Partly allowed

Santhosh Kumar v. Salini

Kerala HC10 Oct 2018OP (FC)/505/2017

Case brief

AI extract

What is this about?

The High Court, while noting the Family Court did not commit patent illegality in dismissing restoration applications due to petitioners' laches, exercised supervisory jurisdiction under Article 227. The court allowed the petitions and set aside the dismissal orders, restoring the interim applications to set aside ex-parte decrees subject to payment of costs.

What did the court decide?

The orders dismissing I.A. Nos. 210/2017 and 211/2017 were set aside; said interim applications were restored subject to payment of costs of Rs. 3,000/- each.

Santhosh Kumar Vs Salini — Civil Procedure and Limitation | 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 R. NARAYANA PISHARADI

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WEDNESDAY, THE 10TH DAY OF OCTOBER 2018/18TH ASWINA, 1940

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OP (FC).No. 505 of 2017

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AGAINST ORDER IN I.A.No.210/2017 IN OP 247/2013 of FAMILY COURT, KOTTARAKKARA

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PETITIONERS/PETITIONERS/ORIGINAL RESPONDENTS:

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1 SANTHOSH KUMAR

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AGED 35 YEARS, S/O.VIDYADHARAN, SANTHOSH BHAVAN, MAROOR, KUDAVATTOOR P.O.,ODANAVATTOM, KOTTARAKARA TALUK, KOLLAM DISTRICT.

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2 SOBHANA BHAI

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W/O.VIDYADHARAN,SANTHOSH BHAVAN, MAROOR, KUDAVATTOOR P.O.,ODANAVATTOM, KOTTARAKARA TALUK,KOLLAM DISTRICT.

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BY ADV. SRI.H.PRAVEEN (KOTTARAKARA)

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RESPONDENT/RESPONDENT/ORIGINAL PETITIONER:

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SALINI

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AGED 26 YEARS, MINI BHAVAN, EDAKKIDAM MURI, KAREEPRA VILLAGE, KOTTARAKARA TALUK, KOLLAM DISTRICT.

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BY ADV. SRI.ALEXANDER GEORGE

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THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 10.10.2018, ALONG WITH OP (FC).507/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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O.P.(FC) Nos. 505 & 507/2017

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-:2:-

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C.K. ABDUL REHIM &

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R. NARAYANA PISHARADI, JJ.

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-----------------------------------------------------

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O.P.(FC) Nos. 505 & 507 OF 2017 R

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-------------------------------------------------------

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Dated this the 10^th day of October, 2018

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C O M M O N J U D G M E N T

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Abdul Rahim, J.

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O.P.(FC) No.505/2017 is filed challenging the order

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passed by the Family Court, Kottarakkara in I.A. No.210/2017 in O.P. No.247/2013. O.P.(FC) No.507/2017 is filed challenging an

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order of the same court in I.A. No.211/2017 in O.P. No.463/2012. Since the parties are common in both the cases, these original petitions are considered together and disposed of through this common judgment.

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The petitioners in O.P.(FC) No.505/2017 are the respondents in O.P. No.247/2013, pending before the Family Court. O.P. No.247/2013 was filed by the respondent herein

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O.P.(FC) Nos. 505 & 507/2017

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seeking for a declaration that a document executed by the 2^nd petitioner in favour of the 1^st petitioner is null and void and also seeking a consequential injunction. The respondent herein had also filed O.P. No.463/2012, against the 1^st petitioner herein seeking for return of gold ornaments and to declare another document, No.555/2012 of Ezhukone Sub Registry, as null and void. The petitioners herein received notice in both the above said cases instituted before the Family Court. Despite their appearance before the Family Court, they failed to file written statement(objections). Accordingly, the petitioners were set exparte and the original petitions were allowed through the exparte decrees passed by the Family Court on 30.09.2015 in both the cases.

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The petitioners filed I.A. No.1486/2015 in O.P. No.247/2013 and I.A. No.1483/2015 in O.P. No.463/2012

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seeking to set aside the ex-parte decrees. But the

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O.P.(FC) Nos. 505 & 507/2017

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petitioners failed to pursue those applications before the Family Court and both the above interim applications were dismissed for default on 10.03.2016. The petitioners thereafter filed I.A. No.210/2017 in O.P. 247/2013 seeking restoration of I.A. No.1486/2015 in O.P. No.247/2013, after condoning delay of 291 days occurred in filing the said application. Similarly, I.A. No.211/2017 was filed seeking restoration of I.A. No.1483/2015 in O.P. No.463/2012 after condoning the delay of 291 days in filing the said petition.

