Dismissed

Uma V.R. v. R.Harikumar (Deceased)

Kerala HC6 Dec 2019Mat.Appeal/734/2017

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a civil application seeking to condone a 2204-day delay in filing a matrimonial appeal. The court found the petitioner's explanation of believing her husband and living together insufficient to justify the inordinate delay, leading to the dismissal of both the miscellaneous application and the appeal.

What did the court decide?

The civil miscellaneous application and the matrimonial appeal were dismissed.

Uma V.R. Vs R.Harikumar (Deceased) — Matrimonial and Divorce | Kerala HC (2019)

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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 K.HARILAL

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THE HONOURABLE MR.JUSTICE C.S.DIAS

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FRIDAY, THE 06TH DAY OF DECEMBER 2019 / 15TH AGRAHAYANA, 1941

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Mat.Appeal.No.734 OF 2017

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AGAINST THE ORDER/JUDGMENT IN OP 338/2009 DATED 07-06-2013 OF FAMILY COURT,ERNAKULAM

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APPELLANT/S:

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UMA V.R.

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W/O HARIKUMAR,RESIDING AT ALAKANANDHA,18/37,RAILWAY STATION ROAD,TRIPUNITHURA,ERNAKULAM DISTRICT.

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BY ADVS. SMT.P.DEEPTHI SRI.SABU JOHN

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RESPONDENT/S:

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1 R.HARIKUMAR (DECEASED) ALAKANANDHA,(DIED AND REP BY 2ND AND 3RD RESPONDENTS)18/37,RAILWAY STATION ROAD,TRIPUNITHURA.

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2 H.RAJAGOPAL

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S/O HARIKUMAR,ALAKANANDHA,18/37,RAILWAY STATION ROAD,TRIPUNITHURA.

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3 H.SAUMYA D/O.HARIKUMAR,ALAKANANDHA,18/37,RAILWAY STATION ROAD,TRIPUNITHURA.(LEGAL HEIRS OF THE 1ST RESPONDENT ADDED AS ADDITIONAL PARTIES DUE TO THE DEATH OF 1ST RESPONDENT).

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R2-3 BY ADV. SMT.O.V.DEEPA

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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2 C.M.A NO.2360/2017 AND MAT.APPEAL 734/2017

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ORDER/JUDGMENT

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C.S.DIAS, J.

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The petitioner, who is the appellant in Mat.Appeal No.734/2017, has filed this civil miscellaneous application seeking to condone the delay of 2204 days in filing the appeal.

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In the affidavit accompanying the application, she alleges that she and the first respondent, who is now stated to be no more, had arrived at an understanding to resume co-habitation consequent to the ex parte decree and they were living together under the same roof on the above understanding. According to the petitioner, she believed the words of her husband and continued to live with him. It was for the above reason, the petitioner did not file the appeal within the statutory time period, challenging the ex-parte order passed against her. The first respondent is no more. The respondents 2 and 3, the children of the first respondent, have not filed any counter affidavit to the application, and have not opposed

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3 C.M.A NO.2360/2017 AND MAT.APPEAL 734/2017

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the application.

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On going through the averments in the affidavit

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filed in support of the application, we do not find any sufficient cause or explanation to condone the inordinate delay of 2204 days in filing the appeal. It is discernible from the averments in the affidavit that the petitioner was very much aware of the ex parte decree passed against her, but she believed the words of her husband and that's why she did not file the appeal in time.

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We are fully conscious of the law laid down by the Hon'ble Supreme Court and this Court that, applications to set aside ex parte decrees have to leniently considered. But there is an exception to the general rule that, “sufficient cause” should be shown in the affidavit for the absence of the party.

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In the present case, the only reason for not setting aside the ex-parte decree is extracted by us; which is not a sufficient cause. The reason given in the present affidavit is not appealing to us and is considered insufficient to condone the inordinate delay of 2204 days.

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C.M.A NO.2360/2017 AND MAT.APPEAL 734/2017

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In the result, the civil miscellaneous application

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is dismissed. Resultantly, the Mat.Appeal is also dismissed.

Sd/-

K.HARILAL

JUDGE

Sd/-

C.S.DIAS

7.12.2019

JUDGE

C.M.A NO.2360/2017 AND MAT.APPEAL 734/2017

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APPENDIX

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APPELLANTS ANNEXURE

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A1- TRUE COPY OF THE MEDIATION AGREEMETN AND ORDER IN OP NO.1100/2012 DATED 1.10.2015

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A2-TRUE COPY OF THE DECREE IN OP 1100/2012 DATED 16.11.2015

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A3- TRUE COPY OF THE ORDER IN OP NO.1100/2012 DATED 16.11.2015

Uma V.R. v. R.Harikumar (Deceased)

Case brief

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Uma V.R. v. R.Harikumar (Deceased)

Case brief

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