Partly allowed

Abdul Salam v. Asidha

Kerala HC17 Jul 2018Mat.Appeal/258/2018

Case brief

AI extract

What is this about?

The High Court hearing a matrimonial appeal against conditions for setting aside an ex parte decree and interim maintenance order. The court dismissed the appeal regarding maintenance but modified the condition regarding security, reducing it to a compensatory cost and allowing the case to be restored for trial within 4 months.

What did the court decide?

Modified condition for setting aside ex parte decree to payment of Rs.10,000/- as compensatory cost; dismissed appeal regarding maintenance condition; directed trial court to dispose within 4 months.

Abdul Salam Vs Asidha — Matrimonial and Divorce | Kerala HC (2018)

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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 C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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TUESDAY, THE 17TH DAY OF JULY 2018 / 26TH ASHADHA, 1940

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Mat.Appeal.No. 258 of 2018

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(ARISING FROM ORDER DATED 19-08-2017 IN IA No.400/2017 IN OP No.614/2016 OF THE FAMILY COURT, VATAKARA)

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APPELLANT/PETITIONER/FIRST RESPONDENT

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ABDUL SALAM S/O.BAVA, AGED 32 YEARS, SADIQUE MANZIL, KOTTAKKAL P.O., IRINGAL, VATAKARA.

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BY ADV.SRI.B.KRISHNA MANI

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RESPONDENTS/RESPONDENT/PETITIONER AND 2ND PETITIONER/2ND RESPONDENT:

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1. ASIDHA

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D/O.MUHAMMED, AGED 24 YEARS, PUTHUPPANAM P.O., PUTHUPPANAM AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT-673105.

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2. KHADEEJA W/O.BAVA, SADIQUE MANZIL, KOTTAKKAL P.O., IRINGAL, VATAKARA.

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R1 BY ADV. SRI.P.VENUGOPAL (1086/92)

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 17-07-2018 ALONG WITH RPFC No.325/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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AMG

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C.K. ABDUL REHIM, J. &

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R. NARAYANA PISHARADI, J.

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Mat. Appeal No. 258 OF 2018 &

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R.P (FC) No. 325 OF 2018

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DATED THIS THE 17^th DAY OF JULY, 2018

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J U D G M E N T

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Abdul Rehim, J:

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Since the orders under challenge in both these cases are common and the parties in both the cases are one and the same, we heard these cases together and are disposed through this common judgment.

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The respondent filed OP No.614/2016 before the Family court, Vatakara seeking for return of gold ornaments worth 29 sovereigns and a sum of Rs.2,50,000/-, from the appellant/revision petitioner and the 2^nd respondent in the appeal, who is the mother of the appellant. The respondent had also filed MC No.172/2016 against the revision petitioner seeking for payment of maintenance @ Rs.10,000/- per month. Both the cases were allowed by the Family Court after setting the appellant ex-parte, through a common judgment passed on 10-04-2017. The original petition was decreed permitting recovery of 29 sovereigns of gold or its value

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to the tune of Rs.5,80,000/- and a sum of Rs.2,50,000/-

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Mat. Appeal Nos. 258 & R.P(FC) No. 325/2018 -2-

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from the appellant and the 2^nd respondent, jointly and severally, along with interest @ 8% from the date of the original petition till realization. MC No.172/2016 was allowed granting recovery of maintenance at the rate of Rs.4,500/- per month, from the revision petitioner herein, with effect from the date of the MC petition i.e., from 03-102016 onwards.

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The appellant/revision petitioner filed IA No.400/2017 in OP No.614/2016 and CMP No.161/2017 in MC No.172/2016 seeking to set aside the ex-parte decree and order passed in the respective cases. It was contended

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before the Family Court that, he was prevented from appearing before the court below on the date on which the cases were posted for evidence, because he was hospitalized and was undergoing treatment. The applications were resisted from the side of the respondent herein, by contending that on the date of the posting of the cases, the appellant/revision petitioner was very much available in the court premises and he had willfully abstained from participating in the proceedings.

