L.Rs. vs. Jagannath (dead) by L.Rs. & Ors. (supra);
(II) Bhaurao Dagdu Paralkar vs. State of Maharashtra & Ors.9;
(III) Ravindra Haribhau Karmarkar vs. Mrs. Shaila Ravindra Karmarkar & Anr.10;
(IV) Vithalrao Marotrao Awadhut vs. Smt. Ratnaprabha Awadhut & Ors.11 (V) Shaikh Samsul Hudda & Ors. vs. M/s. Khayber Properties and Investment Pvt. Ltd. & Ors.12;
9 (2005) 7 SCC 605 10 1992 Cri. L. J. 1845 11 1978 Cri. L. J. 1406(1) 12 AIR 2004 Bombay 126 15/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 (VI) Ramavatar Surajmal Modi vs. Mulchand Surajmal Modi13;
(VII) Kavita Krishnamurthy vs. K. N. Krishnamurthy14 19] As noted earlier, the respondent wife has committed no fraud therefore, the decisions in the case of Chengalvaraya Naidu (supra) and Bhaurao Paralkar (supra) are really not applicable. The decision in the case of Ravindra Karmarkar (supra) is also not applicable, because it provides that proceedings before the Criminal Court have to be stayed in case, civil suit for the same relief is pending. The decision in the case of Vithalrao Awadhut (supra) also turns on its own facts and is not at all applicable to the facts of the present case.
20] The decision in the case of Shaikh Hudda (supra) rather than, support the case of the petitioner, in fact, goes against him. In the said decision it is held that imposition of penalty for flouting the orders of the Court, particularly where the challenge is deliberate or willful is within the discretion of the Court. The said decision also lays down that mere filing of a writ petition before this Court, does not amount to stay of proceedings before the lower Court. Party, not participating in the proceedings before the lower court cannot complain denial of opportunity of hearing.
13 MANU/MH/0006/2004 14 III (2015) DMC 420 (DB) (Bom.) 16/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 21] In the case of Ramavatar Modi (supra), the Division Bench of this Court has ruled that the provisions contained in Order 39 Rule 1 of CPC are only directory and not mandatory. This is not the issue involved in the present case. In the present case, considering the conduct of the petitioner and the willful defaults committed by him, the discretion has been appropriately exercised and the defence of the petitioner came to be struck off. In any case, this Court, is going to grant one further opportunity to the petitioner to comply with the orders made by the Family Court.
22] The decision in the case of Kavita Krishnamurthy (supra) is not applicable because this is not a case of mere non compliance or mere breach of the orders by the petitioner. In this case, the petitioner has been deliberately avoiding the compliance with the orders made by the Family Court. The breaches committed by the petitioner are indeed willful.
23] There is no merit in the contention of the learned counsel for the petitioner that the impugned order dated 6 June 2014 has been made without any independent application of mind. In fact, in the present case, the facts, are quite gross. By order dated 9 June 2008, the petitioner was directed to pay the interim maintenance to 17/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 the respondent wife and their minor daughter. The record indicates that the petitioner, despite grant of several opportunities, has refused to comply with the directions for payment of interim maintenance. The petitioner's modus operandi is to go on instituting applications or review petitions, notwithstanding the delay in the institution of the same, and thereafter, refuse to comply with directions for payment of interim maintenance, on the ground that such applications are pending. The petitioner, has placed no material on record to indicate compliance with the order dated 9 June 2008. In these circumstances, there is absolutely no reason to fault the impugned order dated 6 June 2014.
24] If the impugned order dated 6 June 2014 is perused, then it proceeds on two premises. The first premise, which is completely backed by the records, that on the date the impugned order dated 6 June 2014 was made, the petitioner was in arrears in the matter of payment of interim compensation to the extent of Rs.3,00,000/-.
The second premise is that in the contempt petition instituted by the respondent wife complaining about the disobedience of the order dated 9 June 2008, this Court, has prima facie found the petitioner to be in contempt. The petitioner is obviously not right in submitting that the Family Court, has abdicated discretion or has not independently applied her mind. The petitioner, hardly had any 18/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 defence to the application made by the respondent wife seeking the striking off his defence. Accordingly, there is absolutely no jurisdictional error in the making of the impugned order. There is neither any perversity of approach nor is the impugned order vitiated for non application of independent mind.
