Dismissed

P.K.Muhammed @ Innippa v. Palembadiyan Kodrapurathu Cheeku

Kerala HC15 Dec 2010OP (FC)/1157/2010

Case brief

AI extract

What is this about?

Kerala High Court dismissed a writ petition under Article 227 seeking to set aside an exparte maintenance order. The court found the petitioners lacked bonafide, having missed multiple conditional opportunities to pay the directed deposit amounts and falsely claimed settlement.

What did the court decide?

Writ of certioradi to set aside the exparte maintenance order of the Family Court was refused.

P.K.Muhammed @ Innippa Vs Palembadiyan Kodrapurathu… — Maintenance and Alimony | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN

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WEDNESDAY, THE 15TH DECEMBER 2010 / 24TH AGRAHAYANA 1932

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OP (FC).No. 1157 of 2010(R)

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--------------------------OP.41/2009 of FAMILY COURT, MALAPPURAM ....................

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PETITIONER

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P.K.MUHAMMED @ INNIPPA,S/O.CHEEKU, AGED 44 YEARS, PALEMBADIEPAN KONDAPPURATHU HOUSE KADANNAMANNA AMSOM,VELLILA DESOM, PERINTHALMANNA TALUK

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P.K.MAMMU,S/O.CHEEKKU, AGED 36 YEARS,PALEMBADIEPAN KONDAPPURATHU HOUSE, KADANNAMANNA AMSOM, VELLILA DESOM, PERINTHALMANNA TALUK,REPRESENTED BY THE 1ST PETITIONER AS POER OF ATTORNEY HOLDER

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BY ADV. SRI.KRISHNADAS P. NAIR

SMT.K.L.SREEKALA

RESPONDENT:

PALEMBADIEPAN KONDAPPURATH CHEEKU,

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S/O.MAMMU,KADANNAMANNA AMSOM, VELLILA DESOM PERINTHALMANNA TALUK, MALAPPURAM DIST

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THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 15/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.BASANT & K.SURENDRA MOHAN, JJ.

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**O.P(F.C) No.1157 of 2010 *******************************

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Dated this the 15^th day of December, 2010

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JUDGMENT

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BASANT, J.

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The petitioner has filed this O.P(F.C) under Article 227 of the Constitution of India seeking very interesting reliefs. The petitioners are both adult sons of the respondent, a person aged about 70 years. In 2009, the respondent filed an application claiming past maintenance. An amount of Rs.2,16,000/- was claimed. The respondents entered appearance, but did not contest the proceedings. They were set exparte and Ext.P1 order was passed directing payment of an amount of Rs.2,16,000/- as past maintenance for a period of 36 months.

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The petitioners later filed an application to set aside the exparte order. The Family Court indulgently directed that the exparte order can be set aside on condition that the petitioners deposit 40% of the amount due under the impugned order. That amount worked out to Rs.86,400/-. The amount was not paid. The petition to set aside the exparte order hence stood

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O.P(F.C) No.1157 of 2010

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dismissed. The petitioners challenged that order and by Ext.P2 judgment, another Bench of this Court indulgently modified the order and directed that if an amount of Rs.35,000/- is deposited before the Family Court within a stipulated time, the exparte order shall stand set aside. The petitioners did not pay that amount also. Long later, the petitioners came before this Court with another O.P(F.C). By Ext.P6 order dated 13.10.2010, this Court again indulgently admitted the Writ Petition and directed that the execution of the order shall stand stayed if the petitioners would deposit an amount of Rs.50,000/- within a period of 10 days. Thereafter when the matter came up for hearing, it was represented before Court that the parties have settled their disputes and, in these circumstances, the O.P(F.C) can be dismissed as not pressed. That petition was accordingly dismissed as not pressed.

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Now the petitioners have come before this Court with yet another O.P(F.C) claiming that the matter has not been settled and that they are willing to deposit the amounts that have been directed to be paid as per Ext.P2 order or Ext.P6 order. The offer may be accepted. An amount of Rs.42,000/- has

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O.P(F.C) No.1157 of 2010 3

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already been deposited before court on 21.10.2010. In these circumstances, the exparte order may now be set aside subject to any appropriate conditions, it is prayed.

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We have considered all relevant inputs. Bonafides is not a virtue that we can discover or invent in the hands of the petitioner. It is evident that to avoid the obligation to pay the amount of Rs.50,000/- as per Ext.P6 order dated 13.10.2010, the petitioners had not pressed the earlier O.P(F.C).No.290 of 2010 on 26.10.2010 when it came up for hearing. By then, the amount of Rs.42,000/- which was necessary to secure release from custody had already been paid as is evident from Ext.P7. It is only because of that the submission was made that the latter O.P (F.C) No.290 of 2010 can be dismissed.

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The petitioners were given ample opportunity to contest O.P No.41 of 2009. Even after the exparte order was passed, indulgent further opportunity was granted subject to conditions. That opportunity was not availed of. Long later a further opportunity was granted vide Ext.P6 order. That opportunity was also not availed of and the petitioners made a submission before this Court that the disputes have been settled,

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O.P(F.C) No.1157 of 2010

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evidently to avoid the liability to pay amounts under Ext.P6 order. We are not, in these circumstances, satisfied that this O.P

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(F.C) deserves admission or favourable consideration.

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This O.P(F.C) is, in these circumstances, dismissed.

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(R.BASANT, JUDGE)

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(K.SURENDRA MOHAN, JUDGE)

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rtr/

P.K.Muhammed @ Innippa v. Palembadiyan Kodrapurathu Cheeku

Case brief

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What did the court decide?

P.K.Muhammed @ Innippa v. Palembadiyan Kodrapurathu Cheeku

Case brief

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What did the court decide?

What the court decided

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