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Mat. Appeal Nos. 258 & R.P(FC) No. 325/2018 -3-

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The court below while considering the applications found that, the documents produced in support of those petitions would only reveal that, the appellant/revision petitioner had undergone OP treatment in hospital, but he was not hospitalized. However, taking a lenient view, the Family Court shown indulgence in setting aside the decree and the order, subject to conditions. IA No.400/2017 in OP No.614/2016 was allowed subject to condition of payment of cost of Rs.2,000/- to the respondent herein and also subject to condition of the appellant furnishing security for a sum of Rs.8,30,000/- on or before 30-08-2017. CMP No.161/2017 in MC No.172/2016 was allowed subject to condition of payment of cost of Rs.2,000/to the respondent herein and also on payment Rs.2,000/per month as maintenance from 03-10-2016 onwards, till the disposal of the case. The appellant/revision petitioner is approaching this court being aggrieved by the conditions imposed by the Family court while setting aside the exparte decree and order.

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Mat. Appeal Nos. 258 & R.P(FC) No. 325/2018 -4-

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Heard; counsel on both side. On behalf of the appellant/revision petitioner, it is contended that, the Family Court went highly erred in directing to furnish security for the entire plaint claim, as a condition precedent for setting aside the ex-parte decree. It is also contended that the direction for payment of maintenance ordered in MC, is also illegal, improper and unreasonable. On the other hand, learned counsel for the respondent contended that, the appellant/revision petitioner is taking only a tactics for protracting the cases, by willfully abstaining from the proceedings before the Family Court. He contended that the conditions stipulated in the impugned orders are fully justified.

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While considering the rival contentions based on the facts and circumstances, we are of the opinion that the impugned order in CMP No.161/2017 in MC No.172/2016 does not warrant interference. We take note of the fact that the MC was filed as early as in the year 2016. Even if the respondent had moved the court, seeking for interim maintenance, the court could have ordered payment of

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Mat. Appeal Nos. 258 & R.P(FC) No. 325/2018 -5-

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amount at the rate as ordered now. Therefore the condition imposed for payment of maintenance of Rs.2,000/- pending disposal of the case, from the date of filing of petition, cannot in any manner be termed as unreasonable or unjustifiable. Consequently we find no merit in R.P (FC) No.325/2018 and the same is hereby dismissed. However, considering that the RP (FC) was pending before this court, the revision petitioner is allowed time upto 14-08-2018 for effecting the payment as ordered by the Family Court.

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With respect to Mat. Appeal No.258/2018, it is contended on behalf of the appellant that, the appellant is having no property to furnish security as ordered by the court below. It is submitted that, the appellant has got very valid contentions in the original petition and the claim raised by the respondent is totally frivolous. At this stage, we cannot look into the merits of the original petition. We think it appropriate to permit the appellant to contest the case on merits, by setting aside the ex-parte decree, subject to payment of compensatory cost. Hence we are inclined to modify the impugned order passed in IA No.400/2017 in OP

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Mat. Appeal Nos. 258 & R.P(FC) No. 325/2018 -6-

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No.614/2016. The ex-parte decree passed in OP No.614/2016 will stand set aside, subject to condition of the appellant paying cost of Rs.10,000/- to the respondent, which will be paid on or before 14-08-2018 directly to the 1^st respondent or to the counsel appearing on behalf of her at the Family Court.

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In case the above conditions are complied with and the Family Court restore the cases on file, that court shall take all earnest endeavour to dispose of the cases at the earliest possible, at any rate, within a period of 4 months from 14-08-2018.

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Needless to observe that, in case of failure of the appellant/revision petitioner in complying with the conditions as mentioned above, the decree and order passed by the Family Court in the cases will survive and the 1^st respondent will be entitled to execute the decree/order.

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Sd/-

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C.K. ABDUL REHIM, JUDGE .

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Sd/-

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R. NARAYANA PISHARADI, JUDGE .

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AMG

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True copy

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P.A. to Judge

Abdul Salam v. Asidha

Case brief

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Abdul Salam v. Asidha

Case brief

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