Allowed

Athira Joy v. C.K.Sinto

Kerala HC21 Feb 2023Mat.Appeal/1014/2016

Case brief

AI extract

What is this about?

High Court allowed an appeal against the dismissal of a matrimonial petition which was set aside by the Family Court below. The High Court held that dismissal based on absence of counsel and non-production of original power of attorney was unsustainable, setting aside the lower court's order and directing restoration of the original petition.

What did the court decide?

Appeal allowed; impugned judgment dated 27.07.2016 set aside; original petition restored for proceedings.

Athira Joy Vs C.K.Sinto — Matrimonial and Divorce | Kerala HC (2023)

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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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TUESDAY, THE 21^ST DAY OF FEBRUARY 2023 / 2ND PHALGUNA, 1944 MAT.APPEAL NO. 1014 OF 2016

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AGAINST THE ORDER DATED 27.07.2016 IN O.P.NO.144 OF 2016 OF THE FAMILY COURT, MUVATTUPUZHA

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APPELLANTS:

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1 ATHIRA JOY

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AGED 30 YEARS, D/O.K.J.JOY, KOCHANICHOTTIL HOUSE, KARIMANNOOR.P.O, KARIMANNOOR VILLAGE, THODUPUZHA TALUK,IDUKKI DISTRICT, NOW RESIDING AT APT-8,201 OMINA STREET, MOOSE JAW SK,CANADA-S6H1X3 REPRESENTED BY HER POWER OF ATTORNEY HOLDER K.J.JOY, AGED 61 YEARS, S/O.LATE JOSEPH, KOCHANICHOTTIL HOUSE, KARIMANNOOR.P.O, KARIMANNOOR VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT.

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2 K.J.JOYAGED, AGED 61 YEARS, S/O.LATE OF JOSEPH, KOCHANICHOTTIL HOUSE,KARIMANNOOR.P.O, KARIMANNOOR VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT.

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BY ADVS. SRI.C.K.VIDYASAGAR SRI.P.CHANDY JOSEPH

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RESPONDENTS:

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1 C.K.SINTO S/O.KUNJU VAREEDU,CHERADAI HOUSE,THAZHEKADU.P.O,KOMBODIJAMMAKKAL, THAZHAKKADU VILLAGE, MUNDUMDAPURAM TALUK, THRISSUR DISTRICT-686697.

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Mat.Appeal No.1014 of 2016

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2 KUNJU VAREEDU,

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AGED 67 YEARS, CHERADAI HOUSE, THAZHEKADU.P.O, KOMBODIJAMMAKKAL, THAZHAKKADU VILLAGE, MUNDUMDAPURAM TALUK, THRISSUR DISTRICT-686697.

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3 SELINA, AGED 60 YEARS, W/O.KUNJU VAREEDU, CHERADAI HOUSE, THAZHEKADU.P.O, KOMBODIJAMMAKKAL, THAZHAKKADU VILLAGE, MUNDUMDAPURAM TALUK, THRISSUR DISTRICT-686697. BY ADVS. SRI.ASHWIN SETHUMADHAVAN SRI.A.JAYASANKAR SRI.MANU GOVIND SMT.B.MEERA SRI.S.SABARINADH

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 21.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.Appeal No.1014 of 2016

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JUDGMENT

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P.G. Ajithkumar, J.

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O.P.No.144 of 2016 filed by the appellants was dismissed by the Family Court, Muvattupuzha, as per the judgment dated 27.07.2016. Assailing that judgment, this appeal has been filed under Section 19(1) of the Family Courts, 1984.

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This appeal was admitted on 13.10.2016. The respondents entered appearance pursuant to notice.

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Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondents.

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The appellants filed O.P.No.301 of 2015 before the

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Family Court, Thodupuzha seeking a decree of return of gold ornaments and realisation of money. Marriage between the 1^st

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appellant and the 1^st respondent was solemnised on 15.09.2014 and on developing disharmony in their marital relationship, O.P.No.301 of 2015 was filed. The 1^st respondent filed O.P.(Div) No.856 of 2015 before the Family Court, Irinjalakuda seeking divorce on the ground of cruelty. There

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Mat.Appeal No.1014 of 2016

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was also another case between them. This Court, on the motion of the parties, ordered to transfer the cases to the Family Court, Muvattupuzha, where O.P.No.301 of 2015 was renumbered as O.P.No.144 of 2016. The 2^nd appellant joined in filing O.P.No.144 of 2016 on his personal capacity and also

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as power of attorney of the 1^st appellant, who was then working in Canada.

