Partly allowed

Abdul Rahim v. Nazeema Beevi

Kerala HC9 Nov 2018Mat.Appeal/802/2018

Case brief

AI extract

What is this about?

The High Court allowed an appeal filing an identical modification to the lower court's order increasing the condonation cost to Rs.3,500/- per application. The Court restored the suit filed by the respondent-petitioner.

What did the court decide?

The impugned order was modified to increase the compensation cost to Rs.3,500/- in each interim application; upon payment, the Family Court is directed to restore the original petition.

Abdul Rahim Vs Nazeema Beevi — 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

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THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

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FRIDAY ,THE 09TH DAY OF NOVEMBER 2018 / 18TH KARTHIKA, 1940

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Mat.Appeal.No. 802 of 2018

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AGAINST THE JUDGMENT DATED 19-07-2018 IN IA No.847/2018 & 848/2018 IN OP 42/2013 of FAMILY COURT,KOLLAM

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APPELLANT/RESPONDENT:

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ABDUL RAHIM S/O.ALIYARUKUNJU, AGED 51 YEARS, ANSHAD NIVAS, THAZHUTHALA VILLAGE, KOLLAM DISTRICT (FROM ERUPARATHODIYIL VEEDU, THAZHUTHALA VILLAGE, KOLLAM)

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BY ADV. SRI.B.MOHANLAL

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RESPONDENT/PETITIONER:

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NAZEEMA BEEVI

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D/O.UMMUL HYMA, AKHAR MANZIL, KOTTIYAM P.O, PARAYEM CHERRY, THAZHUTHALA VILLAGE, KOLLAM (FROM BISMILLAH MANZIL, PAREYEM CHERRY, THAZHUTHALA VILLAGE, KOLLAM.

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BY ADV. M. RAJESH

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 09.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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AMG

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Mat. Appeal No.802/2018

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C.K. ABDUL REHIM, J. & T.V. ANILKUMAR, J.

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Mat. Appeal No. 802 OF 2018

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DATED THIS THE 9^th DAY OF NOVEMBER, 2018

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J U D G M E N T

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Abdul Rehim, J:

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The petitioner in O.P. No.42/2013 on the files of the Family Court, Kollam is the appellant in this appeal filed challenging a common order passed by that court in I.A. Nos.847/2018 & 848/2018, dated 19-07-2018. Through the order impugned, an exparte decree obtained by the appellant was set aside on the basis of applications filed by the respondent, after condoning the delay occurred in filing the application, subject to awarding of cost.

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The appellant herein had instituted O.P. No.42/2018 seeking realization of money from the respondent, who is his former wife. The respondent was declared ex-parte in the said case on 06-06-2017. Thereafter the case was decreed ex-parte on 12-06-2017, based on proof affidavit filed by the appellant and on the marking of Ext.A1 document. The respondent herein filed I.A. Nos.847/2018 & 848/2018 seeking to set aside the ex-parte decree

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after condoning the delay of 226 days occurred in filing the said application. The appellant filed detailed objections to those interim

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Mat. Appeal No.802/2018

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applications. Through the order impugned herein, those interim applications were allowed by the court below, subject to condition of the respondent paying cost of Rs.2,000/- each in both the applications to the appellant, within a period of one month. The appellant is challenging the said order on various grounds.

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One of the main contention raised is that an earlier application filed by the respondent seeking to set aside the exparte order passed on 06-06-2017, I.A. No.1088/2017, was dismissed by the Family Court for default of the respondent. It is contended that the respondent was not entitled to file fresh applications seeking to set aside the ex-parte decree, without challenging the dismissal of the said application. It is further contended that the Family Court has not properly adjudicated the interim applications on its merits. It is pointed out that, the observations of the Family Court are to the effect that the respondent had failed to adduce evidence in support of the application. Hence the I.As ought not have been allowed. It is also contended that the court below had not recorded any satisfaction that there were reasonable and genuine causes for the nonappearance of the respondent before the court on the day on which the original petition was posted for taking evidence, or on the subsequent dates till the decree was passed. According to the

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Mat. Appeal No.802/2018

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appellant, having found otherwise, the court below ought not have allowed the interim applications on condition of payment of cost.

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Heard; counsel appearing for the respondent. We find no merit in the contention with respect to the failure attributed on the part of the respondent in not challenging the order dismissing I.A. No.88/2017. The respondent was declared ex-parte on 06-062017. The suit was decreed thereafter only on 12-06-2017. In all probability the I.A. No.1088/2017 might have been dismissed for default only on 12-06-2017. After passing of the ex-parte decree in the original petition, there is no meaning in the respondent challenging the order dismissing I.A. No.1088/2017 for default, or in seeking restoration of that I.A. Hence she was justified and entitled in filing the fresh application.

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It is true that the respondent has not adduced any evidence in the interim applications filed to set aside ex-parate decree as well as in the petition for delay condonation. But in the affidavits filed in support of those applications it is mentioned that, she could not reach the Family Court on the day on which the case was posted for taking evidence, because she was on fasting and also because she was suffering from various diseases. With respect to delay also she had explained that she was undergoing treatment in connection with disease in her uterus. We notice that the court

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Mat. Appeal No.802/2018 -5-

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below had taken a liberal attitude in allowing those applications, which cannot be termed as in any manner perverse, illegal or erroneous. Considering the settled legal principles governing the issue, applications for setting aside ex-parte decrees need to be treated on a liberal basis. It remains trite that, courts are bound to decide all causes on merits, to the extent possible, rather than dismissing them on technicalities. Therefore we are not inclined to interfere with the impugned order, merely on the basis that the respondent failed to adduce any evidence therein or that the court has failed to record any specific satisfaction with respect to the merits of those applications. This is especially because we are exercising only s supervisory jurisdiction, which is purely visitorial in nature.

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However, we are of the opinion that the cost imposed while allowing the interim applications seems to be inadequate, and needs slight modification in order to compensate the appellant, properly. Hence, the above appeal is hereby disposed of by modifying the impugned order to the extent of revising the cost ordered by the court below as Rs.3,500/- in each of the interim applications. If the cost ordered as modified above is paid within a period of one month from today, the order impugned will become operative and the Family Court shall restore the original petition

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Mat. Appeal No.802/2018

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and shall proceed to dispose of the case on merits, after affording opportunity to both sides.

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Considering the fact that the original petition is of the year 2013, the Family Court shall take all earnest efforts to dispose

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of the case expeditiously, at any rate, within a period of 4 months

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from the date of restoration of the case.

Sd/-

C.K.ABDUL REHIM

JUDGE

Sd/-

T.V.ANILKUMAR

JUDGE

AMG

Abdul Rahim v. Nazeema Beevi

Case brief

What is this about?

What did the court decide?

Abdul Rahim v. Nazeema Beevi

Case brief

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