Allowed

Gopinathan Nair v. Kalakumari

Kerala HC2 Mar 2017Mat.Appeal/628/2007

Case brief

AI extract

What is this about?

The High Court allowed the appeal setting aside the Family Court order dismissing the application to set aside an ex parte decree. The court directed the litigation to resume on merits before the Family Court, subject to costs.

What did the court decide?

The order of 17.4.2007 in I.A.2580/06 is set aside; appeal allowed on payment of Rs. 15,000; ex parte decree set aside; parties to appear for final hearing.

Gopinathan Nair Vs Kalakumari — 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

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& THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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THURSDAY, THE 2ND DAY OF MARCH 2017/11TH PHALGUNA, 1938

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Mat.Appeal.No. 628 of 2007

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AGAINST THE ORDER IN I.A.2580/06 IN OP.483/2005 of FAMILY COURT, THIRUVALLA DATED 17-04-2007

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APPELLANTS/PETITIONERS/RESPONDENTS 2 & 3:

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1. GOPINATHAN NAIR,KAILASAM,

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MUTTAM P.O., CHEPPAD KARA, HARIPPAD VILLAGE

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KARTHIKAPPALLY TALUK.

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2. GOWRIKUTTYAMMA

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CHAKKETHU VEEDU, OTHARA P.O., ERAVIPEROOR VILLAGE

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THIRUVALLA TALUK.

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BY ADVS.SRI.BASANT BALAJI

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SRI.R.GOPAN

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RESPONDENT/RESPONDENT/PETITIONER IN O.P:

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KALAKUMARI,D/O.GOPINATHA PILLAI DEVISADANAM, ARANMULA P.O., PATHANAMTHITTA DISTRICT.

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BY ADV. SRI.R.GIREESH VARMA

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 01-03-2017, THE COURT ON 02-03-2017 DELIVERED THE FOLLOWING:

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Mat.Appeal.No. 628 of 2007

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APPENDIX

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APPELLANTS' ANNEXURES :

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ANNEXURE-A : TRUE COPY OF THE ORDER DATED 1.1.2008 IN E.A.NO.243/2007 IN E P NO.63/2006 IN O P NO.483/2005 OF THE FAMILY COURT, THIRUVALLA.

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ANNEXURE-B : TRUE COPY OF the ORDER DATED 29.2.2008 IN E A NO.247/2007 IN E P NO.63/2006 IN O P NO.483/2005 OF THE FAMILY COURT, THIRUVALLA.

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ANNEXURE-C : TRUE COPY OF PROCLAMATION NOTICE IN O P NO.483/05 ISSUED BY THE FAMILY COURT, THIRUVALLA DATED 18.11.2008.

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RESPONDENT'S ANNEXURES :

NIL

//TRUE COPY//

P.A.TO JUDGE

ami/

A.M.SHAFFIQUE & K.RAMAKRISHNAN, JJ.

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Mat.Appeal No.628 of 2007

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Dated this the 2^nd day of March, 2017

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J U D G M E N T

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A.M.Shaffique, J.

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This appeal is filed by the petitioners in I.A.No.2580/06 in O.P.No.483/05, by which, the Family Court had dismissed the application to set aside ex parte decree. The original petition was filed by the respondent herein seeking for return of money and gold ornaments. All the respondents in the original petition were declared ex parte and a decree came to be passed based on the evidence adduced by the respondent herein. An application was filed for setting aside the ex parte decree, inter alia contending that there was sufficient cause for not appearing in the matter before the court. However, the Family Court observed that they were declared ex parte as early as on 21.1.2006 and the reason stated for non appearance cannot be considered at the stage when the present application was being considered. It was also observed that the 3^rd respondent had refused the notice and the 2^nd respondent was served with notice prior to 21.1.2006. The application was hence dismissed. While

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Mat.Appeal No.628 of 2007

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impugning the aforesaid order, it is submitted by the learned counsel for the petitioner that there was no allegation against the 2^nd respondent with reference to the appropriation of any amount or the gold ornaments. As far as the 2^nd appellant is concerned, she is the mother of the 1^st respondent in the original petition. 1^st respondent is the husband who was declared ex parte. The mother has nothing to do with the transaction. Only certain bare allegations are raised as against the appellants herein and therefore, there is a valid contention to be urged in the original petition. Written statement has already been filed by the appellants and if an opportunity is not granted, they will be put to severe hardship.

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On the other hand, the learned counsel appearing for the respondent submits that the 1^st respondent in the original petition was declared ex parte long back and he had not attempted to file any application. The whole intention of the appellants herein is to delay the process. This appeal came to be filed at a stage when execution proceedings had been taken and it had reached a stage where the property of the 2^nd appellant was proclaimed to be sold. It is submitted that if the ex parte decree is set aside, it

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Mat.Appeal No.628 of 2007

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will cause substantial hardship to the respondent.

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However, having heard the learned counsel appearing on either side and having perused the records, we are of the view that, when an application to set aside the ex parte decree is filed, the Family Court was expected to consider the merits of the contentions urged, based on the materials produced before it. In the present case, the Family Court had only observed that since they were declared ex parte on 21.6.2009, there is no reason to consider the application to set aside the ex parte decree. Further, it is observed that the reason stated is not cogent enough to set aside the ex parte decree. However, nothing is stated in the order, for this Court to arrive at a conclusion as to whether there is due application of mind by the Family Court while dismissing the above application.

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In the application to set aside the ex parte decree, the appellants have stated that the 1^st appellant had offered to produce the 1^st respondent in the original petition before the court and since he was unable to do so, despite his earnest efforts, he could not appear thereafter, which resulted in, him being declared ex parte. That apart, it was clearly stated that on

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Mat.Appeal No.628 of 2007

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the date of appearance, he was laid up with fever and despite the fact that certain materials were produced, the Family Court did not consider the same. However, we are of the view that despite the laches on the part of the petitioner, since the matter has not been decided on merits, it will be appropriate to give an opportunity to the petitioner to contest the matter, but on terms.

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Taking into consideration the overall facts and circumstances, especially when the brother and mother of the 1^st respondent have approached this Court, we are of the view that, an opportunity should be given to them to contest the matter. However, we are not disturbing the decree passed against the 1^st respondent/husband in O.P.No.483/2005. In the light of the above discussion, the original petition is disposed of as under:

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The order dated 17.4.2007 in I.A.No.2580/06 in O.P.No.483/05 is hereby set aside. The application, I.A.No.2580/06 is allowed, on condition of the petitioner paying cost of `15,000/- (Rupees fifteen thousand only) to the learned counsel for the respondent within a period of two weeks from today and a memo regarding payment of cost shall be filed

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Mat.Appeal No.628 of 2007

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before the Family Court within a period of one week thereafter. The ex parte decree against the appellants herein are set aside. The parties shall appear before the Family Court on 29.3.2017 . The Family Court shall, thereafter, consider the respective contentions and pass appropriate orders, within a period of 4 months from the date of receipt of a copy of this judgment.

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All pending interlocutory applications are closed.

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Sd/-

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A.M.SHAFFIQUE JUDGE

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Sd/-

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K.RAMAKRISHNAN JUDGE

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ami/2.3.17

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//True copy//

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P.A.to Judge

Gopinathan Nair v. Kalakumari

Case brief

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Gopinathan Nair v. Kalakumari

Case brief

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