Allowed

Ajanta Kolay v. Sukdev Kolay

Kerala HC14 Feb 2023Mat.Appeal/193/2021

Case brief

AI extract

What is this about?

This matrimonial discharge appeal challenged a Family Court decree declaring the husband absolute owner of property. The High Court set aside the ex-parte decree under CPC Order VIII Rule 10 due to the wife's illness preventing her from joining the trial, thereby restoring the original suit for fresh adjudication.

What did the court decide?

The judgment dated 23.07.2016 of the Family Court is set aside, the suit O.P.No.1415 of 2014 is restored on file, and the case will be disposed within four months.

Ajanta Kolay Vs Sukdev Kolay — Partition | 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 14^TH DAY OF FEBRUARY 2023 / 25TH MAGHA, 1944

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MAT.APPEAL NO. 193 OF 2021

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AGAINST THE JUDGMENT DATED 23.07.2016 IN O.P.NO.1415 OF 2014 ON THE FILES OF THE FAMILY COURT, THIRUVANANTHAPURAM APPELLANT:

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AJANTA KOLAY,

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AGED 48 YEARS, D/O.LALITHA BARIK, AMIYAKUMAR BARIK, VILLAGE APURBAPUR, JALAGHATA, SINGUR P.O., HOOGHLY DIST., WEST BENGAL - 712 479.

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BY ADV R.AZAD BABU

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RESPONDENT:

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SUKDEV KOLAY,

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AGED 58 YEARS, S/O.LATE JOTHINDRANATH KOLAY, TC 11/654, VADIMUKKIL, MOSQUE LANE KESAVADASAPURAM, PATTOM P.O.,

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THIRUVANANTHAPURAM - 695 004.

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BY ADVS.

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M.RAJENDRAN NAIR M.SANTHY

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 14.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.Appeal No.193 of 2021

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JUDGMENT

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P.G. Ajithkumar, J.

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The respondent in O.P.No.1415 of 2014 on the file of the Family Court, Thiruvananthapuram is the appellant. The respondent has filed O.P.No.1415 of 2014 seeking a decree of declaration that he is the absolute owner of the petition schedule property. The appellant entered appearance, but failed to file her objection. That resulted in decreeing the original petition granting a decree in favour of the respondent. Challenging the said decree, this appeal has been filed under Section 19(1) of the Family Courts Act, 1984.

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Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent.

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The appellant and the respondent were wife and husband. The respondent instituted O.P.No.1415 of 2014 claiming that utilising his own fund, he purchased the petition schedule property by sale deed No.3708 dated 13.10.2003 of the Sub Registrar's Office, Pattom. The appellant would

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Mat.Appeal No.193 of 2021

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contend that the said property was purchased utilising her funds also. She would contend that although she entered appearance before the Family Court, she could not file objection since she fell ill by that time. She was a resident of Calcutta and following ailments connected to cancer, she got admitted at Tata Memorial Hospital at Mumbai, where she had undergone treatment, including chemotherapy. On account of such eventualities she could not participate in the trial before the Family Court in O.P.No.1415 of 2014 or to file an appeal in time. The Family Court proceeded with O.P.No.1415 of 2014 under the provision of Order VIII, Rule 10 of the Code of Civil Procedure, 1908 for the failure of the appellant to file objection and passed a decree.

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No dispute, the decree passed invoking the provisions of Order VIII, Rule 10 of the Code is an exparte one for all practical purposes. When the appellant is able to show that she could not appear before the Family Court, Thiruvananthapuram to contest O.P.No.1415 of 2014 for valid reasons, it is only appropriate to set aside the said decree and

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Mat.Appeal No.193 of 2021

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afford, in the interest of justice, an opportunity to the appellant to contest the matter.

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In such circumstances, we allow this appeal. The judgment dated 23.07.2016 of the Family Court, Thiruvananthapuram is set aside. The Family Court will

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restore O.P.No.1415 of 2014 on file and proceed with it in accordance with law.

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It being an old case, the Family Court shall take every endeavour to dispose of the case within a period of four months from the date of production of a certified copy of this judgment.

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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

Ajanta Kolay v. Sukdev Kolay

Case brief

What is this about?

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Ajanta Kolay v. Sukdev Kolay

Case brief

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