Full Judgment Text
9-wp-12981-2018.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.12981 OF 2018
Evelyn Pacifico Gonsalves ...Petitioner
vs.
Eleanor Evelyn Gonsalves ...Respondent
Mr. R.S. Apte, Sr. Advocate a/w. Mr. D.H. Shukla i/b.Yash
Associates, for the Petitioner
Ms. Ghazala Khan, for Respondent
CORAM : M. S. SONAK, J.
DATE : DECEMBER 06, 2018
JUDGMENT :
. Heard Mr. R.S. Apte, learned senior counsel for the
Petitioner and Ms. Ghazala Khan, learned counsel for the
Respondent.
2. Rule.
3. Rule is made returnable forthwith with the consent of
and at the request of learned counsel for the parties.
th
4. The challenge in this Petition is to the order dated 26
September, 2018 made by the learned Family Court at Mumbai.
The operative portion of this reads as follows:
1. The application is allowed.
2. The respondent's defence is hereby strike out
under Order 39 Rule 11 of C.P.C for non payment of
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maintenance amount.
3. Cost to follow the cause.
5. Today Mr. Apte on the basis of instruction from the
Petitioner who is present in the Court makes a statement that the
Petitioner will pay the arrears of maintenance, which, have, by now
come to Rs. 6,12,500/ within a period of four weeks from today.
He states that the Petitioner will also file an undertaking to the
said effect. Mr. Apte submits that in such circumstance, the harsh
order of striking of Petitioner's defence may be set aside.
6. Ms. Ghazala Khan, learned counsel for the Respondent
opposes the request made on behalf of the Petitioner. She submits
that the Petitioner is in default for payment of maintenance for a
considerable period. She submits that no payments were made
despite the fact that joint pursis were filed in which the Petitioner
undertake to pay the maintenance of Rs. 12,500/ p.m. with
respect of their son Ethan. She submits that it is only after the
Respondent was forced to take out execution proceeding that
amount of Rs. 2 lakhs was ultimately paid. For all these reasons
Mr. Khan submits that this Court may not interfere with the
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impugned order dated 26 September, 2018.
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7. In the fact and the circumstances of the present case,
the request made by learned senior counsel Mr. Apte appears to
quite reasonable request. The Respondent, is no doubt entitled to
insist that the order for maintenance made in favour of their son
Ethan should to be complied with and respected. However, the
order for striking out defence is discretionary. The discretion can in
a given case and depending upon facts be exercised in favour of a
defaulting party provided defaulting party gives firm commitment
to the Court that such default will be make good within a
reasonable period. Since in the present case, the Petitioner is
willing to give undertaking that the maintenance amount in terms
of joint pursis which as of now comes to Rs. 6,12,500/ will be
positively cleared within four weeks from today, some discretion
can be exercised in favour of the Petitioner. The Petitioner deserves
to be granted at least one chance in order to defend the proceeding
before the trial Court.
8. This Petition is therefore disposed of with the following
order:
(i) The Petitioner, consistent with his statement to file an
undertaking in this Court within a period of one week from today
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that he shall clear the arrears of maintenance of Rs. 6,12,500/ on
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or before 6 January, 2019;
(ii) The Petitioner, consistent with such undertaking actually
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clears the arrears of maintenance as aforesaid on or before 6
January, 2019.
(iii) In case there is any difficulty in payment of said amount
directly to the Respondent, the Petitioenr is at liberty to deposit
th
this amount before the trial Court on or before 6 January, 2019.
(iv) In case the Petitioner fails to file undertaking in the aforesaid
terms within one week from today, then this Petition shall be
deemed to have been dismissed without any further reference to
this Court but with cost of Rs. 25,000/.
(v) Similarly, if the amount of maintenance is not paid or
th
deposited on or before 6 January, 2019 even then this Petition
shall be deemed to have been dismissed without any further
reference to this Court but with cost of rs. 25,000/.
(vi) If the undertaking is filed and the payments are
made/deposited consistent with such undertaking and within the
th
time period stipulated above, then the impugned order dated 26
September, 2018 shall be deemed to have been set aside. The
Petitioner in such situation will be entitled to defend proceeding
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before the trial Court.
(vii) The trial Court is requested to adjourn tomorrow's hearing
th
and give suitable date beyond 6 January, 2019.
(viii) The trial Court, in any case, is requested to dispose of the
Petition A2575 of 2013 and E248 of 2013 as expeditiously as
st
possible but in any case on or before 31 July, 2019.
(ix) This Court has not adverted to the merits of the respective
Petitions filed by the parties and all contentions are left open for
determination by the learned Family Court on their own merits an
in accordance with law.
(x) Rule is made absolute with the aforesaid terms.
(xi) There shall be no order as to cost.