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The court below had dismissed I.A. No.210/2017 in O.P. No.247/2013 and I.A. No.211/2017 in O.P. No.463/2012 through separate orders passed on 28^th June, 2017, stating more or less the same reasons. The

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petitioners are challenging those orders in these original petitions.

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O.P.(FC) Nos. 505 & 507/2017

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Heard; learned counsel appearing for the

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petitioners and the respondent.

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Learned counsel for the petitioners contended

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that, the laches on the part of the petitioners in not contesting the original petitions before the Family Court was not willful. According to the petitioners, they could not pursue the applications filed seeking to set aside the exparte decrees, only because the first petitioner was working in Karnataka and he was not aware about the posting dates of the case. The learned Judge of the Family Court observed that, there is no proper reason forthcoming for the non appearance of the petitioners after filing of the applications for setting aside the ex-parte decrees. The only reason stated is that the 1^st petitioner was working in Karnataka and his counsel had failed to give information

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O.P.(FC) Nos. 505 & 507/2017

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regarding the posting dates. It was specifically found that,

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even after filing the petitions to set aside the ex-parte decrees the petitioners have failed to appear. It was also observed by the court that the petitioners have not adduced any evidence in the present applications filed seeking for restoration of the earlier interim applications, in order to prove that the delay occurred in filing those applications was bonafide .

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Learned counsel appearing for the respondent,

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per contra , contended that, there occurred continuous default due to the laches and negligence on the part of the petitioners in contesting the case and also in pursuing the applications filed by them seeking to set aside the ex-parte order. According to the respondent, the petitioners are adopting a delaying tactics in the matter.

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O.P.(FC) Nos. 505 & 507/2017

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Having considered the rival contentions, we are of

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the opinion that there is no patent illegality, irregularity or error committed by the Family Court in dismissing the present interim applications, which would warrant invocation of the supervisory jurisdiction vested on this court under Article 227 of the Constitution of India. However, we are persuaded to take a liberal attitude and a lenient view in the matter, taking into consideration of the fact that the petitioners were not able to contest the original petitions on merits. In this regard we are conscious of the settled principles of law that causes should be decided on merits,

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as far as possible, rather than dismissing them on technicalities. Hence we feel that the petitioner shall be provided with an opportunity to pursue their applications, which they filed to set aside the ex-parte decree, before the

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O.P.(FC) Nos. 505 & 507/2017

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court below. However, this can be allowed only on terms of cost, in order to compensate the prejudices which will be caused to the respondent.

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Hence the above original petitions are hereby allowed. The orders passed by the Family Court, Kottarakkara in I.A. No.217/2017 in O.P. No.247/2013 and I.A. No.211/2017 in O.P. No.463/2012 are hereby set aside.

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The said interim applications are allowed to the extent of restoring I.A. No.1486/2015 in O.P. No.247/2013 and I.A.

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No.1483/2015 in O.P. No.463/2012, subject to condition of the petitioners depositing before the Family Court or paying to the respondent, costs of `3,000/-(Rupees three thousand only) each in both the cases, within a period of two weeks from today. On production of proof with respect to payment of the cost, the Family Court, Kottarakkara shall restore I.A.

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O.P.(FC) Nos. 505 & 507/2017

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No.1486/2015 in O.P. No.247/2013 and I.A. No.1483/2015

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in O.P. No.463/2012 on its files and shall dispose of those

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applications after affording opportunity to both the sides, as expeditiously as possible, at any rate, within a period of three weeks from the date of restoration of those I.As.

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In order to facilitate the petitioners to comply with

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the above direction and to pursue the interim applications to set aside the ex-parte decree, further coercive steps in the execution applications, if any filed, shall be kept in

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abeyance for a period of two months from today.

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Sd/- C.K. ABDUL REHIM, JUDGE .

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Sd/- R. NARAYANA PISHARADI, JUDGE .

ul/-

[True copy]

P.S. to Judge.

O.P.(FC) Nos. 505 & 507/2017

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE OP 247/2013 ON THE FILE OF FAMILY COURT, KOTTARAKARA.

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EXHIBIT P2 TRUE COPY OF THE AFFIXTURE NOTICE IN E.P.52/2016 DATED 8.11.2016. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 10.3.2015. EXHIBIT P4 TRUE COPY OF THE I.A.210/2017 IN I.A.1486/2015 IN OP 247/2013. EXHIBIT P5 TRUE COPY OF OBJECTION IN I.A.210/2017. EXHIBIT P6 TRUE COPY OF THE ORDER DATED 28.6.2017.

Santhosh Kumar v. Salini

Case brief

What is this about?

What did the court decide?

Santhosh Kumar v. Salini

Case brief

What is this about?

What did the court decide?

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