25] In the course of final arguments, this Court, at least on three occasions, pointedly offered the petitioner opportunity to comply with the order dated 9 June 2008 and pay interim maintenance to the respondent wife and the minor daughter. Ms Gaikwad, the learned counsel for the petitioner, on basis of instructions from the petitioner, who was throughout personally present in the Court, on all three occasions, stated that the petitioner will not pay any interim maintenance to the respondent wife in terms of the order dated 9 June 2008, but, the petitioner can consider making payment of interim maintenance to the minor daughter. From this, it is quite clear that the petitioner, is not even genuinely interested in making any defence in the pending proceedings, but wants to avoid payment of maintenance to the respondent wife.
26] Although, the conduct of the petitioner, deserves no indulgence whatsoever, it must be noted that an order striking off the defence is quite a harsh order. Therefore, the petitioner, is once 19/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 again granted opportunity to pay the entire arrears towards interim maintenance to the respondent wife and the minor daughter, within a period of four weeks from today, by way of demand draft. Such payment can always be made by the petitioner without prejudice. In case, such payment is indeed made within four weeks from today, the petitioner can be granted liberty to present his defence.
Therefore, if the amount is paid within four weeks from today, without seeking any extension or without offering any excuse, the impugned order dated 6 June 2014 shall stand set aside and the petitioner will be granted liberty to present his defence. In case, the petitioner does not avail this opportunity within a period of four weeks from today, the impugned order dated 6 June 2014, shall stand confirmed. The main petition, in any case, is ordered to be expedited and disposed of within a period of six months from today.
27] Rule is accordingly disposed of in writ petition no. 9295 of 2014 in the aforesaid terms. Further, even in this petition, the petitioner shall pay costs of Rs.5,000/- to the respondent wife. The Family Court to ensure that such costs are paid by the petitioner within a period of four weeks from today, irrespective of whether the impugned order is set aside or not.
28] In writ petition no. 5153 of 2015, the petitioner challenges the 20/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 order dated 18 February 2015 made by the Family Court at Thane, directing him to pay the arrears of maintenance to the respondent wife and the minor daughter on or before the next date, failing which, it is recorded that a warrant will be issued for enforcement of the orders directing the petitioner to pay interim maintenance.
29] The impugned order dated 18 February 2015, reads thus :
"Order The Respondent is present. He is in arrears of maintenance since long. He has not paid maintenance even to the child. Hence he is directed to clear the arrears on or before next date, else warrant will be issued.
Sd/-
PJFC 18.02.2015"
30] Ms Gaikwad has challenged the aforesaid order on the ground that there was denial of opportunity of hearing before the impugned order was made. She submitted that the impugned order seeks to enforce the interim maintenance order dated 9 June 2008, which is, itself a nullity because the respondent wife was not entitled to maintain two separate proceedings before the Bandra and Thane Courts. Further, she has repeated that the order dated 9 June 2008 awarding interim maintenance was obtained by fraud, since, the respondent wife, had suppressed her earnings and employment. Ms Gaikwad has further submitted that there was conflict between the 21/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 orders made by the Bandra Court and the Thane Court and complete set off was denied to the petitioner. She submitted that this constitutes fraud. She also submitted that the respondent wife had given an undertaking to discontinue one of the proceedings, however, such undertaking has not been complied with. She submitted that even before the order dated 18 February 2015 could have been passed, the petitioner ought to have been given opportunity of leading evidence in respect of fraud committed by the respondent wife. Finally, she submitted that on the day when the impugned order dated 18 February 2015 was made, the petitioner had already appealed the refusal to condone the delay in the matter of review against order of interim maintenance dated 9 June 2008. For all these reasons, Ms Gaikwad submitted that the impugned order dated 18 February 2015 is required to be set aside.
31] In writ petition no. 5153 of 2015 and in the application seeking recall of the order dated 9 October 2015, the petitioner, has relied upon the following decisions:
(I) Ravindra Haribhau Karmarkar vs. Mrs. Shaila Ravindra Karmarkar & Anr,;15 (II) Vithalrao Marotrao Awadhut vs. Smt. Ratnaprabha Awadhut & Ors.16;
15 1992 Cri. L.J. 1845 16 1978 Cr. L.J. 1406 (1) 22/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 (III) Sangeeta Piyush Raj vs. Piyush Chaturbhuj Raj;17 (IV) S. P. Chengalvaraya Naidu (dead) by L.Rs., vs. Jagannath (dead) by L.Rs. & Ors. (supra);
(V) Bhaurao Dagdu Paralkar vs. State of Maharashtra & Ors.
