Allowed

Sahir (Ashiq) v. Febina

Kerala HC17 Nov 2022Mat.Appeal/328/2019

Case brief

AI extract

What is this about?

High Court set aside an ex parte decree in a matrimonial appeal where appellants had paid the commission batta. Court directed Family Court to re-decide the original petition. Court ordered release of partial deposit for child expenses while keeping the balance in a minor's deposit. Appeal allowed.

What did the court decide?

Set aside the ex parte decree of O.P.No.975 of 2012. Family Court to decide afresh. Release Rs.1 lakh to respondent for child expenses; retain Rs.2 lakh in minor deposit.

Sahir (Ashiq) Vs Febina — 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 ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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THURSDAY, THE 17^TH DAY OF NOVEMBER 2022 /26TH KARTHIKA, 1944

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MAT.APPEAL NO. 328 OF 2019

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AGAINST THE JUDGMENT DATED 23.09.2017 IN O.P.No.975 of 2012 OF THE FAMILY COURT, THIRUVANANTHAPURAM

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APPELLANT/PETITIONERS:

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1 SAHIR (ASHIQ) AGED 38 YEARS, S/O.M.A.HAMEED, POURNAMI, PERUMATHURA.P.O., THIRUVANANTHAURAM-695303.

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2 M.A.HAMEED, POURNAMI, PERUMATHURA PO, THIRUVANANTHAPURAM-695303.

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3 NASEEMA HAMEED, POURNAMI, PERUMTHURA P.O, THIRUVANANTHAPURAM.

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BY ADVS.

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M.P.ASHOK KUMAR SRI.P.C.GOPINATH SMT.BINDU SREEDHAR SHRI.ASIF N.

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RESPONDENT/RESPONDENT:

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FEBINA,

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D/O M.S RAFEEKA BEEGUM,SUPREME, TC 8/682-1,THIRUMALA, THIRUVANANTHAPURAM.

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BY ADV B.ANANTHU

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 17.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.Appeal No.328 of 2019

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JUDGMENT

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P.G. Ajithkumar, J.

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This is an appeal filed under Section 19(1) of the Family Courts Act, 1984. The appellants challenge the judgment dated 23.09.2017 in O.P.No.975 of 2012 on the file of the Family Court, Thiruvananthapuram.

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The appellants are the respondents in O.P.No.975 of 2022. The respondent herein filed the original petition seeking return of gold ornaments and money said to have been paid to the appellants in connection with the marriage between the 1^st appellant and the respondent. The Family Court as per the judgment dated 23.09.2017 decreed the original petition allowing the respondent to recover 130 sovereigns of gold ornaments or its equivalent amount of Rs.30 lakhs and B-Schedule articles. The respondent was also allowed to recover Rs.15 lakhs along with interest. The appellants would contend that the said decree was passed without affording an opportunity to them to contest the matter. It is practically an exparte decree. They were denied

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Mat.Appeal No.328 of 2019

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an opportunity to contest the matter saying that they did not make payment of the batta to the Commissioner, who was appointed to record the evidence. In fact they have paid the batta and is evident from Annexure A1. In such circumstances, the appellant would contend that the decree is not sustainable in law and liable to be set aside.

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Heard the learned counsel appearing for the appellants and also the learned counsel appearing for the respondent.

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On 03.05.2019, when the appeal along with C.M.Appl.No.1 of 2019 had come up for consideration, taking into account the urgency pointed out by the learned counsel appearing for the appellants, C.M.Appl.No.1 of 2019 was considered on the same day and it was allowed on condition of the appellants' depositing Rs.3 lakhs within a period of two weeks. The respondent was allowed to withdraw that amount in the event of deposit. The appellants, however, filed a petition for review of the said order insofar as it allowed the respondent to withdraw the amount. This Court as per order

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Mat.Appeal No.328 of 2019

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dated 12.11.2019 noticed that the appellants already deposited Rs.3 lakhs in terms of the order dated 03.05.2019. It was ordered that the respondent would not be allowed to withdraw the amount for the time being. The respondent was given freedom to move this Court for permission to withdraw the said amount if the situation so warrants.

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From the impugned judgment dated 23.09.2017, it is evident that the appellants did not participate in the trial. It is noted in the judgment that “PW1 was examined on the side of the petitioner and marked Exts.A1 and A2. The respondent has not participated with the trial and not paid commission batta in spite of direction and not adduced any evidence”. From that it is quite clear that the appellants did not contest the matter.

