Allowed

Mujeeb Rahiman v. Shimcia

Kerala HC2 Jul 2012OP (FC)/490/2012

Case brief

AI extract

What is this about?

This order allowed an original petition to set aside an impugned order dismissing applications to condone delay in filing an application to set aside an ex-parte maintenance order and to condone further delay, conditioning future maintenance payments within one month.

What did the court decide?

The impugned order dated 24.6.2011 is set aside; C.M.P. Nos. 181 and 182 of 2010 are allowed on condition that arrears of maintenance till 30.6.2012 be deposited within one month.

Mujeeb Rahiman Vs Shimcia — Maintenance and Alimony | Kerala HC (2012)

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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 K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS

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MONDAY, THE 2ND DAY OF JULY 2012/11TH ASHADHA 1934

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OP (FC).No. 490 of 2012 (R) --------------------------C.M.P.NO.181/11 IN MC.1/2009 of FAMILY COURT, PALAKKAD

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PETITIONER:

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MUJEEB RAHIMAN, AGED 41 YEARS S/O. HANEEFA, PEZHODU HOUSE, VENGANNUR AMSOM ALATHUR TALUK, PALAKKAD DISTRICT.

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BY ADVS.SRI.RAJESH SIVARAMANKUTTY SMT.K.ANILA

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RESPONDENTS:

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SHIMCIA (MINOR) D/O. MUJEEB RAHIMAN, KANNEREY HOUSE, VITHINASSERY

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NENMARA, CHITTUR TALUK, PALAKKAD 678 001.

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SHIFAS (MINOR) S/O. MUJEEB RAHIMAN, KANNEREY HOUSE, VITHINASSERY

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NENMARA, CHITTUR TALUK, PALAKKAD

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(RESPONDENTS 1 & 2 ARE REPRESENTED BY THEIR NEXT

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FRIEND MOTHER SHEREENA D/O. HAMSA RESIDING AT KANNEREY HOUSE, VITHINASSERY, NENMARA CHITTUR TALUK, PALAKKAD 678 001.

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THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 02-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(F.C.) 490 OF 2012

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1 : TRUE COPY OF ORDER DTD.25.7.09 IN MC NO.1/2009 PASSED BY FAMILY COURT, PALAKKAD.

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EXT.P2 : TRUE COPY OF THE ORDER DTD.3.9.2010 IN CMP NO.1366/09 IN MC NO. 1/2009 PASSED BY THE FAMILY COURT, PALAKKAD.

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EXT.P3 : TRUE COPY OF THE PETITION NUMBERED AS CMP 182/2010 FILE BY THE PETITIONER.

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EXT.P4 : TRUE COPY OF THE CMP NO.181/2010 TO CONDONE THE DELAY IN FILING EXT.P3.

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EXT.P5 : TRUE COPY OF OBJECTIONS FILED BY RESPONDENTS TO EXT.P3. EXT.P6 : TRUE COPY OF THE ORDER DTD.24.6.2011 IN CMP NO.181/2011 IN MC NO.1/2009 PASSED BY FAMILY COURT, PALAKKAD.

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RESPONDENTS' EXHIBITS: NIL

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// TRUE COPY //

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K.T.SANKARAN & M.L.JOSEPH FRANCIS JJ.,

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - O.P.(F.C.) No.490 of 2012 R

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - -

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Dated this the 2^nd day of July, 2012

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JUDGMENT

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K.T. Sankaran J.,

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The respondents filed M.C. No.1 of 2009 on the file of the Family Court, Palakkad against the petitioner claiming maintenance. The Family Court allowed the maintenance case as per ex-parte order dated 25.7.2009. The petitioner filed C.M.P. No.1366 of 2009 to set aside the ex-parte order. The Family Court allowed that application on condition of deposit of one-half of the maintenance arrears upto date within three weeks from the date of the order. The Family Court held that the application for setting aside the ex-parte order was filed within time and that there was nothing to show that the petitioner (respondent in the M.C.) absented before Court with any oblique motive.

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:2:

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O.P.(F.C.) No.490 of 2012

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The petitioner did not make the deposit within three weeks, as ordered by the Court. However, he paid the amount to the respondents and the respondents received the sum on 23.11.2010. The petitioner filed C.M.P. No.182 of 2010 to set aside the ex-parte order dated 25.7.2009. He also filed C.M.P. No.181 of 2010 to condone delay of 218 days in filing C.M.P. No.182 of 2010. In C.M.P. No.182 of 2010, the respondents filed an objection stating that the first respondent received the sum of Rs.35,000/- on 23.11.2010. It was also stated that if the Court thought it fit to allow the application, the main case may be disposed of expeditiously.

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The Court below, by order dated 24.6.2011, dismissed C.M.P. No.181 of 2011 holding that the delay of 218 days was not satisfactorily explained. The order dated 24.6.2011 is challenged in this O.P. (F.C.).

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In fact, it was not necessary for the petitioner to file an application to set aside the ex-parte order, as prayed for in C.M.P. No.182 of 2010, since the ex-parte order was set aside by the Court, as per the order dated 3.9.2010. The petitioner did not comply with

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O.P.(F.C.) No.490 of 2012

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:3:

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the condition imposed in the order in C.M.P. No.1366 of 2009 within time. Later he paid the amount, but it was out of time. Therefore, it was sufficient for the petitioner to apply for extension of time, to comply with the condition. Instead, he filed an application to set aside the ex-parte order and also filed an application to condone delay of 218 days in filing the application. The delay in complying with the condition in the order dated 25.7.2009 was only sixty days. However, the Court below dismissed the application thinking that the number of days of delay stated in C.M.P. Nos.181 of 2010 and 182 of 2010 was correct. In fact, a mistake was committed by the petitioner and as a result of the mistake, the Court erroneously thought that there was a delay of 218 days in filing the application for setting aside the order.

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In the facts and circumstances of the case, we are of the view that the delay of 60 days in making the deposit is to be condoned. The petitioner having complied with the direction in the order dated 3.9.2010, though belatedly, we are inclined to allow C.M.P. Nos.181 of 2010 and 182 of 2010.

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Learned counsel for the respondents submitted that

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O.P.(F.C.) No.490 of 2012

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maintenance payable subsequent to the order dated 3.9.2010 was not paid by the petitioner. Learned counsel for the petitioner submitted that arrears of maintenance up to 30.6.2012 will be paid within a period of one month from today and that C.M.P. Nos.181 of 2010 and 182 of 2010 may be allowed, on that condition.

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Accordingly the Original Petition (F.C.) is allowed. The order dated 24.6.2011 passed by the Family Court in C.M.P. No.181 of 2011 is set aside and C.M.P. Nos.181 and 182 of 2011 are allowed on condition that the petitioner shall deposit, for payment to the respondents, arrears of maintenance till 30.6.2012 within a period of one month from today.

K.T. SANKARAN,

(JUDGE)

M. L. JOSEPH FRANCIS, (JUDGE)

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dl/

Mujeeb Rahiman v. Shimcia

Case brief

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Mujeeb Rahiman v. Shimcia

Case brief

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