(supra);
(VI) Pradip Kumar Basu vs. Regional Provident Fund Commissioner & Anr.;18 and (VII) Mr. Chetan Gosar vs. Mrs. Vaishali Chetan Gosar19;
32] Most of the aforesaid decisions relate to the powers of the Court in the matter of recall of its own orders. Obviously, there is no dispute in this regard. However, in this case, the petitioner has not made out any case for recall of the orders. The petitioner, filed the said application for recall, only in order to create some ground work in the matter of breach of undertaking solemnly tendered by him before this Court to clear the arrears of maintenance by way of instalments. The application for recall came to be filed possibly in order to pre-empt any motion for contempt that might be initiated against the petitioner by the respondent wife for repeated and deliberate violation of orders made by the Family Court as also breaches of undertaking given to this Court. In such circumstances, none of the decisions, upon which, the petitioner has placed 17 MANU/MH/0249/1998 18 MANU/WB/0409/2001 19 Writ Petition No. 6661 of 2012 decided on 31 August 2012 23/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 reliance, assist the petitioner, particularly in view of the conduct of the petitioner throughout these proceedings.
33] There is no merit in the repetitive submissions made by Ms Gaikwad. As against the order dated 9 June 2008 awarding interim maintenance in favour of the respondent wife and the minor daughter, admittedly, the petitioner, had not taken out any direct proceedings before this Court. The petitioner after delay of 17 months chose to institute a review petition. The application seeking condonation of delay in filing the review petition was dismissed by the Family Court. This Court, in writ petition no. 20 of 2014, which is being disposed of by the present order, has upheld the order of the Family Court declining to condone delay. This means that there is no proceeding pending to challenge the interim maintenance order dated 9 June 2006. The record bears out it is the petitioner who has been filing various applications and taking out various proceedings, only for the purposes of avoiding the payment of maintenance in terms of the order dated 9 June 2008. There is absolutely no merit in the repeated submissions that the order dated 9 June 2008 has been obtained by the respondent wife by committing any fraud. The petitioner, seems to be under the impression that by alleging fraud but not substantiating the same, he can avoid payment of interim maintenance to his wife and minor 24/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 daughter or at least, delay the payment thereof indefinitely.
Accordingly, there is no merit whatsoever in this petition. The Family Court was entirely justified in making the impugned order.
The writ petition no. 5153 of 2015 deserves to be dismissed and the same is hereby dismissed with costs of Rs.5,000/-. The Family Court to ensure that the petitioner pays this costs to the respondent wife within a period of four weeks from today.
34] This Court, on 9 October 2015, made the following order:
"P. C. :-
1. At the request of learned Counsel for petitioner-
husband Arun Sawant, these matters are adjourned to 18/11/2015 (on Supplementary Board).
2. Learned Counsel for respondent Surekha Sawant points out that the petitioner is in arrears insofar as maintenance to his wife and daughter. The arrears as on date are Rs.3,79,000/-.
3. The learned Counsel for petitioner, as also the petitioner himself states that he shall clear the arrears and that some time and installment facility be granted to him. The petitioner undertakes to this Court that the arrears of Rs.3,79,000/- would be cleared without fail within a period of four months from today, by way of equal monthly installments. The first of such installment which shall be in an amount of Rs.94,750/- shall be paid by the petitioner by way of demand draft drawn in the name of Surekha Sawant latest by 16/11/2015. The petitioner who is present in Court and is himself a practicing Advocate, states that he realizes he 25/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 consequences of giving undertaking before this Court and that he shall comply with such undertaking accordingly. The statement made by the petitioner and the undertakings given, are accepted as undertakings to this Court. The petitioner to file formal undertaking in this Court to the aforesaid effect by 15/10/2015 and furnish copy of the same to the learned Counsel for respondent Surekha Sawant.
4. Place these matters on 18/11/2015 (on Supplementary Board). In case, for any reason, the amount towards first installment is not paid by the petitioner on or before 16/11/2015, the petitioner is directed to remain present personally before this Court.
5. All concerned to act on basis of authenticated copy of this order."
35] The petitioner, despite the undertaking tendered by him personally before this Court, failed to pay even the first instalment of Rs.94,750/- to the respondent wife on 16 November 2015. This was despite the petitioner, who was present in the Court personally, stating that he realises the consequences of giving undertaking before this Court and the non compliance thereof.
