Courts should not ordinarily take too harsh a view to strike off defense at very early stage, observes HC in marital dispute case

Read Order: Menu Rani v. Tarsem Kumar 

Vivek Gupta

Chandigarh, August 5, 2021: Hearing a petition challenging a lower court order striking off her defense due to delay in filing the written reply, the Punjab and Haryana High Court has held that the courts should not take a harsh view at a very early stage in the matter, to ensure real and substantial justice between the parties. 

“It is trite law that the rules of procedure are handmaids of justice. Any interpretation thereof that led to foil the real and substantial justice between the parties ought to be discouraged,” said the Bench of Justice Arun Monga.

“In present case, on the appointed day, the reply of the petitioner was ready and duly affirmed on oath but it seems that counsel for the petitioner reached the court after the case had already been called out. In any case, no prejudice would be caused to the respondent if the petitioner is permitted to file her written statement even at this stage,” the bench said. 

It further said even otherwise, the provision contained in order 8 rule 1of CPC has been held to be directory in nature by the Supreme Court in Salem Bar Association Vs UOI. 

“The courts should ordinarily therefore not take too harsh a view to strike off the defense at a very early stage,” the High Court said.

The bench granted one more opportunity to the petitioner for filing the written statement subject to the cost of Rs 10,000 in addition to Rs 1500 imposed by the lower court to be paid to the respondent. Both the cost shall be adjusted by the respondent-husband from the maintenance dues payable by him to the petitioner-wife, the HC directed.

Details of the Case

The case pertains to the ongoing proceedings before the additional principal Judge, family court, Bathinda striking off the defense of the petitioner-wife in the application filed by the respondent-husband under section 25 of the Guardian and Wards Act.

The counsel of the petitioner-wife submitted that though the reply of the petitioner was duly drafted in advance and even supporting affidavit thereof was also got attested, by the time her counsel reached and appeared before the court the case had already been called out and the defense of the petitioner was ordered to be struck off and adjourned for evidence of the respondent-husband. 

The petitioner moved application before the trial court for setting aside the said order but it was dismissed.