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Order XVII, Rule 2 of the Code of Civil Procedure, 1908 prescribes the procedure if parties fail to appear on the day fixed for hearing. Order XVII, Rule 2 of the Code reads,-

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“Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the

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Mat.Appeal No.328 of 2019

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modes directed in that behalf by Order IX or make such other order as it thinks fit.

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Explanation.-Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion proceed with the case as if such party were present.”

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Here, no evidence was recorded on the side of the appellants. Therefore, it is obvious that the decree dated 23.09.2017 is an exparte one. The reason for proceeding with the original petition exparte is that the appellants did not make payment of the batta to the Commissioner, who was appointed to record the evidence. From Annexure A1 it is seen that batta to be paid to the Advocate Commissioner was paid and a memo to that effect was filed in Court on 02.02.2017. There is an endorsement by the Advocate Commissioner acknowledging receipt of the batta. It was long thereafter i.e., on 23.09.2017 O.P.No.975 of 2010 was decreed exparte.

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The judgment dated 23.09.2017, can be treated only as a disposal under Order IX of the Code. The contention

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Mat.Appeal No.328 of 2019

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of the appellants that they were not at fault insofar as the payment of the batta to the Commissioner, therefore, appears correct. In the said circumstances, we of the view that the judgment of the Family Court, Thiruvananthapuram dated 23.09.2017 is liable to be set aside and O.PNo.975 of 2012 be decided afresh.

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As pointed out above, the appellant had deposited Rs.3,00,000/- before the Family Court, Thiruvananthapuram. The learned Counsel appearing for the respondent would submit that considering the expenses in connection with the education and other necessities of the child, the respondent is entitled to get the amount in deposit released to her.

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The learned Counsel appearing for the appellants objects the same stating that the respondent remarried and if the amount is paid, it cannot be ensured that the respondent will utilise the same for meeting the expenses in connection to the child of the 1^st appellant and the respondent.

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Having considered the facts and circumstances of the case and the submissions of the learned counsel on either

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Mat.Appeal No.328 of 2019

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side, we deem it appropriate to direct the Family Court, Thiruvananthapuram, to release Rs.1,00,000/- to the respondent, which shall be used to meet the expenses of the child of the 1^st appellant and the respondent. The said amount will be defrayed against the amount the respondent would be entitled as per the decree that may be passed in O.P.No.975 of 2012. The remaining amount of Rs.2,00,000/- shall be transferred to an interest bearing deposit in the name of the

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minor with a lien in favour of the Court.

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The appeal is allowed accordingly.

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Sd/-

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ANIL K. NARENDRAN, JUDGE

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Sd/P.G. AJITHKUMAR, JUDGE

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dkr

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Mat.Appeal No.328 of 2019

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APPENDIX OF MAT.APPEAL 328/2019

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PETITIONER ANNEXURES

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ANNEXURE A1	THE PHOTOCOPY OF THE MEMO
	ACKNOWLEDGED BY THE ADVOCATE COMMISSIONER ON RECEIVING BATA.
ANNEXURE A2	THE PROHIBITORY ORDER ALONG WITH PROPERTY SCHEDULE DATED 23/02/2019.
ANNEXURE A3	PHOTOCOPY OF THE RESIDENCE CARD.
ANNEXURE A4	PHOTOCOPY OF THE CANCELLATION ORDER.
RESPONDENT ANNEXURES
ANNEXURE 1	TRUE COPY OF THE ORDER OF THIS
	HON'BLE COURT IN R.P NO. 724/2019
	IN MAT. APPEAL NO. 328/2019 DATED 14/11/2019
ANNEXURE 2(A)	TRUE COPY OF SCHOOL FEE RECEIPT DATED 30/05/2022
ANNEXURE 2(B)	TRUE COPY OF PARTIAL SCHOOL FEE RECEIPT DATED 30/05/2022
ANNEXURE 2(C)	TRUE COPY OF BUS FEE RECEIPT DATED 28/09/2022
ANNEXURE 2(D)	TRUE COPY OF SCHOOL FEE RECEIPT DATED 01/10/2022
ANNEXURE 3	TRUE COPY OF THE GOLD LOAN ACCOUNT PASS CARD DATED 16/06/22
ANNEXURE 4	TRUE COPY OF THE GOLD LOAN ACCOUNT
	PASS CARD DATED 22/07/22

Sahir (Ashiq) v. Febina

Case brief

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What did the court decide?

Sahir (Ashiq) v. Febina

Case brief

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