36] After the order dated 9 October 2015 was made, the petitioner, took out civil application no. 2925 of 2015 seeking review / recall of the order dated 9 October 2015. The main reason, set out in this review / recall application was that when the order 26/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 dated 9 October 2015 was made, the petitioner was not represented by his usual Advocate i.e. Ms Gaikwad but was represented by some other advocate engaged by him, who was not well experienced. In the said application, the petitioner, admitted having given the undertaking recorded in the order dated 9 October 2015, but the petitioner proceeded to state as follows:
"..... The undertaking was given under the apprehension of adverse order being passed on misrepresentation by the Respondent and in a helpless situation as all the documents pertaining to case were with the Advocate for the Petitioner and not with the Applicant / petitioner or advocate holding for his advocate."
37] In the application for recall, the petitioner has once again, made reference to the chequered case history, indulged into repetitive submissions that the respondent wife has committed fraud, cast aspersions on 'amicus curiae' by which the petitioner probably means the legal aid penal counsel appointed to appear for the respondent wife. The petitioner, who is practicing Advocate, in the ground raised by him in this application, has alleged that 'justice hurried is justice buried.' 38] When the matter was called out on 18 November 2015, and it 27/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:03 ::: This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 was pointed out that the petitioner has not complied with his own undertakings recorded in order dated 9 October 2015, Ms Gaikwad, the learned counsel for the petitioner made the submission that the petitioner has filed a petition before the Hon'ble Chief Justice seeking transfer of the matter and on the said ground, she applied for adjournment, which was granted and the petitions were posted to 4 December 2015 in order to enable the petitioner to obtain orders for transfer.
39] After the application for transfer was rejected and the matter came up for further consideration on 15 February 2016, the learned counsel for the petitioner applied for adjournment stated that she does not have the certified copy of the order by which her praecipe seeking transfer of this matter was disposed of. Upon being shown the record shows as well as the order in this regard, Ms Gaikwad stated that she was not prepared to argue the matter on 15 February 2016 and applied for a short adjournment. Accordingly, the matter was posted to 17 February 2016.
40] From the aforesaid, it is apparent that the petitioner, is bent upon filing multiple proceedings, not averse to making reckless allegations not just against the respondent but also against judicial officers and even the Advocates appearing for the respondent. The 28/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:04 ::: This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 petitioner, files lengthy review petitions or recall petitions, every time alleging fraud, not bothering to substantiate such fraud. It does appear that the petitioner is bent upon frustrating the respondent's claim for interim maintenance by such means. There is absolutely no substance in the civil application no. 2925 of 2015 seeking recall of the order dated 9 October 2015. The petitioner despite giving an undertaking has breached the same with impunity. The conduct of the petitioner is such as dis-entitles the petitioner to any equitable relief in the writ petitions instituted by him.
41] For the aforesaid reasons, Rule is discharged in writ petition nos. 20 of 2014 and 5153 of 2015. However, Rule is disposed of in writ petition no. 9295 of 2014, as directed in paragraph '26' of this judgment and order. The petitioner shall, however, pay consolidated costs of Rs.25,000/- (Rupees Twenty Five Thousand) in all the three petitions to the respondent - wife within a period of four weeks from today. The Family Court to ensure that the petitioner pays such costs to the respondent wife. The civil applications are also disposed of.
42] In addition to the aforesaid, the petitioner is also directed to deposit costs of Rs.10,000/- (Rupees Ten Thousand) in this Court, within four weeks from today. Once deposited, the Registry is 29/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:04 ::: This Order is modified/corrected by Speaking to Minutes Order dated 29/02/2016 skc JUDGMENT-WP20-9295-5153-14 directed to pay such costs to Ms S. Salvi, the learned counsel appointed under the Legal Aid Scheme, who has very ably assisted the respondent - wife in this case.
(M. S. SONAK, J.) 43] At this stage, learned advocate for the petitioner requests for a stay upon the direction issued in this petition, for a period of four weeks. During pendency of this petition, there was no interim relief as such in operation. Limited interim relief had been granted on the basis of undertaking tendered by the petitioner that he would pay the arrears of maintenance by way of four installments. The petitioner, however, has breached this undertaking. In these circumstances, it is not possible to grant any interim relief to the petitioner. The request for interim relief is therefore not accepted.
(M. S. SONAK, J.) Chandka 30/30 ::: Uploaded on - 24/02/2016 ::: Downloaded on - 31/07/2016 06:28:04 :::