CM(M)/310/2022 of HAKIM MUZAMIL YASEEN Vs SHAZLEE FAROOQ AND ORS. on 30 December 2022

1. The petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India seeking dismissal of suit filed by respondents No.1 and 2 against him before the Court of Principal District Judge, Srinagar. Challenge has also been thrown to the proceedings emanating from the aforesaid suit as also to orders dated 31.10.2022, 15.11.2022 and 05.12.2022 passed by the learned trial court. 227 of the Constitution of India seeking dismissal of suit filed by respondents No.1 and 2 against him before the Court of Principal District Judge, Srinagar. Challenge has also been thrown to the proceedings emanating from the aforesaid suit as also to orders dated 31.10.2022, 15.11.2022 and 05.12.2022 passed by the learned trial court.

2. Heard learned counsel for the petitioner and perused the material on record. record.

3. It appears that respondent No.1, who claims to be the wife of the petitioner and respondent No.2, who claims to be the son of the petitioner, have filed a civil suit before the Court of Principal District Judge, Srinagar. In the said suit the respondents/plaintiffs have sought petitioner and respondent No.2, who claims to be the son of the petitioner, have filed a civil suit before the Court of Principal District Judge, Srinagar. In the said suit the respondents/plaintiffs have sought a decree for payment of compensation of an amount of Rs.86,21,000/- as cost of jewellery, gold ornaments, apparels etc, which as per their case has been destroyed, damaged, misappropriated etc by the petitioner and co-defendants. A further decree for recovery of maintenance from the petitioner and co-defendants has also been sought, besides seeking recovery of past maintenance to the tune of Rs.7,95,780.82/- in favour of plaintiff No.1 and Rs.5,96,835/- in favour of plaintiff No.2. A decree for future maintenance for an amount of Rs.60,000/- per month for plaintiff No.1 and Rs.45,000/- per month in favour of plaintiff No.2 with a decree for injunction restraining the petitioner and co-defendants from causing any harassment, humiliation etc to them has also been sought. Several other reliefs have also been sought by the plaintiffs in the said suit.

4. The suit, it seems, has been filed by the plaintiffs as indigent persons and the trial court has granted leave to the plaintiffs to sue as such. It also appears that after the defendants filed their written statement, the learned trial court vide order dated 12.02.2018 decided the application for grant of interim relief that was made by the plaintiffs before the trial court and vide the said order the petitioner/defendant No.1 was directed to pay a sum of Rs.25,000/- per month as maintenance to the plaintiffs till final disposal of the suit. The said order came to be challenged by the petitioner herein by way of an appeal before this Court. In terms of order dated 12.10.2022, passed by this Court in CIMA No.7/2018, the validity of order dated 12.02.2018 was maintained. However, the petitioner was given liberty to seek clarification/modification of the aforesaid order from the trial court during the course of adjudication of the suit.

5. It seems that pursuant to order dated 12.10.2022, the petitioner made an application for modification of order dated 12.02.2018 passed by the trial court. It also appears that the petitioner has not cleared the arrears of the maintenance awarded in favour of the plaintiffs in terms order dated 12.02.2018, as a result of which on 31.10.2022 petitioner was directed to clear the arrears of maintenance at the rate of Rs.25,000/- per month. Vide order dated 31.10.2022, it was also provided that in case the petitioner does not deposit 50% of the arrears of maintenance and future maintenance at the rate of Rs.25,000/- per month, his defence will be struck off. Another order came to be passed by the trial court on 05.12.2022, whereby the petitioner was directed to deposit the 50% of the arrears of maintenance in the Court and to pay future maintenance to the plaintiffs regularly. The record further shows that the petitioner, besides filing an application for modification of order dated 12.02.2018, has also filed another application seeking dismissal of the suit.

6. Learned counsel for the petitioner has contended that without considering these applications, the learned trial court has proceeded ahead to execute the order regarding grant of interim maintenance in favour of the plaintiffs and while doing so the learned trial court has observed that in case of failure to deposit the arrears of the maintenance, defence of the petitioner shall be struck off, which is not in accordance with law. It has been further contended that the suit itself is not maintainable, as the petitioner has divorced respondent No.1, as such, she is not entitled to any maintenance. It is also contended that the order, whereby leave was granted to the plaintiffs to file the suit in the forma pauperis, is also not in accordance with law.

