Allowed

Sameer K v. Febna

Kerala HC1 Jul 2022Mat.Appeal/203/2022

Case brief

AI extract

What is this about?

The High Court allowed an appeal challenging the dismissal of an application to set aside an ex parte decree. The Court held that despite the appellant's dilatory conduct, he should be granted a final opportunity to file a counter affidavit on payment of a conditional cost of Rs. 10,000.

What did the court decide?

The appeal was allowed on the condition that the appellant pays Rs. 10,000 towards costs; he is directed to file a counter affidavit by 17.08.2022.

Sameer K Vs Febna — Matrimonial and Divorce | Kerala HC (2022)

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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 A.MUHAMED MUSTAQUE

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THE HONOURABLE MRS. JUSTICE SOPHY THOMAS

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FRIDAY, THE 1^ST DAY OF JULY 2022 / 10TH ASHADHA, 1944

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MAT.APPEAL NO. 203 OF 2022

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I.A.NOS.1 & 2 OF 2022 IN OP 281/2020 OF FAMILY COURT,

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MALAPPURAM

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APPELLANT/PETITIONER/RESPONDENT:

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SAMEER K, AGED 39 YEARS, S/O KOYA, KOTTAYIL HOUSE, P.O.KALIKAVU, MALAPPURAM, KERALA-676 525.

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BY ADVS. NABIL KHADER E.K.ABDUL SALAM

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RESPONDENT/RESPONDENT/PETITIONER:

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FEBNA,

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AGED 35 YEARS, D/O AHAMMEDKUTTY, PULIVETTY HOUSE, P.O.AMALAKKADAVU, MALAPPURAM DISTRICT-676 525.

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BY ADV K.RAKESH

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 01.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.Appeal No.203 OF 2022 2

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JUDGMENT

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A.Muhamed Mustaque, J.

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This appeal is at the instance of the respondent in O.P.No281 of 2020 on the files of the Family Court, Malappuram. He was set ex parte . He filed an application to set aside ex parte decree along with application to condone the delay of 15 days in filing the application. These applications have been dismissed. Against which, this appeal has been preferred.

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The Family Court noted that the petitioner on an earlier occasion also remained absent and ex parte decree was passed on 21.01.2021. Thereafter, on application to set aside the ex parte decree, the ex parte decree was set aside. The appellant was given thereafter an opportunity to file a counter statement and case was posted to 03.01.2022. On that day no counter statement was filed. Again, the case was posted on 11.01.2022. On that day he was absent. Accordingly, he was set ex parte .

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The Family Court noted the conduct and attitude of

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Mat.Appeal No.203 OF 2022 3

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the appellant. It appears that he is simply attempting to protract the proceedings. Taking note of this fact, the Family Court dismissed the application to set aside ex parte .

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However, taking note of the facts and circumstances,

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we are of the view that a final opportunity should be given to the appellant, however, shall be on terms. The conduct of the appellant has to be deprecated. He has been dodging the case for one or the other reasons. We are sure that if a cost is imposed that would serve the ends of justice.

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Accordingly, this appeal is allowed on condition that the appellant pays a sum of Rs.10,000/- towards the costs. The costs shall be paid within a period of three weeks. The costs shall be paid either through the counsel appearing before this Court or before the Family Court. The appellant shall produce the acknowledgment before the Family Court. The parties are directed to appear before the Family Court on 01.08.2022. It is made clear that if the cost is not paid, the appellant will not be entitled for the benefit of this judgment. On appearance, if the cost is paid, the appellant shall file his

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Mat.Appeal No.203 OF 2022 4

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counter affidavit before 17.08.2022. Thereafter, the Family

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Court shall dispose of this case as expeditiously as possible.

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This appeal is allowed.

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Sd/-

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A.MUHAMED MUSTAQUE, JUDGE

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Sd/-

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SOPHY THOMAS, JUDGE

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DSV/02.07.2022

Sameer K v. Febna

Case brief

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Sameer K v. Febna

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