The court affirmed its inherent power under Section 151 of the Code of Civil Procedure to strike off a defendant's defense for non-compliance with interim orders.

JUDGMENT

1. The defendant in O.S.No.56/2020 of the Munsiff Court, Parappanangadi, is the petitioner herein. The petitioner is challenging Ext.P10 order, by which his defence is struck off by the Trial Court.

2. The respondent/plaintiff filed the suit for mandatory injunction and also for realization of money, which is payable as licence fee by the petitioner/defendant. During the pendency of the suit, the plaintiff filed I.A.No.4/2021 seeking direction to the defendant to pay Rs.3,52,800/- being the undisputed arrears of licence fee payable to the plaintiff within a reasonable time. The Trial Court dismissed I.A.No.4/2021 as per Ext.P5 order holding that the question of arrears of licence fee is a matter to be adjudicated in the suit. On filing C.M.A.No.5/2022 by the plaintiff, the Appellate Court passed Ext.P6 order setting aside

Ext.P5 Order and directing the defendant to deposit arrears of licence fee at the rate of Rs.13,500/- from the date of the suit till the date of payment and to continue to deposit the monthly license fee for the subsequent period till the date of decree before the Trial Court on or before the 5 th of every succeeding month. The First Appellate Court fixed the licence fee at the rate of Rs.13,500/- since the said rate was admitted by the defendant in his written statement. The defendant challenged Ext.P6 order before this Court by filing O.P .(C)No.2508/2023 and this Court dismissed the same by Ext.P7 Judgment.

3. In spite of passing Ext.P6 Order by the First Appellate Court and confirming the same by Ext.P7 Judgment by this Court, the defendant continued to default payment of the arrears and monthly licence fee in violation of the Ext.P6 order. On account of the continued violation of Ext.P6 Oder, the plaintiff filed I.A.No.9/2024 to strike off the defence of defendant and the same was allowed by the Trial Court as per Ext.P10 order.

4. I heard the learned counsel for the petitioner Sri. Thareeq Anver K. and also the learned counsel for the respondent Sri.K.P .Sudheer.

5. The learned counsel for the petitioner argued that the Trial Court should not have invoked Section 151 of the Code of Civil Procedure (for short, the Code) to strike off the defense of the defendant. The power to strike off the defense for non- compliance of the order of the Trial Court is not available as per the Code. Though Order 6, Rule 16 of the Code is there to strike out the pleadings, it does not deal with the power to strike off the defense for non-compliance of the order of the Court. Hence, the Bombay High Court has included Order 39 Rule 11 in the Code, which enables the court to strike off the defense if default, contravention or breach is committed by the parties. Likewise, in the State of Uttar Pradesh also similar provision was included under Order 15 Rule 5 in the Code. In the absence of any similar provision through State amendment in Kerala, the Courts in Kerala do not have power to strike off the defense for non-compliance of the order of the Court. When such power is not available in the in the Code, the power under of the Code could not be invoked by the Trial Court.

6. The learned counsel for the respondent pointed out that the said issue is answered by this Court recently by the decision in Pramod v. Secretary, Sultanpet Diocese Society [2024 (5) KLT 750] . In the said decision, the aforesaid State amendments were also considered and this Court specifically found that when the power is absent in the Code, the same can be invoked under Section 151 of the Code and that power to strike off the defense can be invoked under S.151 of the Code. It is useful to extract the relevant portion of paragraph Nos.28 and 29 in this regard.

“28.

To invoke Section 151 of the Code, two concepts have to be borne in mind. The first is that, an order under is necessary “for the ends of justice”. The second situation is that such order is necessary “to prevent abuse of the process of the court”. Therefore, the question which re