Brijesh Kumar, J. - (1.) THIS is a first appeal against an order of the Additional Judge Family Court, Lucknow in Case No. 174 of 1981, striking off the defence of the appellant. We have heard the learned counsels for the parties.
(2.) THE point involved is short. It appears that on 25 -11 -1991, the present appellant moved an application through her Pairokar for adjournment of the case till second week of December on the grounds that she was unable to attend the court on that date and that she wanted to get the proceedings stayed by filing some petition in the High Court. The respondent, who was the petitioner in Suit No. 174 of 1981, appears to have strongly opposed the prayer. Ultimately, the court rejected the application for; adjournment and passed an order striking off the defence of the appellant and thereafter it fixed 27 -11 -91 for final hearing. Learned counsel for the appellant submits that in any case, the part of the order striking off the defence of the appellant is bad. The submission is that on rejecting the application for adjournment, the courts could proceed with the matter but on that ground, there was no justification for striking off the defence. Sri N.N. Jaiswal appearing for the appellant contends that in such proceedings before the family court, provisions of C.P.C., apply but striking off defence is not envisaged, in the circumstances as they exist in the present case. He has placed before us Section 10 of the Family Courts Act, 1984, which reads as follows - - 10. Procedure generally. - -(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings (other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974), before a Family Court and for the purposes of the said provisions of the Code, Family Court shall be deemed to be a civil court and shall have all the powers of such court. (2) Subject to the other provisions of this Act and the Rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court. (3) Nothing in sub -section (1) or sub -section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject -matter of the suit or proceedings or at the truth of the facts alleged by one party and denied by the other.
(3.) IT is submitted that under the Code of Civil Procedure, there is no provision, providing for striking of the defence except under Order XV Rule 5 which had been added by the U.P. Amendment, but Rule 5 provides for striking of the defence in cases where a party fails to deposit the admitted rent of the accommodation in dispute. We find that the learned counsel for the appellant is right in submitting that Order XV Rule 5 would not be applicable to the present case. No other provision under the C.P.C., has been indicated providing for striking off defence.;