(M. S. SONAK, J.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.12981 OF 2018
Evelyn Pacifico Gonsalves ...Petitioner
vs.
Eleanor Evelyn Gonsalves ...Respondent
Mr. R.S. Apte, Sr. Advocate a/w. Mr. D.H. Shukla i/b.Yash
Associates, for the Petitioner
Ms. Ghazala Khan, for Respondent
CORAM : M. S. SONAK, J.
DATE : DECEMBER 06, 2018
JUDGMENT :
. Heard Mr. R.S. Apte, learned senior counsel for the
Petitioner and Ms. Ghazala Khan, learned counsel for the
Respondent.
2. Rule.
3. Rule is made returnable forthwith with the consent of
and at the request of learned counsel for the parties.
th
4. The challenge in this Petition is to the order dated 26
September, 2018 made by the learned Family Court at Mumbai.
The operative portion of this reads as follows:
1. The application is allowed.
2. The respondent's defence is hereby strike out
under Order 39 Rule 11 of C.P.C for non payment of
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maintenance amount.
3. Cost to follow the cause.
5. Today Mr. Apte on the basis of instruction from the
Petitioner who is present in the Court makes a statement that the
Petitioner will pay the arrears of maintenance, which, have, by now
come to Rs. 6,12,500/ within a period of four weeks from today.
He states that the Petitioner will also file an undertaking to the
said effect. Mr. Apte submits that in such circumstance, the harsh
order of striking of Petitioner's defence may be set aside.
6. Ms. Ghazala Khan, learned counsel for the Respondent
opposes the request made on behalf of the Petitioner. She submits
that the Petitioner is in default for payment of maintenance for a
considerable period. She submits that no payments were made
despite the fact that joint pursis were filed in which the Petitioner
undertake to pay the maintenance of Rs. 12,500/ p.m. with
respect of their son Ethan. She submits that it is only after the
Respondent was forced to take out execution proceeding that
amount of Rs. 2 lakhs was ultimately paid. For all these reasons
Mr. Khan submits that this Court may not interfere with the
th
impugned order dated 26 September, 2018.
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7. In the fact and the circumstances of the present case,
the request made by learned senior counsel Mr. Apte appears to
quite reasonable request. The Respondent, is no doubt entitled to
insist that the order for maintenance made in favour of their son
Ethan should to be complied with and respected. However, the
order for striking out defence is discretionary. The discretion can in
a given case and depending upon facts be exercised in favour of a
defaulting party provided defaulting party gives firm commitment
to the Court that such default will be make good within a
reasonable period. Since in the present case, the Petitioner is
willing to give undertaking that the maintenance amount in terms
of joint pursis which as of now comes to Rs. 6,12,500/ will be
positively cleared within four weeks from today, some discretion
can be exercised in favour of the Petitioner. The Petitioner deserves
to be granted at least one chance in order to defend the proceeding
before the trial Court.
8. This Petition is therefore disposed of with the following
order:
(i) The Petitioner, consistent with his statement to file an
undertaking in this Court within a period of one week from today
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that he shall clear the arrears of maintenance of Rs. 6,12,500/ on
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or before 6 January, 2019;
(ii) The Petitioner, consistent with such undertaking actually
th
clears the arrears of maintenance as aforesaid on or before 6
January, 2019.
(iii) In case there is any difficulty in payment of said amount
directly to the Respondent, the Petitioenr is at liberty to deposit
th
this amount before the trial Court on or before 6 January, 2019.
(iv) In case the Petitioner fails to file undertaking in the aforesaid
terms within one week from today, then this Petition shall be
deemed to have been dismissed without any further reference to
this Court but with cost of Rs. 25,000/.
(v) Similarly, if the amount of maintenance is not paid or
th
deposited on or before 6 January, 2019 even then this Petition
shall be deemed to have been dismissed without any further
reference to this Court but with cost of rs. 25,000/.
(vi) If the undertaking is filed and the payments are
made/deposited consistent with such undertaking and within the
th
time period stipulated above, then the impugned order dated 26
September, 2018 shall be deemed to have been set aside. The
Petitioner in such situation will be entitled to defend proceeding
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before the trial Court.
(vii) The trial Court is requested to adjourn tomorrow's hearing
th
and give suitable date beyond 6 January, 2019.
(viii) The trial Court, in any case, is requested to dispose of the
Petition A2575 of 2013 and E248 of 2013 as expeditiously as
st
possible but in any case on or before 31 July, 2019.
(ix) This Court has not adverted to the merits of the respective
Petitions filed by the parties and all contentions are left open for
determination by the learned Family Court on their own merits an
in accordance with law.
(x) Rule is made absolute with the aforesaid terms.
(xi) There shall be no order as to cost.
(M. S. SONAK, J.)
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