Single judge allowed matrimonial appeal challenging an ex parte decree. dismissing the lower court order for granting excessive maintenance, and remanded the matter for fresh disposal after evidentiary hearing.
Impugned decree set aside; appeal allowed and case remanded to Family Court for fresh disposal upon deposit of Rs.5,64,000 and costs.
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 C.K.ABDUL REHIM
&
THE HONOURABLE MR.JUSTICE R.NARAYANA PISHARADI
THURSDAY, THE 06TH DAY OF SEPTEMBER 2018 / 15TH BHADRA, 1940
Mat.Appeal No.554 of 2018
(AGAINST THE ORDER IN OP No.342/2013 OF FAMILY COURT, TIRUR)
APPELLANTS/RESPONDENTS:
1 KUNDIL PAREKKAT USMAN, AGED 33 YEARS, S/O.ABDU RAHIMAN, TIRURANGADI TALUK, NANNAMBRA AMSOM, THEYYALA DESOM, THEYYALINGAL.P.O, TIRUR, MALAPPURAM.
2 KUNDIL PAREKATT IYYATHU, AGED 60 YEARS, W/O.ABDU RAHIMAN, TIRURANGADI TALUK, NANNAMBRA AMSOM, THEYYALA DESOM, THEYYALINGAL.P.O, TIRUR, MALAPPURAM.
3 KUNDIL PAREKATT ABDU RAHIMAN, AGED 7O YEARS, S/O.BEERANKUTTY, TIRURANGADI TALUK, NANNAMBRA AMSOM, THEYYALA DESOM, THEYYALINGAL.P.O, TIRUR, MALAPPURAM.
BY ADVS. SRI. T.G. RAJENDRAN SMT. ANN SUSAN GEORGE SRI. T.R. TARIN SRI. V.A. VINOD
Mat.Appeal No.554 of 2018
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RESPONDENTS/PETITIONERS:
1 THOOMBIL SAKKEENA, AGED 29 YEARS, D/O.MOIDEEN, THENNALA AMSOM DESOM, KODAKKAL, TIRURANGADI TALUK, CHULLIPPARA.P.O, PIN-676 508, TIRURANGADI POLICE STATION LIMIT.
2 RINSHAYA SHEHIDA, AGED 10 YEARS,(MINOR) REPRESENTED BY HER MOTHER AND LEGAL GUARDIAN, THOOMBIL SAKKEENA.
BY ADV. SRI. ESM. KABEER
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 30.08.2018,
THE COURT ON 06.09.2018 DELIVERED THE FOLLOWING:
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JUDGMENT
R. Narayana Pisharadi, J
This appeal is filed by the respondents in O.P.No.342/2013 on the file of the Family Court, Tirur challenging the ex parte decree passed against them in that case.
2. The parties shall be hereinafter referred to as they figure in O.P.No.342/2013.
3. The petitioners had filed O.P.No.342/2013 against the respondents for granting a decree for realisation of the value of the gold ornaments and also the money given to them and also for realisation of the amount of past maintenance. The first petitioner is the wife of the first respondent and the second petitioner is their minor child. The second and the third respondents are the parents of the first respondent.
4. Inspite of the fact that the respondents entered appearance in the case and participated in the mediation, they did not file any counter statement in the case. They also did not appear before the court subsequently. Therefore, they were set ex parte in the case. On the basis of the affidavit filed by the first petitioner in lieu of
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examination-in-chief and Ext.P1 series photographs, the lower court found that the petitioners have proved their case and accordingly, the lower court passed a decree in the case on the following terms.
"1. The first respondent is directed to pay a sum of Rs.64,000/- (Rupees sixty four thousand only) as past maintenance for 8 months at the rate of Rs.5,000/- (Rupees five thousand only) to the first petitioner and Rs.3,000/(Rupees three thousand only) to the second minor petitioner.
2. The first respondent is directed to pay Rs.1,00,000/(Rupees one lakh only) to the first petitioner being the amount borrowed from the brother of the petitioner for purchase of property.
3. The respondents 1 to 3 are directed to pay Rs.12,27,600/- (Rupees twelve lakhs twenty seven thousand and six hundred only) as value of 55 sovereign gold ornaments at the rate of Rs.22,320/- (Rupees twenty two thousand three hundred and twenty only) per sovereign.
4. The second respondent is directed to return Rs.1,00,000/- (Rupees one lakh only) to the first petitioner being the amount obtained prior to the marriage.”
The appeal is filed challenging the aforesaid decree.
5. We have heard the learned counsel for the appellants as well as the respondents.
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6. We notice from the impugned judgment that the lower court has passed the decree on the ground that from the petition and the chief affidavit of PW1, the petitioner has proved her case. The decree against the respondents has been passed by the lower court based on the aforesaid conclusion. However, the impugned judgment does not contain any discussion of the evidence adduced by the petitioners to prove their claim.
7. But, we cannot ignore the fact that there was gross negligence on the part of the respondents in contesting the case before the lower court. They have not offered any explanation for their non-appearance before the lower court after participating in the mediation process. They have also not given any satisfactory explanation for not filing any counter statement in the case. Taking note of these circumstances, we suggested to the counsel appearing on either side that the appeal may be allowed and the case may be remanded to the lower court for fresh disposal on putting the appellants on terms. We suggested that the appellants may deposit an amount of Rs.64,000/- awarded by the trial court towards past maintenance of the petitioners and that they may also deposit an amount of Rs.5,00,000/- as security for the other amounts claimed by the petitioners and they may further pay an amount of Rs.15,000/- as
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costs to the petitioners as a condition for allowing the appeal and remanding the case to the trial court for fresh disposal. Learned counsel for both parties readily accepted the aforesaid suggestion.
8. Consequently, we allow the appeal and set aside the impugned order/decree passed by the Family Court, Tirur in O.P.No.342/2013 and remand the case to that court for fresh disposal on the condition that the appellants shall deposit an amount of Rs.5,64,000/- (Rupees five lakhs and sixty four thousand only) and a further amount of Rs.15,000/- (Rupees fifteen thousand only) in the trial court on or before 3.10.2018. The parties shall appear before the trial court on 4.10.2018. The Family Court shall give an opportunity to the appellants to file counter statement in the case and thereafter dispose of the case afresh in accordance with law. If the amount is deposited by the appellants, the first respondent/the first petitioner is allowed to withdraw an amount of Rs.64,000/(Rupees sixty four thousand only). She is also allowed to withdraw the amount of Rs.15,000/- (Rupees fifteen thousand only) towards costs. The Family Court shall transfer the balance amount of Rs.5,00,000/- (Rupees five lakhs only) to a nationalised bank as fixed deposit till the disposal of the case. Needless to state that on failure of the appellants to deposit the amount as directed above
Mat.Appeal No.554 of 2018
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within the stipulated period, the appeal will stand dismissed.
Sd/-
C.K.ABDUL REHIM
JUDGE
Sd/-
R. NARAYANA PISHARADI
JUDGE
ss
3 issues framed by the court
Whether the impugned ex parte decree can be set aside without proper evidence evaluation due to gross negligence by respondents.
Whether the appeal against the decree for maintenance and return of ornaments should be admitted on terms of deposit.
Whether the case should be remanded to the trial court for fresh disposal after hearing both sides.
THOOMBIL SAKKEENA
RINSHAYA SHEHIDA
KUNDIL PAREKKAT USMAN
KUNDIL PAREKATT IYYATHU
KUNDIL PAREKATT ABDU RAHIMAN
C.K.ABDUL REHIM
R. NARAYANA PISHARADI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
