The High Court allowed this matrimonial appeal and set aside the Family Court's order dismissing the original petition for default. The restoration of the suit was directed on the condition that the appellant deposit a specific sum within two weeks.
Restoration of O.P.No.328/2005 on condition of depositing Rs. 500 within two weeks by the appellant.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR
MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 Mat.Appeal.No. 559 of 2008() ---------------------------OP.328/2005 of FAMILY COURT, THIRUVALLA ....................
PETITIONER(S): PETITIONER:
RIJU SARA SAMUEL, AMPAZHATHUM MOOTTIL VEEDU, PUTHENPEEDIKA MURI, OMALLOOR VILLAGE, PATHANAMTHITTA DISTRICT.
BY ADV. SRI.TITUS MANI SRI.S.SURAJ (PALATHANATHU)
RESPONDENT(S): RESPONDENT:
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 03/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
P.R.Raman &
T.R. Ramachandran Nair, JJ.
- - - - - - - - - - - - - - - - - - - - - - - - M.A. No. 559 of 2008
- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of November, 2008.
JUDGMENT
Raman, J.
This is an appeal arising out of an order passed by the Family Court, Thiruvalla in I.A.Nos.2597/2007 & 2598/2007 in O.P.No.328/3005. The
appellant is the petitioner in O.P.No.328/2005 and the connected applications. The main petition was filed for recovery of the amount of Rs.4,30,308/- said to have been entrusted as paternal share, value of gold ornaments and interest. When the case was posted on 24.10.2005, the same was dismissed for default. Thereafter, I.A.No.2384/2005 was filed for restoring the same. Since there was some delay, an application for condonation of delay was also filed. According to the appellant, she was not keeping well and she was laid up with fever on the appointed day. However, no evidence as such was adduced in this regard. It is stated in the order that even when the petition came up for hearing, the appellant was absent. It is on these circumstances that the court below refused to condone the delay and set aside the ex-parte order.
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respondents were served notice, they were not present when the case was taken up. There is no representation either. In these circumstances, we called the respondents' name and declared absent and proceeded to hear the appellant.
In the circumstances, we allow the appeal on terms. Accordingly, we direct that I.A.Nos.2597/2007 and 2598/2007 will stand allowed the O.P.No.328/2007 is restored to file on condition that the appellant/petitioner
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deposits Rs.500/- within two weeks from today, failing which, this appeal will stand dismissed.
( P.R.Raman, Judge.)
(T.R. Ramachandran Nair, Judge.)
kav/
3 issues framed by the court
Whether the matrimonial appeal for restoration of original petition and return of paternal share amount be allowed ex parte.
Whether condonation of delay for absence at the time of hearing in matrimonial dispute is required.
Whether the original petition should be restored on conditions of depositing a fixed sum.
Riju Sara Samuel
Jiji Kurian
Aleyamma Kurian
P.R. Raman
T.R. Ramachandran Nair
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