7. So far as the contentions of the petitioner as regards the maintainability of the suit on the grounds urged by the learned counsel for the petitioner are concerned, it is to be noted that the petitioner has already made an application before the trial court seeking dismissal of the suit and the petitioner has also filed his written statement before the trial court. maintainability of the suit on the grounds urged by the learned counsel for the petitioner are concerned, it is to be noted that the petitioner has already made an application before the trial court seeking dismissal of the suit and the petitioner has also filed his written statement before the trial court.

8. The progress of a civil suit has to take place in accordance with the provisions of the Code of Civil Procedure. There is no method beyond the provisions of the CPC to scuttle the progress of the suit. Once the petitioner and the co-defendants have filed written statement and application for dismissal of the suit, it is for the trial court to frame issues on the basis of preliminary objections raised by the defendants as regards the maintainability of the suit and decide the same in accordance with law. The petitioner cannot invoke jurisdiction of this Court under Article 227 of the constitution and seek quashment of the suit itself, when the procedure prescribed by law has not been exhausted. provisions of the Code of Civil Procedure. There is no method beyond the provisions of the CPC to scuttle the progress of the suit. Once the petitioner and the co-defendants have filed written statement and application for dismissal of the suit, it is for the trial court to frame issues on the basis of preliminary objections raised by the defendants as regards the maintainability of the suit and decide the same in accordance with law. The petitioner cannot invoke jurisdiction of this Court under Article 227 of the constitution and seek quashment of the suit itself, when the procedure prescribed by law has not been exhausted.

9. So far as the challenge to the order, whereby the petitioner has been asked to deposit 50% of the arrears of maintenance as also the future maintenance is concerned, it is to be noted that vide order dated asked to deposit 50% of the arrears of maintenance as also the future maintenance is concerned, it is to be noted that vide order dated 12.02.2018, the petitioner has been directed to pay monthly maintenance at the rate of Rs.25,000/- per month to the respondents 1 and 2. The said order has been passed after hearing both the parties, while deciding the application of defendants for grant of interim relief. Validity of this order has been upheld by this Court in appeal. Merely because the petitioner is seeking modification of the said order which is yet to be decided, he cannot avoid implementation of the aforesaid order. The petitioner is bound to pay maintenance, including the arrears of maintenance to respondents No.1 and 2 in accordance with the directions passed by the trial court vide order dated 12.02.2018 or else face the consequences.

10. It is, however, correct that there is no provision in the Code of Civil Procedure which empowers the trial court to strike off defence of a party who violates an interim order. The proper course in such cases is to resort to the provisions of Order 39 Rule 2-A of the CPC. As per this provision in case order of interim relief is not obeyed by the party against whom it is made, the Court may order such person to be detained in civil prison or make an order regarding attachment of the property of such person. Therefore, to the extent learned trial court has imposed a condition that in case the petitioner does not deposit the amount of arrears as per directions contained in the order of the trial court passed on 31.10.2022, the defence of defendant No.1/petitioner shall be struck off, is not in accordance with law. Although it seems that the defence of defendant No.1 has not been struck off in spite of the fact that he has not depoisted the amount in terms of the order of the trial court passed on 31.10.2022.

11. For the foregoing reasons, I do not find any merit in this petition. The same is, accordingly, dismissed with a direction to the trial court to consider the various applications filed by the petitioner and decide and dispose of the same expeditiously with reasonable dispatch. The learned trial court is further directed to take resort to the provisions contained in Order 39 Rule 2-A of the CPC, in case the petitioner fails to comply with order dated 12.02.2018 instead of striking off his defence.

12. Copy of this order be sent to the trial court.

SRINAGAR30.12.2022Sarveeda Nissar

(SANJAY DHAR) JUDGE

Whether the order is speaking: Yes/NoWhether the order is reportable: Yes/No