Appeal against an ex parte decree directing payment of Rs. 13.5 lakhs as matrimonial dues. Court allowed the appeal, set aside the ex parte judgment, and directed parties to appear for merits proceedings.
Ex parte judgment dated 19.4.2016 in OP.No.1071/2015 set aside; parties directed to appear before Family Court on 7.3.2017.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
FRIDAY, THE 10TH DAY OF FEBRUARY 2017/21ST MAGHA, 1938
Mat.Appeal.No. 961 of 2016 ()
AGAINST THE JUDGMENT IN OP 1071/2015 of FAMILY COURT, ATTINGAL DATED 19-04-2016
APPELLANT/RESPONDENT:
MICKY PREMCHAND,
AGED 32 YEARS, S/O.P.S.PREMCHAND, RESIDING AT HEERA KINARA CLASSIC, FLAT 7 A2, KESAVADASAPURAM, NOW RESIDING AT HEERA CRESCENT FLAT C, YMR JUNCTION, NANTHANCODE, THIRUVANANTHAPURAM 695 003.
BY ADVS.SMT.MAJIDA.S SRI.AJIKHAN.M
RESPONDENTS/PETITIONERS:
1. SYAMALA AGED ABOUT 53 YEARS, W/O.SOMARAJAN, RESIDING AT
PARANKIMAMVILA VEEDU, VAKKOM DESOM OF VAKKOM VILLAGE 695 124.
2. VYGA MICKY [MINOR] AGED 5 YEARS, D/O.DECEASED SOUMYA, RESIDING AT
PARANKIMAMVILA VEEDU, VAKKOM DESOM OF VAKKOM VILLAGE, REPRESENTED BY NEXT FRIEND, IST RESPONDENT.
3. VYSNAV MICKY AGED 3 YEARS, SON OF DECEASED SOUMYA, RESIDING AT PARANKIMAMVILA VEEDU, VAKKOM DESOM
OF VAKKOM VILLAGE, REPRESENTED BY NEXT FRIEND, IST RESPONDENT.
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 10-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
A.M. SHAFFIQUE & K. RAMAKRISHNAN, JJ.
Mat.A.No.961 of 2016
Dated this the 10th day of February, 2017.
JUDGMENT
A.M. Shaffique, J:
This is an appeal filed by the respondent in OP.No.1071/2015 challenging the ex parte judgment dated 19.4.2016. The original petition was filed by the respondents herein for recovery of gold ornaments as well as Rs. One lakh allegedly given at the time of marriage. The original petition is filed by the mother of Soumya, who was the wife of the appellant. Soumya died and there is an allegation that she committed suicide at the instance of the appellant against which a case is pending as Crime No.1583/2013. Respondents 2 and 3 are the minor children born to the couple in their wedlock, who are presently residing with the maternal grandmother. According to the appellant, though the case was posted on a few occasions, he was unable to appear since he had chickenpox. He gave a power attorney to his mother for appearance. However noticing that the power of attorney was not proper, her appearance was not taken into consideration. Accordingly, an ex parte order was passed on 10.3.2016. Thereafter taking into consideration the affidavit filed by the first respondent, a decree had been passed directing payment of Rs.13,50,000/- with interest at the rate of Rs.9% and a further amount of Rs. One lakh with 9% interest from the date of petition.
Mat.A.No.961 of 2016 2
direction to the Family Court to consider IA.No.434/2016 in OP.No.1071/2015 before taking a final decision in the matter and an interim order was passed on 7.4.2016 directing the Court below to consider the said application if the original petition is not already disposed of. It is stated that even though the said order was produced, the original petition was disposed of on 19.4.2016 observing that the power of attorney filed along with IA.No.833/2016 was not proper. IA.No.434/2016 has been filed to receive the power of attorney and IA.No.833/2016 was filed to set aside the ex parte order. Both the applications are now dismissed.
Mat.A.No.961 of 2016 3
was unable to appear before the Court in person and to prosecute the matter. Now that he is ready and wiling to appear and prosecute the matter, an opportunity should be granted to defend the proceedings.
Mat.A.No.961 of 2016
4
i. The judgment dated 19.4.2016 in OP.No.1071/2015 is set aside.
ii. The parties shall appear before the Family Court on 7.3.2017, on which date the appellant shall file a written objection. The Family Court shall consider the matter and pass appropriate orders after giving an opportunity to either parties to adduce evidence.
Sd/-
A.M. SHAFFIQUE, JUDGE.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl
2 issues framed by the court
Whether an appeal against an ex parte decree directing payment of a substantial amount should be allowed to grant the appellant an opportunity to defend.
Whether the rejection of the application to set aside the ex parte order on technical grounds warrants allowing the appeal to re-open the matter on merits.
1 provisions across 1 enactments
Micky Premchand
Syamala
Vyga Micky
Vysnav Micky
A.M. Shaffique
K. Ramakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