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The Family Court, Muvattupuzha on 27.07.2016 dismissed O.P.No.144 of 2016. The judgment reads,-

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“Both parties absent. No vakalath is seen filed for the petitioners before this court. The counsel who filed vakalath for the petitioners before the Family Court, Thodupuzha is also absent. Despite repeated chances, the 1^st petitioner has not appeared before this court. Today, the 2^nd petitioner is also absent. He has not produced the original Power of Attorney alleged to have been executed by the 1^st petitioner in favour of the 2^nd petitioner. In the above circumstances, this OP is dismissed.”

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The learned counsel appearing for the appellants

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would submit that O.P.No.144 of 2016 was dismissed on technical ground of non-production of original power of

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Mat.Appeal No.1014 of 2016

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attorney and the view taken by the Family Court being incorrect, this appeal is liable to be allowed.

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The learned counsel appearing for the respondents,

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on the other hand, would submit that the ultimate reason for dismissing O.P.No.144 of 2016 was non-appearance of the appellants, despite giving several opportunities and therefore the dismissal was one for default. The appellants have filed application for restoration of O.P.No.144 of 2016 along with an application to condone the delay, which were also dismissed. The learned counsel would submit that in the light of such developments, this appeal is not maintainable. Further, it is pointed out that the appellants had filed O.P.No.588 of 2019 before the Family Court, Muvattupuzha for the same purpose and in view of that matter also, this appeal deserves dismissal.

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Rule 8 of Order IX of the Code of Civil Procedure, 1908 says that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order dismissing the suit. On a reading of

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the impugned judgment, it can be seen that the reasons stated by the Family Court to dismiss O.P.No.144 of 2016 is not merely the absence of the appellants. It is noted in the judgment that no fresh vakalath for the appellants was filed before the Family Court, Muvattupuzha and the counsel who filed vakalath before Family Court, Thodupuzha, where the original petition was originally filed, was also absent. Another reason that led to the dismissal is that the original power of attorney in favour of the 2^nd appellant was not produced. It is significant to note that O.P.No.144 of 2016 was not posted for hearing on that particular day, i.e., 27.07.2016. A court can invoke Rule 8 of Order IX of the Code, if the suit is scheduled for hearing. What evinces from the impugned judgment is that O.P.No.144 of 2016 was not listed for hearing on 27.07.2016. In that view of the matter, it cannot be said that the judgment of dismissal dated 27.07.2016 is one under Rule 8 of Order IX of the Code.

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A vakalath engaging a counsel to appear for the

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appellants was filed before the Family Court, Thodupuzha.

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Mat.Appeal No.1014 of 2016

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Even if the case was transferred to the Family Court, Muvattupuzha that vakalath does not get invalidated. Therefore, the reason stated by the Family Court that no fresh Vakalath was filed before the Family Court, Muvattupuzha was not a sufficient reason to dismiss the O.P. It appears from the impugned judgment that the 2^nd appellant had been appearing before the Family Court, Muvattupuzha. Therefore, for his absence on a particular day alone, the original petition should not have been dismissed.

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Going by Section 4 of the Powers of Attorney Act, 1882 if a party appearing through his power of attorney produces a copy of the power of attorney, that is enough. Of course, such copy shall be a duly certified one. If so, nonproduction of the original power of attorney cannot be a reason always to dismiss the petitioner. In this case, the 2^nd appellant joined the proceedings in his personal capacity also. It is not a case where there was no power of attorney executed by the 1^st appellant. In such circumstances, the Family Court should have given opportunity to produce the

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Mat.Appeal No.1014 of 2016

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original or a certified copy of the power of attorney, instead of immediately dismissing O.P.No.144 of 2016.

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Taking all such aspects into account, we are of the view that the impugned judgment dated 27.07.2016 in O.P.No.144 of 2016 is incorrect and unsustainable. It is liable to be set aside.

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Accordingly, this appeal is allowed. The judgment dated 27.07.2016 in O.P.No.144 of 2016 is set aside. The Family Court, Muvattupuzha will restore O.P.No.144 on 2016 on file and proceed in accordance with law.

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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

Athira Joy v. C.K.Sinto

Case brief

What is this about?

What did the court decide?

Athira Joy v. C.K.Sinto

Case brief

What is this about?

What did the court decide?

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