Allowed

Abdul Azeez v. Shemeera

Kerala HC2 Apr 2014Mat.Appeal/685/2012

Case brief

AI extract

What is this about?

The Court allowed the matrimonial appeal, setting aside the impugned order to grant appellants a chance to participate in the trial. The lower court's declaration regarding the ex parte decree was unmolested. Interlocutory applications were allowed contingent upon payment of costs.

What did the court decide?

Impugned order dismissed; interlocutory applications allowed on condition of payment of Rs.5,000/- costs; original petition set aside; case remand for trial within six months.

Abdul Azeez Vs Shemeera — Matrimonial and Divorce | Kerala HC (2014)

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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 HARUN-UL-RASHID &

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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WEDNESDAY, THE 2ND DAY OF APRIL 2014/12TH CHAITHRA, 1936

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Mat.Appeal.No. 685 of 2012 ()

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-----------------------------ORDER DATED 1.12.2011 IN I.A.7112/2010 & I.A.NO.4562/11 IN O.P.NO.1166/2008 OF THE FAMILY COURT, THRISSUR.

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APPELLANT(S)RESPONDENT 1 AND 2/PETITIONERS 1 AND 2:

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1. ABDUL AZEEZ, AGED 33, S/O.KINARAMAKAL MOIDEENKUTTY, MELAMBATTMUCK DESOM KUMARANELLUR VILLAGE, TALAPPILLY TALUK

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2. MOIDEENKUTTY MELAMATTMUCK DESOM, KUMARANELLUR VILLAGE TALAPPILLY TALUK

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BY ADVS.SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH)

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RESPONDENT(S)/PETITIONER AND 3RD RESPONDENT/RESPONDENT AND THIRD PETITIONER:

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1. SHEMEERA W/O.KINARAMACKAL ABDUL AZEEZ D/O.CHARALIL PEEDIKAYIL HAMZA VARAVOOR VILLAGE DESOM, P.O.KORAPANAL TALAPPILLY TALUK-680585

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2. NABEESA

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W/O.MOIDEENKUTTY, MELAMBATTMUCK DESOM KUMARANELLUR VILLAGE, TALAPPILLY TALUK-680585

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BY ADV. SRI.K.S.MADHUSOODANAN BY ADV. SRI.THOMAS CHAZHUKKARAN

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 02-042014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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HARUN-UL-RASHID & ALEXANDER THOMAS, JJ. ================== M.A.No.685 of 2012

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================== Dated this the 2^nd day of April, 2014 J U D G M E N T

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HARUN-UL-RASHID, J.

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Respondents 1 and 2 are the appellants. The appeal is directed against the common order passed by the Family Court, Thrissur in I.A.Nos.7112/2010 and 4562/2011 in O.P.No.1166/ 2008. The parties are hereinafter referred to as arrayed in the I.As. The petitions are filed by the respondents in the original petition for setting aside the decree and for condoning the delay in filing the petition for setting aside the ex parte decree. In the affidavits filed in support of the respective petitions, it is stated that when the petitions were posted for filing counter on 23.10.2009, the case was referred for settlement in the Adalath. Thereafter, the 1^st petitioner was laid up and so he could not enquire about the case and the posting date. So the ex parte order was passed on 28.5.2010. The court below disbelieved the reasons stated by the petitioners and held that absolutely no justifiable and reasonable grounds are made out to set aside the ex parte decree passed against them after condoning the delay.

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We have examined the materials on record. We do not find that the finding recorded by the court below suffers from any legal infirmity. At the same time we find that the petitioners

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M.A.685/12 - : 2 :-

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did to get an opportunity to substantiate and contest the case on merits. We find that, in the interest of justice, an opportunity shall be given to the appellants/petitioners in the I.As for participating in the trial and to contest the matter. We therefore feel that the interlocutory applications can be allowed.

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In the result, the Mat. Appeal is allowed. The impugned order dated 1^st December, 2011 in I.A.Nos.7112/2010 and 4562/2011 is set aside. The said I.As. are allowed on condition that the appellants/ petitioners shall pay Rs.5,000/- as costs to the 1^st respondent within a period of two weeks from today, failing which, the appeal stands dismissed. The original petition is of the year 2008. We direct the Family Court, Thrissur, to consider and dispose of the case as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this judgment. The parties shall appear before the court below on 5.5.2014. The counsel shall inform the parties.

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Sd/HARUN-UL-RASHID, JUDGE

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sdk+

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Sd/ALEXANDER THOMAS , JUDGE

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///True copy///

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P.S. to Judge

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M.A.685/12 - : 3 :-

Abdul Azeez v. Shemeera

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Abdul Azeez v. Shemeera

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