Allowed

Sam Madhavan Byshie v. Jalaja Harshappan

Kerala HC23 Aug 2017Mat.Appeal/168/2017

Case brief

AI extract

What is this about?

High Court of Kerala allowed the matrimonial appeal. It set aside the Family Court's order dismissing the application to quash an ex-parte decree. The appellant was directed to furnish a bank guarantee security of Rs. 8 lakhs and the Family Court was ordered to resume hearing the original petition within six months.

What did the court decide?

Impugned order set aside; ex-parte decree set aside subject to appellant furnishing security of Rs. 8 lakhs via bank guarantee; original petition to be disposed within six months.

Sam Madhavan Byshie Vs Jalaja Harshappan — Matrimonial and Divorce | Kerala HC (2017)

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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 A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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WEDNESDAY, THE 23RD DAY OF AUGUST 2017/1ST BHADRA, 1939

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Mat.Appeal.No. 168 of 2017(E)

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AGAINST THE ORDER DATED 29.11.2016 IN I.A.NO.3109/2015 IN O.P.NO.502/2013 ON THE FILE OF THE FAMILY COURT, THIRUVANANTHAPURAM.

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APPELLANT/PETITIONER/COUNTER PETITIONER:

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SAM MADHAVAN BYSHIE MADHAVAM, KEDARAN NAGAR, T.C. NO.2/3054(1) NEAR COSMOPOLITIAN HOSPITAL, PATTOM PALACE P.O, THIRUVANANTHAPURAM REPRESENTED BY THE POWER OF ATTORNEY HOLDER PREMA BYSHIE,MADHAVAM, KEDARAN NAGAR, T.C. NO.2/3054(1) NEAR COSMOPOLITIAN HOSPITAL, PATTOM PALACE P.O, THIRUVANANTHAPURAM

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BY ADVS.SRI.BASANT BALAJI

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KUM.S.ANOOJA

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RESPONDENT/COUNTER PETITIONER/PETITIONER:

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JALAJA HARSHAPPAN A301/302, MAHESWARI NAGER, MIDC, MAQROL, ORKAY LANE, ANDHERI EAST, MUMBAI - 110 661.

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BY ADV. SRI.P.RAVEENDRAN PILLAI (CAVEATOR)

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 23.08.2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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A.M.Shaffique & P. Somarajan, JJ.

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---------------------------------------------------Mat. Appeal No.168 of 2017 (E) ---------------------------------------------------Dated this the 23^rd day of August, 2017

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JUDGMENT

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A.M.Shaffique, J.

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This appeal is filed challenging the order dated 29.11.2016 in I.A.No.3109 of 2015 in O.P.No.502 of 2013 by which the application to set aside the exparte decree had been dismissed by the Family Court, Thiruvananthapuram.

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The main contention urged by the appellant is that he was employed at UK and a settlement was arrived at between the parties. He proceeded on the basis that the settlement has worked out, but since nothing happened in the matter, an exparte decree came to be passed. An application was filed to set aside the exparte decree within time. The Family Court, however, dismissed the application stating that earlier an application which was filed as I.A.No.3060 of 2015 for setting aside the exparte order was dismissed as not pressed and therefore, on the very same reasons the decree cannot be set aside.

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Mat. Appeal No.168 of 2017 (E)

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:: 2 ::

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Learned counsel appearing for the appellant submits that in so far as the decree is for a substantially huge amount he had valid contentions in the case and a written statement was filed along with the application to set aside the exparte decree. It is argued that merely for the reason that the application to set aside the exparte order was dismissed as withdrawn, the Family Court ought to have considered the application to set aside the exparte decree on merits. The earlier application was withdrawn since the decree was already passed by the Family Court.

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On the other hand, learned counsel appearing for the respondent, by supporting the order passed by the Family Court, contended that despite the separation between the parties no amount had been paid. An amount of Rs.8,03,128/was sent to the appellant by way of bank draft which cannot be disputed at all. It is submitted that the claim was for Rs.23 lakhs and also for Rs.8,03,728/-.

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Mat. Appeal No.168 of 2017 (E)

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:: 3 ::

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Learned counsel for the appellant submits that his mother's property is already under attachment. It is also submitted by the learned counsel for the appellant that there is a patent even in the judgment. Though the petition was filed for dissolution of marriage the decree is granted declaring the marriage as null and void.

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Having heard the learned counsel on either side and having perused the records, we are of the view that when an application to set aside the exparte decree had been filed within time, if there is sufficient cause to set aside the same, the Family Court ought to have allowed the application. The reason stated was that on a particular day when the case was taken up for evidence the counsel could not appear and therefore, an exparte order was passed. Immediately an application was filed to set aside the exparte order. But, by the time it came up for hearing, the decree was already passed. Under such circumstances, the petitioner was forced to file

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Mat. Appeal No.168 of 2017 (E)

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:: 4 ::

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I.A.No.3109 of 2015 in O.P.No.502 of 2013 to set aside the

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exparte decree.

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But it is relevant to note that the decree is passed for a substantially huge amount. According to the learned counsel for the respondent, as far as the decree for Rs.8,03,728/- is concerned, there are documents to prove the payment of the said amount. Though the liability to pay the said amount is disputed by the counsel for the appellant, taking into consideration the facts and circumstances and the fact that the claim is for recovery of money in addition to a decree for divorce, we are of the view that the appellant should be called upon to furnish security at least for a certain amount.

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Accordingly, this appeal is allowed as under:

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i) The impugned order is set aside. Exparte decree dated 16.12.2015 in O.P.No.502 of 2013 is set aside on condition of the appellant furnishing security for an amount of Rs.8 lakhs in the form of a bank guarantee in favour of the Court within a period of one month. The

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Mat. Appeal No.168 of 2017 (E)

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:: 5 ::

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bank guarantee shall initially be for a period of one year which should be kept alive until final disposal of the petition.

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ii) On furnishing of the bank guarantee, the Family Court shall consider O.P.No.502 of 2013 and dispose of the same within a period of six months from the said date, after giving an opportunity to either side to adduce evidence.

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A.M.Shaffique Judge

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P. Somarajan Judge

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ahz/

Sam Madhavan Byshie v. Jalaja Harshappan

Case brief

What is this about?

What did the court decide?

Sam Madhavan Byshie v. Jalaja Harshappan

Case brief

What is this about?

What did the court decide?

What the court decided

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